                                       In The

                                 Court of Appeals

                       Ninth District of Texas at Beaumont

                               __________________

                               NO. 09-18-00386-CR
                               __________________

                      THE STATE OF TEXAS, Appellant

                                         V.

               JOSHUA EDWARD SONNIER, Appellee
__________________________________________________________________

             On Appeal from the County Court at Law No. 2
                        Orange County, Texas
                       Trial Cause No. E110286
__________________________________________________________________

                          MEMORANDUM OPINION

      The State of Texas (State or Appellant) filed this appeal challenging the trial

court’s order granting motions to suppress and quash filed by Joshua Edward

Sonnier (Sonnier or Appellee or Defendant). Sonnier was charged by information

with the offense of driving while intoxicated with a blood alcohol concentration level

of 0.15 or more (second offense). Sonnier filed motions to suppress evidence

obtained as a result of the stop and to quash the blood search warrant, arguing there


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was no reasonable suspicion for the initial traffic stop which led to Sonnier’s

eventual arrest because Sonnier did not commit a traffic violation. According to

Sonnier, he stopped his vehicle short of the intersection boundary, affording the

officer the full right of way to pass without incident. Sonnier argued that because the

initial stop was without “reasonable suspicion” and because he did not fail to yield

the right of way to the officer, the blood search warrant was also improper, based on

a false affidavit, and the test results must be quashed. The State did not file a written

response to the motions.

      At the suppression hearing, the State called one witness, Officer Mulhollan

with the City of Orange Police Department (the Officer). The Officer testified that

on the evening of March 12, 2017, he was driving his patrol vehicle eastbound on

the access road of I-10, which is also called South Lutcher Drive. According to

State’s Exhibit 1, the dash camera and body camera video of the stop admitted into

evidence at the hearing indicates the access road is a two-lane one-way road and

23rd Street is a side road that runs perpendicular to the access road, with two lanes

of traffic running north and south. The traffic proceeding onto the access road from

23rd Street has a stop sign at the intersection with the access road, requiring vehicles

traveling northbound to stop and yield the right of way to the traffic on the access

road. The Officer testified that as he travelled eastbound in the outside lane on the
                                           2
access road, he observed ahead of him a truck driven by Sonnier come to a stop at

the stop sign on 23rd Street. The Officer testified that he initiated a traffic stop

because after Sonnier’s vehicle came to a stop, it then pulled out in front of the

Officer. The Officer explained:

      Q. Okay. And why were you stopping this vehicle?

      A. It failed to yield right-of-way at a stop sign.

      Q. And when you say, “it failed to yield right-of-way at a stop sign,”
      explain to us what happened that led up to that.

      A. I was traveling eastbound on the north service road, I-10 -- South
      Lutcher Drive. This vehicle was traveling northbound on 23rd Street.
      That vehicle had a stop sign at this intersection. I had no traffic control[]
      devices. It did come to a stop, but it pulled out in front of me as I -- as
      I was passing by.

      According to the Officer, he observed the vehicle appear to “lurch[]

forward[]” and he believed that the driver was going to pull out in front of him onto

the service road. The Officer testified that he believed a collision was about to occur,

and he applied his brakes and brought his patrol vehicle to a stop. The Officer turned

his patrol lights on and initiated a traffic stop of the truck, motioning for the truck to

pull out of the road and into the gas station parking area that was immediately

adjacent to both roadways. The Officer testified that after he stopped Sonnier he




                                            3
could see that Sonnier had watery, bloodshot eyes, slow, slurred speech, and Sonnier

smelled like alcohol.

      On the video of the stop, the Officer told Sonnier, “you almost pulled right

out in front of me just now” and “you almost caused a major accident.” The Officer

then told another officer at the scene,

      he pulled right out in front of me . . . he pulled into the intersection[,]
      I slammed on my brakes, and hit my lights. I thought we were going
      to have a collision . . . he didn’t go all the way . . . he sees me turn on
      my lights and stops . . . I was so mad I couldn’t read the plate.

The Officer conducted a nystagmus test and then attempted to conduct other standard

field sobriety tests, but Sonnier refused to perform the other tests. When the Officer

asked Sonnier if he was on “anything other than alcohol[,]” Sonnier said “No.”

Sonnier also stated that he had “been drinking.” The Officer arrested Sonnier for

driving while intoxicated. Sonnier also refused to consent to provide a breath or

blood specimen. The Officer prepared an affidavit for a search warrant and then

obtained a search warrant from a magistrate judge. Pursuant to the warrant, Sonnier’s

blood was drawn and sent for analysis and Sonnier was subsequently charged.

      At the suppression hearing, after the Officer testified, the trial court then

recessed to review State’s Exhibit 1. After a recess, the trial court granted the




                                           4
motions to quash and to suppress the evidence obtained from the stop and stated the

basis for the rulings on the record:

             And I have been reviewing -- meaning I’ve watched it about four
      or five times now -- everything leading to the stop of Mr. Sonnier’s
      truck. It -- it happened, basically, as Officer Mulhollan described here
      on the stand a few moments ago. For the most part -- except for the last
      part of Mr. Mulhollan’s explanation -- it happened as is described by
      Mr. Hall in his memorandum of law in support of quashing the blood
      warrant. It did not happen, though, as is set out in the affidavit for a
      search warrant.
             That affidavit in Paragraph 5 describes the truck -- which later
      was found to be Mr. Sonnier’s truck -- it says, “was traveling
      northbound on 23rd Street approaching a stop sign at this intersection.
      This truck failed to yield right-of-way and pulled out in front of” -- it
      says parole vehicle, but that is understood to be patrol vehicle -- “nearly
      causing a collision.”
             And going into Paragraph 6, “I was, however, able to stop my
      patrol vehicle and avoid collision. I then conducted a traffic stop on the
      truck.”
             Mr. Sonnier’s truck, however -- based upon my repeated view of
      State’s Exhibit No. 1 -- did not pull out in front of Officer Mulhollan’s
      patrol vehicle. It simply did not. There was not a stop line at the stop
      sign. There was no stop line anywhere. What we’re dealing with here
      as far as traffic control device was a stop sign on 23rd Street. What is
      referred to as South Lutcher Drive is otherwise known as the feeder
      road to Interstate 10, and the officer was on South Lutcher Drive -- or
      the feeder road. This is a T-intersection.
             So, the officer did not have to stop. I understand the officer
      slowing down. I can understand the officer stopping; but the vehicle
      that Mr. Sonnier was driving did not, “pull out in front of,” the officer’s
      patrol vehicle.

      In the written order granting Sonnier’s motions, the trial court stated the

following in relevant part:
                                          5
             . . . The following account is what the Court observed on [State’s
      Exhibit 1]: Officer [Mulhollan] is traveling on Lutcher Drive and is
      approaching 23rd Street. The vehicle soon identified as the defendant’s
      truck is traveling on 23rd Street and is approaching the stop sign at
      Lutcher Drive. The truck stops at the stop sign then pulls forward after
      the stop as the officer nears that “T” intersection. It appears as if the
      truck is going to pull out onto Lutcher Drive. In response to the truck’s
      movement toward Lutcher Drive after the initial stop; the officer slows
      down, pulls over onto 23rd Street, and stops. The truck, although it
      appeared to be pulling out onto Lutcher Drive, stops a few feet short of
      Lutcher Drive as the patrol car approaches. The truck does not “pull out
      in front of” officer Mulhollan’s patrol vehicle. The truck does not reach
      Lutcher Drive, therefore, the truck does not proceed into the “T”
      intersection of Lutcher Drive and 23rd Street. The traffic violation
      described by the officer in his testimony at the hearing and in his
      Affidavit for Search Warrant simply does not occur. The traffic
      violation of failure to yield right-of-way is “almost” committed and it
      actually appears that the violation is going to take place, but the
      violation never materializes. A screenshot of the video showing the
      positions of the patrol unit and the truck is attached to this Order as
      EXHIBIT A.
             The Defendant’s Motion to Quash the Blood Search Warrant and
      the Motion to Suppress is GRANTED.

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

standard of review. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010).

We review the trial court’s factual findings for an abuse of discretion but review the

trial court’s application of the law to the facts de novo. Turrubiate v. State, 399

S.W.3d 147, 150 (Tex. Crim. App. 2013).

      At a suppression hearing, the trial court is the sole trier of fact and judge of

the credibility of the witnesses and the weight to be given their testimony, and a trial
                                           6
court may choose to believe or to disbelieve all or any part of a witness’s testimony.

Valtierra, 310 S.W.3d at 447; Wiede v. State, 214 S.W.3d 17, 24-25 (Tex. Crim.

App. 2007) (quoting State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999));

State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). When reviewing a trial

court’s ruling, the appellate court does not engage in its own factual review. St.

George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007). We give almost total

deference to the trial court’s determination of historical facts, “especially if those are

based on an assessment of credibility and demeanor.” Crain v. State, 315 S.W.3d

43, 48 (Tex. Crim. App. 2010). We give the same deference to the trial court’s

conclusions with respect to mixed questions of law and fact that turn on credibility

or demeanor. State v. Ortiz, 382 S.W.3d 367, 372 (Tex. Crim. App. 2012). We

review purely legal questions de novo as well as mixed questions of law and fact

that do not turn on credibility and demeanor. State v. Woodward, 341 S.W.3d 404,

410 (Tex. Crim. App. 2011); Crain, 315 S.W.3d at 48. We also review de novo

“whether the totality of [the] circumstances is sufficient to support an officer’s

reasonable suspicion of criminal activity.” Crain, 315 S.W.3d at 48-49.

      When, as here, the trial court makes explicit findings of fact, we determine

whether the evidence, when viewed in the light most favorable to the trial court’s

ruling, supports the fact findings. State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim.
                                            7
App. 2006). If the trial court fails to make explicit findings, we infer a fact finding

to support the trial court’s ruling when the evidence supports the implied finding.

Gutierrez v. State, 221 S.W.3d 680, 687 (Tex. Crim. App. 2007). We afford the

prevailing party the strongest legitimate view of the evidence and all reasonable

inferences that may be drawn from that evidence. State v. Duran, 396 S.W.3d 563,

571 (Tex. Crim. App. 2013). We will uphold the trial court’s ruling if it is reasonably

supported by the record and is correct on any theory of law applicable to the case.

State v. Story, 445 S.W.3d 729, 732 (Tex. Crim. App. 2014); Arguellez v. State, 409

S.W.3d 657, 662-63 (Tex. Crim. App. 2013); State v. Dixon, 206 S.W.3d 587, 590

(Tex. Crim. App. 2006). 1

      Traffic stops require an officer to have a reasonable suspicion that the person

detained is, has been, or will soon engage in criminal activity. Jaganathan v. State,

479 S.W.3d 244, 247 (Tex. Crim. App. 2014); Crockett v. State, 803 S.W.2d 308,


      1
        The State argues on appeal that the trial court should have given deference
to the magistrate who issued the search warrant for the blood draw. The search
warrant was issued pursuant to an affidavit prepared by Officer Mulhollan. When
reviewing an affidavit that is made in support of a search warrant, the trial court
should ordinarily defer to all reasonable inferences that the issuing magistrate could
have made to establish a fair probability of an offense. Rodriguez v. State, 232
S.W.3d 55, 61 (Tex. Crim. App. 2007). Trial courts apply a highly deferential
standard when reviewing a magistrate’s decision to issue a warrant. Id. Here, the
State did not make this argument at the trial court and therefore the argument was
not preserved. Tex. R. App. P. 33.1(a).
                                          8
311 (Tex. Crim. App. 1991). The standard is whether, based on facts articulated by

the officer and the totality of the circumstances, an objectively reasonable officer

would have developed suspicion that an offense was in progress or had occurred.

Id.; Martinez v. State, 500 S.W.3d 456, 465 (Tex. App.—Beaumont 2016, pet. ref’d)

(citing Ford v. State, 158 S.W.3d 488, 492-93 (Tex. Crim. App. 2005)). The State

argues on appeal that Sonnier failed to yield the right of way and that Sonnier’s

“unsafe progression, which interrupted the flow of approaching traffic with the right-

of-way, gave [Officer] Mulhollan reasonable suspicion to stop and detain Appellee.”

The State explains in its appellate brief

      As Appellee moved toward the intersection, Mulhollan feared that he
      would crash into Appellee’s vehicle had he not stopped. [] In response
      to Appellee’s unsafe procession toward South Lutcher Driver and to
      avoid a collision, Mulhollan brought his patrol vehicle to a stop
      although he had the right-of-way to proceed unimpeded. []

      The question is not whether Sonnier committed a traffic offense, but whether

a reasonable officer based upon the totality of the circumstances would have

believed that an offense occurred or was in progress. See Jaganathan, 479 S.W.3d

at 247. The trial court found that a traffic violation did not occur and that “[t]he

traffic violation described by the officer in his testimony at the hearing and in his

Affidavit for Search Warrant simply does not occur.” We conclude that both findings

were reasonably supported by the record. Affording the prevailing party the

                                            9
strongest legitimate view of the evidence and all reasonable inferences that may be

drawn from that evidence, the evidence also supports the trial court’s implied finding

that a reasonable officer, based on the totality of the circumstances, would not have

believed that an offense occurred or was in progress. Duran, 396 S.W.3d at 571;

Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001); Martinez, 500 S.W.3d

at 465. Viewing the evidence in the light most favorable to the trial court’s ruling

and giving deference to the trial court on credibility determinations and

determinations of historical facts, we cannot say that the trial court abused its

discretion by granting the motion to suppress and motion to quash in this case. See

Crain, 315 S.W.3d at 48. Accordingly, we overrule the State’s sole issue on appeal

and affirm the trial court’s order.

      AFFIRMED.



                                                    _________________________
                                                       LEANNE JOHNSON
                                                            Justice


Submitted on January 3, 2019
Opinion Delivered June 12, 2019
Do Not Publish

Before McKeithen, C.J., Kreger and Johnson, JJ.


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