                                IN THE
                        TENTH COURT OF APPEALS

                               No. 10-13-00309-CR

RICHARD AARON BURKETT,
                                                         Appellant
v.

THE STATE OF TEXAS,
                                                         Appellee



                     From the County Court at Law No 1
                            Brazos County, Texas
                     Trial Court No. 12-00002-CRM-CCL1


                         MEMORANDUM OPINION


      Richard Burkett appeals from a conviction for driving while intoxicated. TEX.

PEN. CODE ANN. 49.04(d) (West 2011). Burkett complains that the trial court erred by

denying his motion to suppress based on a traffic stop that he argues was not based on

reasonable suspicion. Burkett argues that the traffic stop was unlawful because it was

based on an alleged violation of the law that was impossible for Burkett to have

committed, that being the failure to signal a turn for not less than one hundred feet
from an intersection prior to turning. TEX. TRANSP. CODE ANN. 545.104(b) (West 2011).

Because we find that the trial court did not err, we affirm the judgment of the trial court.

Standard of Review

        We evaluate a trial court's ruling on a motion to suppress under a bifurcated

standard of review. Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005). The trial

judge is the sole trier of fact and judge of the weight and credibility of the evidence and

testimony. Wiede v. State, 214 S.W.3d 17, 24-25 (Tex. Crim. App. 2007). Accordingly, we

give almost total deference to the trial court's determination of historical facts if

supported by the record. Ford, 158 S.W.3d at 493. But we review de novo the trial court's

application of the law to those facts. Id. We give the prevailing party "the strongest

legitimate view of the evidence and all reasonable inferences that may be drawn from

that evidence." State v. Castleberry, 332 S.W.3d 460, 465 (Tex. Crim. App. 2011). 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. State v. Stevens, 235 S.W.3d 736, 740 (Tex. Crim.

App. 2007).

Relevant Facts

        Burkett testified at the hearing on the motion to suppress that he had parked his

vehicle in front of a restaurant facing outward to the street. He departed from that

parking space at approximately 2:15 a.m. and turned left. Burkett proceeded to the stop

sign at the end of the block, which he testified was 94 feet from his parking spot. At the


Burkett v. State                                                                      Page 2
stop sign, Burkett sat for approximately 30 seconds, then turned on his turn indicator

and turned left.

        An officer observed Burkett approach the intersection at some point after Burkett

had left his parking spot. The officer did not observe Burkett's vehicle turn from the

parking spot. The officer testified that Burkett did not use his turn indicator to signal

his turn until he was stopped at the intersection, which was less than 100 feet from the

turn as required by the Transportation Code. See TEX. TRANSP. CODE ANN. § 545.104(b).

Based on Burkett's failure to signal his turn continuously for not less than 100 feet prior

to turning, the officer then initiated a traffic stop which led to Burkett's arrest for

driving while intoxicated.

Reasonable Suspicion

        Burkett complains that the officer did not have reasonable suspicion to initiate

the traffic stop for failing to indicate for not less than 100 feet prior to turning because

there was only 94 feet, not 100 feet, between his starting point and the intersection.

Burkett contends that it was impossible for him to comply with the statute and

therefore, the officer's initiation of the traffic stop on this basis was improper.

        The Fourth Amendment is not a guarantee against all searches and seizures, but

only against unreasonable searches and seizures. United States v. Sharpe, 470 U.S. 675,

682, 105 S. Ct. 1568, 84 L. Ed. 2d 605 (1985). For Fourth Amendment purposes, a traffic

stop is a seizure and must be reasonable to be lawful. Vasquez, 324 S.W.3d at 919 (citing


Burkett v. State                                                                      Page 3
Davis v. State, 947 S.W.2d 240, 243-45 (Tex. Crim. App. 1997)).          A traffic stop is

reasonable if the police officer was justified in making the stop and his actions during

the stop were confined in length and scope to that necessary to fulfill the purpose of the

stop. Id. (citing Kothe v. State, 152 S.W.3d 54, 63 (Tex. Crim. App. 2004)). In other words,

an officer may initiate a traffic stop if he has a reasonable basis for suspecting that a

person has committed a traffic violation. Id. (citing Garcia v. State, 827 S.W.2d 937, 944

(Tex. Crim. App.1992)). However, there is no requirement that an actual traffic offense

be committed, just that the officer reasonably believed that a violation was in progress.

Id.

        "A police officer has reasonable suspicion to detain a person if he has specific,

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

him reasonably to conclude that the person detained is, has been, or soon will be

engaged in criminal activity." State v. Elias, 339 S.W.3d 667, 674 (Tex. Crim. App. 2011).

This standard is an objective one that disregards the actual subjective intent or motive

of the detaining officer and looks instead to whether there was an objective justification

for the detention.     Id.   The determination of reasonable suspicion is made by

considering the totality of the circumstances. Ford v. State, 158 S.W.3d 488, 492-93 (Tex.

Crim. App. 2005).

        The State bears the burden of demonstrating the reasonableness of the traffic

stop. See Goudeau v. State, 209 S.W.3d 713, 716 (Tex. App.—Houston [14th Dist.] 2006,


Burkett v. State                                                                      Page 4
no pet.). We must ask whether a person of reasonable caution, looking at the facts

available to the officer at the moment of the investigation, would believe that a traffic

violation occurred. Id.

        The officer was able to observe Burkett driving down a street without a turn

indicator on within 100 feet of the intersection. The officer did not observe Burkett's

starting position and had no way to know from where Burkett had come. While the

distance actually traveled by Burkett may be relevant in determining whether or not

Burkett was guilty of the offense of failing to signal a turn continuously for not less than

100 feet before turning, this is not the question before us. The State was not required to

show that a traffic offense actually was committed, but only that the officer reasonably

believed that a violation was in progress or had occurred. See Madden v. State, 242

S.W.3d 504, 509 n.7 (Tex. Crim. App. 2007) (noting the pertinent issue is not whether

accused was speeding, but whether the officer had a reasonable belief that accused was

speeding and providing that police officers may be mistaken about a historical fact such

as speeding, as long as that mistake was not unreasonable); Powell v. State, 5 S.W.3d 369,

376-77 (Tex. App.—Texarkana 1999, pet. ref'd) (providing that justification of a stop

does not necessarily require a showing of an actual violation of traffic when sufficient

facts show that the officer reasonably believed a traffic violation was in progress). We

find that the officer's belief that Burkett had committed a traffic offense was reasonable

when the officer observed Burkett's vehicle with no turn signal on within 100 feet of the


Burkett v. State                                                                      Page 5
intersection.      Therefore, the trial court did not err by denying Burkett's motion to

suppress evidence. We overrule Burkett’s sole issue.

Conclusion

        Having found no reversible error, we affirm the judgment of the trial court.




                                           TOM GRAY
                                           Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed July 17, 2014
Do not publish
[CR25]




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