Opinion issued December 15, 2016




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-15-00805-CR
                           ———————————
                      STEVEN KENT SMITH, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


          On Appeal from the County Criminal Court at Law No. 1
                           Harris County, Texas
                       Trial Court Case No. 1969141


                          MEMORANDUM OPINION

      Steven Kent Smith was charged by information with driving while

intoxicated. A jury found him guilty of the charge, and the trial court assessed a

punishment of 20 days’ incarceration in Harris County Jail and a $20 fine.
      On appeal, Smith contends that the trial court erred in (1) refusing to instruct

the jury on the legality of Smith’s stop pursuant to article 38.23 of the Texas Code

of Criminal Procedures; and (2) denying his motion to suppress evidence obtained

as a result of the stop. We affirm.

                                 BACKGROUND

      Smith’s stop and arrest

      In June 2014, Officer A. Mulato of the Houston Police Department served as

a patrol officer on the west side of Houston. Officer Mulato was patrolling one night

near the intersection of Dairy Ashford and Briar Forest at about 1:00 A.M. She

entered the lane to make the left turn from Dairy Ashford onto Briar Forest and she

came to a stop at the yellow left-turn signal. As she checked her rear-view mirror,

she noticed the driver in the sports-utility vehicle behind her make an offensive

gesture. During the red light, Officer Mulato continued to observe the driver, later

identified as Smith.

      When the light changed, Officer Mulato made the left turn and then moved to

the right-hand lane, anticipating that Smith would pass her, which would allow her

to continue to observe him and give her greater safety. She did not activate any of

her emergency equipment. Smith, though, stopped directly behind the patrol car.

      Officer Mulato waited for a few seconds to see if Smith would go around her.

When he did not, Officer Mulato turned into a grocery store parking lot near the



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intersection. Smith followed the patrol car into the parking lot. Officer Mulato

noticed Smith was still following her, so she drove further into the lot. Smith

continued to follow her, then drove around her and left the parking lot on the Dairy

Ashford side, heading northbound. Officer Mulato observed Smith as he again

turned onto Briar Forest, heading eastbound. According to Officer Mulatto, Smith

was driving in an aggressive manner, “jerk[ing] the car around to go and come back

out.”

        After Officer Mulato had followed Smith for about two miles, she called her

supervisor, Sergeant Morton, and told him that she was going to do a traffic stop,

but that she would first wait for him to arrive so that he could provide backup.

Officer Mulato had not observed Smith violate any traffic law before she made the

call.

        About half a mile later, Smith failed to signal a lane change before making a

U-turn and Officer Mulato pulled him over. When Officer Mulato approached

Smith, she noticed that his speech was slurred, his breath had a strong odor of

alcohol, his eyes were red and glassy, he seemed aggressive, and his shirt was “kind

of disheveled a little bit.”

        Officer Mulato asked Smith if he had been drinking, and Smith replied that he

had had three glasses of rum and cola between midnight and 12:45 A.M. Smith

confirmed that he had eaten earlier in the evening and had not taken any medications.



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When Sergeant Morton arrived at the scene, he observed that Smith smelled of

alcoholic beverage, Smith’s speech was slurred, and that he had an unnatural sway.

Smith also told Sergeant Morton he had consumed three drinks.

      Based on his observations, Sergeant Morton decided to administer the

horizontal gaze nystagmus (HGN) test.         Sergeant Morton testified that Smith

exhibited six of the six possible clues, indicating intoxication. Sergeant Morton also

observed as Officer Mulato administered the one-leg-stand test and the walk-and-

turn test. Although he did not remember any specifics of the testing, Sergeant

Morton remembered that “there were enough clues on each test to make an arrest

determination.”

      Officer Mulato arrested Smith, and he was brought to the HPD station

downtown. Smith arrived at the station at about 3:00 A.M. M. Skelton, the DWI

technician present, testified that she did not smell alcohol on him, but that her sinus

problems sometimes prevented her from detecting any smell. During the one-leg

stand, Skelton noticed that Smith had a slight sway, but he passed the test. Smith

failed the walk-and-turn. Skelton testified that her observations during Smith’s

testing led her to believe that he had lost the use of his mental faculties. Smith also

took a breath test at that time, which showed his blood-alcohol concentration level

was 0.134.




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      Proceedings in the trial court

      Before trial, defense counsel filed a motion to suppress evidence of the results

of Smith’s field sobriety testing, the incriminatory statements he made to Officer

Mulato and Sergeant Morton, and the result of the breath test. Smith’s motion

requested a hearing, but nothing in the record indicates that the trial court heard or

ruled on the motion before trial.

      After the jury heard opening arguments and Officer Mulato’s testimony about

the testing requirements, defense counsel sought a hearing on the motion to suppress,

and the trial court proceeded to hear the motion. The trial court ruled that Officer

Mulato was not qualified to testify about Smith’s performance on those tests or about

her observations of Smith’s performance during the HGN test. The trial court

brought the jury back into the courtroom and instructed it not to consider Officer

Mulato’s testimony on those issues for any purpose. The trial court denied the rest

of Smith’s motion.     It orally pronounced the following findings of fact and

conclusions of law to support its ruling:

    Smith admitted to having three alcoholic drinks within a 45-minute period;

    Officer Mulato observed Smith driving in an erratic manner: he pulled behind
     her and, in a parking lot, drove past her, changed lanes without signaling, and
     made a u-turn;

    Based on Smith’s behavior, Officer Mulato suspected that he might be
     intoxicated;



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      Officer Mulato noticed that Smith had slurred speech, a strong odor of
       alcoholic beverage, red, glassy eyes, and his shirt was disheveled;

      Based on the totality of the circumstances, the evidence at this point is
       sufficient to support a reasonable person’s belief that Smith committed the
       offense of driving while intoxicated.

                                     DISCUSSION

I.      Denial of Jury Instruction on the Legality of the Stop

        A.    Standard of review

        Smith contends that the trial court erred in denying his request for a jury

instruction pursuant to article 38.23 of the Code of Criminal Procedure, because the

evidence demonstrated a factual dispute over the legality of the traffic stop. See TEX.

CODE CRIM. PROC. ANN. art. 38.23(a) (West 2005). If a fact issue exists concerning

whether evidence was unlawfully obtained, then a trial court must instruct the jury

that if it believes that the evidence was obtained in violation of article 38.23, it should

disregard the evidence so obtained. Madden v. State, 242 S.W.3d 504, 510 (Tex.

Crim. App. 2007); Rocha v. State, 464 S.W.3d 410, 418–19 (Tex. App.—Houston

[1st Dist.] 2015, pet. ref’d). The evidence must (1) raise an issue of fact; (2) be

affirmatively contested; and (3) be material to the lawfulness of the challenged

conduct. Madden, 242 S.W.3d at 510; Rocha, 464 S.W.3d at 419. The defendant

must request a jury instruction on a specific historical fact to obtain one. Madden,

242 S.W.3d at 511. “[I]f other facts, not in dispute, are sufficient to support the



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lawfulness of the challenged conduct, then the disputed fact . . . is not material to the

ultimate admissibility of the evidence.” Id. at 510. In other words, “[t]he disputed

fact must be an essential one in deciding the lawfulness of the challenged conduct.”

Id. at 511.

      B.      Analysis

      Before the trial court read the charge to the jury, Smith requested an article

38.23 charge instruction concerning reasonable suspicion and “probable cause for

arrest since [Officer Mulato] testified that she didn’t have probable cause before she

did the standardized field sobriety tests, the walk and turn and one-leg stand were

suppressed; and Officer Morton never testified that he communicated the six clues

to Mulato.” On appeal, Smith specifically directs our attention to Officer Mulato’s

testimony concerning her reason for stopping Smith, contending that it raised a

factual dispute about whether she stopped him because she suspected he was

intoxicated or whether she stopped him for failure to signal a lane change.1 Any

dispute, however, is immaterial. The decision to stop a vehicle is reasonable when

the police have probable cause to believe that a traffic violation has occurred. Walter


1
      Mulato’s offense report states that “the defendant changed lanes without
      signaling and made an abrupt U-turn.” The term “without signaling” modifies
      the reference to Smith changing lanes and implies that Officer Mulato stopped
      Smith because of his failure to signal. Officer Mulato’s testimony supports
      this interpretation.



                                           7
v. State, 28 S.W.3d 538, 542 (Tex. Crim. App. 2000) (citing Whren v. United States,

517 U.S. 806, 810, 116 S. Ct. 1769, 1772 (1996)). With an objectively valid reason

for a traffic stop, the constitutional reasonableness of the stop does not depend on

the actual motivations of the officer. See Whren, 517 U.S. at 813, 116 S. Ct. at 1774.

The undisputed evidence shows that Officer Mulato observed Smith change lanes

without signaling, a violation of traffic law which provided justification for Smith’s

stop. We hold that the trial court did not err in denying Smith’s request for an article

38.23 instruction.

II.   Denial of Motion to Suppress

      A.     Preservation of error

      As a threshold matter, we consider the State’s contention that Smith waived

his complaint regarding the admission of evidence relating to the stop and arrest.

To preserve an issue for appeal, a timely objection must be made that states the

grounds for the ruling sought “with sufficient specificity to make the trial court

aware of the complaint, unless the specific grounds were apparent from the context.”

TEX. R. APP. P. 33.1(a)(1)(A).      “The purpose for requiring a timely, specific

objection is twofold: (1) it informs the judge of the basis of the objection and affords

him an opportunity to rule on it, and (2) it affords opposing counsel an opportunity

to respond to the complaint.” Douds v. State, 472 S.W.3d 670, 674 (Tex. Crim. App.

2015). To preserve a complaint for review, all that is required of a party is “to let



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the trial judge know what he wants, why he thinks he is entitled to it, and to do so

clearly enough for the judge to understand him at a time when the trial court is in a

proper position to do something about it.” Lankston v. State, 827 S.W.2d 907, 909

(Tex. Crim. App. 1992), quoted in Layton v. State, 280 S.W.3d 235, 239 (Tex. Crim.

App. 2009); see Everitt v. State, 407 S.W.3d 259, 263 (Tex. Crim. App. 2013).

      Smith advanced his arguments for suppression of the evidence at two

junctures during trial—after Officer Mulato’s testimony and at the close of the

State’s evidence. Smith’s motion to suppress the evidence of his stop and arrest

following Officer Mulato’s testimony occurred at a time when the trial court could

correct the error. The trial court concluded that reasonable suspicion existed for the

stop, but it instructed the jury not to consider a portion of Officer Mulato’s testimony

that went to showing probable cause, leaving the question of whether probable cause

existed until after Sergeant Morton had testified. By moving for directed verdict,

Smith challenged the sufficiency of the evidence of probable cause adduced through

Sergeant Morton. Although the trial court denied Smith’s motion, the motion came

at a time when a ruling favorable to Smith would have resulted in effective relief.

See Layton, 280 S.W.3d at 239. We hold that Smith adequately preserved his

appellate challenge to the trial court’s ruling on his motion to suppress.




                                           9
      B.    Standard of review

      We review a trial court’s factual findings for abuse of discretion and its

application of the law to the facts de novo. Turrubiate v. State, 399 S.W.3d 147,

150 (Tex. Crim. App. 2013). We defer to a trial court’s determination of historical

facts, especially those based on an evaluation of a witness’s credibility and

demeanor. Id.; Gonzales v. State, 369 S.W.3d 851, 854 (Tex. Crim. App. 2012). We

apply the same deference to the trial court’s ruling on mixed questions of law that

deepend on a witness’s credibility and demeanor. See Johnson v. State, 414 S.W.3d

184, 192 (Tex. Crim. App. 2013).

      C.    Analysis

      Smith challenges the legality of the stop based on Officer Mulato’s testimony

that she intended to stop Smith before she saw him commit a traffic violation.

Whatever Officer Mulato’s subjective motivation for following Smith, she did not

stop him until after he changed lanes without signaling. That observed violation of

law provided an objectively valid reason for the traffic stop. See Whren, 517 U.S.

at 813, 116 S. Ct. at 1774; see also TEX. TRANSP. CODE ANN. §§ 542.301, 542.401,

545.104 (West 2015).

      Smith also complains that probable cause did not support his arrest, but he

focuses on statements made by Officer Mulato without considering Sergeant

Morton’s testimony. Sergeant Morton testified concerning his administration of the



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HGN test and his observations during the stop, supporting a finding of probable

cause to support Smith’s arrest. Sergeant Morton was present when Officer Mulato

arrested Smith, and he testified that he made the arrest decision along with Officer

Mulato.

      Smith suggests that the trial court implicitly rejected Officer Mulato’s claim

that she observed a traffic violation, pointing to a statement made by the trial court

in connection with a request that the parties provide legal authority on showing

reasonable suspicion that someone is driving while intoxicated. On the contrary, the

trial court specifically found in ruling on Smith’s motion to suppress that Officer

Mulato observed Smith change lanes without signaling.

      Finally, Smith contends that the failure to signal a lane change is a minor

traffic violation that does not support the reasonable suspicion required to detain a

motorist. The cases Smith cites for this proposition, however, do not involve a

failure to signal a lane change and are otherwise inapposite to the circumstances in

his case. Fowler v. State, 266 S.W.3d 498 (Tex. App.—Fort Worth 2008, pet. ref’d),

involved a driver who appeared to cross into the adjacent lane by a tire’s width with

no other vehicles nearby. Id. at 501, 504–05. The court of appeals held that the

officer who stopped the driver mistakenly understood that the driver’s actions

violated traffic law. Id. at 505. Because no actual violation occurred, the trial court

concluded, no reasonable suspicion existed, and it held that the trial court erred in



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failing to suppress the evidence developed during the stop. 2 Id. In Trahan v. State,

16 S.W.3d 146 (Tex. App.—Beaumont 2000, no pet.), the court of appeals found no

evidence that the defendant had turned or changed lanes as he exited the freeway;

thus, he was not required to signal and the trial court erred in denying the defendant’s

motion to suppress. See id. at 147. Likewise, in State v. Dixon, 206 S.W.3d 587

(Tex. Crim. App. 2006), the Court upheld the suppression of the evidence based on

the credibility determination underlying the trial court’s finding that the defendant’s

arrest was not precipitated by a traffic violation. Id. at 590.

      None of these cases supports Smith’s theory that the trial court was required

to disregard the traffic violation. We hold that the trial court acted within its

discretion in upholding the stop based on evidence that Smith violated the law by

failing to signal a lane change. Accordingly, the trial court did not err in denying

Smith’s motion to suppress evidence of the stop.




2
      The Fort Worth Court of Appeals recently observed that the United States Supreme
      Court, in Heien v. North Carolina, ___ U.S. ___, 135 S. S Ct. 530 (2014), held that
      no Fourth Amendment violation occurred when an officer relies on a reasonable but
      mistaken understanding of traffic law in making a stop. 135 S. Ct. at 540. The rule
      announced in Heien, the appellate court observed, was a departure from the rule
      applied in Fowler v. State, calling into question the validity of its holding in Fowler
      that the stop was invalid. See State v. Varley, ___ S.W.3d ___, 2016 WL 4540491,
      at *7 (Tex. App.—Fort Worth Aug. 31, 2016, pet. filed).

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                                 CONCLUSION

      We affirm the judgment of the trial court.




                                                Jane Bland
                                                Justice

Panel consists of Chief Justice Radack and Justices Jennings and Bland.

Do not publish. TEX. R. APP. P. 47.2(b).




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