      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-18-00495-CR



                                  The State of Texas, Appellant

                                                 v.

                          Pablo Daniel Calzada-Rodriguez, Appellee


             FROM THE COUNTY COURT AT LAW NO. 2 OF HAYS COUNTY
           NO. 17-3977CR, HONORABLE DAVID GLICKLER, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Appellant Pablo Daniel Calzada-Rodriguez was charged by information with

misdemeanor driving while intoxicated (DWI). See Tex. Penal Code § 49.04. He filed a motion to

suppress evidence, arguing that officers performed the traffic stop that led to his arrest without a

warrant or reasonable suspicion. After a hearing, the trial court granted Calzada-Rodriguez’s motion

and suppressed, among other things, “any and all evidence which relates to [Calzada-Rodriguez’s]

arrest.” The State now appeals. We will affirm the trial court’s order granting Calzada-Rodriguez’s

motion to suppress.


                                         BACKGROUND

               At the hearing on the motion to suppress, the State called Officer Lance Cyrus of the

San Marcos Police Department. Officer Cyrus testified that he was dispatched to a residence where

an assault had allegedly occurred. The complainant called 911, reported that there was a party at the
residence, that she had been assaulted, and that she had run away after the assault. According to

Officer Cyrus’s testimony and a call log introduced into evidence, someone called 911 a few minutes

later and reported that one male and one female were walking up and down the street and that the

female was “screaming at the top of her lungs” and yelling “leave me alone.” One of the callers

also reported not having seen “any cars leave the area.”

               Officer Cyrus further testified that he arrived near the residence less than ten minutes

after officers received the first call. Officer Cyrus testified that he “parked a few houses down and

then approached on foot” as a “safety measure” because of “recent ambushes.” According to the

officer’s testimony, he attempted to make contact with the driver of a vehicle he spotted. The officer

identified Calzada-Rodriguez in court as the vehicle’s driver. Officer Cyrus described the encounter

as follows:


       When we arrived and attempted to make contact, he drove off and we attempted to
       stop him again by shining our flashlights at him and he almost hit us. That’s when
       we—he stopped the car and we made contact with him.

       ....

       We were attempting to stop the vehicle by shining our lights at him and he continued
       driving and almost hit me and another officer.

       ....

       I had him open up his door. I drew my firearm, had him open up the door, got him
       out the car, detained him, put my firearm away and then continued the investigation.


               Officer Cyrus agreed on cross-examination that all Calzada-Rodriguez would have

seen from inside his vehicle were flashlights being shined at him and that this could have made



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him fearful. Officer Cyrus also testified that he did not see Calzada-Rodriguez do anything illegal,

nor was Calzada-Rodriguez parked illegally, nor was he committing any other traffic violation. In

addition, Officer Cyrus agreed that none of the information he received from dispatch identified

Calzada-Rodriguez as a potential suspect. Officer Cyrus testified that, after stopping the vehicle, he

determined that Calzada-Rodriguez was not the assailant he sought but that Calzada-Rodriguez

showed signs of DWI. The State introduced a body-cam video of the encounter, which was played

during the hearing and discussed with Officer Cyrus.

               At the conclusion of the hearing, the court took the motion under advisement. The

court later granted the motion to suppress and issued findings of fact and conclusions of law. Among

other things, the court found that:


       •       Dispatch did not provide Officer Cyrus with the license plate number or color
               of any suspect vehicle, nor did it provide any identifying information for the
               suspect, such as gender, clothing, or hair color or length. In addition, Officer
               Cyrus did not know whether any potential suspects were in a vehicle.

       •       As he approached Calzada-Rodriguez’s vehicle, Officer Cyrus was wearing
               a dark uniform with no lighting mechanism on it. Morever, there were no
               overhead flashing lights on a police car behind Calzada-Rodriguez’s vehicle.

       •       Officer Cyrus tried to stop Calzada-Rodriguez by shining his flashlight at
               him.

       •       Calzada-Rodriguez continued driving for a moment, and then stopped and
               was removed from the vehicle at gunpoint.

       •       Prior to Calzada-Rodriguez being ordered out of the vehicle at gunpoint, at
               no time did Officer Cyrus or any other officer identify himself verbally as law
               enforcement.

       •       Officer Cyrus did not observe Calzada-Rodriguez doing anything illegal as
               he approached, and Calzada-Rodriguez was legally parked. In addition, there

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               was nothing illegal about the way Calzada-Rodriguez began to drive off and
               make a turn in the cul-de-sac.

       •       At no time was there a police officer in front of Calzada-Rodriguez’s vehicle
               as he drove off and made his turn.

       •       Calzada-Rodriguez did not almost strike any officers as he was driving away.

       •       Calzada-Rodriguez stopped his vehicle immediately when Officer Cyrus
               ordered him to do so.


The State now appeals from the trial court’s order granting Calzada-Rodriguez’s motion to suppress.


                    APPLICABLE LAW AND STANDARD OF REVIEW

               In two points of error, the State contends that the trial court abused its discretion

in granting Calzada-Rodriguez’s motion to suppress. According to the State, Officer Cyrus had

reasonable suspicion to perform the traffic stop that led to Calzada-Rodriguez’s arrest. “Reasonable

suspicion to detain a person exists when a police officer has specific, articulable facts that, when

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

person detained is, has been, or soon will be engaged in criminal activity.” Ramirez-Tamayo v. State,

537 S.W.3d 29, 36 (Tex. Crim. App. 2017) (internal quotation marks omitted); see Davis v. State,

947 S.W.2d 240, 244 (Tex. Crim. App. 1997) (“‘The articulable facts used by the officer must create

some reasonable suspicion that some activity out of the ordinary is occurring or has occurred, some

suggestion to connect the detainee with the unusual activity, and some indication the unusual

activity is related to crime.’”) (quoting Garza v. State, 771 S.W.2d 549, 558 (Tex. Crim. App. 1989)).

“We look only at those facts known to the officer at the inception of the stop—a stop or search




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unlawful at its inception may not be validated by what it turns up.” State v. Griffey, 241 S.W.3d 700,

704 (Tex. App.—Austin 2007, pet. ref’d).

               We review a trial court’s ruling on a motion to suppress for an abuse of discretion.

See State v. Cortez, 543 S.W.3d 198, 203 (Tex. Crim. App. 2018); Hernandez v. State,

No. 03-17-00793-CR, 2018 WL 3371390, at *1 (Tex. App.—Austin July 11, 2018, no pet.)

(mem. op., not designated for publication). We view the record in the “light most favorable to the

trial court’s conclusion and reverse the judgment only if it is outside the zone of reasonable

disagreement.” State v. Dixon, 206 S.W.3d 587, 590, (Tex. Crim. App. 2006). Furthermore, appellate

courts “use a bifurcated standard of review to evaluate whether the totality of circumstances is

sufficient to support an officer’s reasonable suspicion of criminal activity.” Cortez, 543 S.W.3d

at 203. We apply this bifurcated standard by “giving almost total deference to the historical facts

found by the trial court and analyzing de novo the trial court’s application of the law.” State v.

Cuong Phu Le, 463 S.W.3d 872, 876 (Tex. Crim. App. 2015). In cases involving video evidence,

we “view the video in the light most favorable to the trial court’s ruling,” State v. Espinoza,

No. 08-16-00087-CR, 2018 WL 6259210, at *3 (Tex. App.—El Paso Nov. 30, 2018, no pet. h.) (not

designated for publication), although we review de novo “indisputable visual evidence,” State v.

Duran, 396 S.W.3d 563, 570 (Tex. Crim. App. 2013).


                                           DISCUSSION

               In its first point of error, the State contends that the trial court erred in determining

that Officer Cyrus lacked reasonable suspicion to stop Calzada-Rodriguez’s vehicle because it was

reasonable for Officer Cyrus to believe that Calzada-Rodriguez was involved in the reported assault.

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                 We have reviewed Officer Cyrus’s body-cam video of the encounter and conclude

that the video supports the trial court’s findings of fact described above. Specifically, the video

supports the court’s findings that “[a]t no time was there a police officer in front of Calzada-

Rodriguez’s vehicle as he drove off and made his turn” and that “Calzada-Rodriguez did not almost

strike any officers as he was driving away.” We further conclude, in light of the video and the trial

court’s findings, that it would not have been reasonable for an officer in Officer Cyrus’s position to

believe that Calzada-Rodriguez was driving unsafely or attempting to strike the officers with his

vehicle. Therefore, in accordance with the trial court’s findings of historical fact, to which we give

“almost total deference,” Cuong Phu Le, 463 S.W.3d at 876, we will not consider Officer Cyrus’s

testimony concerning Calzada-Rodriguez’s driving as a factor supporting reasonable suspicion for

the officers to initiate a traffic stop.

                 Excluding this testimony, the record before us indicates only that Officer Cyrus: did

not know the gender of the assault suspect or any identifying features of the suspect; did not know

any identifying features of the suspect’s vehicle or even if the suspect was fleeing in a vehicle; did

not see Calzada-Rodriguez engage in illegal activity before stopping him; was wearing a dark

uniform with no lighting; made no attempt to stop Calzada-Rodriguez’s vehicle other than shining

a flashlight at him before stepping up to Calzada-Rodriguez’s door and holding him at gunpoint; and

did not identify himself as a law enforcement officer until stopping Calzada-Rodriguez at gunpoint.

Viewing these facts in the light most favorable to the trial court’s ruling, see Dixon, 206 S.W.3d

at 590, we cannot conclude that the trial court erred in determining that Officer Cyrus lacked

reasonable suspicion to stop Calzada-Rodriguez’s vehicle.



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                The State emphasizes that the encounter with Calzada-Rodriguez occurred while it

was dark and while Officer Cyrus was responding to an ongoing emergency. The State also points

to the fact that no vehicles had been seen leaving the area after the alleged assault and that

Calzada-Rodriguez was parked near the location of the alleged assault. However, these facts, given

the totality of the circumstances, do not give rise to reasonable suspicion. Were we to conclude

otherwise, officers might assume, as an unintended consequence of our holding, that there is always

reasonable suspicion to stop a vehicle located near the scene of an alleged crime. Furthermore, the

mere fact that the officers shone their flashlights at Calzada-Rodriguez does not indicate that

Calzada-Rodriguez ignored a show of authority. See Neale v. State, 525 S.W.3d 800, 808 & n.5

(Tex. App.—Houston [14th Dist.] 2017, no pet.); see also Wright v. State, No. 03-17-00158-CR,

2018 WL 6615898, at *4 (Tex. App.—Austin Dec. 18, 2018, no pet. h.) (mem. op., not designated

for publication). Indeed, Officer Cyrus himself agreed on cross-examination that all Calzada-

Rodriguez would have seen from inside his vehicle were flashlights being shined at him and that this

could have made him fearful.

                Because we have concluded that Officer Cyrus did not have reasonable suspicion to

stop Calzada-Rodriguez’s vehicle on the basis of his assault investigation, we overrule the State’s

first point of error.

                In its second point of error, the State contends that, in addition to having reasonable

suspicion that Calzada-Rodriguez may have been involved in the assault, Officer Cyrus also had

reasonable suspicion to stop Calzada-Rodriguez on suspicion of DWI. The State argues that

reasonable suspicion of DWI existed because: Officer Cyrus knew a house party was being held

nearby; Calzada-Rodriguez was parked near the house party; it is a common-sense inference that

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alcohol is involved at house parties; and Officer Cyrus perceived that Calzada-Rodriguez was

driving “inattentively and dangerously.”

               The State relies on Foster v. State, 326 S.W.3d 609 (Tex. Crim. App. 2010), in which

the court determined that police had reasonable suspicion to stop the defendant’s vehicle when

the officers observed the defendant engage in “lurching” movement and “aggressive driving” at

approximately 1:30 a.m. near a bar district in Austin. However, although Officer Cyrus stopped

Calzada-Rodriguez in the early-morning hours, as in Foster, the other factors supporting reasonable

suspicion in Foster—the defendant’s aggressive driving and the location near a bar district—are

absent in this case. As discussed above, the trial court rejected Officer Cyrus’s testimony that

Calzada-Rodriguez almost struck the officers with his vehicle, and our own review of the video

contradicts the State’s contention that Officer Cyrus would have reasonably felt threatened by

Calzada-Rodriguez’s driving. Morever, the defendant in Foster was driving near a bar district,

where police could reasonably expect people to be driving while intoxicated. In contrast, Calzada-

Rodriguez was driving in a neighborhood. Although Officer Cyrus had reason to believe that a

house party was taking place nearby, it would not be reasonable to assume that the majority of people

in the area were involved in drinking alcohol, whereas this could be a reasonable inference near a

bar district at 1:30 a.m. See State v. Bernard, 545 S.W.3d 700, 706 (Tex. App.—Houston [14th

Dist.] 2018, no pet.) (holding that officer lacked reasonable suspicion to initiate traffic stop and

distinguishing Foster because “there is no evidence of aggressive driving or the location of the stop

being near a bar district where numerous DWI arrests had been made”); Peters v. Texas Dep’t of

Pub. Safety, 404 S.W.3d 1, 5 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (holding that officer



                                                 8
lacked reasonable suspicion to initiate traffic stop and distinguishing Foster because the record was

“silent with respect to the characteristics of the area in which Peters was observed driving—as

opposed to the defendant in Foster, who was observed driving in an unsafe manner in the early

morning hours near Sixth Street in Austin”). Since, unlike in Foster, Calzada-Rodriguez was not

driving aggressively near a bar district but was instead driving safely in a neighborhood, Officer

Cyrus’s traffic stop was based merely on “inchoate and unparticularized suspicion or hunch” and not

on “some minimal level of objective justification.” Foster, 326 S.W.3d at 613 (internal quotation

marks omitted).

               Because we have concluded that the record does not support the State’s contention

that Calzada-Rodriguez’s driving was a factor contributing to a finding of reasonable suspicion, and

because we further conclude that the remaining factors cited by the State do not give rise to

reasonable suspicion, we overrule the State’s second point of error.


                                         CONCLUSION

                We affirm the trial court’s order granting Calzada-Rodriguez’s motion to suppress.



                                              __________________________________________

                                              Chari L. Kelly, Justice

Before Chief Justice Rose, Justices Kelly and Smith

Affirmed

Filed: March 5, 2019

Do Not Publish

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