                             Fourth Court of Appeals
                                    San Antonio, Texas

                                MEMORANDUM OPINION
                                        No. 04-12-00589-CR

                                       The STATE of Texas,
                                            Appellant

                                                    v.

                                      Robert Weldon ELLIS,
                                             Appellee

                        From the County Court at Law, Kerr County, Texas
                                   Trial Court No. CR120076
                          Honorable Spencer W. Brown, Judge Presiding

Opinion by:      Catherine Stone, Chief Justice

Sitting:         Catherine Stone, Chief Justice
                 Marialyn Barnard, Justice
                 Luz Elena D. Chapa, Justice

Delivered and Filed: March 13, 2013

REVERSED AND REMANDED

           The State appeals the trial court’s order granting Robert Weldon Ellis’s motion to

suppress.      Because a reasonable officer in the same circumstances could have reasonably

believed that a traffic offense had occurred, we reverse the trial court’s order and remand the

cause to the trial court for further proceedings.
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                                          FACTUAL BACKGROUND

        Officer Grace Galvan 1 was the only witness who testified at the suppression hearing. At

approximately 2:00 a.m. on December 26, 2011, Officer Galvan observed a vehicle stopped at an

intersection in the left turn lane. Officer Galvan stated that the vehicle did not have its turn

signal activated, and the left turn signal was green. Officer Galvan observed a pedestrian

standing beside the driver’s side of the vehicle, and the pedestrian and the driver appeared to be

engaged in a conversation. Ellis was subsequently identified as the driver of the vehicle.

        As Officer Galvan approached behind Ellis’s vehicle, the pedestrian returned to the

sidewalk. Rather than turning left, Officer Galvan testified that Ellis moved toward the main

lane, into the intersection, and turned right. Officer Galvan testified that Ellis did not activate a

turn signal. Officer Galvan stated that no other vehicles were on the street. Officer Galvan

testified that the vehicle’s engine was revved during the turn, causing the vehicle to fishtail.

Officer Galvan testified that Ellis violated a city ordinance by making an unsafe start; however,

she admitted that without a copy of the ordinance she was unable to further explain the violation.

        The incident was recorded on video, and the video was played for the trial court. The

video confirmed Ellis’s failure to activate a turn signal. The video also recorded Officer Galvan

informing Ellis that he was stopped because he made an improper lane change and then an

unsafe start causing his vehicle to fishtail.

        Defense counsel argued that Ellis was not required to signal a lane change or a turn

because no other vehicles were around, and a signal is not required if the lane change or turn can

be made safely. Defense counsel further argued that Officer Galvan could not explain the

ordinance, and it was unclear how the ordinance was to be applied.


1
 Although Officer Galvan was no longer a peace officer at the time of the hearing, we will refer to her as Officer
Galvan in this opinion.

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       The State argued that the evidence established multiple traffic offenses in violation of the

Texas Transportation Code, including: (1) being stopped at a green light in the middle of the

roadway conversing with a pedestrian; (2) not being as close as practicable to the right-hand

curve or edge of the roadway before making a right-hand turn; and (3) not using a signal to

indicate Ellis’s intention to change lanes or to turn. The State further noted that the ordinance

referred to by Officer Galvan prohibits a person from starting a vehicle in such a manner as to

cause the wheels to spin or slide, except when necessary to prevent colliding with another

vehicle. The State also noted that the trial court was required to apply an objective standard in

determining if reasonable suspicion existed to support the traffic stop.

       After taking the motion under advisement, the trial court denied the motion and issued

findings of fact and conclusions of law.         The following are the pertinent findings and

conclusions:

                                                 I.

                                      FINDINGS OF FACT

       5.      Galvan testified that she identified a green Dodge Challenger that made a
       turn in violation of City Ordinance 102-111.

       6.      When defense counsel asked Galvan what the ordinance said was illegal
       and how the Dodge Challenger violated it, she stated that she did not know what
       the ordinance provided.

       8.      The prosecutor admitted and published a video of the events surrounding
       the stop of the defendant.

       9.      The video displayed what later was determined to be the defendant’s car
       stopped in the road at an intersection with a person standing next to the driver’s
       side of the vehicle approximately two blocks away.

       10.    There were no other vehicles on the road except those of Galvan and the
       defendant, and there was no cross traffic.

       11.     Galvan sped up considerably to engage the defendant at that location.


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12.    As Galvan approached the defendant’s vehicle at a high rate of speed, the
defendant moved his car to the right safely in a way that would enable Galvan to
pass him in that lane.

13.     The defendant then turned right at the intersection, and Galvan changed
lanes to follow him and stopped him after the turn.

14.     It was apparent from the video that Galvan was in the process of stopping
the defendant based upon her initial pursuit.

15.    It was apparent from the video and the testimony that the defendant caused
no danger to Galvan or any other drivers or pedestrians in his attempt to move out
of Galvan’s way.

16.    Galvan turned on her “take-down” lights as the defendant was turning.

17.     It appeared to the court that the stop of the defendant began at the initial
point of pursuit when the officer sped up to approach the defendant’s vehicle.

18.     The officer’s inability to describe the ordinance or how the defendant had
violated the ordinance rendered her testimony incredible that the ordinance
violation was the reason for the stop.

19.    This court finds that the video is more credible than the officer’s testimony
concerning the reason for the stop.

                                         II.

                            CONCLUSIONS OF LAW

 2.     The officer’s actions on the video do not support the officer’s testimony in
court because those actions on video show a different sequence of events than
those described by the officer in her testimony. In fact, the officer could not state
why or by what authority she stopped the defendant. Therefore, the court
concludes that it may believe the video account of the facts rather than the
officer’s account of the facts. Carmouche v. State, 10 S.W.3d 323, 331-332 (Tex.
Crim. App. 2000). The video demonstrates a stop that is without any reasonable
suspicion.

5.     The Assistant County Attorney, Joe Soane, did not make the stop. Grace
Galvan made the stop. Her reasonable suspicion to stop the defendant is what
counts. Grace Galvan said, “I don’t have the ordinance with me, so I couldn’t tell
you how the violation — the actual violation, other than it was [an] unsafe start.”

6.     It is the court’s opinion that Officer Galvan was going to stop the
defendant when she was one block away. Look at the film. See the transcript,
page 18, lines 9-16:
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               9.     The Court: “I noticed in — you were going down
               10.    Water Street there.”
               11.    The Witness: “Yes, sir.”
               12.    The Court: “And you sped up when you got to the
               13.    light there at — Earl Garrett. You sped up. I could see you
               14.    accelerating. I mean, looked like you were. Why were you
               15.    accelerating?”
               16.    The Witness, “I don’t know.”

                                     STANDARD OF REVIEW

       “To conduct a traffic stop in compliance with the Fourth Amendment, an officer must

have ‘reasonable suspicion.’” Hamal v. State, No. PD-1791-11, 2012 WL 3965358, at *2 (Tex.

Crim. App. Sept. 12, 2012). “Reasonable suspicion exists when an officer is aware of specific,

articulable facts that, when combined with rational inferences from those facts, would lead him

to reasonably suspect that a particular person has engaged or is (or soon will be) engaging in

criminal activity.” Id (internal citations omitted). “Whether the facts known to [an] officer

amount to reasonable suspicion is a mixed question of law and fact subject to de novo review.”

Id.

       “The reasonable suspicion standard is wholly objective; the subjective intent of the

officer conducting the investigation is irrelevant.”    Id.   “The standard requires only some

minimal level of objective justification for the stop.” Id. (internal citations omitted). “[P]olice

may validly stop a vehicle for a traffic violation so long as the stop would be objectively

reasonable, regardless of whether the stop is a mere pretext to investigate unrelated criminal

conduct.” Overshown v. State, 329 S.W.3d 201, 205 (Tex. App.—Houston [14th Dist.] 2010, no

pet.). In rejecting the pretext arrest doctrine, the Texas Court of Criminal Appeals concluded:

               It makes little sense to maintain the pretext arrest doctrine solely to deter
       the subjectively bad intentions of law enforcement personnel when these
       intentions do not ultimately manifest themselves in any objectively ascertainable
       Fourth Amendment violations. Thus, as long as the facts and circumstances show


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       a valid and legal detention, it serves no actual Fourth Amendment function to
       attempt to unearth the subjective reasons for such detention.

Garcia v. State, 827 S.W.2d 937, 944 (Tex. Crim. App. 1992). “‘[T]he fact that the officer does

not have the state of mind which is hypothecated by the reasons which provide the legal

justification for the officer’s action does not invalidate the action taken as long as the

circumstances, viewed objectively, justify that action.’” Id. at 941 n.5 (quoting Scott v. United

States, 436 U.S. 128, 138 (1978)).

       Finally, to prove reasonable suspicion, the State is not required to establish that the

defendant actually committed a traffic violation, but only that the officer reasonably believed a

violation occurred. Butler v. State, 300 S.W.3d 474, 480 (Tex. App.—Texarkana 2009, pet.

ref’d). In evaluating the officer’s reasonable belief, an objective standard is used: would the

facts available to a reasonable officer at the moment of the stop justify an officer of reasonable

caution in the belief that a traffic stop was appropriate. Id.

                                            DISCUSSION

       From the trial court’s express findings and conclusions, it appears that the trial court

erroneously focused on a subjective standard by evaluating whether Officer Galvan developed an

ulterior motive to stop Ellis when she was a few blocks away. It also appears the trial court

applied a subjective standard in evaluating whether reasonable suspicion existed to justify the

stop by emphasizing Officer Galvan’s inability to describe the details of a particular ordinance.

In fact, the trial court expressly concluded, “[Officer Galvan’s] reasonable suspicion to stop the

defendant is what counts.”

       Section 545.104 of the Texas Transportation Code provides, “An operator shall use the

signal authorized by Section 545.106 to indicate an intention to turn, change lanes, or start from

a parked position.” TEX. TRANSP. CODE ANN. § 545.104(a) (West 2011). The trial court’s


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findings state that Ellis moved his car to the right from its position in the left turn lane and turned

right at the intersection. Although the trial court did not expressly make a finding with regard to

Ellis’s use of a signal, any implied finding that a signal was used would not be supported by the

record taking into account the video. See Tucker v. State, 369 S.W.3d 179, 185 (Tex. Crim. App.

2012) (“in order to determine whether the evidence supports the trial court’s implicit finding, the

court of appeals must take all of the evidence, including the video, into account”).

       In his arguments to the trial court, defense counsel stated that a signal was not required if

a lane change or turn could be made safely. We disagree with this position. As the Tyler court

has reasoned:

       Texas law prohibits a driver from turning a vehicle from a direct course or
       moving to the right or left on a roadway unless the movement can be made safely.
       See id. § 545.103 (Vernon 1999). However, we have found no authority
       suggesting that that a signal is unnecessary where the lane change can be made
       safely. See Krug v. State, 86 S.W.3d 764, 767 (Tex. App.—El Paso 2002, pet.
       ref’d) (driver has duty to signal intention to turn and must also make turn safely;
       sections 545.103 and 545.104 are not mutually exclusive). Moreover, we must
       presume that the entire statute is intended to be effective. See TEX. GOV’T CODE
       ANN. § 311.021(2) (Vernon 2005). Because only those lane changes that can be
       made safely are permitted, any construction limiting the signal requirement to
       unsafe lane changes renders the pertinent portion of section 545.104(a) a nullity.
       We cannot adopt such a construction. See TEX. GOV’T CODE ANN. § 311.021(2).

Coleman v. State, 188 S.W.3d 708, 717 (Tex. App.—Tyler 2005, pet. ref’d); see also Mahaffey

v. State, 316 S.W.3d 633, 643 n.51 (quoting this holding in Coleman).

       Because the objective facts known to Officer Galvan established that Ellis failed to signal

a lane change and turn, Officer Galvan had reasonable suspicion to stop Ellis for a traffic

violation. See Hamal, 2012 WL 3965358, at *2. Accordingly, the trial court erred in granting

Ellis’s motion to suppress.




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                                           CONCLUSION

       Because we hold the trial court erred in granting Ellis’s motion to suppress, we reverse

the trial court’s order and remand the cause to the trial court for further proceedings.

                                                  Catherine Stone, Chief Justice

DO NOT PUBLISH




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