                                     In The
                                Court of Appeals
                       Seventh District of Texas at Amarillo

                                     No. 07-12-00149-CR


                              JARRED ALFORD, APPELLANT

                                             V.

                            THE STATE OF TEXAS, APPELLEE

                         On Appeal from the County Court at Law No. 1
                                    Lubbock County, Texas
                Trial Court No. 2011-464,220, Honorable Mark Hocker, Presiding

                                       July 30, 2014

                              MEMORANDUM OPINION
                    Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


       A jury found appellant Jarred Alford guilty of driving while intoxicated1 and the

trial court assessed punishment at confinement in the county jail for 120 days,

suspended for twelve months. Through one issue, appellant challenges the trial court’s

denial of his pre-trial motion to suppress. We will overrule appellant’s issue and affirm

the judgment of the trial court.




       1
           See TEX. PENAL CODE ANN. § 49.04(a), (b) (West Supp. 2014).
                                       Background


       The Texas Department of Public Safety trooper was the only witness at the

hearing on the motion to suppress. He testified he was on patrol in the early morning

hours and pulled his vehicle to a stop at a red traffic signal in Lubbock County. When

the light turned green, he accelerated away from the intersection to approximately fifty

miles per hour. The speed limit on the two-lane highway was sixty-five miles an hour.

As he picked up speed, the trooper saw the headlights of a vehicle overtaking him from

the rear. Appellant was the operator of the vehicle.


       Although there was no oncoming traffic, appellant did not attempt to pass.

Rather he pulled in behind the trooper and followed the patrol car for about a quarter

mile. The trooper said appellant’s vehicle was so close to his that he could not see out

his rearview mirror because of the glare from appellant’s headlights. In the trooper’s

opinion, appellant was following him so closely that had a road condition required

“evasive action,” the vehicles would have collided. Concerned at the risk of a collision,

the trooper pulled onto the shoulder and appellant drove past in the same lane. The

trooper activated his vehicle’s emergency lights to initiate a traffic stop and, when

appellant did not promptly stop, activated his siren.


       After the vehicles stopped, the trooper spoke with appellant to advise him he was

following the patrol car too closely. After an investigation, the trooper arrested appellant

for driving while intoxicated.    He was charged by information with that offense.

Appellant’s motion to suppress evidence of the traffic stop was overruled and the case

proceeded to trial with the stated outcome. This appeal followed.



                                             2
                                          Analysis


         Through his sole issue, appellant contends the trial court abused its discretion by

denying his motion to suppress evidence of the traffic stop.


         We review a trial court’s ruling on a motion to suppress under a bifurcated

standard of review, giving almost total deference to a trial court’s determination of

historical facts and reviewing de novo the court’s application of the law. Wiede v. State,

214 S.W.3d 17, 24-25 (Tex. Crim. App. 2007); Maxwell v. State, 73 S.W.3d 278, 281

(Tex. Crim. App. 2002); Guzman v. State, 955 S.W.2d 85, 87-90 (Tex. Crim. App.

1997).


         When as here the trial court makes findings of fact and conclusions of law with its

ruling on a motion to suppress, an appellate court does not engage in its own factual

review, but determines only whether the record supports the trial court’s fact findings.

Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). Unless the trial court

abused its discretion by making a finding not supported by the record, a reviewing court

will defer to the trial court’s fact findings and not disturb the findings on appeal. Cantu v.

State, 817 S.W.2d 74, 77 (Tex. Crim. App. 1991). A reviewing court addresses only the

question of whether the trial court properly applied the law to the facts. Romero, 800

S.W.2d at 543.


         A police officer lawfully may temporarily detain an individual when he has a

reasonable suspicion the individual is violating the law, that is, when the officer has

specific, articulable facts that, combined with rational inferences from the facts, would

lead to a reasonable conclusion that a particular person is, has been, or soon will be


                                              3
engaged in criminal activity. Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App.

2005). It is a wholly objective standard that disregards the officer’s subjective intent,

and depends on the totality of the circumstances. Id. at 492-93. Police officers may

justifiably draw inferences from visual observations based on their experiences in law

enforcement. Bass v. State, 64 S.W.3d 646, 650 (Tex. App.—Texarkana 2001, pet.

refused).


       “An operator shall, if following another vehicle, maintain an assured clear

distance between the two vehicles so that, considering the speed of the vehicles, traffic,

and the conditions of the highway, the operator can safely stop without colliding with the

preceding vehicle or veering into another vehicle, object, or person on or near the

highway.” TEX. TRANSP. CODE ANN. § 545.062(a) (West 2011). “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).


       Appellant’s issue contains two arguments. First, that law enforcement cannot

violate the traffic laws and create reasonable suspicion for a traffic stop, and second

that the conduct of appellant did not create reasonable suspicion for a traffic stop

because he was reacting to the trooper’s “clearly illegal and irregular driving.”


       The thrust of appellant’s first argument is the trooper deliberately violated

Transportation Code section 545.363(a) and created a “rolling roadblock”2 in an attempt


       2
         Appellant does not elaborate on the meaning of this term. According to the
Fourth Circuit, “[a] rolling roadblock is a procedure whereby a police vehicle takes up a
position in front of, traveling in the same direction and at roughly the same speed as,

                                             4
to bait him into a traffic violation. He asserts the trooper’s suspicion was

“manufactured.” We will not consider what effect such deliberate conduct, if proven,

might have on a determination of reasonable suspicion3 because in this case

appellant’s theory of the evidence finds no support in the trial court’s findings and

conclusions, or in the evidence adduced at the hearing.


       Keeping in mind the deferential nature of our review of the trial court’s fact-

finding, Cantu, 817 S.W.2d at 77, we note that the trial court found credible the

testimony of the trooper, the only witness at the hearing on appellant’s motion. The

court made no findings supportive of appellant’s theory the trooper deliberately impeded

his vehicle’s progress down the highway. To the contrary, the court found that appellant

easily could have passed the trooper’s patrol car, but never made an attempt to do so

until the trooper pulled to the side. The court’s findings are supported by the evidence.

The testimony contains no suggestion of an intention on the trooper’s part to impede

appellant’s progress.


       Nor does the evidence demonstrate the officer violated section 545.363(a).

“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.


the pursued vehicle. The police vehicle then occupies both lanes of the road,
attempting to force the fleeing car to slow down and eventually stop.” Carter v. Lucas,
No. 93-1804, 1994 U.S. App. Lexis 18235, at *5 (4th Cir. July 20, 1994) (per curiam).

       3
         Appellant argues the trooper’s conduct is analogous to situations in which
officers create an exigent circumstance and then rely on the exigency to support a
warrantless search. See, e.g., Blevins v. State, 74 S.W.3d 125, 134 (Tex. App.—Fort
Worth 2002) (Dauphinot, J., dissenting) (citing United States v. Webster, 750 F.2d 307,
327 (5th Cir. 1984)). We express no opinion on the efficacy of the analogy.


                                            5
Safety v. Gonzales, 276 S.W.3d 88, 93 (Tex. App.—San Antonio 2008, no pet.). In

Richardson v. State, 39 S.W.3d 634 (Tex. App.—Amarillo 2000, no pet.), we found the

evidence insufficient to support a reasonable suspicion that the defendant was impeding

traffic in violation of section 545.363(a). We noted the defendant was driving forty-five

miles per hour in the right-hand lane and slowly increased his speed to fifty-seven miles

per hour when a trooper pulled behind him; only one vehicle passed the defendant; and

there were no vehicles behind the defendant waiting to pass. 39 S.W.3d at 636-39.


       In the present case, the trooper pulled away from a stoplight eventually reaching

a speed of about fifty miles per hour.       At about the same time, appellant quickly

approached from the rear. No evidence shows any other traffic on the road at the time.

Under those circumstances, rather than passing the trooper, appellant followed the

trooper for a quarter mile so closely that the trooper could not use his rearview mirror

and was concerned over the prospect of a collision. These facts present no evidence

the trooper was impeding the normal and reasonable movement of traffic in violation of

section 545.363(a).


       By his second argument appellant urges his reaction to the trooper’s driving was

not so unusual as to give rise to a reasonable suspicion that crime was afoot. The

trooper’s testimony citing the close proximity of appellant’s pickup to the trooper’s patrol

car, the vehicles’ relative speeds, and the safety concerns raised in the trooper’s mind,

causing the trooper to pull to the shoulder, articulated facts giving the trooper a

reasonable suspicion appellant’s actions were violative of section 545.062(a). That

appellant kept his vehicle in that position unnecessarily for some distance further

bolsters the reasonableness of the trooper’s suspicion. Based on the record and the

                                             6
trial court’s findings, the trooper possessed reasonable suspicion to believe appellant

was not maintaining the “assured clear distance” between vehicles required by section

545.062(a). See Stoker v. State, 170 S.W.3d 807, 812-13 (Tex. App.—Tyler 2005, no

pet.) (affirming finding of reasonable suspicion of violation of section 545.062 from

officer’s testimony he saw defendant’s vehicle “right up on another” while “traveling at a

high rate of speed” such that defendant could not have safely stopped his vehicle,

distinguishing Ford, 158 S.W.3d 488). He was therefore justified in initiating a traffic

stop.


                                        Conclusion


        We overrule appellant’s sole issue and affirm the judgment of the trial court.




                                                  James T. Campbell
                                                      Justice


Do not publish.




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