                                    In The
                               Court of Appeals
                      Seventh District of Texas at Amarillo

                                     No. 07-18-00223-CR


                           THE STATE OF TEXAS, APPELLANT

                                              V.

                   FRANCISCO FERNANDO FERNANDEZ, APPELLEE

                           On Appeal from the 121st District Court
                                     Terry County, Texas
                  Trial Court No. 7005, Honorable John A. Didway, Presiding

                                       January 7, 2018

                                         OPINION
                   Before QUINN, C.J., and CAMPBELL and PARKER, JJ.

       The State of Texas appeals from an order granting Francisco Fernando

Fernandez’s motion to suppress evidence. The underlying facts encompass a purported

murder and the State’s investigation of it. As part of the investigation, a local-police officer

(Langehennig) stopped a pickup truck on rural Highway 380 outside Brownfield, Texas

around 2:30 p.m. on July 4th. It held four occupants. The occupants were removed and

taken to the police station. One of them was Francisco Fernando Fernandez. Fernandez

was interrogated at the station after waiting in a room for many hours, which interrogation
was recorded. Before it started, though, the interrogator (Chief Serbantez) neglected to

read all the admonishments required by article 38.22, § 3(a)(2) of the Texas Code of

Criminal Procedure to Fernandez. Upon being arrested for the murder, Fernandez moved

to suppress his statements to the police. The trial court granted the motion. The State

appealed. We affirm.

       We review the decision to suppress evidence under the standard of abused

discretion. State v. Cortez, 543 S.W.3d 198, 203 (Tex. Crim. App. 2018). Furthermore,

that standard obligates us to sustain the decision if it is correct under any applicable

theory of law and reverse it only if it is arbitrary, unreasonable, or “outside the zone of

reasonable disagreement.” Id. If we must sustain the ruling on any applicable legal theory

supporting it, then, logically, the State has the burden to establish that no applicable legal

theory does. See John v. State, No. 02-17-00372-CR, 2018 Tex. App. LEXIS 5533, at *4

(Tex. App.—Fort Worth July 19, 2018, no pet.) (mem. op., not designated for publication)

(holding that because the applicable standard of review in a probation revocation appeal

is abuse of discretion, “we cannot hold that a trial court’s . . . decisions constitute an abuse

of discretion when an appellant does not challenge all grounds on which the trial court

based those decisions”); accord Stringer v. Red River Commodities, Inc., No. 07-06-

0119-CV, 2006 Tex. App. LEXIS 10617, at *3 (Tex. App.—Amarillo Dec. 13, 2006, no

pet.) (mem. op.) (involving the standard of review of abused discretion in a civil appeal

and holding that “the burden lies with appellant to show that there were no grounds

supporting the decision”). That burden was not carried, as we now explain.




                                               2
       Unaddressed Ground

       The State focused its argument on the legitimacy of the initial stop of the pickup

truck in which Fernandez rode by Officer Langehennig. It argued that he had reasonable

suspicion to do so. Yet, it said nothing about the extended nature of the initial stop and

its legitimacy. See Berkemer v. McCarty, 468 U.S. 420, 439, 104 S. Ct. 3138, 82 L. Ed.

2d 317 (1984) (stating that the Fourth Amendment allows a policeman who lacks probable

cause but whose observations lead him reasonably to suspect a particular person

committed, is committing, or is about to commit a crime, to detain that person “briefly” to

investigate the circumstances provoking that suspicion); Pulver v. State, No. 07-15-

00112-CR, 2016 Tex. App. LEXIS 12412, at *7 (Tex. App.—Amarillo Nov. 17, 2016, pet.

ref’d) (mem. op., not designated for publication) (involving a traffic stop and stating that a

police officer may lawfully stop a vehicle and briefly detain its occupants for investigative

purposes if, under the totality of the circumstances, the officer has reasonable suspicion

a crime occurred but in the absence of reasonable suspicion that other criminal activity is

afoot, the period of detention must be no longer than is reasonably necessary to

effectuate the purposes of the initial stop). This omission is of import given it is one of the

arguments mentioned by Fernandez in his motion to suppress and a legal conclusion of

the trial court.

       The argument to which we refer is the one proposing that “any statements made

by him were obtained as the product of an ongoing illegal arrest and/or ongoing illegal

detention.” Fernandez continued this line of contention within his accompanying brief.

There, he urged, among other things, that 1) “the [initial] detention of [Fernandez] was

unlawfully extended beyond the initial purpose of the stop” and 2) “courts have held that



                                              3
it is unreasonable for an officer to extend the duration of a traffic stop where the officer

has failed to ‘diligently pursue a means of investigation that was likely to confirm or dispel

their suspicions quickly.’” The argument leads us to conclude that one of the applicable

theories underlying the decision to grant Fernandez’s motion pertained to the purportedly

unlawful extension of the initial stop.1 So, in failing to assign error to or address that

ground underlying the trial court’s decision, the appellate burden imposed on the State

went unfulfilled.

        To the extent one may suggest that the State’s argument regarding attenuation

ameliorates the aforementioned briefing omission, we say the following. The argument

concerned “attenuation between that allegedly unlawful act by Officer Langehennig and

the interview of Appellee which began nearly seven hours later.” As can be seen, the

State invokes attenuation as a means of rendering admissible the statements Fernandez

uttered during his interrogation by Serbantez at the police station. It is not made in

reference to any other purported statement. And, as we explain below, the trial court did




        1It  does not matter if the trial court failed to mention this ground in its amended findings of fact and
conclusions of law as a basis for granting the motion to suppress. Our Court of Criminal Appeals explained
in Alford v. State, 400 S.W.3d 924 (Tex. Crim. App. 2013), that a trial court’s conclusions of law do not
restrict the grounds upon which a decision regarding a motion to suppress may be affirmed. See id. at 929
(stating 1) “regardless of whether the trial court has made express conclusions of law, we uphold the trial
court’s ruling under any theory supported by the facts because an appellate court reviews conclusions of
law de novo” and 2) “although the trial court made a conclusion of law denying appellant’s motion to
suppress under the community-caretaking exception to the warrant requirement, the appellate court was
not limited to consideration of that legal theory and could uphold the trial court’s ruling under any legal
theory supported by the facts.” Given that 1) Fernandez raised the issue about an undue extension of the
investigatory detention, 2) the evidence of record illustrated that the stop resulted in Fernandez being
“detained” for over seven hours before undergoing questioning, 3) Officer Langehennig indicated that he
saw them commit a potential traffic violation involving the operation of the pickup truck in which Fernandez
rode for driving at a high rate of speed, 4) the officers consistently said the detention was for investigatory
purposes based on reasonable suspicion, 5) an investigatory detention must be “brief” and no longer than
reasonably necessary, 6) the law enforcement officials offered no explanation for the seven-hour delay
before questioning Fernandez for an additional three hours, and 7) the trial court did not expressly reject
Fernandez’s argument, the State was obligated to address it on appeal.

                                                       4
not abuse its discretion in suppressing those recorded statements irrespective of any

attenuation between the initial stop and eventual interrogation.

       Defective Admonishment

       Per article 38.22, § 3(a), an oral statement of an accused from a custodial

interrogation is inadmissible against the accused unless, among other things, “prior to the

statement but during the recording the accused is given the warning in Subsection (a) of

Section 2” of article 38.22. TEX. CODE CRIM. PROC. ANN. art. 38.22, § 3(a)(2) (West 2018).

The warnings alluded to include what is commonly known as the Miranda warnings and

one other. The other consists of informing the accused that he has the right to terminate

the interview at any time. Id. art. 38.22, § 2(a)(5). That Fernandez was not provided the

latter warning before his interrogation by Serbantez is unquestioned. Furthermore, the

trial court issued findings of fact and conclusions of law holding that Fernandez was in

custody at the time of the omission and the omission did not result in substantial

compliance with the dictates of article 38.22(a). The State disagrees.         In its view,

appellant was not in custody. Alternatively, if he were in custody, the law enforcement

officers nevertheless substantially complied with the statute, and substantial compliance

was sufficient. We disagree with the State.

       We mentioned the applicable standard of review earlier. In addition to what was

said, we also note that it requires us to afford almost total deference to the trial court’s

factual determinations, especially those turning on the credibility and demeanor of a

witness. Cortez, 543 S.W.3d at 203-04. Yet, such deference is not accorded the trial

court’s application of the law to the historical facts; we review those matters de novo. Id.




                                              5
So too must we examine the evidence in a light most favorable to the trial court’s ruling.

Wilson v. State, 311 S.W.3d 452, 458 (Tex. Crim. App. 2010).

       A similar standard applies when reviewing mixed questions of law and fact, such

as when dealing with the topic of when someone is in the custody of law enforcement

officials. See State v. Saenz, 411 S.W.3d 488, 494 (Tex. Crim. App. 2013) (observing

that the question of whether an accused was in custody is a mixed question of law and

fact). Again, almost total deference is given to the trial court’s assessments of historical

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

credibility and demeanor. Id. On the other hand, our review is de novo when the mixed

questions of law and fact do not turn on witness credibility and demeanor. Id.

       Next, we must remember that a person is in custody only if, under the

circumstances, a reasonable person would believe that his freedom of movement was

restrained to the degree associated with a formal arrest. Id. at 496. There are at least

four different situations that illustrate custody.   They are 1) when the individual is

physically deprived of his freedom of action in any significant way, 2) when a law

enforcement official tells the person that he cannot leave, 3) when law enforcement official

creates a situation that would lead a reasonable person to believe that his freedom of

movement has been significantly restricted, and 4) when there is probable cause to arrest

and law enforcement officers do not tell the suspect that he is free to leave. Id. (quoting

Dowthitt v. State, 931 S.W.2d 244, 255 (Tex. Crim. App. 1996)). Under the first three

scenarios, the restriction on the person’s freedom of movement must reach a degree

associated with arrest, instead of a temporary or investigative detention. In the last

scenario, not only must the law enforcement official’s knowledge of probable cause be



                                             6
manifested to the person, but the totality of the circumstances surrounding the interview

must lead a reasonable person to believe he is under restraint to the degree associated

with an arrest. Id.

       As previously mentioned, the trial court expressly found that Fernandez was in

custody when the police began interviewing him at the station. Our reading of the

evidence offered at the suppression hearing in a light most favorable to the trial court’s

ruling illustrates that before the interview, Fernandez was one of four people in a white

pickup truck stopped on the highway. Langehennig was investigating a murder and was

informed about the possible sighting of a white single-cab pickup with three letters

stenciled on its sides. After stopping or attempting to stop one or more other white

pickups, the officer came upon the vehicle in which Fernandez rode. He made the stop

around 2:30 p.m. Eventually, each of the four occupants were directed to exit the truck.

By that time, at least three other police officers arrived, one of which was the police chief.

       Langehennig could be heard telling those he stopped that the officers were

investigating a murder, the truck occupants were being detained and transported to the

police station, and the officers had “a lot of questions.” The detainees were also told,

three times, that they were “not allowed to leave.” Langehennig took initial charge of

Fernandez at the scene of the stop, directed him to the rear of a vehicle, and twice

searched his charge for weapons. At that point, Fernandez asked if he was under arrest.

Langehennig answered with “not at this time” but nevertheless made it clear that

Fernandez was detained for questioning.

       Serbantez eventually transported Fernandez to the station. As he did, he told

Fernandez that he (Fernandez) needed to be cooperative.            Defense counsel asked



                                              7
Serbantez whether he merely solicited Fernandez’s cooperation.           To that, the chief

indicated that his reference to cooperating was more of a directive. That is, the chief said:

“I just — it wasn’t a question. I think it was more, you know, cooperate with the officers.”

So, the trial court was entitled to reasonably interpret the response as meaning that

Fernandez was not being asked if he would cooperate but, rather, being told to cooperate.

       Upon their arrival at the station, Serbantez placed Fernandez in a room which may

have been the office of one of the investigating officers.       There Fernandez sat for

approximately seven hours until being taken to another room for interrogation. At that

point, the chief Mirandized Fernandez from a card given him by the local district attorney.

Apparently missing from the card was the admonishment telling Fernandez he had the

right to terminate the upcoming interview at any time. Once Mirandized in the deficient

manner, Fernandez asked if he was under arrest.           Refusing to answer the inquiry,

Serbantez began his questioning. The chief conceded at the suppression hearing that

his refusal to answer the question could be of concern to the interviewee. Nevertheless,

the interrogation began, was recorded electronically, and lasted approximately three

hours. Upon its completion, the officers returned Fernandez to the room wherein he

initially sat. Eventually, an officer came to formally arrest him. The length of time between

the interrogation’s end and the formal arrest was not developed in the record.

       Additionally, an officer testified that he “believe[d]” Fernandez was given food and

“offered a bathroom break” at one point while at the station. When this purported offer of

food and a “bathroom break” occurred is unclear. Whether it happened when Fernandez

was initially taken to the station, sometime during his seven-hour stint while awaiting to

be interrogated, or immediately before being taken to Serbantez for questioning cannot



                                             8
be discerned from the evidence. Though, it does appear that Fernandez held a cup while

being questioned by the chief.

       The officers involved in the detention generally indicated that Fernandez would

have been released had he asked. Yet, none told him that. More importantly, the trial

court expressly concluded that “[a]ll statements of the officers that the occupants were

free to go if they had requested is disbelieved and not credible evidence.” This conclusion

has evidentiary support given that Fernandez was told he was detained, could not leave,

was going to be taken to the station and questioned, and was directed to cooperate. To

this determination by the trial court, we add another. The trial court also deemed “not

credible” Langehennig’s reason for initially stopping the vehicle in which Fernandez rode.

Together, the two conclusions gain additional significance. They reveal that the credibility

and demeanor of the witnesses factored into the trial court’s interpretation of the historical

facts. Because their testimony at the hearing tended to contradict their actions at the

scene and station, the trial court was obligated to decide what was true and what was

not. Thus, the directives in Saenz obligate us to accord almost total deference to the trial

court’s conclusion whether Fernandez was in custody. Again, whether one is in custody

implicates a mixed question of law and fact. When witness credibility and demeanor play

a role in answering that question, our duty is to give almost total deference to the trial

court’s findings of fact and legal conclusions. Saenz, 411 S.W.3d at 494. And, we have

no hesitancy in so deferring.

       Again, law enforcement officials 1) stopped the vehicle in which Fernandez was a

passenger on a rural two-lane highway, 2) told everyone to exit the vehicle, 3) told them

they were detained and could not leave, 4) told them they were going to be questioned



                                              9
about a murder, 5) told them that they were going to be taken to the police station to be

asked those questions, and 6) actually separated and transported each person to the

station. There was no invitation for them to meet there; they were told they were going

and then taken there. At least two of the police present carried firearms, as depicted from

the video of the scene. Once at the station, Fernandez was made to sit in a room for

seven hours before any interrogation began. Never was he told he could leave if he so

chose. Never was he merely asked if he would cooperate; he was told to cooperate by

the head of the police department. Guns may not have been drawn, but the foregoing

can certainly be considered a show of force by the officers.

       After having sat in a room at the station for seven hours, Fernandez was taken by

law enforcement to another room to sit for at least three more hours to undergo

interrogation by the police chief. Once the interrogation ended, he was not told he could

leave. Instead, he was made to sit within the station for another span of time while the

police decided whether to formally arrest him.

       The record before us is susceptible to being interpreted as a game of semantics

played by those in control. Fernandez was not under arrest according to the officers, but

he was removed from the pickup and frisked twice. He was not under arrest according

to the officers, but he was told he could not leave. He was not under arrest according to

the officers, but he had to go to the police station. He was not under arrest according to

the officers, but he was directed to cooperate with them. He was not under arrest

according to the officers, but he was never told he could leave. He was not under arrest

according to the officers, but he had to sit for at least ten plus hours separated from the

public in a police station. He was not under arrest according to the officers, but he



                                            10
underwent three plus hours of questioning.        For one not under arrest, Fernandez’s

freedom of choice and movement certainly was curtailed for a rather long time.

       Of the four situations depicting custody in Saenz and other precedent, the

evidence at bar establishes three, or so the trial court reasonably could have concluded.

Fernandez was “physically deprived of his freedom of action in any significant way.” Law

enforcement official told him he could not leave. And, those same officials created a

situation that would lead a reasonable person to believe that his freedom of movement

was significantly restricted. The trial court correctly found that Fernandez was in custody

when he underwent interrogation.

       Because Fernandez was in custody, the officers were obligated by Texas statute

to inform him of various rights to render his recorded statement admissible. As previously

mentioned, one of those rights pertained to his ability to end the interview or interrogation

at any time. He was not so admonished. Thus, article 38.22, § 3 of the Code of Criminal

Procedure requires the suppression of his statement. Our legislature mandated strict

compliance with said article when the statement is electronically recorded, as here. Nonn

v. State, 41 S.W.3d 677, 679 (Tex. Crim. App. 2001) (Nonn I); accord Flores v. State, No.

PD-1189-15, 2018 Tex. Crim. App. Unpub. LEXIS 398, at *16 (Tex. Crim. App. May 23,

2018) (not designated for publication) (noting that strict compliance with all portions of

Section 3(a) is required); see also Nonn v. State, 117 S.W.3d 874, 879 (Tex. Crim. App.

2003) (Nonn II) (stating that “[t]his Court also noted that the portion of Article 38.22

pertaining to oral statements which are not electronically recorded, unlike the portion

governing electronic recordings, does not contain an express legislative mandate of ‘strict

compliance.’”); TEX. CODE CRIM. PROC. ANN. art. 38.22, § 3(e) (stating that Texas courts



                                             11
“shall strictly construe Subsection (a) of this section and may not interpret Subsection (a)

as making admissible a statement unless all requirements of the subsection have been

satisfied by the state, except that: (1) only voices that are material are identified; and (2)

the accused was given the warning in Subsection (a) of Section 2 above or its fully

effective equivalent”). Thus, neglecting to tell Fernandez that he may end the questioning

at any time bars the use of any recorded statement he provided to the police while in

custody. Cruz v. State, No. 04-05-00280-CR, 2007 Tex. App. LEXIS, at *7-8 (Tex. App.—

San Antonio Mar. 7, 2007, no pet.) (mem. op., not designated for publication); Hernandez

v. State, 13 S.W.3d 78, 82 (Tex. App.—Texarkana 2000, no pet.) (holding that the

complete failure to tell the accused that he has the right to end the interview at any time

is not substantial compliance and rendered the recording inadmissible).

       To the extent that the State proposes that telling Fernandez “he could invoke his

right to remain silent and not speak with the officers” was equivalent to telling him he

could end the interview, it leaves us wondering why the legislature added the

admonishment. Yet, binding rules of statutory construction obligate us to afford meaning

to each provision and word of a statute. See In re Office of the A.G., 422 S.W.3d 623,

629 (Tex. 2013) (orig. proceeding). If we were to conclude that merely telling the

interviewee he could remain silent also meant he could end the interview, we would be

violating the aforementioned rule of construction by rendering pointless the fifth

admonishment in article 38.22, § 2(a)(5). That, we cannot do. Furthermore, telling a

suspect he can end the interview at any time is nothing short of telling him he can stop

the proceeding. If he can stop the proceeding (and unless the officers have legitimate

basis to continue the detention), then he holds the keys to his immediate release. On the



                                             12
other hand, merely telling the suspect that he may remain silent does not entitle him to

leave. The officers may continue to ask questions and attempt to sway him to talk, as

they have been known to do. And, the circumstances of this case illustrate that neither

the chief nor his subordinates wanted Fernandez to leave. No, we must reject the State’s

proposition.

        Initial Detention

        The final issue we address involves the initial stop of the pickup truck carrying

Fernandez. The State argues that Langehennig had reasonable suspicion to initially

detain the vehicle and, therefore, Fernandez and its other occupants. We disagree.

        Though inconsistent at times, Langehennig’s testimony initially indicated that he

stopped the pickup carrying Fernandez because it was traveling at a high rate of speed

and “to make an investigative stop and see if there was anybody in there that we needed

to speak to.”2 In so testifying, however, the officer did not mention the speed of the truck.

Nor did he testify that its speed exceeded the posted limit of 75 mph, that he actually

measured the truck’s speed via some means, or that the vehicle was being operated in a

manner dangerous to others. He merely opined that it travelled at a high rate of speed.

Additionally, the State cited us to no statute making it a crime to operate a vehicle at a

high rate of speed on roads permitting travel at a high rate of speed like 75 mph.

        No doubt, an officer may make a warrantless traffic stop if he has “specific,

articulable facts” that, when combined with rational inferences therefrom, would lead him

to reasonably suspect that a particular person has engaged, is engaging, or soon will

engage in criminal activity. Cortez, 543 S.W.3d at 204. In other words, the officer must


        2By then, he had already stopped and released a different single-cab white pickup within the city
of Brownfield to see if it carried anyone with whom the police needed to speak.

                                                   13
have before him specific, articulable facts reasonably suggesting that crime is afoot.

While investigating crime, he cannot simply stop any vehicle to see if it contains anyone

with whom he needs to speak. See City of Indianapolis v. Edmond, 531 U.S. 32, 37, 121

S. Ct. 447, 148 L. Ed. 2d 333 (2000) (stating that a search or seizure is ordinarily

unreasonable in the absence of individualized suspicion of wrongdoing).

       As for what constitutes such facts, the debate will rage on. But, it is clear that

“[m]ere opinions are ineffective substitutes for specific, articulable facts in a reasonable-

suspicion analysis.” Ford v. State, 158 S.W.3d 488, 494 (Tex. Crim. App. 2005) (wherein

officer Peavey sought to justify the stop by simply testifying that Ford was “following too

close” to another vehicle). Without “objective factual support” underlying the opinion, it is

insufficient to legitimize the stop. Id. at 494. Langehennig’s statement at bar that the

pickup was “traveling at a high rate of speed” is no less of a conclusory opinion than that

of Peavey in Ford. Like Peavey’s, the opinion of Langehennig also was bereft of objective

factual support. So, like Peavey’s, that of Langehennig also is insufficient to legitimize

the stop here.

       Nonetheless, it appears that Langehennig eventually uttered one other basis for

stopping Fernandez. It concerns his testimony that the truck in which Fernandez was a

passenger matched the description of a vehicle in which a “person of interest” was seen

entering. The person of interest was a female named Herrera. They came upon her

name via comments from another female named Fisher during the morning of July 4th

but after 9:00 a.m. Fisher told them that Herrera and a Hispanic male had come to her

(Fisher’s) house earlier that morning, around 4:00 a.m.3 Herrera allegedly told Fisher that



       3   The Hispanic male was not Fernandez.

                                                  14
she (Herrera) had attempted to buy drugs from the murder victim (Roadie) at some time

or another prior to 4:00 a.m. Herrera apparently knocked on the victim’s door and

encountered no response; so, she left. Fisher then added that once Herrera finished her

story, she and the Hispanic male left in a silver truck later determined to be Fernandez’s.

This information led Langehennig to begin his July 4th afternoon search for Herrera. He

conceded under examination that he had no information indicating she was materially

involved in the decedent’s murder. Instead, he sought her because Fisher said they “were

somehow involved and that I need to speak to them.”

       When Langehennig began his search, he also had information that 1) Herrera had

entered a “white truck” or “white pickup” and 2) this generic white vehicle left in a northerly

direction on Highway 62 / 82. The record fails to reveal the actual time when Herrera was

seen doing that or when the pickup headed north. Nor does it reveal if it occurred before

or after 9:00 a.m., which was the approximate time the officers began their investigation

of Roadie’s death. One can infer, though, that it happened sometime within the ten-and-

a-half-hour period between Herrera first contacting Fisher at 4 a.m. and Langehennig

effectuating the 2:30 p.m. traffic-stop in question here.

       So, Langehennig decided to search for and stop “single cab” white pickup trucks.

His decision initially led him to stop such a vehicle only to find that neither of its occupants

were people with whom he cared to speak. They were released, and Langehennig

resumed his search for a white truck.

       Despite having information that the vehicle he sought left in a northerly heading on

Highway 62 / 82, the officer opted to sojourn in a westerly direction down Highway 380,

which highway led from Brownfield to Plains, Texas. His decision to do so was apparently



                                              15
influenced by information he had received about either or both Herrera and Fernandez

being from Plains. After driving west for some distance and passing a white pickup

heading east on Highway 380, Langehennig reversed course and drove back towards

Brownfield. He would eventually assert that by that time a fellow officer (Coronado) had

told him that the white truck had “‘TRO’ on the back of it.” Who purportedly told that to

Coronado is unknown; Langehennig would come to testify that he guessed it was Fisher.

Yet, Coronado never testified that the vehicle had such lettering; instead, he merely

described it as a generic “white truck.” Garnering this information, though, supposedly

led Langehennig to surmise that “‘TRD’ is often printed on the back of Toyota pickups,

meaning Toyota Racing Development.”

      Upon reversing course and driving back towards Brownfield, Langehennig

encountered another white pickup. The latter can be seen approaching him on the video

from his dash camera. So too does the video illustrate that while the approaching vehicle

remained in the distance, Langehennig decided to pursue it by pulling onto the right

shoulder of the highway in preparation for a turn. Once it passed, he gave chase and

soon stopped the truck.

      The officer recognized none of the occupants before stopping the vehicle.

Nevertheless, he soon discovered that Anthony Serbantez, the police chief’s son, was

driving it. Furthermore, the pickup was white and displayed “TRD” on the side of its bed.

Yet, as the trial court expressly found and the video illustrated, it was not a single-cab

truck but rather an “extended cab” having two rows of seats and four doors. This deviation




                                           16
from the actual description of the single cab pickup Langehennig initially sought was of

concern to the trial court, as evinced by one of its fact findings.4

       Other aspects of Langehennig’s testimony were also of concern to the court. For

instance, it expressed in its findings of fact that 1) Langehennig’s “reason for the stop of

travelling at a high rate of speed [was] not credible”; 2) Langehennig also “gave

contradicting testimony,” as depicted a) when “[f]irst he states on direct that he stopped

the vehicle for traveling at a high rate of speed, but then . . . testifie[d] he stopped the

truck to make an investigative stop” and b) “he tells the occupants they are detained, not

free to leave, they are held for questioning and ‘you ain’t leaving’ . . . [while] [t]hen on the

stand under oath the Officer states [Ferndandez] would have been free to go if he had

asked.” After expressing these observations, the trial court decided that 1) “[t]he officer

for the second time, guessed and stopped a white pickup” and 2) “there was no

reasonable suspicion to stop” Serbantez’s truck.

       These findings implicate Langehennig’s credibility. They also evince the trial

court’s attempt to deal with issues surrounding his credibility when deciding how to rule

upon the motion to suppress. That is, the existence of reasonable suspicion is a mixed

question of law and fact. State v. Kerwick, 393 S.W.3d 270, 273 (Tex. Crim. App. 2013).

So, resolution of the legal prong is influenced by what the trial court determines the

historical facts to be. In turn, the credibility of the evidence and witnesses providing it

influence the decision as to what those historical facts are. So, woven within the fabric of

the trial court’s legal ruling here are the aforementioned threads of concern about

Langehennig’s credibility. It cannot be denied that the trial court’s ultimate decision



       4   It found that “[a]lthough it was white with TRO on the side, it was not a single cab as reported.”

                                                      17
depended upon how it disposed of the credibility question. Because of that, the pertinent

standard of review obligates us to afford almost total deference to the trial court’s ruling

on the mixed question of law and fact. Id.; Saenz, 411 S.W.3d at 494. And, we find little

basis to deny that ruling the deference due it given Langehennig’s contradictions.

       One other matter also sways us against withholding deference. It concerns the

rather generic description of the “white truck” guiding Langehennig’s search. Pickups are

rather common within West Texas. They are quite common in Brownfield, Texas, as well.

The video of Langehennig’s search for the “white truck” proves as much. It is rife with

images of such trucks. This leads us to conclude that a “white truck” displaying “TRO” is

too general of a description to justify the detention of all trucks which may match that

description in part. Again, a search or seizure is ordinarily unreasonable in the absence

of individualized suspicion of wrongdoing. City of Indianapolis v. Edmond, 531 U.S. at

37. That means specific, articulable facts must tie the particular person or vehicle to

wrongdoing. Generic descriptions can fall short of that. See, e.g., United States v.

Martinez, No. 17-4131, 2018 U.S. App. LEXIS 35373, at *14 (10th Cir. Dec. 18, 2018)

(stating that general descriptions are relevant to the reasonable-suspicion inquiry but

insufficient themselves to support a finding of reasonable suspicion); Goodson v. City of

Corpus Christi, 202 F.3d 730, 733-37 (5th Cir. 2000) (involving a “BOLO (‘be on the look

out’) for a white male, approximately six feet tall, heavy-set, and dressed like a cowboy,

possibly heading to a cowboy bar” and holding that description insufficient to give officers

reasonable suspicion to stop and frisk any tall, heavy-set, white man since it was too

vague, and fit too many people, to constitute particular, articulable facts on which to base

reasonable suspicion); United States v. Rias, 524 F.2d 118, 119-21 (5th Cir. 1975)



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(involving a description consisting of “two black males in a black or blue Chevrolet” and

holding that it was insufficient to justify the later detention of two black males riding in a

Chevy). No one testified that pickup trucks with “TRO” or “TRD” written on them are an

uncommon site. No one testified that white trucks with “TRO” are uncommon or unique.

No one testified about the time span between Herrera being seen boarding a white pickup

displaying “TRO” and Langehennig stopping the Serbantez truck. No one testified about

the geographic distance between the location at which Herrera was seen entering the

truck and the place Langehennig stopped Serbantez. Here, the mere description of a

“single cab” “white truck” with “TRO” on the back last seen heading north on a major

highway at some unknown point in time is too generic a description to create reasonable

suspicion justifying the detention of westbound white trucks that partially matched the

description.

       We overrule the State’s issues and affirm the trial court’s order granting the motion

to suppress.



                                                                 Brian Quinn
                                                                 Chief Justice



Publish.




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