Opinion filed December 17, 2009




                                              In The


   Eleventh Court of Appeals
                                           ____________

                                     No. 11-08-00136-CR
                                         __________

                          VICENTE HERNANDEZ, Appellant
                                       V.
                             STATE OF TEXAS, Appellee


                        On Appeal from the County Court at Law No. 2
                                    Ector County, Texas
                               Trial Court Cause No. 07-1984


                             MEMORANDUM OPINION

       After the trial court denied his written pretrial motion to suppress, appellant, Vicente
Hernandez, entered a plea of guilty to the offense of driving while license suspended. The trial court
assessed his sentence at confinement in the Ector County Jail for a term of three days and a fine of
$500. We affirm.
                                         Background Facts
       During the early morning hours of April 25, 2007, Officer James Matthew Davidson of the
Odessa Police Department was assigned to patrol the “north sector” of Odessa. While patrolling in
the vicinity of the Sherwood Medical Center, Officer Davidson observed a vehicle occupied by
appellant parked behind the building with its lights turned off. Officer Davidson made a U-turn in
order to go back to the vehicle to check on it. While Officer Davidson made the U-turn, the vehicle
left from its parked position behind the building. Officer Davidson began following the vehicle. He
subsequently stopped the vehicle.
        Officer Davidson advised appellant that he pulled him over because he was “a suspicious
person at a suspicious place.” In this regard, Officer Davidson described the area around the center
as a problem area because of graffiti, burglary, and criminal mischief. He testified that the area is
frequently patrolled by police officers because of its history of problems. Officer Davidson stated
that there are never any cars parked behind the center at that time of night. Officer Davidson
additionally testified that he became more suspicious when appellant left from his parked position
when the officer drove by him in a marked patrol unit. On cross-examination, Officer Davidson
denied observing appellant committing any traffic violations.
                                           Standard of Review
        A trial court’s denial of a motion to suppress is reviewed for an abuse of discretion.
Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002). We use a bifurcated standard of
review in analyzing the trial court’s ruling. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App.
2007). When a trial court’s fact findings are based on an evaluation of witness credibility or
demeanor, almost total deference is given to its factual determinations that are supported by the
record. St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007). However, on mixed
questions of law and fact that do not turn on the trial court’s evaluation of witness credibility and
demeanor, we conduct a de novo review. Amador, 221 S.W.3d at 673. When, as here, no findings
of fact were requested or filed, we review the evidence in the light most favorable to the trial court’s
ruling and assume that the trial court made implicit findings of fact supported by the record. See
State v. Ross, 32 S.W.3d 853, 855-56 (Tex. Crim. App. 2000).
                                                 Analysis
        In a single issue, appellant argues that the trial court erred in denying his motion to suppress
because the evidence of his guilt was obtained “as the result of an illegal arrest.” We note at the
outset that appellant is asserting that his arrest was illegal because Officer Davidson did not have a
sufficient basis for initiating the traffic stop that led to his arrest. Accordingly, we direct our analysis
to reviewing Officer Davidson’s basis for stopping appellant’s vehicle.




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        Under Terry v. Ohio, 392 U.S. 1 (1968), the police can stop and briefly detain a person for
investigative purposes if they have a reasonable suspicion supported by articulable facts that criminal
activity may be afoot. United States v. Sokolow, 490 U.S. 1, 7 (1989) (citing Terry, 392 U.S. at 30).
Reasonable suspicion exists when, based on the totality of the circumstances, the officer has specific,
articulable facts that, when combined with rational inferences from those facts, would lead him to
reasonably conclude that a particular person is, has been, or soon will be engaged in criminal
activity. Ford v. State, 158 S.W.3d 488, 492-93 (Tex. Crim. App. 2005). This is an objective
standard that disregards any subjective intent of the officer making the stop and looks solely to
whether an objective basis for the stop exists. Id. at 492. Because reasonable suspicion is an
objective determination, the officer’s motives for conducting the stop are irrelevant to the validity
of the stop. Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001). Whether the totality of
the circumstances is sufficient to support an officer’s reasonable suspicion is a legal question that
we review de novo. See Madden v. State, 242 S.W.3d 504, 517 (Tex. Crim. App. 2007).
        We begin our analysis by noting that there are Texas cases that have analyzed similar facts
with differing results to determine if a police officer had sufficient grounds for initiating a traffic
stop. For example, in Tanner v. State, 228 S.W.3d 852 (Tex. App.—Austin 2007, no pet.), the court
of appeals affirmed the trial court’s determination that an officer had reasonable suspicion for
initiating a traffic stop of an individual walking away from the darkened area behind a business that
had already closed for the night. In Klare v. State, 76 S.W.3d 68 (Tex. App.—Houston [14th Dist.]
2002, pet. ref’d), the court of appeals reversed the trial court’s denial of a motion to suppress the
results of a traffic stop initiated after an officer observed a vehicle parked behind a strip shopping
center at 2:30 a.m.
        Given the holding in Klare and its similarity to the facts in this appeal, we focus our attention
on its analysis. The officer in Klare testified that he initiated the stop based upon the time of day that
he made the observation, the proximity of the parked vehicle to a closed business, and a history of
burglaries in the area. Id. at 73-75. The court determined that each of these factors, taken
individually, will not justify an investigative stop. Id. In this regard, the court stated as follows:
        A lawful stop must be based on more than a vehicle’s suspicious location or time of
        day. Although relevant to our analysis, both time of day and the level of criminal
        activity in the area are facts which focus on the suspect’s surroundings rather than on



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        the suspect himself. Consequently, courts generally require an additional fact or facts
        particular to the suspect’s behavior to justify a suspicion of criminal activity.

Id. at 75.
        For the reasons stated in the dissenting opinion in Klare and the majority opinion in Tanner,
we disagree with the result reached in Klare. Tanner, 228 S.W.3d 857-59; Klare, 76 S.W.3d at 77-
78. We should not focus on each factor observed by the officer on an isolated, piecemeal basis.
Instead, we are required to review the totality of the circumstances to assess the reasonable suspicion
for an investigative stop. In this regard, Officer Davidson observed appellant’s vehicle parked with
its lights out in a high-crime area near a business that had been closed for several hours. When
viewed together, these factors are “unusual and highly consistent with criminal behavior.” Tanner,
228 S.W.3d at 858. Furthermore, Officer Davidson possessed the additional fact that the vehicle
drove away from its parked position when he drove past it. We conclude that the trial court did not
err in determining that Officer Davidson’s stop of appellant’s vehicle was supported by reasonable
suspicion. Appellant’s sole issue is overruled.
                                         This Court’s Ruling
        The judgment of the trial court is affirmed.




                                                               TERRY McCALL
                                                               JUSTICE


December 17, 2009
Do not publish. See TEX . R. APP . P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.




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