                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-16-00381-CR


THE STATE OF TEXAS                                                          STATE

                                         V.

RANDALL LEE BINKLEY                                                     APPELLEE


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         FROM THE 415TH DISTRICT COURT OF PARKER COUNTY
                    TRIAL COURT NO. CR16-0307

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                                    OPINION

                                      ----------

      Deputy Christopher Kristufek of the Parker County Sheriff’s Office stopped

Appellee Randall Lee Binkley in the Horseshoe Bend area solely because of an

“unconfirmed” return from the state vehicle insurance database regarding

whether Binkley’s vehicle had liability insurance.     Deputy Kristufek ultimately

arrested Binkley for driving while intoxicated–felony repetition (DWI), a grand jury

indicted him, and Binkley filed a motion to suppress all evidence gleaned from
the stop. The trial court granted the motion. Neither party requested findings of

fact and conclusions of law, and the trial court did not issue them.

      In its interlocutory appeal, the State contends in its sole point that

“sufficient reasonable suspicion existed to stop [Binkley’s] vehicle when the

detaining deputy received information from the state vehicle insurance database

that the insurance policy on said vehicle had been expired for over five months.”

Deferring to the trial court’s resolution of conflicts in the testimony and the weight

to be accorded the evidence, we affirm the trial court’s order granting Binkley’s

motion to suppress.

                          I.    STATEMENT OF FACTS

A.    Evidence Regarding Binkley’s Stop

      Deputy Kristufek testified:

            He was employed as a patrol deputy on or about January 24, 2016;

            He was leaving the Horseshoe Bend area when he noticed “a
             vehicle driving a little slow”;

            He entered the license plate number into his in-car database and
             found out that the car was registered to Binkley;

            The database showed “unconfirmed” regarding the liability insurance
             on the vehicle Binkley was driving;

            Deputy Kristufek did not remember whether the database reported
             any details other than “unconfirmed” regarding Binkley’s stop;

            Deputy Kristufek stopped Binkley’s vehicle “just to verify the actual
             insurance, if there was insurance on the vehicle”;

            Deputy Kristufek noticed that the database appeared to be working
             correctly that day;



                                          2
           The database did not give him any error messages that day;

           He had no reason to think that the database was any less reliable on
            Binkley’s traffic stop than it was on other traffic stops; and

           After looking at the printout from Binkley’s stop, Deputy Kristufek
            noticed that Binkley’s insurance policy was effective July 1, 2015,
            and had expired August 1, 2015.

      The printout related to Binkley’s stop was admitted as State’s Exhibit No.

3.   It indicates that the insurance status of the vehicle he was driving was

“Unconfirmed,” that the “Vehicle Coverage [had] Expired,” and that the

“Vehicle[’s] Last Match [was] Not within 45 days.”

B.    Evidence Regarding the Database and Its Reliability

      Deputy Kristufek testified:

           In addition to ownership and registration information, the database
            would also provide a vehicle’s “VIN number, the type of vehicle, the
            make, the model, if it has a color unknown or known—and it[ would]
            give the color on that—and then it[ would] give . . . an insurance brief
            which is confirmed, unconfirmed or verify manually”;

           “Verify manually [means] that either the company hasn’t added the
            insurance to the database yet or they haven’t uploaded or they’re
            just such a small company that they don’t put it into the database”;

           He would not stop vehicles when the return said “verify manually”
            because “maybe they do have insurance, maybe they don’t. But
            nine times out of ten if [he] ma[d]e that stop, they[ would] be like,
            well, here’s my insurance and then the stop [would be] done”;

           The database also indicated if a vehicle was “current on insurance”
            and whether any warrants were associated with the specific plate
            number;

           He performed a database search on vehicles “every day that [he]
            work[ed]” as a patrolman, “30 to 40 times [per] hour”;




                                        3
   “Unconfirmed insurance is when a person pretty much doesn’t pay
    or their insurance has fallen off within, like, 45 days or so. And it’ll
    say unconfirmed no later—or later than 45 days. I mean, just little
    specifics. And sometimes it won’t. It just says unconfirmed”;

   In his opinion, the in-car database is reliable based on

          “The number of vehicles that [he] look[s] through. . . .
          [Y]ou’ll look through 100, 200 vehicles with just license
          plates alone, and 99 of them will have current insurance
          or verify manually. There will be that one that doesn’t.
          And at that point you—I mean, yeah, is it possible that
          there’s two [vehicles] that could be side by side and you
          just pick an unconfirmed or whatever, yeah. . . .”;
   “Sometimes you’ll get sporadic where you’ll have issues with two—
    one will be verify manually, [and] one would be unconfirmed [on the
    same vehicle]”;

   He speculated that maybe that error occurred because the person
    had just purchased the insurance policy but admitted that he did not
    know;

   He did not know if those who input the data had any incentive to be
    accurate;

   He did not know of any rates of error associated with the database;

   He did not know of any insurance company being more accurate
    than others;

   He did not know but assumed that people would have to go through
    their insurance companies to correct the information in the database;

   He had not learned anything about the database during training in
    his two years as a patrol officer before the stop;

   He did not know the name of the program that allowed him to have
    the information in his patrol car, or when it was established;

   He did not know who entered the information into the database or
    how often it was updated;

   He did not know of safeguards to ensure the database’s accuracy;



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           He did not know how the database handled self-insured people;

           DPS administered the program;

           “[M]aybe three or four” times a week, he would pull over a driver to
            investigate an “unconfirmed return,” and the driver would provide
            him with proof of insurance;

           Deputy Kristufek testified that he “would stop about three or four
            vehicles” per week;

           He testified that he would “probably do about two or three . . .
            investigations for the insurance. And a traffic stop is totally different
            than a traffic investigation”;

           He testified that he would make three traffic investigations for
            unconfirmed insurance in a week;

           He testified that in one of the three cases, the person would actually
            have insurance;

           He conducted an estimated twenty-five traffic stops per week, but
            “not for the unconfirmed insurance.” He said that the deputies could
            not “do a traffic stop for just unconfirmed insurance”; and

           He answered affirmatively questions asking whether he had run
            “thousands and thousands and thousands” of plates while on patrol
            and whether he found the database reliable and accurate.

      Melissa Burkhardt, coordinator of the TexasSure Vehicle Insurance

Verification program for the Texas Department of Insurance (TDI), testified:

           The program “matches registered vehicles to insurance policies and
            provides that information to . . . end users with the Department of
            Motor Vehicles [DMV] and” DPS;

           The program has been in existence since 2008;

           “[T]he database is maintained by a third-party vendor that’s
            managed by the State”;

           The only third-party vendor to have maintained the database since
            2008 is HDI Solutions;


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   HDI Solutions also created the database;

   “[A]ll insurance companies that write personal auto policies in the
    state of Texas are required to report to [the] vendor once a week all
    insurance policies that are in force”;

   “[T]he vendor also gets information on the registered vehicles from
    the . . . [DMV]. They report that information once a week”;

   More than 300 insurance companies report to the database;

   “It’s approximately 43 million records per week”;

   All of that information is input into one database;

   New insurance typically takes three weeks to be reflected in the
    database;

   TDI has had no issues with the third-party vendor regarding
    “information links” or ongoing “mistakes”;

   TDI has quality control systems in place to maintain the third-party
    vendor’s quality and control;

   Data leaks would be addressed immediately;

   Four possible responses “come out of the TexasSure database”:
    “[C]onfirmed, unconfirmed, not found, [and] multiple”;

   But “DPS is responsible for how that insurance displays to law
    enforcement throughout the state”;

   It is her understanding that DPS uses “verify manually” for any
    returns that would otherwise be “not found” and “multiple”;

   “Unconfirmed means that the vehicle was located, but either the
    policy hasn’t been reported in more than 45 days or the policy is
    more than 21 days expired”;

   The only reason other than lag time she could think of for the 33%
    error rate Deputy Kristufek experienced would be “an error in the
    way their information was recorded by their [insurance] company”;

   TDI does not keep records regarding rates of error;



                                 6
            Self-insurance is maintained by DPS, and DPS reports to the vendor
             weekly;

            TexasSure is the only database used in Texas that matches the
             registration to the insurance of a private vehicle;

            The vendor sends written notice to owners of registered vehicles that
             go 90 days without an insurance match that the database does not
             show that they have insurance;

            In her opinion, the database is reliable in spite of the 33% error rate
             experienced by Deputy Kristufek;

            Since its inception, the database has been “unavailable[,] . . .
             down[,] or broken” “for five seconds here or there, but nothing
             significant”;

            She had no independent recollection that the database was not
             accessible on January 24, 2016; and

            She knew nothing about Binkley’s case.

                          II.   MOTION TO SUPPRESS

A.    Standard of Review

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

bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex.

Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

In reviewing the trial court’s decision, we do not engage in our own factual

review. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Best v.

State, 118 S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, no pet.). The trial

judge is the sole trier of fact and judge of the witnesses’ credibility and the weight

to be given their testimony. Wiede v. State, 214 S.W.3d 17, 24–25 (Tex. Crim.

App. 2007); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000), modified



                                          7
on other grounds by State v. Cullen, 195 S.W.3d 696 (Tex. Crim. App. 2006).

Therefore, we give almost total deference to the trial court’s rulings on

(1) questions of historical fact, even if the trial court’s determination of those facts

was not based on an evaluation of credibility and demeanor, and (2) application-

of-law-to-fact questions that turn on an evaluation of credibility and demeanor.

Amador, 221 S.W.3d at 673; Montanez v. State, 195 S.W.3d 101, 108–09 (Tex.

Crim. App. 2006); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App.

2002). But when application-of-law-to-fact questions do not turn on the credibility

and demeanor of the witnesses, we review the trial court’s rulings on those

questions de novo. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d

604, 607 (Tex. Crim. App. 2005); Johnson, 68 S.W.3d at 652–53.

      Contrary to the State’s assertions, material facts of this case are in dispute;

we therefore view the evidence in the light most favorable to the trial court’s

ruling. See Wiede, 214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808, 818 (Tex.

Crim. App. 2006). When the record is silent on the reasons for the trial court’s

ruling, or when there are no explicit fact findings and neither party timely

requested findings and conclusions from the trial court, we imply the necessary

fact findings that would support the trial court’s ruling if the evidence, viewed in

the light most favorable to the trial court’s ruling, supports those findings. State

v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008); see Wiede,

214 S.W.3d at 25. We then review the trial court’s legal ruling de novo unless




                                           8
the implied fact findings supported by the record are also dispositive of the legal

ruling. Kelly, 204 S.W.3d at 819.

      We must uphold the trial court’s ruling if it is supported by the record and

correct under any theory of law applicable to the case even if the trial court gave

the wrong reason for its ruling. State v. Stevens, 235 S.W.3d 736, 740 (Tex.

Crim. App. 2007); Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App.

2003), cert. denied, 541 U.S. 974 (2004).

B.    Reasonable Suspicion

      A detention, as opposed to an arrest, may be justified on less than

probable cause if a person is reasonably suspected of criminal activity based on

specific, articulable facts.   Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868,

1880 (1968); Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000).

An officer conducts a lawful temporary detention when he or she has reasonable

suspicion to believe that an individual is violating the law.      Crain v. State,

315 S.W.3d 43, 52 (Tex. Crim. App. 2010); Ford v. State, 158 S.W.3d 488,

492 (Tex. Crim. App. 2005). Reasonable suspicion exists when, based on the

totality of the circumstances, the officer has specific, articulable facts that when

combined with rational inferences from those facts, would lead him to reasonably

conclude that a particular person is, has been, or soon will be engaged in

criminal activity. Ford, 158 S.W.3d at 492. This is an objective standard that

disregards any subjective intent of the officer making the stop and looks solely to

whether an objective basis for the stop exists. Id.


                                         9
        Reasonable suspicion is a lower level of suspicion than probable cause,

and probable cause “falls far short of a preponderance of the evidence standard.”

Baldwin v. State, 278 S.W.3d 367, 371 (Tex. Crim. App. 2009). Nevertheless,

reasonable suspicion is dependent on both the content of the information known

to police and its level of reliability. Alabama v. White, 496 U.S. 325, 330, 110 S.

Ct. 2412, 2416 (1990).

C.      Stops Based on “Unconfirmed Insurance” Returns
        As we stated in Ellis v. State, Texas drivers must maintain proof of

responsibility for their vehicles.   No. 02-16-00309-CR, 2017 WL 5618686, at

*4 (Tex. App.—Fort Worth Nov. 22, 2017, pet. filed) (Pittman, J.); see Tex.

Transp. Code Ann. § 601.051 (West 2011). Operating a vehicle for which no

financial responsibility has been established is a misdemeanor punishable by a

fine.    Ellis, 2017 WL 5618686, at *4; see Tex. Transp. Code Ann.

§ 601.191 (West Supp. 2017).

        Cases addressing the validity of stops based on an officer’s database-

derived suspicion from ambiguous terms like “unconfirmed” that the driver may

be committing this misdemeanor fall into two general groups: cases in which the

evidence dispels the ambiguity and shows that the data is reliable and cases in

which the evidence falls short of doing so. Ellis, 2017 WL 5618686, at *4; see

United States v. Broca-Martinez, 855 F.3d 675, 678–79 (5th Cir. 2017) (noting

that federal appellate cases addressing the issue turn on evidence of reliability).




                                         10
      1.     Cases in Which Reliability of the Database Return Was
             Established

      Two of this court’s previous cases are illustrative of that group of cases in

which the evidence supports a reliability finding and an ultimate determination of

reasonable suspicion. In Swadley v. State, the evidence showed:

            What “unconfirmed” meant to the arresting officer, based on
             his training and experience;

            That the database was accurate and reliable based on the
             officer’s extensive experience;

            That the database was updated weekly; and

            What the possible responses from the database were and
             what they indicated.

No. 02-15-00085-CR, 2016 WL 7241564, at *1, *3, *6 (Tex. App.—Fort Worth

Dec. 15, 2016, pet. ref’d) (mem. op., not designated for publication). Our court

therefore upheld the trial court’s determination that the officer had reasonable

suspicion, concluding (1) that the officer had sufficient, specific articulable facts

from which he could rationally infer that Swadley’s vehicle had an insurance

issue justifying further investigation and (2) that the evidence supported the

finding that the database was “sufficiently reliable.” Id. at *6.

      In Ellis, Ellis argued that evidence did not establish the database’s

reliability, 2017 WL 5618686, at *6, but the arresting officer testified:

            He had used the database “[t]ens of thousands” of times;

            Only “a handful” of the “(h)undreds, if not thousands” of returns of
             “unconfirmed” he received from the database were in error; and

            The database was “very” accurate based on his experience.


                                          11
Id.   We therefore upheld “the trial court’s implicit finding that [the officer’s]

knowledge was sufficient to establish the database’s reliability for the purposes of

establishing reasonable suspicion.” Id. at *7.

       2.    Cases in Which Reliability of a Database Return Was Not
             Established

       At the other end of the spectrum, two of our sister courts’ cases and a

Tenth Circuit opinion authored by now Supreme Court Justice Neil Gorsuch

present situations in which the evidence did not prove the database’s reliability.

In Gonzalez-Gilando v. State, the database returned “unavailable,” “not

available,” or “undocumented” regarding liability insurance coverage when

troopers and a deputy sheriff typed in the information for Gonzalez-Gilando’s

vehicle. 306 S.W.3d 893, 894–95 (Tex. App.—Amarillo 2010, pet. ref’d). The

deputy testified that the return led him to believe that the vehicle did not have

insurance coverage, but he did not explain why. Id. at 896–97. On the other

hand, one of the troopers testified that the return could have meant either that the

vehicle was insured or that it was not insured. Id. at 897 n.2. No other evidence:

            Examined where the information in the database came from;

            Described what “unavailable,” “not available,” or “undocumented”
             meant;

            Demonstrated the error rate of the database;

            Established the age of the information in the database; or

            Proved the database was even accessible to the deputy or troopers
             at the time of the arrest.




                                        12
Id. at 897. Our sister court in Amarillo therefore held that the deputy’s inference

was not reasonable and that he lacked reasonable suspicion for the stop. Id.

      In State v. Daniel, the State stipulated that the sole reason for the stop was

that the vehicle’s status was “unconfirmed” by the database, and no evidence

concerning the meaning of that term was mentioned in the opinion. 446 S.W.3d

809, 811–16 (Tex. App.—San Antonio 2014, no pet.). Relying on Gonzalez-

Gilando, our sister court in San Antonio upheld the trial court’s determination that

the arresting officers lacked reasonable suspicion. Id. at 815–16.

      In United States v. Esquivel-Rios, a Kansas trooper asked his dispatcher

to verify a minivan’s temporary Colorado tag number with a law enforcement

database.      725 F.3d 1231, 1234 (10th Cir. 2013).      The dispatcher replied,

“[T]hat’s a negatory on record, not returning,” but also said, “Colorado temp tags

usually don’t return.”   Id. at 1234, 1235.    The trooper testified that he had

“experienced (Colorado temporary tags) returning not on file.”               Id. at

1238 (emphasis removed). Nevertheless, the district court concluded,

      [T]he trooper had reasonable suspicion to believe the minivan was
      displaying a forged tag. In Kansas, as elsewhere, vehicles must be
      registered with some lawful authority. When a law enforcement
      database yields no information about a registration tag, the [district]
      court reasoned, that raises a non-trivial possibility the tag wasn’t
      lawfully issued in the first place but falsified in some way.
Id. at 1235.    The district court also found that the trooper “had encountered

Colorado temporary tags before, and had them come back on file when he ran




                                        13
them through dispatch.”       Id. at 1238.      Justice Gorsuch explained why the

appellate court rejected the district court’s ruling:

            The district court’s reasoning was right as far as it went. This
      court and others have regularly upheld traffic stops based on
      information that the defendant’s vehicle’s registration failed to
      appear in a law enforcement database—at least when the record
      suggested no reason to worry about the database’s reliability.
              The difficulty we face in this case stems from that last and
      critical qualification. When Trooper Dean asked about the minivan’s
      temporary tag, the dispatcher replied not only that the tag yielded a
      “no return” response from the queried database. The dispatcher
      also added that “Colorado temp tags usually don’t return.” And this
      is a piece of evidence our cases haven’t confronted before:
      evidence admitted by a district court suggesting that the database
      on which the officer relied to justify his stop might bear a real
      problem—a problem that might mean a “no return” doesn’t suggest
      criminal conduct but only some bureaucratic snafu.
             ....
              The Fourth Amendment reasonable suspicion analysis
      requires a careful consideration of the “totality of the circumstances.”
      Yet in a case that hinges entirely on the reliability of a computer
      database, the district court overlooked one critical circumstance—
      the dispatcher’s comment—casting doubt on its reliability. And the
      district court misstated another critical circumstance doing the same
      thing—Trooper Dean’s comment about his experience with the
      database.      All of the relevant circumstances, thus, were not
      considered.
Id. at 1235, 1238 (citations omitted); see also Broca-Martinez, 855 F.3d at 678–

79 (“[A] state computer database indication of insurance status may establish

reasonable suspicion . . . as long as there is either some evidence suggesting

the database is reliable or at least an absence of evidence that it is unreliable.”).




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      Like the courts in Ellis and Gonzalez-Gilando, however, the Esquivel-Rios

court heard very little evidence about the insurance database itself.          See

Esquivel-Rios, 725 F.3d at 1236.

D.    We Uphold the Trial Court’s Determination of No Reasonable
      Suspicion After Considering the “Totality of the Circumstances.”
      This case does not fall clearly into either group. Rather, the record in the

case before us contains a plethora of information about the database and

testimony supporting its reliability, but it also contains evidence casting doubt on

the reliability of the database, such as:

            Deputy Kristufek’s testimony that he “would stop about three or four
             vehicles” per week coupled with his testimony that in a week,
             “maybe three or four” times, he would pull someone over to
             investigate an “unconfirmed return,” and the driver would provide
             him with proof of insurance;

            Deputy Kristufek’s testimony that he would make three traffic
             investigations for unconfirmed insurance per week and in one of the
             three cases, the person would actually have insurance; and

            Database coordinator Melissa Burkhardt’s testimony that she could
             not explain the error rate experienced by Deputy Kristufek and that
             TDI does not keep records on rates of error.

      We are presented with a close case. Had the trial court denied Binkley’s

motion to suppress and he appealed, given the same record and the applicable

standard of review, we likely would have affirmed the trial court’s decision. See

Garcia-Cantu, 253 S.W.3d at 241; Wiede, 214 S.W.3d at 25; Ellis,

2017 WL 5618686, at *7; Swadley, 2016 WL 7241564, at *6.               This case’s

procedural posture—a State’s appeal of the trial court’s order granting a

defendant’s motion to suppress—does not affect the standard of review: we

                                            15
must imply the necessary fact findings that would support the trial court’s ruling if

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

supports those findings.      Garcia-Cantu, 253 S.W.3d at 241; see Wiede,

214 S.W.3d at 25.

      Viewing the evidence in the light most favorable to the trial court’s ruling,

the trial court attached greater significance and credibility to Deputy Kristufek’s

testimony indicating a weekly error rate of 33% and potentially up to 100% in his

experience with the database and to database coordinator Burkhardt’s inability to

explain the error rate experienced by Deputy Kristufek. That evidence supports

the trial court’s implied finding that the database was not reliable.           The

undisputed evidence shows that Deputy Kristufek had no basis for the stop other

than the return from the database.       As Justice Gorsuch wisely recognized,

“[W]orries about a computer database’s reliability might diminish if officers also

possess other facts independently suggestive of unlawful activity.”        Esquivel-

Rios, 725 F.3d at 1236. Thus, considering the totality of the circumstances in the

record before us, we hold that the trial court did not err by implicitly finding that

Deputy Kristufek did not have reasonable suspicion to support the stop.

                               III.   CONCLUSION

      Consequently, we overrule the State’s sole point, and we affirm the trial

court’s order granting Binkley’s motion to suppress.




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                                        /s/ Mark T. Pittman
                                        MARK T. PITTMAN
                                        JUSTICE

PANEL: SUDDERTH C.J.; GABRIEL and PITTMAN, JJ.

PUBLISH

DELIVERED: February 8, 2018




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