                                                                         PD-1012-15
                      PD-1012-15                        COURT OF CRIMINAL APPEALS
                                                                        AUSTIN, TEXAS
                                                      Transmitted 8/31/2015 12:00:00 AM
                                                         Accepted 9/1/2015 11:14:36 AM
                                                                         ABEL ACOSTA
                            IN THE                                               CLERK
               TEXAS COURT OF CRIMINAL APPEALS


KEVIN DEAN DUNN,
Petitioner,

vs.                                      No. ________________________


THE STATE OF TEXAS,
Respondent


********************************************************************
              PETITION FOR DISCRETIONARY REVIEW
********************************************************************


                                         WYDE & ASSOCIATES, LLP
                                         Dan L. Wyde
                                         SBN 22095500
                                         10100 N. Central Expressway,
                                         Suite 590
                                         Dallas, Texas 75231
                                         Tel 214-521-9100
          September 1, 2015              Fax 214-521-9130
                                         wydelaw@gmail.com

                                         PETITIONER




PETITIONER REQUESTS ORAL ARGUMENT




                                                                           1
Identity of Parties

      The appellant is Kevin Dean Dunn, who is the defendant in the State of

Texas v. Kevin Dean Dunn, Case Number 1298839. Appellee is the State of

Texas. The appellant appeals from the trial court's denial of his motion to suppress

and motion to suppress unlawfully obtained evidence and the trial court's verdict

of guilty and its written judgment.

      Appellant's trial and appellate counsel is:

          1. Hon. Dan L. Wyde
             10100 North Central Expressway, Suite 590
             Dallas, Texas 75231
             Tel.: 214.521.9100
             Fax: 214.521.9130
             Email: wydela w@gmail.com

      Appellee' s trial counsel is:

          1. Hon. Charles A. Boulware
             Hon. Jacob R. Lilly
             Assistant Criminal District Attorneys, Tarrant County, Texas
             Tim Curry Criminal Justice Center, Fifth Floor
             401W. Belknap Street
             Fort Worth, Texas 76196
             Tel.: 817-884-2608

      Appellee' s appellate counsel is:

           1. Hon. Charles M. Mallin
             Assistant Criminal District Attorney, Tarrant County, Texas
             Tim Curry Criminal Justice Center
             401 W. Belknap StreetFort
             Worth, Texas 76196 Tel.:
             817-884-2608

                                                                                       2
Trial Judge Is:

     Judge Jerry Woodlock
     Visiting Judge
     2655 Harris Street
     Gainseville, TX 76240




                             3
                         TABLE OF CONTENTS

Identity of Judge, Parties, and Counsel………………………………………2

Index of Authorities…………………………………………………………..5

Statement Regarding Oral Argument………………………………………....6

Statement of the Case…………………………………………………………6

Statement of Procedural History………………………………………………6

Abbreviations………………………………………………………………….7

Grounds for Review…………………………………………………………...7

Argument………………………………………………………………………8


First Issue: Whether the trial court erroneously denied appellant's Motion to
Suppress Unlawfully Obtained Evidence on the grounds that the officer did not have
reasonable suspicion or probable cause to effectuate a traffic stop on the Appellant.


Second Issue: Whether the trial court erroneously charged the jury regarding the
burden of proof necessary for law enforcement to initiate any encounter or detention
of the appellant while operating a motor vehicle, as set forth in Whren v. United
States, 517 U.S. 806, 116 S.Ct. 1769 (1996).




                                                                                    4
                                Index of Authorities

Statutes
Texas Code of Criminal Procedure 36.14 ………………………………….....p. 14
Texas Code of Criminal Procedure 38.23 ………………………………….…p. 124
Texas Transportation Code §545.060(a) ……………………………… pgs. 12, 13


Cases
Abdnor v. State, 871 S.W.2d 726, 731-32 (Tex.Crim.App.1994); ………….…p. 14
Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App. 1984); ………….........pgs. 10, 16
Baldez v. State, 386 S.W.3d 324, 326 (Tex. Crim. App. 2012); ………………..p. 15
Berkemer v. McCarty, 468 U.S. 420, 439, 104 S.Ct. 3138, (1984); ………….…p. 11
Hernandez v. State, 983 S.W.2d 867, 868-869, 871
(Tex.App.-Austin 1998); ……………………………………………… pgs. 11, 12, 13

Terry v. Ohio, 392 U.S. 1, 29, 88 S.Ct. 1868, 20 L.ed.2d 889 (1968); …………..p. 11
Walter v. State, 28 S.W.3d 538, 542 (Tex.Crim.App.2000); ……………………p. 15
Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, (1996); ...pgs. 7, 9, 10,14
                                                                               15, 16

Woods v. State, 956 S.W.2d 33, 35 (Tex.Crim.App.1997); ………………………p. 11


Rules
Texas Rule of Appellate Procedure 66.3 …………………………………………p. 8




                                                                                     5
STATEMENT REGARDING ORAL ARGUMENT

      Oral argument should be granted in this appeal as it will aid the Court in

reviewing the totality of the evidence presented at the suppression hearing, as well as

to resolve the standard for an officer to effectuate the stop of a vehicle for a traffic

offense.



STATEMENT OF THE CASE

      This case concerns a traffic stop based on the transportation code offense of

failure to maintain a single lane. The stop resulted in the appellant’s arrest and

subsequent conviction for the offense of driving while intoxicated. Appellant filed a

pre-trial motion to suppress which was denied by the trial court. Appellant also

submitted the issue of the reasonableness of the stop to the jury. Appellant contends

that the trial court applied the wrong evidentiary standard for a detention based on a

traffic violation, and incorrectly instructed the jury on the legal standard.



STATEMENT OF PROCEDURAL HISTORY

      (1) Date of opinion from Court of Appeals:             May 21, 2015

      (2) Date of Motion for Rehearing:                      June 22, 2015

      (3) Date Motion for Rehearing Disposed:                July 16, 2015




                                                                                      6
ABBREVIATIONS AND REFERENCES

         The required documents and several other key documents from the trial are

attached to this Petition in the Appendix. The pages of the Appendix are numbered

in the lower, right-hand corner for ease of reference and use by the Court. The

Clerk’s Record (CR) is referred to by page number (e.g., CR422). The Reporter’s

Record (RR) is referred to by volume number, then page number (e.g. 3 RR 88-90).



GROUNDS FOR REVIEW

1. Probable Cause vs. Reasonable Suspicion for a Traffic Stop

         The trial court only found that there was reasonable suspicion to believe the

traffic offense occurred. Appellant contends that, pursuant to Whren v. United States,

517 U.S. 806, 116 S.Ct. 1769 (1996), the proper standard is probable cause, not

reasonable suspicion. “The decision to stop an automobile is reasonable where the

police have probable cause to believe a traffic stop occurred.”         Whren at 810.

Appellant contends that an investigative detention can be based on reasonable

suspicion of criminal activity or probable cause of a traffic violation, and that the

correct legal standard for a stop based on failure to maintain a single lane is probable

cause.




                                                                                      7
2. Improper Jury Instruction

      The trial court improperly instructed the jury that the stop of appellant was

reasonable if reasonable suspicion existed to believe a traffic violation had occurred.

The proper instruction would have been that the stop was reasonable if probable

cause existed to believe a traffic violation had occurred.

      The Court of Appeals for the Second District, Fort Worth, Texas denied

appellants appeal and affirmed the trial court’s rulings. Appellant contends that the

Court of Appeals has decided an important question of law that has not been but

should be settled by the Court of Criminal Appeals, or has decided an important

question of law which conflicts with a decision of the Supreme Court of the United

States, and that therefore the Court of Criminal Appeals should grant review of this

petition, pursuant to Texas Rules of Appellate Procedure, Rule 66.3 (b) and (c).



ARGUMENT

        This case is an appeal from a verdict of guilty wherein the appellant was

 accused of Driving While Intoxicated, a Class A Misdemeanor. On August 24,

 2012, the Appellant's vehicle was stopped pursuant to a traffic stop by Officer

 Daniel McLain, a DWI Officer with the Grapevine Police Department, for

 failure to maintain a single lane of travel. RR. Vol. 2, 5-10. Appellant was

 subsequently arrested for driving while intoxicated after the officer

                                                                                          8
detected the smell of alcohol on his breath and slurred speech, and the

appellant refused to perform field sobriety exercises. RR, Ex. Index State

Ex. 1.

         The trial    court erred when it failed to grant appellant's Motion to

Suppress. The trial court further erred when it erroneously charged the jury

regarding the burden of proof necessary for law enforcement to initiate any

encounter or detention of the appellant while operating a motor vehicle for a

traffic offense as opposed to a criminal offense.

         First Issue: Whether the trial court erroneously denied appellant's Motion

to Suppress Unlawfully Obtained Evidence on the grounds that the officer did

not have reasonable suspicion or probable cause to effectuate a traffic stop on the

Appellant.

         Second Issue: Whether the trial court erroneously       charged the jury

regarding the burden of proof necessary for law enforcement to initiate any

encounter or detention of the appellant while operating a motor vehicle, as set

forth in Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769 (1996).



         After the Whren decision, it can be said that what has emerged in

practice is a dual standard. The standard requires probable cause to stop for a

traffic violation or reasonable suspicion that the motorist has committed or is
                                                                                      9
committing a crime. If Officer McClain had stopped appellant on the belief that

appellant was driving while intoxicated then the reasonable suspicion standard

would still apply, if and only if his suspicion was "reasonable" ; which means

based on "reason(s)" ; not a hunch someone has ingested an intoxicant, and that

intoxicant has caused the person to not have the normal use of their mental or

physical faculties. It is clear from the facts that Officer McClain believed he

had probable cause to arrest appellant for driving while intoxicated only after he

made contact with appellant and not as he was pulling him over for the traffic

offense. The appellant was harmed by the use of the lower standard. Given the

United States Supreme Court holding in Whren v. United States, the jury should

have been charged as to this higher standard as requested by appellant and it was

error for the trial court to not instruct as such. Failure to instruct the jury as to the

proper burden of proof is fundamental error. Almanza v. State, 686 S.W.2d 157

(Tex.Crim.App. 1984). Error requires this court to reverse the trial court and acquit

the appellant. The trial court further erred by failing to include defense counsel's

requested language change in the court's charge.



Issue One: Whether the trial court erroneously denied appellant's
Motion to Suppress Unlawfully Obtained Evidence on the grounds
that the officer did not have reasonable suspicion or probable cause
to stop Appellant's vehicle.

                                                                                        10
       Appellant contends that this court should remand this issue to the trial

court to make complete findings of fact and conclusions of law such that this

court can review the trial court's application of law to the facts as were

presented at the suppression hearing. Should the court not be so inclined, this

court could and should still find that the trial court erred in denying appellant's

Motion to Suppress as the trial court's findings were not supported by the

record, as more fully set forth below.

       "A police officer can stop and briefly detain a person for investigative

purposes if the officer has a reasonable suspicion supported by articulable

facts that criminal activity may be afoot, even if the officer lacks evidence

rising to the level of 'probable cause."' Terry v. Ohio, 392 U.S. 1, 29, 88 S.Ct.

1868 (1968). A warrantless automobile stop is a Fourth Amendment seizure

analogous to a temporary detention, and it must be justified by reasonable

suspicion. Berkemer v. McCarty, 468 U.S. 420, 439, 104 S.Ct. 3138 (1984);

Hernandez v. State, 983 S.W.2d 867, 869 (Tex.App.-Austin 1998, pet. ref d). A

detaining officer must have specific articulable facts which, taken together with

rational inferences from those facts, lead him to conclude that the person

detained is, has been, or soon will be engaged in criminal activity. Woods v.

State, 956 S.W.2d 33, 35 (Tex. Crim.App.1997); Hernandez, 983 S.W.2d at

869.
                                                                                    11
      The State did not meet its burden in proving that appellant's conduct was

suspicious enough to warrant police intrusion at the time the stop was made

and the judge made no findings of the officer's specific, articulable facts

sufficient to establish reasonable suspicion, much less probable cause. See

Appendix, Findings of Fact and Conclusions of Law. Officer McClain, the sole

witness for the State, testified at the suppression hearing that the basis for him

initiating a traffic stop of the Appellant's vehicle was for failure to maintain a

single lane of travel, a traffic offense. Upon further questioning by the State he

added that, at the time of the stop, he also "possibly" had the reasonable belief

that the appellant might be intoxicated. He based this "possible" belief on the

fact that it was 11:00 o'clock at night and the appellant was travelling away

from the bar district. His training and experience led him to the hunch that the

appellant was intoxicated. Even if the State were to argue that the basis of the

suspicion for the stop was that appellant was intoxicated, and not merely that

appellant had violated section 545.060(a) of the Transportation Code, they did

not meet their burden. To apply the officer's hunch to every motorist, then

every motorist who is traveling away from a "bar district" in the 11:00 o'clock

hour, who commits any traffic offense, must be intoxicated, is not only illogical,

but absurd.

                                                                                     12
      The issue in this case is not whether the officer had sufficient articulable

facts to give rise to a reasonable suspicion that appellant was intoxicated, but

whether he had sufficient articulable facts to give rise to probable cause that

appellant had committed a traffic offense. This is supported by Officer

McClain's testimony that he stopped appellant for the traffic offense and not

for the "possible" belief of intoxication.

      Texas Transportation Code Sec. 545.060(a) provides:

      (a) An operator on a roadway divided into two or more clearly marked
      lanes for traffic:

             (1) shall drive as nearly as practical entirely within a single lane;
and

             (2) may not move from the lane unless movement can be made

safely. Under this statute, a violation occurs only when a vehicle fails to stay

within its lane and such movement is not safe or is not made safely.

Hernandez, 983 S.W.2d at 871. In Hernandez, the officer testified that the

vehicle in question failed to maintain a single marked lane and the repeated

lane changes were unsafe because he was concerned about the driver's well-

being. Id. at 868. The State did not meet its burden in showing that the

movement of appellant's vehicle was unsafe and the trial court erred in denying

appellant's Motion to Suppress. The trial court's ruling should be overruled by

this court as it was not sufficiently supported by the credible and believable
                                                                                     13
evidence presented.



Issue Two: Whether the trial court erroneously charged the jury
regarding the burden of proof necessary for law enforcement to initiate
any encounter or detention of the appellant while operating a motor
vehicle, as set forth in Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769
(1996).

      Texas Code of Criminal Procedure 36.14 requires the trial court deliver to

the jury "a written charge distinctly setting forth the law applicable to the

case." Tex. Code. Crim. Proc. Ann. Art. 36.14. When reviewing alleged errors

in a trial court's charge, we must first determine whether error actually exists in

the charge, and, if error does exist, we must determine whether sufficient harm

resulted from the error to require reversal. Abdnor v. State, 871 S.W.2d 726,

731-732 (Tex.Crim.App.1994) .

      The trial court incorrectly charged the jury regarding the burden of proof

necessary for law enforcement to initiate any encounter or detention of the

appellant while operating a motor vehicle. The trial court erred by denying

appellant's request to include for the jury the definition of the applicable traffic

offense. The appellant argued and made the record pursuant to Code of

Criminal Procedure Article 36.14 that under the facts of the instant case the

proper standard in respect to the 38.23 language was probable cause as opposed

to reasonable suspicion and asked the court to change the language of the
                                                                                       14
charge to so reflect.

     Defense counsel also argued for the trial court to include for the jury the

definition of what constitutes failing to maintain a single lane of traffic so that

the jury could answer the factual question of whether or not appellant left his

lane of traffic and, if so, whether he did so unsafely.

      Officer McClain did not stop appellant because he had a reasonable

suspicion that the appellant was intoxicated. He stopped appellant because he

believed appellant to have committed a traffic offense, namely the failure to

stay within a single lane of traffic. In Whren v. United States, 517 U.S. 806,

116 S.Ct. 1769 (1996), the United States Supreme Court, declared "probable

cause" to be the constitutionally mandated level of suspicion necessary to stop an

automobile for a traffic violation. The Whren court stated:

       "An automobile stop is thus subject to the constitutional imperative that it
       not be "unreasonable" under the circumstances. As a general matter, the
       decision to stop an automobile is reasonable where the police have
       probable cause to believe that a traffic violation has occurred."

Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769 (1996). The Texas

courts have followed this same language in Baldez v. State, 386 S.W.3d 324

(Tex. Crim.      App.    2012)    and    Walter    v.     State,   28   S.W.3d   538

(Tex.Crim.App.2000) where they quoted straight from the Whren decision and

stated, "Generally, a police officer's decision to stop a car is reasonable when

                                                                                       15
the officer has probable cause to believe that a traffic violation has occurred

._Baldez v. State, 386 S.W.3d 324, 326 (Tex. Crim. App. 2012); Walter v. State,

28 S.W.3d 538, 542 (Tex.Crim.App.2000) (citing Whren v. United States, 517

U.S. 806, 810, 116 S.Ct. 1769 (1996)).

       After the Whren decision, it can be said that what has emerged in

practice is a dual standard. The standard requires probable cause to stop for a

traffic violation or reasonable suspicion that the motorist has committed or is

committing a crime. If Officer McClain had stopped appellant on the belief that

appellant was driving while intoxicated then the reasonable suspicion standard

would still apply, if and only if his suspicion was "reasonable"; which means

based on "reason(s)"; not a hunch someone has ingested an intoxicant, and that

intoxicant has caused the person to not have the normal use of their mental or

physical faculties. It is clear from the facts that Officer McClain believed he

had probable cause to arrest appellant for driving while intoxicated only after he

made contact with appellant and not as he was pulling him over for the traffic

offense. The appellant was harmed by the use of the lower standard. Given the

United States Supreme Court holding in Whren v. United States, the jury should

have been charged as to this higher standard as requested by appellant and it was

error for the trial court to not instruct as such. Failure to instruct the jury as to the

proper burden of proof is fundamental error. Almanza v. State, 686 S.W.2d 157
                                                                                        16
 (Tex.Crim.App. 1984). Error requires this court to reverse the trial court and acquit

 the   appellant.

 Conclusion

        The uncontroverted and unchallenged videotape evidence of the incident

 shows that the trial court erroneously denied appellant's two pre-trial motions

 to suppress evidence. Officer McClain had no probable cause to effectuate the

 traffic stop on appellant for the alleged traffic offense of failure to maintain a

 single lane of travel. The State's Exhibit 1 is conclusive proof that no traffic

 offense occurred. Thus, pursuant to 38.23 of the Code of Criminal Procedure the

 trial court erred by not suppressing the evidence obtained as a result of an

 unlawful search.

 Prayer

       Petitioner prays that this Petition be granted;

       That the evidence obtained as a result of the vehicle stop be ordered

suppressed, and the conviction based on the evidence obtained as a result of the

improper vehicle stop should be reversed and judgment of acquittal rendered, or in

the alternative that the case should be remanded to the trial court with the order that

the evidence be suppressed.

       The error in the jury charge for possession cases should be corrected for all

future cases.
                                                                                       17
Petitioner also requests such other and further relief as is just.

                                  Respectfully submitted,

                                   By: /s/Dan L. Wyde
                                         Dan L. Wyde
                                   Texas Bar No. 22095500
                                   10100 North Central Expressway, Suite 590
                                   Dallas, TX 75231
                                   Tel.: (214) 521-9100; Fax: (214) 521-9130
                                   E-mail: wydelaw@gmail.com
                                   Attorney for Kevin Dean Dunn, Petitioner




                                                                           18
                    CERTIFICATE OF COMPLIANCE

      I certify in accordance with Rule 9.4(i)(2)(D) of the Texas Rules of

Appellate Procedure that the number of words in this document is 3,128 as

calculated by the Word Count tool in Microsoft Word.



                                    /S / Dan L. Wyde
                                     Dan L. Wyde
                        CERTIFICATE OF SERVICE

      I certify that on August 11, 2014, a true and correct copy of the above

and foregoing document was served on the District Attorney's Office, Appellate

Division, Tarrant County, by facsimile transmission to 817.884.1672.



                                      /s/ Dan L. Wyde
                                     Server




                                                                            20
WHEREFORE Petitioner hereby PRAYS that this Honorable Court GRANT

Petitioner’s Motion to Extend Time to File Petition for Discretionary Review, and

extend the deadline for the filing of the Petition to 10 days from the date the Court

receives this pleading.

                                                     Respectfully Submitted

                                                     /S/ Dan Wyde
                                                     _________________________
                                                     WYDE & ASSOCIATES, L.L.C.
                                                     Dan L. Wyde
                                                     SBN 22095500
                                                     10100 N. Central Expressway,
                                                     Suite 590
                                                     Dallas, Texas 75231
                                                     Tel 214-521-9100
                                                     Fax 214-521-9130
                                                     wydelaw@gmail.com

                                                     PETITIONER
                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-14-00059-CR


KEVIN DEAN DUNN                                                  APPELLANT

                                      V.

THE STATE OF TEXAS                                                     STATE


                                   ----------

      FROM COUNTY CRIMINAL COURT NO. 1 OF TARRANT COUNTY
                   TRIAL COURT NO. 1298839

                                   ----------

                                 OPINION

                                   ----------

                               I. INTRODUCTION

      Appellant Kevin Dean Dunn appeals his conviction for driving while

intoxicated with a blood alcohol concentration of .15 or higher, a class-A

misdemeanor.   See Tex. Penal Code Ann. 49.04(a), (d) (West Supp. 2014).

Dunn pleaded not guilty, but a jury found him guilty; the trial court assessed

Dunn’s punishment at ninety days’ confinement and a $1,250.00 fine. The trial
court suspended imposition of Dunn’s sentence and placed him on community

supervision for a twenty-four month term. In his first two issues, Dunn argues

that the trial court erred by denying his motion to suppress because (1) the

arresting officer lacked reasonable suspicion or probable cause to stop his

vehicle and (2) the search warrant affidavit made by the officer in order to seize a

sample of Dunn’s blood contained false statements or statements made with a

reckless disregard for their truth. In his third issue, Dunn asserts that error exists

in the court’s charge because it contained an improper instruction stating that a

traffic stop is valid when it is premised on reasonable suspicion that the person

committed a traffic offense. We will affirm.

                                  II. BACKGROUND

      One evening in August at around 11:00 p.m., while City of Grapevine

Police Officer Daniel McClain was on patrol, Dunn pulled up next to Officer

McClain’s patrol car at a red light. Officer McClain’s dash-cam video recorded

the evening’s events and shows that when the light turned green, Dunn

accelerated ahead of Officer McClain. As Dunn drove, he drifted into Officer

McClain’s lane, requiring Officer McClain to slow down to avoid a collision. Dunn

corrected his vehicle, and Officer McClain changed lanes, so that his patrol car

was following directly behind Dunn’s vehicle. When Dunn’s vehicle drifted the

other direction and topped the broken white line, prompting a driver in the

adjacent lane to brake, Officer McClain stopped Dunn for failing to maintain a




                                          2
single lane of travel. It was late at night, and Officer McClain thought Dunn could

be driving while intoxicated.

      In an affidavit for a search warrant to obtain a sample of Dunn’s blood,

Officer McClain stated that when he began talking with Dunn, he smelled a

“strong odor of an alcoholic beverage” and observed that Dunn had bloodshot,

watery eyes and spoke “with a thick tongue.” At Officer McClain’s request, Dunn

got out of his vehicle. Officer McClain noted that Dunn swayed as he stood and

that Dunn walked unsteadily. Dunn refused to perform field sobriety tests; Officer

McClain arrested him for driving while intoxicated.

      Dunn refused to consent to a blood draw; Officer McClain prepared an

affidavit for a search warrant to obtain a specimen of Dunn’s blood and obtained

a warrant. Dunn’s blood alcohol content exceeded .15.

      Dunn filed two separate motions to suppress: one challenging the grounds

for the stop and arrest, the other contending that Officer McClain’s statements in

his affidavit were false or made with a reckless disregard for the truth. The trial

court conducted successive, back-to-back hearings on Dunn’s two motions to

suppress and denied them.1


      1
        The trial court issued findings of fact concerning Dunn’s second motion to
suppress and we previously abated this appeal at Dunn’s request to permit the
trial court to make findings of fact concerning Dunn’s first motion to suppress.
The trial court supplemented its findings and conclusions with findings regarding
the first motion to suppress, stating that Officer McClain was a credible and
reliable witness at the suppression hearing and that he possessed reasonable
suspicion to stop Dunn’s vehicle. Dunn then filed a motion requesting that this
court disregard the trial court’s supplemental findings of fact and conclusions of

                                         3
           III. THE CONSTITUTIONAL PREREQUISITE TO A TRAFFIC STOP

      Dunn’s first and third issues are premised on the contention that the United

States Supreme Court in Whren v. United States, 517 U.S. 806, 116 S. Ct. 1769

(1996), “without announcing that a substantive change had occurred,

mysteriously raised” the prerequisite for a stop based on a traffic violation from

reasonable suspicion to probable cause. Consequently, in his first issue, Dunn

argues that the trial court erroneously denied his first suppression motion

because Officer McClain did not have probable cause for the stop. Dunn’s third

issue claims that the jury charge incorrectly instructed that reasonable suspicion

of a traffic offense justifies a stop when, according to Dunn’s interpretation of

Whren, probable cause is required for such a stop.

                       A. Law Governing Traffic Stops

      The Fourth Amendment protects against unreasonable searches and

seizures by government officials. U.S. Const. amend. IV; Wiede v. State, 214

S.W.3d 17, 24 (Tex. Crim. App. 2007). To suppress evidence because of an

alleged Fourth Amendment violation, the defendant bears the initial burden of

producing evidence that rebuts the presumption of proper police conduct.

Amador v. State, 221 S.W.3d 666, 672 (Tex. Crim. App. 2007); see Young v.


law. Dunn complains of the trial court’s supplemental conclusion that Officer
McClain possessed reasonable suspicion to stop him. Because we review this
conclusion and the facts upon which it is based in connection with Dunn’s first
two issues, and because Dunn requested the supplemental findings of fact and
conclusions of law, we deny his motion that we disregard them.


                                        4
State, 283 S.W.3d 854, 872 (Tex. Crim. App.), cert. denied, 558 U.S. 1093

(2009). A defendant satisfies this burden by establishing that a search or seizure

occurred without a warrant. Amador, 221 S.W.3d at 672. Once the defendant

has made this showing, the burden of proof shifts to the State, which is then

required to establish that the search or seizure was conducted pursuant to a

warrant or was reasonable. Id. at 672–73; Torres v. State, 182 S.W.3d 899, 902

(Tex. Crim. App. 2005); Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App.

2005).

      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, 158 S.W.3d at 492. 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 the officer 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.


                                        5
      Dunn’s argument that Whren raised the prerequisite for a traffic stop to

probable cause is the same argument that was advanced by the defendant in

United States v. Lopez-Soto, and we agree with the Ninth Circuit’s response:

      Lopez-Soto argues that the Supreme Court’s decision in Whren . . .
      stands for the proposition that an officer must have probable cause
      to make a traffic stop. He relies on the Court’s observation that, “[a]s
      a general matter, the decision to stop an automobile is reasonable
      where the police have probable cause to believe that a traffic
      violation has occurred.”

           Prior to Whren, it was settled law that reasonable suspicion is
      enough to support an investigative traffic stop.

            ....

             We do not believe that the Court in Whren intended to change
      this settled rule. The passage on which Lopez-Soto relies tells us
      only that probable cause is sufficient to support a traffic stop, not
      that it is necessary. If the Supreme Court announced in Whren a
      new rule of law, as Lopez-Soto contends, we would expect it to have
      acknowledged the change and explained its reasoning. Such an
      explanation is notably absent from the Whren opinion. Instead, the
      facts of Whren involved speeding and failure to signal, and the
      parties agreed that, from these facts, the police had probable cause
      to make the disputed stop. This threshold agreement allowed the
      Whren Court to address a different issue, namely the constitutional
      relevance of the officers’ subjective intent in making the stop, to
      which the Court gave sustained attention. Given that probable
      cause was clearly satisfied on the facts before the Court in Whren
      and that the Court directed its focus elsewhere, we do not believe
      that the casual use of the phrase “probable cause” was intended to
      set a new standard.

            . . . [T]he Fourth Amendment requires only reasonable
      suspicion in the context of investigative traffic stops.

205 F.3d 1101, 1104–05 (9th Cir. 2000) (citations omitted).




                                         6
      The Ninth Circuit’s treatment of the argument accords with Texas law. See

Ford, 158 S.W.3d at 492 (“An officer conducts a lawful temporary detention when

he has reasonable suspicion to believe that an individual is violating the law.”);

see also, e.g., Delafuente v. State, 414 S.W.3d 173, 179 (Tex. Crim. App. 2013)

(“Taken together, these facts and inferences are sufficient to lead a reasonable

officer to conclude that appellant was engaged in criminal activity, namely a

violation of [Texas Transportation Code] Section 545.363(a).”); Abney v. State,

394 S.W.3d 542, 548 (Tex. Crim. App. 2013) (“In this case, the State was

required to show that the officer had reasonable suspicion that Appellant

committed the traffic violation of driving in the left lane without passing when a

sign (a traffic control device) prohibited such action.”).

      Because reasonable suspicion is the threshold for a traffic stop, the trial

court’s jury charge was not erroneous, and we overrule Dunn’s third issue. See

Sanchez v. State, 418 S.W.3d 302, 308 (Tex. App.—Fort Worth 2013, pet. ref’d)

(citing Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012)) (“[I]f [jury-

charge] error did not occur, our analysis ends.”). We now turn to whether the

facts support the trial court’s finding that Officer McClain had reasonable

suspicion to stop Dunn for failing to maintain a single lane of travel.

                              B. Motion to Suppress

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

bifurcated standard of review. Amador, 221 S.W.3d at 673; Guzman v. State,

955 S.W.2d 85, 89 (Tex. Crim. App. 1997). In reviewing the trial court’s decision,


                                           7
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

credibility of the witnesses and the weight to be given their testimony. Wiede,

214 S.W.3d at 24–25; State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000),

modified 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.

      Stated another way, when reviewing the trial court’s ruling on a motion to

suppress, we must view the evidence in the light most favorable to the trial

court’s ruling. Wiede, 214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808, 818

(Tex. Crim. App. 2006). When the trial court makes explicit fact findings, as here,

we determine whether the evidence, when viewed in the light most favorable to

the trial court’s ruling, supports those fact findings. Kelly, 204 S.W.3d at 818–19.


                                           8
We then review the trial court’s legal ruling de novo unless its explicit fact

findings that are supported by the record are also dispositive of the legal ruling.

Id. at 818. 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).

      The Transportation Code provides, “An operator on a roadway divided into

two or more clearly marked lanes for traffic: (1) shall drive as nearly as practical

entirely within a single lane and (2) may not move from the lane unless that

movement can be made safely.” Tex. Transp. Code Ann. § 545.060(a)(1)(2)

(West 2011). Officer McClain saw Dunn drift from his lane twice, which can be

seen on the video. And contrary to Dunn’s assertion on appeal, the drifting was

unsafe; Officer McClain as well as another driver had to slow down to avoid

hitting Dunn.2 Viewing the video and Officer McClain’s testimony in the light most


      2
        Dunn asserts that Officer McClain’s self-described “evasive maneuver”
involved only taking his foot off the accelerator and did not involve braking or
making a quick movement. Regardless, deceleration, whether by braking or
discontinuing acceleration, in response to a weaving driver, is evasive, and
unsafe weaving does not require that other drivers brake or make quick, furtive
movements. See Taylor v. Sate, 916 S.W.2d 680, 681–82 (Tex. App.—Waco
1996, pet. ref’d) (considering swerving into another lane and almost hitting an
officers’ vehicle therein to be unsafe driving); see also Yeakley v. State, No. 03-
09-00584-CR, 2011 WL 677391, at *4 (Tex. App.—Austin Feb. 25, 2011, pet.
dism’d) (holding that surrounding drivers’ use of caution to avoid the appellant’s
weaving vehicle did not render the weaving safe).


                                         9
favorable to the trial court’s ruling, see Wiede, 214 S.W.3d at 24; Kelly, 204

S.W.3d at 818–19, Montanez, 195 S.W.3d at 109, we conclude that the record

supports the trial court’s ruling. We overrule Dunn’s first issue.

                     IV. VERACITY OF AFFIDAVIT STATEMENTS

      Dunn’s second issue is premised on Franks v. Delaware, in which the

United States Supreme Court held,

      [W]here the defendant makes a substantial preliminary showing that
      a false statement knowingly or intentionally, or with reckless
      disregard for the truth, was included by the affiant in the warrant
      affidavit, and if the alleged false statement is necessary to the
      finding of probable cause, the Fourth Amendment requires that a
      hearing be held at the defendant’s request.

438 U.S. 154, 155–56, 98 S. Ct. 2674, 2675 (1978).

      In conducting a Franks suppression review, we use the same bifurcated

review outlined in the previous section, giving almost total deference to the trial

court’s rulings on questions of historical fact and application-of-law-to-fact

questions that turn on an evaluation of credibility and demeanor while reviewing

de novo application-of-law-to-fact questions that do not turn on credibility and

demeanor. Davis v. State, 144 S.W.3d 192, 201 (Tex. App.—Fort Worth 2004,

pet. ref’d) (op. on reh’g). An affidavit supporting a search warrant begins with the

presumption of validity. Franks, 438 U.S. at 171, 98 S. Ct. at 2684; Cates v.

State, 120 S.W.3d 352, 355 (Tex. Crim. App. 2003). It is the defendant’s burden

to rebut that presumption by proving by a preponderance of the evidence that the

affiant made false statement deliberately or with a reckless disregard for the



                                         10
truth. Franks, 438 U.S. at 156, 171, 98 S. Ct. at 2676, 2684; Davis, 144 S.W.3d

at 201. The defendant must also show that absent the false information, the

remaining content is insufficient for probable cause. Franks, 438 U.S. at 156,

171–72, 98 S. Ct. at 2676, 2684–85; Davis, 144 S.W.3d at 201; see Cates, 120

S.W.3d at 356.

      In its findings of fact and conclusions of law, the trial court stated that the

affidavit statements were all borne out by the testimony at the suppression

hearing and that there was no proof that Officer McClain deliberately made false

statements or made statements with a reckless disregard for the truth. Dunn

disagrees,   challenging   several   of   the   affidavit   statements   and   noted

observations, including the statement that Dunn drifted into Officer McClain’s

lane and almost collided with his patrol vehicle, that appellant had a strong odor

of alcohol, that Dunn “spoke with a thick tongue[,]” that Dunn’s clothing was

disorderly, that Dunn swayed and staggered, and that Dunn had an

uncooperative attitude.    Having already determined that the video supports

Officer McClain’s description of Dunn drifting into his lane in an unsafe manner,

this statement in the affidavit is not false. See Franks, 438 U.S. at 156, 171–72,

98 S. Ct. at 2676, 2684–85 (instructing that information that is proven to be false

and to have been made intentionally, knowingly, or with a reckless disregard for

the truth is to be omitted and the rest of the affidavit reviewed for probable

cause); Davis, 144 S.W.3d at 201 (same); see Cates, 120 S.W.3d at 356 (same).




                                          11
Officer McClain’s observations in his affidavit that Dunn’s eyes were bloodshot,

red, and watery were not challenged before the trial court or on appeal.

      The only evidence that Dunn claims establishes the falsity of Officer

McClain’s affidavit and testimony is the video of the stop. We note, however, that

the video sheds no light on Officer McClain’s assertion that Dunn smelled

strongly of alcohol. Moreover, although slight swaying is arguably visible on the

video, in general the subtleties of swaying, slight staggering, and even speaking

“thick-tongued” are not always amenable to being captured by a video camera

installed in an officer’s patrol vehicle parked several feet away, especially when

the stop occurs when it is dark outside as in this case, or by the audio equipment

worn by the officer. See Tucker v. State, 369 S.W.3d 179, 187 n.1 (Tex. Crim.

App. 2012) (Womack, J., concurring) (noting that the evidentiary value of video

evidence often depends on other factors because “[t]he clarity of the video is

often dependent on the lighting, angle or focus of the camera, or the camera’s

distance from the object recorded” and “[t]he audio may be inaudible due to the

tone of the speaker, static, or other background noise”). Viewing the video in the

light most favorable to the trial court’s ruling, it supports the court’s implicit finding

that the officer’s affidavit statements were accurate. See id. at 185 (“The court of

appeals should view the video in the light most favorable to the trial court’s ruling

and assume that the trial court made implicit findings that support the denial of

Appellant’s motion to suppress.”); Montanez, 195 S.W.3d at 109.




                                           12
      Even assuming that the video evidence did not corroborate Officer

McClain’s affidavit and testimony as implicitly found by the trial court, it did not

disprove his affidavit or testimony or expose a deliberate falsehood or reckless

disregard for the truth.   Dunn’s belief that the video did not support Officer

McClain’s affidavit statements—which Dunn characterizes on appeal as Officer

McClain’s “purely subjective” opinions—is the type of suspicion better channeled

into a robust cross-examination rather than serving as a foundation for a Franks

hearing. See Franks, 438 U.S. at 171, 98 S. Ct. at 2684 (“[T]he challenger’s

attack must be more than conclusory and must be supported by more than a

mere desire to cross-examine.”). In short, without more evidence, Dunn failed to

rebut the affidavit’s presumption of validity with a preponderance of the evidence

showing Officer McClain made false statements deliberately or with a reckless

disregard for the truth. Franks, 438 U.S. at 156, 171, 98 S. Ct. at 2676, 2684;

Cates, 120 S.W.3d at 355; Davis, 144 S.W.3d at 201. And we must respect the

trial court’s finding that Officer McClain was credible at the hearing, see Davis,

144 S.W.3d at 201, and implicit finding that the video supported Officer McClain’s

affidavit statements, see Tucker, 369 S.W.3d at 185. Accordingly, we overrule

Dunn’s second issue.




                                        13
                               V. CONCLUSION

     Having overruled Dunn’s three issues, we affirm the trial court’s judgment.



                                                 /s/ Sue Walker
                                                 SUE WALKER
                                                 JUSTICE

PANEL: GARDNER, WALKER, and GABRIEL, JJ.

PUBLISH

DELIVERED: May 21, 2015




                                      14
                                                                        FILE COPY




                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                             NO. 02-14-00059-CR


KEVIN DEAN DUNN                                                    APPELLANT

                                        V.

THE STATE OF TEXAS                                                       STATE


                                   ------------

      FROM COUNTY CRIMINAL COURT NO. 1 OF TARRANT COUNTY
                   TRIAL COURT NO. 1298839

                                   ------------

                                   ORDER

                                   ------------

      We have considered “Appellant’s Motion for En Banc Reconsideration and

Supporting Brief.”

      It is the opinion of the court that the motion for en banc reconsideration

should be and is hereby denied and that the opinion and judgment of May 21,

2015, stand unchanged.

      The clerk of this court is directed to transmit a copy of this order to the

attorneys of record.n
                                                 FILE COPY




    SIGNED July 16, 2015.


                                /s/ Sue Walker
                                SUE WALKER
                                JUSTICE

EN BANC




                            2
