Reversed and Remanded and Opinion filed July 8, 2014.




                                     In The

                    Fourteenth Court of Appeals

                             NO. 14-13-00356-CR

               FRANCHESKA V. JAGANATHAN, Appellant
                                       V.

                      THE STATE OF TEXAS, Appellee

                   On Appeal from the 344th District Court
                         Chambers County, Texas
                        Trial Court Cause No. 15792

                                OPINION


      Appellant Francheska V. Jaganathan appeals the trial court’s denial of a
motion to suppress. Appellant alleges that the evidence was seized during an
unlawful detention. Because the arresting officer lacked reasonable suspicion to
detain appellant for violating the “Left Lane for Passing Only” sign, we conclude
that the trial court committed harmful error when it denied appellant’s motion to
suppress. We reverse and remand.
                  I.     Factual and Procedural Background

      On the afternoon of June 5, 2010, appellant was driving east through
Chambers County, Texas in the left lane of Interstate 10. A State Trooper with the
Texas Department of Public Safety stopped appellant for driving in the left lane
without passing. During the course of the traffic stop, the State Trooper smelled
marijuana, searched appellant’s vehicle, and found marijuana in the trunk.

      Appellant was indicted for intentionally and knowingly possessing a usable
quantity of marijuana in an amount of fifty pounds or less but more than five
pounds. Appellant filed a “Motion to Suppress Evidence from Unlawful Search.”
The motion alleged that the traffic stop was unreasonable and therefore unlawful.
The court held a hearing and denied the motion. Pursuant to a plea agreement,
appellant pled guilty to the charge as stated in the indictment and was placed on
deferred adjudication. Appellant timely appealed.

                                   II.     Discussion

                              A.         Burden of Proof

      A defendant who alleges a seizure in violation of the Fourth Amendment
must produce some evidence that rebuts the presumption of proper police conduct.
Amador v. State, 275 S.W.3d 872, 878 (Tex. Crim. App. 2009). To satisfy this
burden, the defendant must establish that the search or seizure occurred without a
warrant. Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). Once the
defendant makes this showing, the State must prove that the seizure was conducted
pursuant to a warrant or was reasonable. Id. Here, it is undisputed that the
detention of appellant occurred without a warrant. Therefore, we must determine
whether the State established that the warrantless temporary detention of appellant
was reasonable.


                                             2
                           B.    Reasonable Suspicion

      A warrantless temporary detention, such as a traffic stop, is lawful when the
officer has reasonable suspicion to believe that an individual is violating the law.
Id. Reasonable suspicion exists if the officer has specific articulable facts that,
when combined with rational inferences from those facts, would lead him to
reasonably suspect that a person has engaged, is engaging, or soon will be
engaging in criminal activity. Abney v. State, 394 S.W.3d 542, 548 (Tex. Crim.
App. 2013). This objective standard disregards the officer’s subjective intent and
looks solely at whether an objective basis for the detention exists. Ford, 158
S.W.3d at 492. A reasonable-suspicion determination is made by considering the
totality of the circumstances at the time of the detention and must be based on
commonsense judgments and inferences about human behavior. Illinois v.
Wardlow, 528 U.S. 119, 125 (2000).

                            C.     Standard of Review

      Texas courts use a bifurcated standard of review to evaluate the totality of
the circumstances and determine whether reasonable suspicion exists. Abney, 394
S.W.3d at 547. We must give almost total deference to the trial court’s
determination of historical facts that are supported by the record, but we review de
novo the trial court’s application of the law to the facts that do not turn on
credibility and demeanor. Id. “A question ‘turns’ on an evaluation of credibility
and demeanor ‘when the testimony of one or more witnesses, if believed, is always
enough to add up to what is needed to decide the substantive issue.’” Id. (quoting
Loserth v. State, 963 S.W.2d 770, 773 (Tex. Crim. App. 1998)). Because the trial
court did not make explicit findings of fact in this case, we review the evidence in
a light most favorable to the trial court’s ruling and assume the trial court made
implicit findings of fact supported by the record. Ford, 158 S.W.3d at 493; State v.

                                         3
Ross, 32 S.W.3d 853, 855–56 (Tex. Crim. App. 2000). An appellate court can,
however, review de novo indisputable visual evidence contained in a video
recording. Duran, 396 S.W.3d at 570–71; see Carmouche v. State, 10 S.W.3d 323,
332 (Tex. Crim. App. 2000). The record in this case contains indisputable visual
evidence of the events at issue. We therefore apply a de novo standard of review.

                                  D.     Application

      The State was required to show that the officer had a reasonable suspicion
that appellant committed the traffic violation of driving in the left lane without
passing when an official traffic-control device prohibited doing so. See Abney, 394
S.W.3d at 548. Appellant contends that the trial court erred in denying her motion
to suppress because under these circumstances and in light of the Court of Criminal
Appeals’ recent decision in Abney, no reasonable officer would have stopped
appellant. The State responds that because appellant passed the “Left Lane for
Passing Only” sign and drove in the left lane for a half mile without passing, the
officer was justified in detaining appellant. We conclude that the officer in this
case did not have a “pre-existing sufficient quantum” of evidence to justify the
stop. See Duran, 396 S.W.3d at 569.

      Section 544.004(a) of the Texas Transportation Code states, in pertinent
part, that “[t]he operator of a vehicle or streetcar shall comply with an applicable
official traffic-control device placed as provided by this subtitle . . . .” Tex. Transp.
Code Ann. § 544.004(a) (West 2011). A “Left Lane for Passing Only” sign is an
“official traffic-control device.” See id. § 541.304(1) (West 2011). If there is a sign
present that says the left lane is for passing only, it is a traffic offense to travel in
the left lane when not passing a vehicle. Abney, 394 S.W.3d at 548; see Tex.
Transp. Code Ann. § 542.301 (West 2011).



                                           4
      The determination of whether the offense of driving in the left lane without
passing has been committed depends upon the facts of each case. Abney, 394
S.W.3d at 549–50. A court should consider the following factors when making this
determination: (1) whether the motorist passed the traffic sign; (2) whether facts
exist from which the officer can reasonably infer that the motorist passed the traffic
sign; (3) the distance the officer followed the motorist before effecting the stop;
and (4) the existence of entrances onto the highway between the sign and the
location of the stop. See id. at 449–50; see also United States v. Garcia, 976 F.
Supp. 2d 856, 863 (N.D. Tex. 2013) (applying Abney). The federal district court in
Garcia implicitly considered two additional factors within its analysis of the third
Abney factor: (1) whether the video evidence indicates that the officer observed the
defendant either actively passing another vehicle or in a position to pass another
vehicle and (2) whether the officer’s actions influenced the defendant’s behavior in
a manner that prevented the defendant from complying with the traffic regulation.
See Garcia, 976 F. Supp. 2d at 865–66.

      Abney factors (1), (2), and (4) are not applicable in this case because the
video evidence shows that appellant actually passed the “Left Lane for Passing
Only” sign. With regard to the factors that do apply, the district judge’s analysis in
Garcia is instructive. There, the video evidence showed that the defendant passed a
vehicle shortly after passing the officer’s patrol car. Id. at 865. The video evidence
also showed that the defendant was gaining speed on a large rig truck that was in
the right lane. Id. The officer accelerated to close the gap between his patrol car
and the defendant’s pickup truck before making the traffic stop and acknowledged
in testimony that it would have been unsafe for the defendant to move into the right
lane in front of the patrol car after the officer had accelerated. Id. at 865–66. The
officer further acknowledged that it was uncommon for a motorist to move his


                                          5
vehicle in front of a marked patrol car that is accelerating. Id. at 866. The officer
made the decision to pull the defendant over within the first twenty-five seconds of
seeing the defendant’s pickup truck and running the license and registration check.
Id. at 865. Based on these facts—namely, the short window of time that had
elapsed before the officer increased his speed and the fact that the defendant was in
the process of passing two other vehicles—the district judge concluded that the
officer “did not allow sufficient time for the traffic offense to occur.” Id. at 866.

      As in Garcia, the record here does not support a finding of reasonable
suspicion. First, the State Trooper was driving in the right lane when appellant
passed the “Left Lane for Passing Only” sign. From his vantage point, he could
have observed that appellant had recently passed a dark-colored pickup truck and
was increasing the distance between her car and the pickup. He could have also
seen that a white car merged from the right lane to the middle lane as appellant
passed the “Left Lane for Passing Only” sign, which may have prevented appellant
from safely moving into the middle lane.

      Second, the State Trooper’s actions may have influenced appellant’s
behavior in a manner that prevented appellant from complying with the “Left Lane
for Passing Only” sign. The State Trooper approached appellant’s vehicle at a high
rate of speed, which, based on commonsense judgment and inferences of human
behavior, could have caused appellant to slow down, effectively ending appellant’s
ability to pass the white car that had merged into the middle lane. Additionally, the
State Trooper testified that it is generally not reasonable for an individual to pull in
front of, or next to, a clearly marked police car when the police car is approaching
at a higher rate of speed.

      Third, the State Trooper did not follow appellant for a sufficient amount of
time or for a sufficient distance to conclude that appellant committed a violation.

                                           6
Only forty-five seconds elapsed from the point at which appellant passed the “Left
Turn for Passing Only” sign to the point at which appellant stopped on the
shoulder of the highway, which equates to approximately eight tenths of a mile,
based on testimony that appellant was not speeding and assuming that appellant
was traveling at the posted speed limit of sixty-five miles per hour. Additionally,
the State Trooper actually followed appellant in the left lane for only twelve
seconds before appellant began pulling over, which equates to approximately two
tenths of a mile, assuming both appellant and the State Trooper were travelling at
the posted speed limit at the time the State Trooper started following appellant.

       Finally, we consider an additional factor—whether the defendant, by driving
in the left lane, frustrated the purpose of the “Left Lane for Passing Only” signs,
which is ostensibly to promote safety and prevent undue delay caused by slower
moving vehicles. See Press Release, Tex. Dep’t of Transp., Coming Soon to a
Highway Near You—“Left Lane for Passing Only” Signs (Oct. 12, 2012),
http://www.txdot.gov/inside-txdot/media-center/statewide-news/2012-archive/050-
2012.html (last visited July 2, 2014) (“‘The use of these signs will help ensure that
vehicles travelling at the posted speed limit will not be impeded or forced to make
excessive lane changes when encountering a slower vehicle.’”). The Texas
Department of Transportation’s press release suggests that an officer’s reasonable
suspicion could be founded on evidence that a defendant was impeding traffic or
forcing other drivers to make excessive lane changes. The video in this case
indicates, however, that appellant was neither impeding traffic nor putting other
drivers’ safety at risk by travelling in the left lane.

       Although appellant was not “in the process of passing” another vehicle at the
exact moment the State Trooper initiated the traffic stop, the State Trooper did not
have reasonable suspicion that appellant committed the traffic violation of driving

                                             7
in the left lane without passing because the video showed appellant completing a
passing maneuver in close proximity to the “Left Turn for Passing Only” sign and
increasing the distance between her car and the car she passed; the video showed
that a white car merged into the middle lane, making it potentially unsafe for
appellant to change lanes; the video showed that the State Trooper approached
appellant at a high rate of speed, which could have caused her to slow down and
hindered her ability to pass the white car in the middle lane; the video showed that
the State Trooper followed appellant in the left lane for only two tenths of a mile;
and the video showed that appellant was not impeding traffic or endangering other
drivers’ safety. The trial court erred when it denied appellant’s motion to suppress.

       Having determined that the trial court erred in denying appellant’s motion
to suppress, we now consider whether the error was harmful. Under Texas Rule of
Appellate Procedure 44.2(a), if a trial court’s error violated a defendant’s
constitutional rights, we must reverse the judgment of conviction unless we
determine beyond a reasonable doubt that the error did not contribute to the
conviction or punishment. Holmes v. State, 323 S.W.3d 163, 173–74 (Tex. Crim.
App. 2010). When, as here, the State contests a defendant’s motion to suppress, the
State preserves the option to use the challenged evidence against the defendant in a
trial. See id. at 174. In this case, because the evidence seized from appellant’s
vehicle, namely the marijuana, was inculpatory and could have been used against
appellant in a trial, we cannot determine beyond a reasonable doubt that the trial
court’s erroneous denial of appellant’s motion to suppress did not contribute to
appellant's decision to plead “guilty.” See id.; Paulea v. State, 278 S.W.3d 861,
867 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d). This indicates that the trial
court’s erroneous ruling was indeed a contributing factor in appellant’s conviction
and punishment. Therefore, the error was harmful.


                                          8
      We sustain appellant’s sole issue on appeal.

                                III.   Conclusion

      Because we cannot determine that the trial court’s erroneous ruling, which
violated appellant’s Fourth Amendment rights, did not contribute to appellant’s
conviction, we reverse the trial court’s judgment and remand for a new trial
consistent with this opinion.


                                /s/         Marc W. Brown
                                            Justice

Panel consists of Justices Boyce, Christopher, and Brown.
Publish — TEX. R. APP. P. 47.2(b).




                                        9
