Reversed and Remanded and Majority and Dissenting Opinions on Remand
filed December 18, 2012.




                                     In The

                        Fourteenth Court of Appeals
                              ___________________

                              NO. 14-11-00500-CR
                             ___________________

                      JOSEPH DELAFUENTE, Appellant

                                        V.

                      THE STATE OF TEXAS, Appellee


                   On Appeal from the County Court at Law
                           Waller County, Texas
                         Trial Court No. CC09-704


               DISSENTING OPINION ON REMAND

      The majority concludes that the trial court abused its discretion in denying
appellant’s motion to suppress because, in the majority’s view, the record does not
support a reasonable suspicion that appellant violated the law.      I respectfully
dissent.   The record evidence is sufficient to support the officer’s reasonable
suspicion to initiate the traffic stop. For this reason, this court should affirm the
trial court’s judgment.

                                    BACKGROUND

      During a traffic stop, appellant, who was a passenger in the stopped vehicle,
was arrested and charged with the class B misdemeanor of possession of marijuana.
He filed a motion to suppress evidence, challenging the officer’s reasonable
suspicion for initiating the traffic stop. Following a hearing, the trial court denied
appellant’s motion to suppress. Appellant then pleaded “guilty” to the charged
offense. The trial court assessed appellant’s sentence at three days’ confinement
and levied a fine. Appellant now challenges the trial court’s denial of his motion to
suppress, asserting in a single issue that the trial court erred in refusing to suppress
evidence because the State did not produce evidence of specific, articulable facts
demonstrating that a reasonable suspicion existed for the traffic stop. The majority
agrees with appellant’s assertion. But, the record evidence supports the trial court’s
ruling.

            STANDARD FOR REASONABLE-SUSPICION DETERMINATION

      An officer may stop and detain a person if the officer has reasonable suspicion
that a traffic violation was in progress or had been committed. Kelly v. State, 331
S.W.3d 541, 549 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d). Reasonable
suspicion exists if 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 actually is, has been, or soon will be engaged in criminal activity.
Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005); Mount v. State, 217




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S.W.3d 716, 727–28 (Tex. App.—Houston [14th Dist.] 2007, no pet.). This is an
objective standard that requires the court to disregard any subjective intent of the
officer making the stop and look solely to whether an objective basis for the stop
exists. Ford, 158 S.W.3d at 492. A reasonable-suspicion determination is made
by considering the totality of the circumstances. Id. at 492–93.

          EVIDENCE SUPPORTING THE TRIAL COURT’S DETERMINATION

      The record reflects that on June 24, 2009, at approximately 9:12 a.m., Officer
Brian Davis was patrolling Interstate 10 in Waller County when he observed traffic
congestion in the inside, westbound lane and moderate traffic volume. Officer
Davis saw the vehicle in which appellant was a passenger traveling below the speed
limit of 65 miles per hour, leading the officer to believe the vehicle was impeding
traffic. Using his Doppler radar unit, Officer Davis calculated the speed of the
vehicle at 52 miles per hour. Officer Davis then initiated a traffic stop by activating
his patrol unit’s rear emergency lights to move from the center lane to the inside
lane, where the vehicle was moving.           According to the officer, the vehicle
immediately yielded to the inside shoulder. Upon approaching the vehicle, Officer
Davis instantly detected a strong odor of marijuana.         Appellant admitted the
marijuana belonged to him.

      As reflected in his report, Officer Davis had reason to believe the vehicle was
impeding traffic. Under Texas law, “an operator may not drive so slowly as to
impede the normal and reasonable movement of traffic except when reduced speed
is necessary for safe operation or in compliance with law.” Tex. Transp. Code Ann.
§ 545.363(a) (West 2011). As the majority points out, in interpreting section




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545.363(a) of the Texas Transportation Code, Texas courts have held that slow
driving, in and of itself, is not a violation of the statute; a violation occurs only when
the normal and reasonable movement of traffic is impeded. Tex. Dep’t of Pub.
Safety v. Gonzales, 276 S.W.3d 88, 93 (Tex. App.—San Antonio 2008, no pet.).
Courts have held that this statute is violated if there is evidence that traffic was
backed up due to the driver’s slow driving or that the driver’s vehicle was
completely stopped in a lane of traffic. See id.

      Although the majority concludes that Officer Davis’s offense report lacks any
evidence that the normal and reasonable movement of traffic was impeded by the
slow driving of the vehicle, the record contains sufficient facts to support Officer
Davis’s belief that the vehicle was impeding traffic. See, e.g., id. (concluding no
evidence existed to find normal and reasonable flow of traffic was impeded by
appellant’s driving when officer could not recall traffic conditions at time of traffic
stop); Davy v. State, 67 S.W.3d 382, 393 (Tex. App.—Waco 2001, no pet.) (holding
evidence was factually insufficient to support traffic stop based on reasonable
suspicion when no other cars were in area when officer stopped appellant). These
facts support the trial court’s reasonable-suspicion determination.

      As observed by the majority, Officer Davis stated in the offense report that he
“observed a traffic congestion in the inside westbound lane.” The majority notes
that the “report perhaps implies, but does not state, that appellant’s vehicle was
traveling in that lane.” See ante at 8 n.3. In reaching its conclusion, the majority
fails to mention an additional portion of the offense report, which shows that
appellant indeed was traveling in the inside westbound lane, in the same area where




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Officer Davis observed traffic congestion. As reflected in the report, Officer Davis
specifically stated:

      Initiation of the traffic stop required utilizing the rear emergency lights
      on the patrol vehicle to allow a safe lane change of my patrol vehicle,
      from the center to the inside lane. The driver of the Chevrolet sedan
      immediately yielded to the inside shoulder.

      Officer Davis expressly stated in his offense report that he saw traffic
congestion in the inside lane. This was the same lane in which Officer Davis
observed the vehicle in question traveling 52 miles per hour and impeding traffic.
In cases in which courts have refused to find a violation of section 545.36(a), courts
have pointed to a lack of evidence concerning traffic conditions at the time of the
traffic stop. See, e.g., Gonzales, 276 S.W.3d at 94 (finding no evidence existed to
conclude normal and reasonable flow of traffic was impeded by appellant’s driving
when officer could not recall traffic conditions at time of traffic stop); Davy, 67
S.W.3d 382 at 393 (holding evidence was factually insufficient to support traffic
stop based on reasonable suspicion when no other cars were in area when officer
stopped appellant). These cases are factually distinguishable because, in the case
under review, Officer Davis expressly stated that he observed moderate traffic
volume and traffic congestion in the inside, westbound lane when he stopped the
vehicle for impeding traffic by driving 52 miles per hour in the inside lane.

      The majority cites to Ford v. State, a case in which the Court of Criminal
Appeals reversed a trial court’s finding of reasonable suspicion because there was a
lack of specific, articulable facts. See 158 S.W.3d at 488. But, the facts of Ford




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differ in notable ways from the facts before this court. In Ford, the officer’s only
testimony was that the appellant was “following too close” behind another vehicle.
Id. at 491. Without more specific, articulable facts, the Ford court reasoned, the
officer’s testimony was conclusory and insufficient to objectively determine that
appellant was violating a traffic law. Id. at 493. In today’s case, Officer Davis
stated not only that he observed traffic congestion in the inside, westbound lane, but
also that the vehicle was impeding traffic by driving too slowly, specifically, 13
miles per hour below the speed limit. Further, Officer Davis stated that traffic
volume was moderate and he initiated the traffic stop after moving from the center to
the inside lane, where the vehicle proceeded to move to the inside shoulder. Unlike
the scenario in Ford, the record in today’s case contains specific facts allowing the
trial court to determine the circumstances upon which Officer Davis reasonably
could conclude that the driver of the vehicle was violating a traffic law.

                                    CONCLUSION

      In sum, the evidence in the record supports the trial court’s conclusion that
Officer Davis had reasonable suspicion to initiate a traffic stop. Because the traffic
stop was based on Officer Davis’s observation that the vehicle in which appellant
was riding was moving slowly and impeding traffic, there was no basis for
suppressing evidence obtained during the search of the vehicle. See Moreno v.
State, 124 S.W.3d 339, 346–47 (Tex. App.—Corpus Christi 2003, no pet.)
(upholding trial court’s implicit denial of motion to suppress after finding probable
cause existed for impeding-traffic violation based on arresting officer’s observation
that appellant was driving 25 miles per hour in a 45 miles-per-hour zone in an area




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with medium to heavy traffic.) The trial court did not err in overruling appellant’s
motion to suppress and its ruling should be upheld. See Armendariz v. State, 123
S.W.3d 401, 404 (Tex. Crim. App. 2003) (“The court of appeals was obligated to
uphold the trial court’s ruling on appellant's motion to suppress if that ruling was
supported by the record and was correct under any theory of law applicable to the
case.”). Accordingly, this court should overrule appellant’s sole issue and affirm
the trial court’s judgment.




                                       /s/       Kem Thompson Frost
                                                 Justice


Panel consists of Justices Frost, Seymore, and Jamison. (Jamison, J., majority).
Publish — TEX. R. APP. P. 47.2(b).




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