Reversed and Remanded and Majority and Dissenting Opinions filed April 3, 2012.




                                             In The

                            Fourteenth Court of Appeals
                                    ___________________

                                      NO. 11-00500-CR
                                    ___________________

                           JOSEPH DELAFUENTE, Appellant

                                                V.

                            THE STATE OF TEXAS, Appellee


                        On Appeal from the County Court at Law
                                Waller County, Texas
                              Trial Court No. CC09-704


                             DISSENTING OPINION

       This court should affirm the trial court’s denial of appellant’s motion to suppress
because the record contains evidence of specific, articulable facts that support a reasonable
suspicion that the vehicle in which appellant was riding was impeding traffic. Because
this court fails to do so, I respectfully dissent.
          During a traffic stop, appellant, who was a passenger in the vehicle, was arrested
and charged with the class B misdemeanor of possession of marijuana. He filed a motion
to suppress evidence, challenging the officer’s reasonable suspicion for initiating the traffic
stop.     Following a hearing, the trial court denied appellant’s motion to suppress.
Appellant then pleaded “guilty” to the charged offense.              The trial court assessed
appellant’s sentence at three days’ confinement and levied a fine.             Appellant now
challenges the trial court’s denial of his motion to suppress, asserting in a single issue that
the trial court erred in refusing to suppress evidence because the State did not produce
evidence of specific, articulable facts demonstrating that a reasonable suspicion existed for
the traffic stop. The majority agrees. But the record evidence supports the trial court’s
ruling.

          An officer may stop and detain a person if the officer has reasonable suspicion that a
traffic violation was in progress or had been committed. Kelly v. State, 331 S.W.3d 541,
549 (Tex. App.—Houston, 2011, pet. ref’d). Reasonable suspicion exists if 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 actually is, has been, or
soon will be engaged in criminal activity. Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim.
App. 2005); Mount v. State, 217 S.W.3d 716, 727-28 (Tex. App.—Houston [14th Dist.]
2007, no pet.). This is an objective standard, which requires the court to disregard any
subjective intent of the officer making the stop and look solely to whether an objective
basis for the stop exists.         Ford, 158 S.W.3d at 492.           A reasonable-suspicion
determination is made by considering the totality of the circumstances. Id. at 492–93.

          The record reflects that on June 24, 2009, at approximately 9:12 a.m., Officer Brian
Davis was patrolling Interstate 10 in Waller County when he observed traffic congestion in
the inside, westbound lane and moderate traffic volume. Officer Davis saw a vehicle, in
which appellant was a passenger, traveling below the speed limit of 65 miles-per-hour,

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leading him to believe the vehicle was impeding traffic. Using his Doppler radar unit,
Officer Davis calculated the speed of the vehicle at 52 miles-per-hour. Officer Davis then
initiated a traffic stop by activating his rear emergency lights to move from the center lane
to the inside lane, where the vehicle was moving. According to the officer, the vehicle
immediately yielded to the inside shoulder. Upon approaching the vehicle, Officer Davis
instantly detected a strong odor of marijuana. Appellant admitted the marijuana belonged
to him.

         As reflected in his report, Officer Davis had reason to believe the vehicle was
impeding traffic. Under Texas law, “an operator may not drive so slowly as to impede the
normal and reasonable movement of traffic except when reduced speed is necessary for
safe operation or in compliance with law.” Tex. Transp. Code Ann. § 545.363(a) (West
2011).    As the majority points out, in interpreting section 545.363(a), Texas courts
interpreting section 545.363(a) have held that slow driving, in and of itself, is not a
violation of the statute; a violation only occurs when the normal and reasonable movement
of traffic is impeded. Tex. Dep’t of Pub. Safety v. Gonzales, 276 S.W.3d 88, 93 (Tex.
App.—San Antonio 2008, no pet.). Courts have held that this statute is violated if there is
evidence that traffic was backed up due to the defendant’s slow driving or that the
defendant’s vehicle was completely stopped in a lane of traffic. See id.

         Although the majority concludes that Officer Davis’s offense report lacks any
evidence that the normal and reasonable movement of traffic was impeded by the driving
of the vehicle, the record contains sufficient facts to support Officer Davis’s belief that the
vehicle was impeding traffic. See, e.g., id. (concluding no evidence existed to find normal
and reasonable flow of traffic was impeded by appellant’s driving when officer could not
recall traffic conditions at time of traffic stop); Davy v. State, 67 S.W.3d 382, 393 (Tex.
App.—Waco 2001, no pet.) (holding evidence was factually insufficient to support traffic



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stop based on reasonable suspicion when no other cars were in area when officer stopped
appellant).

       The majority states that the “report perhaps implies, but does not state, that
appellant’s vehicle was traveling in the inside westbound lane.” But Officer Davis stated
in the offense report that he “observed a traffic congestion in the inside westbound lane.”
In reaching its conclusion, the majority fails to mention an additional portion of the offense
report, which shows that appellant was indeed traveling in the inside westbound lane, in the
same area where Officer Davis observed traffic congestion. As reflected in the report,
Officer Davis specifically stated:

       Initiation of the traffic stop required utilizing the rear emergency lights on
       the patrol vehicle to allow a safe lane change of my patrol vehicle, from the
       center to the inside lane. The driver of the Chevrolet sedan immediately
       yielded to the inside shoulder.

       Officer Davis expressly stated in his offense report that he saw traffic congestion in
the inside lane. This was the same lane in which Officer Davis observed the vehicle
traveling 52 miles-per-hour and impeding traffic. The cases in which courts have refused
to find a violation of section 545.36(a) have pointed to a lack of evidence concerning traffic
conditions at the time of the traffic stop. See, e.g., Gonzales, 276 S.W.3d at 94 (finding no
evidence existed to conclude normal and reasonable flow of traffic was impeded by
appellant’s driving when officer could not recall traffic conditions at time of traffic stop);
Davy, 67 S.W.3d 382 at 393 (holding evidence was factually insufficient to support traffic
stop based on reasonable suspicion when no other cars were in area when officer stopped
appellant). These cases are factually distinguishable because in the case under review,
Officer Davis expressly stated that he observed moderate traffic volume and traffic
congestion in the inside, westbound lane when he stopped the vehicle for impeding traffic
by driving 52 miles per hour in the inside lane.


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       The majority cites to Ford v. State, a case in which the Texas Court of Criminal
Appeals reversed a trial court’s finding of reasonable suspicion because there was a lack of
specific, articulable facts. See 158 S.W.3d at 488. But, the facts of Ford differ in notable
ways from the facts before this court. In Ford, the officer’s only testimony was that the
appellant was “following too close” behind another vehicle. Id. at 491. Without more
specific, articulable facts, the Ford court reasoned, the officer’s testimony was conclusory
and insufficient to objectively determine that appellant was violating a traffic law. Id. at
493. In today’s case, Officer Davis stated not only that he observed traffic congestion in
the inside, westbound lane, but also that the vehicle was impeding traffic by driving too
slowly, specifically, 13 miles per hour below the speed limit. Further, Officer Davis
stated that traffic volume was moderate and he initiated the traffic stop after moving from
the center to the inside lane, where the vehicle proceeded to move to the inside shoulder.
Unlike the scenario in Ford, the record in today’s case contains numerous, specific facts
allowing the trial court to determine the circumstances upon which Officer Davis
reasonably could conclude that the driver of the vehicle was violating a traffic law.

       In sum, the evidence in the record supports the trial court’s conclusion that Officer
Davis had reasonable suspicion to initiate a traffic stop. Because the traffic stop was
based on Officer Davis’s observation that the vehicle in which appellant was riding was
moving slowly and impeding traffic, there was no basis for suppressing evidence obtained
during the search of the vehicle. See Moreno v. State 124 S.W.3d 339, 346-47 (Tex.
App.—Corpus Christi 2003, no pet.) (upholding trial court’s implicit denial of motion to
suppress after finding probable cause existed for impeding-traffic violation based on
arresting officer’s observation that appellant was driving 25-miles-per-hour in a
45- mile-per-hour zone in an area with medium to heavy traffic.) The trial court did not
err in overruling appellant’s motion to suppress and its ruling should be upheld. See
Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003) (“The court of appeals
was obligated to uphold the trial court’s ruling on appellant's motion to suppress if that

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ruling was supported by the record and was correct under any theory of law applicable to
the case.”). This court should overrule appellant’s sole issue and affirm the trial court’s
judgment.




                                          /s/       Kem Thompson Frost
                                                    Justice

Panel consists of Justices Frost, Seymore, and Jamison. (Jamison, J., majority).
Publish — TEX. R. APP. P. 47.2(b).




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