




02-11-375-CR





















COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
 



 
 
NO. 02-11-00375-CR
 
 



The State of Texas


 


STATE




 
V.
 




Lindsey Nichole Houghton


 


APPELLEE



 
 
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FROM County
Criminal Court No. 4 OF Tarrant COUNTY
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OPINION
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I.  Introduction
 
The
State appeals from the trial court’s written order granting Appellee Lindsey
Nichole Houghton’s motion to suppress evidence.  The State argues in two points
that the trial court erred by granting Houghton’s motion to suppress because
reasonable suspicion supported the traffic stop of Houghton’s vehicle.  Houghton
has not filed a brief on appeal.  We affirm.
II.  Background
 
Houghton
was charged with driving while intoxicated and filed a written motion to
suppress.  Officer Mark Epps was the only witness who testified at the
suppression hearing.  The State and Houghton stipulated that the scope of the
hearing was the validity of the traffic stop.  The trial court also watched the
video recording from Officer Epps’s in-car camera.
Officer
Epps testified that he has been a certified peace officer with the University
of Texas at Arlington Police Department since December 2008 and that he had
undergone “special training pertaining to DWI investigations” and “detecting
signs that a person’s intoxicated.”  He did not otherwise explain the nature of
his training.
Officer
Epps testified that he worked the third shift on January 15, 2011, that he was
in uniform and in a marked patrol unit, and that there are known drinking
establishments in the area.  Officer Epps testified that he was conducting
radar enforcement and sitting stationary in his vehicle when he first noticed
Houghton’s vehicle.  He could not remember what drew his attention to
Houghton’s vehicle but testified, “[I]t was probably just going to be excessive
speed over 35.  I can’t remember.”  He also testified that he observed
Houghton’s vehicle “weaving from the left to right within the lane.”[1]
Officer
Epps testified that he began following Houghton’s vehicle and that he saw her
“swerving.”  He also stated, “The defendant, she was driving a silver Ford
Mustang.  When I got behind the vehicle, it immensely slowed its speed.  Then I
observed the vehicle swerving from left to right and then it drove left of
center in about the 300 block of South Cooper Street.”
After
the trial court admitted Officer Epps’s in-car video recording, which reflects
that he stopped Houghton at 3:16 a.m., Officer Epps described what was depicted
on the video as follows:  “[T]he vehicle, when it came through the 300 block of
South Cooper Street, it drove left of the center line, the yellow line, and it
failed to make a left turn, and it came back into the lane closest to the
center while driving northbound.”  Officer Epps further testified that weaving
can indicate impairment and that “[g]iven the time of night and the -- the
vehicle slowing down and swerving before, it usually, in my opinion, indicates
intoxication.”  Officer Epps agreed in response to questioning by the
prosecutor that a vehicle weaving on a street after 2:00 a.m. on Saturday
morning can be evidence of impairment.
On
cross-examination, Officer Epps testified that he did not see Houghton leaving
any bar on Cooper Street and that he could not recall how far Houghton’s
vehicle was from his location when he first observed it.  Officer Epps agreed that
Houghton’s vehicle had remained within its lane when he saw it weaving before
he turned on his recording device.  He explained that “it was because she drove
left of center which is what gave me probable cause to pull the vehicle over,”
but he also stated that the tire of Houghton’s vehicle touched but did not
cross the center line.  This exchange followed:
Q.  Okay.  And it
touched the line, and about how far of a distance did you follow the
defendant’s vehicle, would you estimate?
 
A.  Approximately,
six blocks.
 
Q.  Okay.  And you’re
saying that her tire touched the line one time in six blocks and you believe
that gave you reasonable suspicion to make the stop?
 
A.  Yes, sir.
The
State then questioned Officer Epps as follows:
Q.  Officer Epps, I
just want to clarify.  Can you tell us what -- can you tell us what
circumstances you took into consideration when you made the decision to pull the
defendant over?
 
A.  Yes.  It was the
-- on the day, the time of night, and Cooper Street is generally known for
having vehicles using it as a means to get home quickly.  Usually, my
experience is for people who are intoxicated at that time of night, will do --
who move within their lanes or within a lane and then cross left of center and drive
on the other side of the road.
 
Q.  So did you take
the totality of the circumstances into consideration that the defendant could possibly
be impaired?
 
A.  Yes, ma’am.
The
trial court granted Houghton’s motion to suppress at the conclusion of the
hearing.  The trial court also denied the State’s motion to reconsider but
granted the State’s requests for findings of fact and conclusions of law and
for “specific findings” and “conclusions addressing evidence.”  The trial
court’s first set of factual findings largely recite Officer Epps’s testimony
and we thus do not repeat them here.[2]  The trial court’s
conclusions of law, which include a determination that Officer Epps’s testimony
was not credible, are as follows:
1.           
The
initial observation of the defendant’s vehicle on South Cooper Street did not
involve a traffic violation, insofar as the officer stated he could not
remember if the defendant’s vehicle was speeding.
 
2.           
The
detention of the vehicle by the officer based on the testimony elicited, and
the DVD evidence presented was not based on reasonable suspicion or probable
cause, as the court did not find the officer’s testimony to be credible, based
on his lack of memory of the incident, and his poor skill at recounting the
event.  The testimony of the officer was more an agreement with the prosecutor,
rather than the officer stating in his own words that he reached the
conclusions arriving at reasonable suspicion or probable cause that served as
the basis for the stop himself, supported by his own observations.
 
3.           
The
defendant was under temporary detention at the time the vehicle was stopped and
she was approached by Officer Epps.
 
4.           
The
temporary detention was not lawful, as it was not subsequent to a lawful
traffic stop.
 
5.           
Any
evidence obtained subsequent to the unlawful detention should be suppressed.
The
trial court also made additional findings, indicating on an order prepared by
the State that it made the following additional findings of fact:[3]
a.           
Based
upon the trial court’s previous finding regarding Officer Epps’ credibility,
the trial court specifically disbelieved all of the testimony of the officer.
 
e.       The court
further specifies that the State’s evidence showed that the temporary detention
of Defendant Houghton’s vehicle was not supported by reasonable suspicion or
probable cause because the officer’s testimony was wholly incredible.
 
f.        The court
further specifies that the State’s evidence showed that the temporary detention
of Defendant Houghton’s vehicle was not supported by reasonable suspicion or
probable cause because the officer’s testimony was incredible pertaining to
Defendant Houghton’s driving behavior.
 
g.       The court
further specifies that the State’s evidence showed that the temporary detention
of Defendant Houghton’s vehicle was not supported by reasonable suspicion or
probable cause because the officer’s testimony regarding the reasons for
stopping Defendant Houghton’s vehicle were not credible.
 
h.       The court further specifies that the State’s
evidence showed that the temporary detention of Defendant Houghton’s vehicle
was not supported by reasonable suspicion or probable cause because the
officer’s testimony was not credible with respect to any possible speeding
violation.
III. 
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
credibility of the witnesses 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 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,
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.  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.
The
State argues that we are not required in this case to give almost total
deference to the trial court’s factual determinations because witness
credibility and demeanor are not at issue with the video recording and because
the video recording contradicts the trial court’s factual determinations.  The
court of criminal appeals has held, however, that “a trial court’s
determination of historical facts based on a videotape recording is still
reviewed under a deferential standard.”  Carter v. State, 309 S.W.3d 31,
40 (Tex. Crim. App. 2010); Montanez, 195 S.W.3d at 109; see also State
v. Gobert, 275 S.W.3d 888, 891–92 & n.13 (Tex. Crim. App. 2009).  Cf.
Carmouche v. State, 10 S.W.3d 323, 332 (Tex. Crim. App. 2000) (noting
bifurcated standard of review that requires “almost total deference to a trial
court’s determination of the historical facts that the record supports” but
declining to give that level of deference in that case because “the videotape
present[ed] indisputable visual evidence contradicting essential portions of
[the officer’s] testimony”).  We thus give almost total deference to the trial
court’s factual determinations unless the video recording indisputably
contradicts the trial court’s findings.  Compare Carter, 309 S.W.3d at
40, with Carmouche, 10 S.W.3d at 332.
IV. 
Applicable Law
The
Fourth Amendment protects against unreasonable searches and seizures by
government officials.  U.S. Const. amend. IV; Wiede, 214 S.W.3d at 24. 
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, 221 S.W.3d at 672; see
Young v. State, 283 S.W.3d 854, 872 (Tex. Crim. App.), cert. denied,
130 S. Ct. 1015 (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
law enforcement officer may lawfully stop a motorist when the officer has probable
cause to believe that the motorist has committed a traffic violation.  Walter
v. State, 28 S.W.3d 538, 542 (Tex. Crim. App. 2000).  However, a police
officer may also lawfully stop a motorist when, based on the totality of the
circumstances, he has reasonable suspicion for a temporary investigation on
less than probable cause if the officer has specific articulable facts that,
combined with rational inferences from those facts, would lead him reasonably
to conclude that the person is, has been, or soon may be engaged in criminal
activity.  Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App.),
cert. denied, 132 S. Ct. 150 (2011) (citing Terry v. Ohio, 392
U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968)); Carmouche, 10 S.W.3d at
328.  “Reasonable suspicion” is an objective standard that disregards any
subjective intent or motivation of the officer making the stop and looks solely
to whether an objective basis for the stop exists.[4] 
Ford, 158 S.W.3d at 492; see Derichsweiler, 348 S.W.3d at
914. To satisfy the standard of reasonable suspicion, the articulable
facts need not lead inexorably to a conclusion that a particular penal code
offense is imminent.  Derichsweiler, 348 S.W.3d at 916–17.  It is enough
to satisfy the standard that the information is sufficiently detailed and
reliable to support more than an “inarticulate hunch” that something of an
apparently criminal nature is brewing.  Id. at 917.
V.  Discussion
The
State contends in its two points that the trial court’s legal conclusion
concerning the lack of reasonable suspicion is erroneous and that the trial
court’s factual determinations constitute an abuse of discretion because they
contradict the “objective” evidence shown on Officer Epps’s in-car video
recording.  Specifically, the State argues that the video recording shows two
traffic violations as well as other erratic driving.[5]
We
first consider the State’s contentions concerning traffic code violations.  See
Walter, 28 S.W.3d at 542 (holding that a law enforcement officer may
lawfully stop a motorist when the officer has probable cause to believe that
the motorist has committed a traffic violation); Garcia v. State, 827
S.W.2d 937, 944 (Tex. Crim. App. 1992) (holding that an officer may lawfully
stop and reasonably detain a person for a traffic violation).  The State asserts
that the video recording shows that Houghton violated transportation code section
545.060.  The State does not, however, clarify whether it relies on section
545.060(a) or (b), explain how Houghton allegedly violated section 545.060, or
cite any authority that would compel the conclusion that Houghton violated
section 545.060.  Even so, given Officer Epps’s testimony, we presume that the
State relies on section 545.060(a), which provides that “[a]n 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) (West 2011) (emphasis added); see Fowler v.
State, 266 S.W.3d 498, 502, 504 (Tex. App.—Fort Worth 2008, pet. ref’d) (en
banc) (summarizing section 545.060(a) as prohibiting movement “out of a marked
lane when it is not safe to do so”).
Our
review of the video recording confirms that the left-side tires of Houghton’s
vehicle briefly touched but did not cross the double-yellow line approximately
forty-two seconds after the recording began.  The State, however, presented no
evidence at the suppression hearing that this maneuver was performed in an
unsafe manner.  Officer Epps testified only that Houghton’s vehicle “drove left
of the center line, the yellow line, and it failed to make a left turn, and it
came back into the lane closest to the center while driving northbound.”  He
did not elaborate as to any articulable facts that he observed that would
support a finding that Houghton made the maneuver in an unsafe manner.  See
Ford, 158 S.W.3d at 493 (holding officer’s conclusory testimony that
motorist was following too closely failed to present specific, articulable
facts to support traffic violation of “following too closely”); Fowler,
266 S.W.3d at 504 (addressing section 545.060(a) and holding that absent any
testimony by officer of busy traffic or other factors indicating unsafe
maneuver such as crossing over into oncoming traffic, there was no evidence
that the “failure to drive in a single lane was unsafe”).  The video recording
likewise does not “indisputably” show that Houghton’s vehicle failed to
maintain a single lane in an unsafe manner, unlike the video in Carmouche,
in which the court of criminal appeals declined to defer to the trial court’s
determination of historical facts where “indisputable visual evidence” shown in
the video contradicted the officer’s testimony.  See 10 S.W.3d at 332. 
One other car appears on the video near the time Houghton’s vehicle touched the
double-yellow line, but that car does not appear to have been in proximity to
Houghton’s vehicle.  Without explanation from Officer Epps as to observations
by him as to why Houghton’s maneuver was unsafe (and thus in violation of
transportation code section 545.060(a)), we cannot say that the stop of
Houghton’s vehicle was justified solely based on an alleged violation of
section 545.060.  See Ford, 158 S.W.3d at 493; Fowler, 266 S.W.3d
at 504 (noting absence of evidence that traffic maneuver was performed in
unsafe manner and stating that “[a]n officer’s reasonable suspicion of an
alleged traffic violation cannot be based on a mistaken understanding of
traffic laws.”).
The
State also argues that the video recording shows a violation of transportation
code section 544.004 because Houghton drove her vehicle “across the lined
demarcation for a designated left-turn lane.”  First, the State did not raise
this section 544.004 argument until its motion for reconsideration.  Nothing in
the record suggests that Officer Epps observed before the traffic stop that
Houghton allegedly violated section 544.004 by crossing the white line
separating the left-turn lane from the regular lane of traffic.  Officer Epps
did not mention it during any portion of his testimony, nor did the State
question Officer Epps about the movement into the left-turn lane during the
suppression hearing.  Moreover, the State did not argue at the suppression
hearing that the movement into the left-turn lane constituted a traffic
violation that gave Officer Epps either probable cause or reasonable suspicion
to stop Houghton’s vehicle or even that crossing the white line was one of the
articulable facts relied upon by the officer that the trial court should
consider as part of the totality of the circumstances.
In a
very similar case that also involved a video recording of the events leading to
the stop of a defendant’s vehicle, our sister court recently held that because
the officer “was not consciously aware of any signaling violation” at the time
of the stop, the court could not include the alleged traffic violation as “part
of the objective calculus” it considered for determining whether reasonable
suspicion supported the traffic stop.  State v. Smith, Nos.
05-11-00742-CR, 05-11-00743-CR, 2012 WL 1059703, at *4–5 (Tex. App.—Dallas Mar.
30, 2012, pet. ref’d) (not designated for publication) (affirming order
granting motion to suppress).  In Smith, the State even questioned the
officer about the alleged signaling violation during the suppression hearing.  Id. 
Here, neither the State nor Officer Epps mentioned or alluded to an alleged
violation of section 544.004 at any time during the hearing.  Thus, we will not
consider the post hoc argument of the State regarding the alleged
violation of section 544.004 as an independent basis to support the stop of
Houghton’s vehicle nor even as a factor to consider as part of the totality of
the circumstances establishing reasonable suspicion as the basis for the stop.
To
establish reasonable suspicion, the state must show that, at the time of the
detention, the officer had specific, articulable facts that established
reasonable suspicion. Terry, 392 U.S. at 21–22, 88 S. Ct. 1868,
1880 (holding that in justifying the particular intrusion, “the facts [must] be
judged against an objective standard: would the facts available to the officer at
the moment of the seizure or the search ‘warrant a man of reasonable
caution in the belief’ that the action taken was appropriate?” (emphasis added));
Martinez v. State, 348 S.W.3d 919, 924 (Tex. Crim. App. 2011) (holding
anonymous tip that provided no identification to dispatch, was not shown to
have maintained contact with dispatch, did not follow suspect vehicle, was not
present at scene before the stop, and arrived at scene and provided officer
with identifying information only after the stop, was not sufficient, stating
“the reasonableness of official suspicion must be measured by what the officers
knew before they conducted their search; reasonable suspicion cannot be
obtained retroactively.” (emphasis added) (citations omitted)); St.
George v. State, 237 S.W.3d 720, 726 (Tex. Crim. App. 2007) (noting
holding in Terry that “an officer’s actions [in effecting a detention] must
be justified at its inception” and holding passenger’s providing of a false
name when officers did not know it was false could not give them reasonable
suspicion to investigate further when driver had already been issued a warning
citation and purpose for stop had ended).
Generally,
law enforcement action can only be supported by facts the officer was “actually
aware of at the time of that action.”  State v. Ruelas, 327 S.W.3d 321,
326–27 (Tex. App.―El Paso 2010, pet. ref’d).  As stated by the court in Ruelas,
“The preference for objective standards, however, does not apply to the facts on
which officers act.” Id. at 326 (holding officer lacked reasonable
suspicion where it was not until suppression hearing when state was questioning
motorist defendant that officer learned of facts suggesting he violated traffic
code by making left turn into right-hand lane); Swaffar v. State, 258
S.W.3d 254, 258 (Tex. App.—Fort Worth 2008, pet. ref’d) (declining to consider
stop sign violation in determining whether reasonable suspicion supported
traffic stop because officer first learned of facts suggesting violation upon later
reviewing in-car videotape); State v. Griffey, 241 S.W.3d 700,
703–04 (Tex. App.―Austin 2007, pet. ref’d) (holding reasonableness of
detention determined in terms of totality of circumstances “at its inception”
and court looks “only at those facts known to the officer at the inception of
the stop”); see also United States v. Lewis, 672 F.3d 232, 237–38 (3d
Cir. 2012) (stating that “ex post facto justifications are
impermissible” and holding that government could not rely on defendant’s
illegal window-tinting in absence of evidence that defendant was stopped for
illegal window tint); see generally Florida v. J.L., 529 U.S. 266, 271,
120 S. Ct. 1375, 1379 (2000) (“The reasonableness of official suspicion must be
measured by what the officers knew before they conducted their search.”).[6]
Additionally,
the video recording does not “indisputably” show a violation of transportation
code section 544.004, as contended by the State on appeal.  That section
requires an operator to comply with “applicable official traffic-control
device[s].”  Tex. Transp. Code Ann. § 544.004 (West 2011).  The video
reflects that, although Houghton’s vehicle crossed the solid white stripe that
marks the right boundary of the left-turn lane, Houghton signaled a lane
change, moved her vehicle into the left-turn lane, and waited for an
approaching car to clear the intersection before turning left.  This case is
thus distinguishable from Kortemier v. Texas Department of Public Safety,
No. 05-08-01182-CV, 2009 WL 1959256, at *3 (Tex. App.—Dallas July 9, 2009, no
pet.) (mem. op.), in which the court observed that the defendant violated
section 544.004 “by failing to turn right from a right-turn-only lane marked by
a solid white stripe.”  Here, Houghton signaled her intention to turn and
turned left from the left-turn lane.  Even assuming that the solid white stripe
is “a traffic control device within the meaning of section 544.004, the State
cites no authority that defines [its] purpose or what constitutes a failure to
comply with [it].”  State v. Palmer, No. 02-03-00526-CR, 2005 WL 555281,
at *3–4 (Tex. App.—Fort Worth Mar. 10, 2005, pet. dism’d) (mem. op., not
designated for publication) (addressing alleged violation of section 544.004 as
shown by video evidence and holding no reasonable suspicion of section 544.004
violation by touching tire to a portion of double-white lines).  The State has
therefore failed to establish that Houghton’s crossing the solid white stripe
as part of her movement into the left-turn lane provided Officer Epps with
reasonable suspicion or probable cause that would have justified his stop of Houghton’s
vehicle.
Because
the video recording does not clearly show that Houghton committed a traffic
violation, we next consider whether sufficient specific, articulable facts
justified the stop of Houghton’s vehicle.  The video recording reflects that
Officer Epps initiated his in-car recording device at 3:14 a.m. and followed
Houghton’s vehicle for approximately one minute and forty seconds before
turning on his overhead lights.  As the recording begins, Officer Epps drove
his vehicle forward and turned right onto Cooper Street.  Officer Epps
accelerated toward Houghton’s vehicle and began following her.  Forty-two
seconds into the recording, the left-side tires of Houghton’s vehicle touched
the double-yellow center-stripe, but the vehicle moved slowly back to the
middle of the left-hand lane; the movement away from the center stripe was not
jerky or fast.  After another approximately fifteen seconds, Houghton signaled
a left-hand turn and moved her vehicle into the separately-marked left-hand
turn lane.  Houghton’s vehicle came to an almost complete stop at the
intersection (the light was green) as she waited for an oncoming vehicle to
exit the intersection.  Her vehicle then turned left onto the cross-street.  Officer
Epps followed Houghton for another approximately twenty seconds before
initiating his overhead lights.  Contrary to Officer Epps’s testimony,
Houghton’s vehicle did not obviously weave within its lane, other than when the
tires touched the center lane on one occasion.
The
facts of this case are similar to two others in which reviewing courts affirmed
the trial court’s grant of the defendant’s motion to suppress.  See State v.
Hanrahan, No. 10-11-00155-CR, 2012 WL 503658, at *1 (Tex. App.—Waco Feb.
15, 2012, no pet.) (mem. op., not designated for publication); State v.
Rothrock, No. 03-09-00491-CR, 2010 WL 3064303, at *1 (Tex. App.—Austin Aug.
5, 2010, no pet.) (mem. op., not designated for publication).  In Rothrock,
the officer stopped Rothrock after seeing “Rothrock leaving a bar at 2:30 a.m.,
accompanied by a large cloud of dust” and observing Rothrock “weave within his
lane and briefly cross over the left fog line.”  2010 WL 3064303, at *1.  The
court noted that the video evidence did not resolve the dispute concerning the
alleged traffic violation (impermissibly driving on an improved shoulder) and
held that the video therefore did not support a conclusion that the officer had
reasonable suspicion of a traffic violation.  Id. at *3.  The court
further held that the State, by pointing to evidence that Rothrock left a bar
at 2:30 a.m., caused a cloud of dust as he drove away, weaved within the lane,
and briefly crossed the fog line, did not carry its appellate burden of showing
that the trial court abused its discretion by granting Rothrock’s motion to
suppress.  Id. at *2.
In Hanrahan,
the officer saw Hanrahan driving at 1:00 a.m. and noticed that her vehicle
swerved from side to side within its lane before crossing the fog line that
marked the improved shoulder.  2012 WL 503658, at *1.  The officer testified at
the suppression hearing that crossing the fog line was a traffic violation.  Id. 
Affirming the trial court’s grant of Hanrahan’s motion to suppress, the court
stated that the officer was unable to clearly explain how Hanrahan crossed the
fog line and that the video “failed to clearly show a [traffic] violation.”  Id.
at *5.  The court then stated,
While in some instances
an officer’s observation of a violation of the transportation code
unequivocally establishes a violation of the law justifying a traffic stop, in
this case, the trial court was able to not only consider the testimony of
Officer Bell, but it also was able to consider the video recording of the
incident.  And in granting appellee’s motion to suppress, the trial court
clearly did not believe the testimony of Officer Bell, and it did not believe
that the videotape conclusively demonstrated a violation of the transportation
code.  Essentially, the determination of whether Officer Bell had reasonable
suspicion to stop appellee turned on the trial court’s evaluation of Officer
Bell’s credibility and an evaluation of the video recording within the context
of Officer Bell’s testimony.  In such instances, we afford “almost total
deference” to the trial court’s conclusions.  Furthermore, because the trial
court entered fact findings stating that it did not believe that a traffic
violation occurred, we must review the fact findings in a light most favorable
to the trial court’s ruling.
 
Id. (citations
omitted).
Applying
the appropriate standard of review and giving almost total deference to the
trial court’s factual determinations where appropriate, we hold that the State
has not demonstrated that the trial court erred by granting Houghton’s motion
to suppress.  The record, viewed in the light most favorable to the trial
court’s ruling, does not reflect sufficient specific, articulable facts that
when combined with rational inferences from those facts, would have led Officer
Epps to reasonably conclude that Houghton was, had been, or soon would be
engaged in criminal activity.  We therefore overrule the State’s first and
second points.[7]
VI. 
Conclusion
Having
overruled each of the State’s points, we affirm the trial court’s order.
 
 
ANNE GARDNER
JUSTICE
 
PANEL: 
LIVINGSTON, C.J.; GARDNER and MEIER, JJ.
 
LIVINGSTON,
C.J., concurs without opinion.
 
PUBLISH
 
DELIVERED:  October 25, 2012
 

 














COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
 



 
 
NO. 02-11-00375-CR
 
 







The
  State of Texas
 
 
 
v.
 
 
 
Lindsey
  Nichole Houghton


§
 
§
 
§
 
§
 
§


From County Criminal
  Court No. 4
 
of
  Tarrant County (1226910)
 
October
  25, 2012
 
Opinion
  by Justice Gardner
 
(p)



 
JUDGMENT
 
          This
court has considered the record on appeal in this case and holds that there was
no error in the trial court’s order.  It is ordered that the order of the trial
court is affirmed.
          It
is further ordered that the State shall pay all costs of this appeal, for which
let execution issue.
SECOND DISTRICT COURT OF APPEALS 




 
 
 
 
By_________________________________
    Justice Anne Gardner
 




[1]This portion of Officer
Epps’s observation of Houghton’s vehicle is not reflected on the video
recording.


[2]The trial court did
include one finding of fact concerning the prosecutor’s and officer’s
preparedness for the hearing on the motion to suppress, but that fact finding
is not material to the disposition of this appeal and we do not address it.


[3]These additional findings
are not consecutively numbered because the trial court did not adopt each of
the State’s proposed additional findings.


[4]“Reasonable suspicion” examines
whether there was an objective justification for the detention.  State
v. Elias, 339 S.W.3d 667, 674 (Tex. Crim. App. 2011). The subjective intent or
motive of the detaining officer is disregarded in this analysis.  Id.;
see also Wiede, 214 S.W.3d at 25 (in considering
legitimacy of detention, “[t]he subjective intent or motivations of law
enforcement officials is not taken into account”).


5The State uses the term “objective” with
reference to the facts shown by the video twenty-four times in its brief, confusing
the requirement of articulable facts upon which an officer relied in
determining that a traffic stop was justified with the objective standard the
court must apply of whether a reasonable officer would have relied upon those
facts in making the stop.  It is the standard for determining reasonableness
that is “objective,” not the facts testified to by the officer, as discussed
below. Likewise, the State is mistaken in arguing that this Court is not bound
by the trial court’s findings that contradict the “historical facts” shown by
the video. The relevant “historical facts” relied upon by the officer in making
the stop are not those in the video, which he did not review until long after
the stop but those which he testified he relied upon in making the stop.


[6]See also United States
v. Brewer, 561 F.3d 676, 677–78 (7th Cir. 2009) (stop of vehicle could not
be justified by information obtained post-stop that shots had been fired
earlier from that vehicle); United States v. Simmons, 560 F.3d 98, 107
(2d Cir. 2009) (holding grounds for seizure must exist at the time of the
stop); United States v. Wright, 485 F.3d 45, 51 (1st Cir. 2007) (holding
court must determine whether officer had reasonable suspicion at the time he
began the stop); Laime v. State, 347 Ark. 142, 157, 60 S.W.3d 464, 474 (2001)
(holding after-acquired knowledge by officer irrelevant; “only what the police
officer knew at the time of [the stop]” may be considered); Baptiste v.
State, 995 So.2d 285, 295–96 (Fla. 2008) (holding officers must possess
reasonable suspicion “at the time” of a seizure); State v. Joyce,
159 N.H. 440, 446–47, 986 A.2d 642, 648 (2009) (no reasonable suspicion based
on information acquired by police after seizure).


[7]The State’s amended brief
includes a request for abatement and limited remand for precise factual
findings concerning the alleged traffic violations discussed above.  See
State v. Mendoza, 365 S.W.3d 666, 672–73 (Tex. Crim. App. 2012).  Without
addressing the propriety of adding this additional request for relief without
first obtaining this court’s permission, see Tex. R. App. P. 38.7, we
decline to abate for additional findings of fact.  We do not find the type of
inconsistency within the trial court’s findings that were present in Mendoza,
and we note that the State presented the trial court with eleven proposed
“Specific Findings and Conclusions,” some of which were adopted by the trial
court.  None of those proposed additional findings addressed the alleged
traffic violations upon which the State focuses on appeal and for which the
State now requests abatement.


