                               Fourth Court of Appeals
                                      San Antonio, Texas
                                  MEMORANDUM OPINION

                                          No. 04-17-00740-CR

                                         The STATE of Texas,
                                              Appellant

                                                    v.

                                      Dyandra Christine YSASSI,
                                              Appellee

                      From the County Court at Law No. 5, Bexar County, Texas
                                      Trial Court No. 485307
                             Honorable John Longoria, Judge Presiding

Opinion by:       Patricia O. Alvarez, Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Marialyn Barnard, Justice
                  Patricia O. Alvarez, Justice

Delivered and Filed: December 19, 2018

REVERSED AND REMANDED

           This appeal arises from the trial court’s order granting Appellee Dyandra Christine Ysassi’s

motion to suppress evidence. On appeal, the State contends the trial court failed to: (1) objectively

apply the standard of reasonable suspicion, and (2) view the evidence, supporting reasonable

suspicion to initiate the traffic stop, under the totality of the circumstances. Because we conclude

the State met its burden to show the officer’s observations of Ysassi’s driving behavior constituted

a traffic violation, the officer possessed reasonable suspicion to stop Ysassi regardless of his

subjective intent; the trial court therefore erred in granting Ysassi’s motion to suppress.
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Accordingly, we reverse the trial court’s order, and remand this matter to the trial court for further

proceedings consistent with this opinion.

                           PROCEDURAL AND FACTUAL BACKGROUND

       On the morning of March 10, 2015, Sergeant Marcus Williams was patrolling the Medical

Center area, in San Antonio, Bexar County, Texas, when he observed a Kia Optima braking

repeatedly, change lanes without signaling a blinker, and swerve towards the center median.

Sergeant Williams initiated a traffic stop for unusual driving behavior; Ysassi was identified as the

driver of the vehicle. Based on his observations and training, Sergeant Williams suspected the

driver was impaired and began investigating his suspicion that Ysassi was driving while

intoxicated. After Sergeant Williams administered a field sobriety test, Ysassi was arrested and

charged with the offense of driving while intoxicated.

       Contending Sergeant Williams did not have reasonable suspicion to initiate the traffic stop,

Ysassi filed a motion to suppress any and all evidence resulting from the stop. During the hearing,

Sergeant Williams testified that he witnessed Ysassi repeatedly brake without an apparent cause.

He further explained that his DWI training taught that repeated braking is potentially a sign of

operator impairment.

       The State presented two videotaped recordings during the motion to suppress: one from

the dashcam of the patrol vehicle and the other from the officer’s bodycam. The videotaped

recording from Sergeant Williams’ patrol vehicle depicted Ysassi’s vehicle brake several times

and change from the center lane to the left lane without using her blinker to signal. The videotaped

recording showed Sergeant Williams pull Ysassi’s vehicle over into a Jack in the Box parking lot.

The second videotaped recording, Sergeant Williams’s body camera footage, provided evidence

of Ysassi’s behavior after the officer stopped her vehicle and their conversations during the initial

detention.
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        At the conclusion of the suppression hearing, the trial court granted Ysassi’s motion to

suppress. Thereafter, the trial court issued written findings of fact and conclusions of law in

support of its ruling.

                                              I. Findings of Fact
                ....
        3.    Officer Williams was credible.
                ....
        5.    Officer Williams observed the Defendant apply her brakes.
                ....
        8.    Defendant made a lateral movement into an adjacent lane without a signal.
                ....
        14.   There were no other cars in the lane.
        15.   There were no cars that were near the Defendant as she made the movement.
                ....
        20.   Officer Williams believe[d] the Defendant was, had been or soon would be
              engaged in criminal conduct.


                                        II. Conclusions of Law
                ....
        2.    The Court finds that Officer Williams lacked reasonable suspicion to seize
              and or detain the Defendant on March 10, 2015.
                ....
        4.    . . . Further, the trial court is free to believe or disbelieve any or all parts of
              the witness’s testimony and the Court accepted Officer Williams belief that
              no criminal activity had, was or was about to be committed.

                                      REASONABLE SUSPICION

        The State contends Sergeant Williams had reasonable suspicion to stop Ysassi based on an

objective view of the totality of the circumstances, and the trial court thus erred in granting Ysassi’s

motion to suppress.




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A.     Standard of Review

       In a motion to suppress evidence based on a Fourth Amendment violation, “the defendant

bears the initial burden of producing evidence that rebuts the presumption of proper police conduct.

A defendant satisfies this burden by establishing that a search or seizure occurred without a

warrant.” Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005) (internal citations omitted);

accord State v. Hneidy, 510 S.W.3d 458, 462 (Tex. App.—San Antonio 2013, pet. ref’d). The

State stipulated Ysassi’s arrest was made without a warrant. “Once the defendant has made this

showing, the burden of proof shifts to the State where it is required to establish that the search or

seizure was conducted pursuant to a warrant or was reasonable.” Ford, 158 S.W.3d at 492 (citing

Bishop v. State, 85 S.W.3d 819, 822 (Tex. Crim. App. 2002)); accord Hneidy, 510 S.W.3d at 462.

Therefore, we must determine whether the State established that Sergeant Williams’s traffic stop

of Ysassi was reasonable.

       Reasonable suspicion is determined under the totality of the circumstances. Ford, 158

S.W.2d at 493; Hneidy, 510 S.W.3d at 463. An appellate court utilizes a bifurcated standard of

review affording “almost total deference to the trial court’s determination of historical facts and

review de novo the trial court’s application of law to facts not turning on credibility and

demeanor.” Ford, 158 S.W.3d at 493 (citing Guzman v. State, 955 S.W.2d 85, 88–89 (Tex. Crim.

App. 1997)); Hneidy, 510 S.W.3d at 463. “Whether there was reasonable suspicion to detain

[Ysassi] is not a function of [Sergeant Williams’s] demeanor or credibility, but of the legal

significance of the essentially uncontested facts. The ultimate question of whether [Sergeant

Williams] was indeed ‘justified in stopping’ [Ysassi’s vehicle], we review de novo.” Leming v.

State, 493 S.W.3d 552, 562 (Tex. Crim. App. 2016) (quoting Amador v. State, 221 S.W.3d 666,

673 (Tex. Crim. App. 2007)).



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B.     Reasonableness

       The Fourth Amendment protects against unreasonable searches without a warrant. U.S.

CONST. amend. IV. “Necessarily swift police action predicated upon the on-the-spot observations

of the officer on the beat . . . historically has not been, and as a practical matter could not be,

subjected to the warrant procedure,” instead the officer’s conduct “must be tested by the Fourth

Amendment’s general proscription against unreasonable searches and seizures.” Terry v. Ohio,

392 U.S. 1868, 1879 (1968); see also Ramirez-Tamayo v. State, 537 S.W.3d 29, 36–37 (Tex. Crim.

App. 2017). “There is no ready test for determining reasonableness other than by balancing the

need to search against the invasion which the search entails.” Terry, 392 U.S. at 1879.

       In justifying the reasonableness of Sergeant Williams’s conduct, he “must have specific,

articulable facts that, when combined with rational inferences therefrom, lead him to reasonably

conclude that a particular person actually is, has been, or soon will be, engaged in criminal

activity.” Arguellez v. State, 409 S.W.3d 657, 663 (Tex. Crim. App. 2013) (citing Castro v. State,

227 S.W.3d 737, 741 (Tex. Crim. App. 2007)); see also Ford, 158 S.W.3d at 492. The court

assesses the reasonableness of police conduct under “an objective standard that disregards any

subjective motive or intent of the officer and ‘looks solely to whether an objective basis for the

stop exists’ based on the totality of the circumstances.” Ford, 158 S.W.3d at 492 (quoting Terry,

392 U.S. at 1880); accord Arguellez, 409 S.W.3d at 663 (“This standard is objective, thus there

need be only an objective basis for the stop; the subjective intent of the officer is irrelevant.”).

C.     Analysis

       In its brief, the State contends Sergeant Williams had reasonable suspicion, under the

totality of the circumstances, to stop Ysassi because she (1) failed to signal before changing lanes

and (2) repeatedly braked in an unusual manner.



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       1.        Failing to Signal Before Changing Lanes

       In its findings of fact, the trial court found that Sergeant Williams observed Ysassi commit

a traffic violation by switching from the center lane, without using a turn signal. See Trial Court’s

Finding of Fact #8 (“Defendant made a lateral movement into an adjacent lane without a signal.”).

Sergeant Williams testified that although he believed Ysassi “committed an act in violation of the

Texas Transportation Code,” he did not initiate a stop immediately. Instead, for the next thirty

seconds, Sergeant Williams continued to follow the vehicle. As Ysassi approached the intersection

of Babcock and Melton Minter, she continued to brake on and off through a green light. Sergeant

Williams decided to stop the vehicle at that point, based on the erratic behavior.

       Sergeant Williams testified that although he did not stop her at the time, he was aware that

failing to signal a blinker before changing lanes was a violation of the Texas Transportation Code.

TEX. TRANSP. CODE ANN. § 545.104(a) (an “operator shall use the signal authorized by Section

545.106 to indicate an intention to turn, change lanes, or start from a parked position”). “The

decision to stop an automobile is reasonable where an officer has probable cause to believe that a

traffic violation has occurred.” Whren v. United States, 116 U.S. 1769, 1772 (1996); Ford, 158

S.W.3d at 492.

       As the Court of Criminal Appeals explained in Walter v. State, “a police officer’s

subjective motive will never invalidate objectively justifiable behavior under the Fourth

Amendment. Subjective intentions play no role in an ordinary, probable-cause Fourth Amendment

analysis.” 28 S.W.3d 538, 542 (Tex. Crim. App. 2000) (citing Whren, 116 U.S. at 1772); accord

Jordan v. State, 394 S.W.3d 58, 65 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d). “[T]he fact

that the officer does not have the state of mind which is hypothecated by the reasons which provide

the legal justification for the officer’s action does not invalidate the action taken as long as the

circumstances, viewed objectively, justify that action.” Whren, 116 U.S. at 1774 (quoting Scott v.
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United States, 436 U.S. 128, 138). Because Sergeant Williams’s observations of Ysassi’s driving

behavior constituted a traffic violation, he had reasonable suspicion to stop Ysassi regardless of

his subjective intent. Id. We therefore conclude the trial court erred in holding otherwise.

       We next turn to the trial court’s conclusions pertaining to Ysassi’s unusual braking activity.

       2.      Repeated Braking

       The trial court also found Ysassi’s unusual braking was not a violation of the Texas

Transportation Code and thus could not be considered reasonable suspicion supporting a traffic

stop. The State contends the trial court erroneously analyzed the erratic braking in isolation.

Reasonable suspicion is properly determined by an objective view based on the totality of the

circumstances. See Terry, 392 U.S. at 1880; see also Leming, 493 S.W.3d at 563; Ford, 158

S.W.3d at 492; Hneidy, 510 S.W.3d at 463.

       Sergeant Williams testified there were no cars in front of Ysassi and that he did not observe

any obstruction requiring Ysassi to apply her brakes. Gonzalez v. State, No. 05-09-01296-CR,

2011 WL 5119440, at *2 (Tex. App.—Dallas Oct. 28, 2011, pet. ref’d) (mem. op., not designated

for publication) (emphasizing that the officer saw no obstruction in the roadway to account for the

drifting of appellant’s vehicle). Sergeant Williams specifically testified that repeated braking,

without an apparent cause could be an indication of an impaired driver. Navarette v. California,

134 U.S. 1683, 1690–91 (2014) (concluding dangerous behaviors such as weaving and crossing

over lines justifies a traffic stop on suspicion of drunk driving); see also State v. Mendoza, 365

S.W.3d 666, 671 (Tex. Crim. App. 2012).

       An improper lane change and unusual braking are specific articulable facts to which

Sergeant Williams testified he observed and the trial court found Sergeant Williams’s testimony

credible. Contra Mendoza, 365 S.W.3d at 668–69 (remanding because trial court’s factual

findings were ambiguous and did not contain any reliability determinations); Smith v. State, No.
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07-12-00053-CR, 2013 WL 6255547, at *1 (Tex. App. Amarillo Nov. 25, 2013, pet. ref’d) (mem.

op. not designated for publication). The trial court also made explicit findings that Sergeant

Williams was credible, and that Ysassi applied her brakes and changed lanes without signaling.

We must therefore determine “whether the trial court properly applied the law to the facts.” State

v. Gray, 158 S.W.3d 465, 467, 469 (Tex. Crim. App. 2005); Guzman, 955 S.W.2d at 86–87, 89.

       Based on a review of the record, we conclude Sergeant Williams provided specific,

articulable facts—the combination of Ysassi’s improper lane change and repeated braking—that

when combined with his experience and training, amounted to reasonable suspicion that Ysassi

was engaged in criminal activity. Mendoza, 365 S.W.3d at 671. Therefore, because Sergeant

Williams’s subjective intentions, to stop Ysassi for unusual braking, could not invalidate his

objectively justifiable behavior in initiating the stop under the Fourth Amendment, failure to signal

lane change, we conclude the trial court failed to properly apply the law to the facts, and the trial

court erred in granting Ysassi’s motion to suppress. See Leming, 493 S.W.3d at 562.

                                           CONCLUSION

       Because we conclude the State met its burden to show that Sergeant Williams’s

observations of Ysassi’s driving behavior constituted a traffic violation, the officer possessed

reasonable suspicion to stop Ysassi regardless of his subjective intent; the trial court therefore

erred in granting Ysassi’s motion to suppress. Accordingly, we reverse the trial court’s order and

remand this matter to the trial court for further proceedings consistent with this opinion.

                                                  Patricia O. Alvarez, Justice

DO NOT PUBLISH




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