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 Cause No. CC09-704


                           OPINION ON REMAND

       Appellant Joseph Delafuente was charged with Class B misdemeanor possession of
marijuana. See Tex. Health & Safety Code § 481.121. Appellant filed a motion to
suppress, alleging that the evidence against him was obtained during a traffic stop initiated
without probable cause or reasonable suspicion.        The trial court denied appellant‘s
motion. In our original opinion, we found no specific, articulable facts in the record that
would support reasonable suspicion for the traffic stop. The Court of Criminal Appeals
vacated our judgment and remanded the case so that we may consider the effect, if any, of
State v. Mendoza, 365 S.W.3d 666 (Tex. Crim. App. 2012), on our reasoning and analysis.1
See Delafuente v. State, 369 S.W.3d 224 (Tex. Crim. App. 2012) (per curiam). On
remand, we apply the standard of review articulated in Mendoza, but reach the same
conclusion. We thus reverse and remand for proceedings consistent with this opinion.

                                          BACKGROUND

        On June 24, 2009, at approximately 9:12 a.m., Officer Davis observed the vehicle in
which appellant was a passenger traveling at approximately 52 miles per hour in a 65
mile-per-hour zone. Davis stopped appellant‘s vehicle for ―impeding traffic.‖ Upon
approaching the vehicle, Davis immediately noticed a strong odor of marijuana. Davis
notified the occupants of the vehicle that he smelled marijuana, and asked appellant,
―Where is it?‖ Appellant replied, ―It‘s in the trunk.‖ Appellant informed Davis that the
marijuana belonged solely to appellant.

        Davis secured appellant in his patrol vehicle and notified the driver regarding
appellant‘s admissions. The driver then produced a partially smoked marijuana ―roach,‖ a
bag that contained marijuana, and other items used for smoking marijuana.                          Davis
informed the driver regarding his intent to conduct a search and instructed her to remain in
the vehicle with her two children. The search produced two marijuana pipes and other
marijuana paraphernalia.

        The driver and two children were released. Appellant was arrested and charged
with possession of marijuana. Appellant filed a motion to suppress evidence challenging
the reasonable suspicion required for the traffic stop. At the hearing on the motion, the
only evidence presented was the three-page offense report of Officer Davis. The relevant
portion of the offense report states that:



        1
         In Mendoza, the Court, finding the written findings of fact ambiguous and lacking a credibility
determination, remanded to the court of appeals with instructions to abate the case to the trial judge for
supplemental findings. 365 S.W.3d at 673.
                                                    2
       I observed a traffic congestion in the inside westbound lane [on Interstate 10
       in Waller County]. Traffic volume was moderate. I inspected further and
       observed a grey Chevrolet 4 door sedan . . . traveling below the prima facie
       limit of 65 miles per hour and Impeding Traffic. I paced the vehicle, which
       was traveling at approximately 52 miles per hour . . . . I initiated a traffic
       stop of the vehicle.

       On November 30, 2010, the trial judge denied appellant‘s motion to suppress and
made findings of fact and conclusions of law. The relevant portion of the judge‘s findings
of fact states:

       In the offense report the officer states that [appellant] was impeding traffic.
       Since there was no contraverting [sic] testimony presented and no
       cross-examination, the Court accepted that statement as fact. Therefore the
       Court finds that Defendant‘s vehicle was impeding traffic.

The trial judge‘s conclusion of law states: ―The officer had probable cause for the stop
because the defendant was driving slow[ly] and impeding traffic.‖ Appellant timely
appealed the denial of his motion to suppress.

                                        ANALYSIS

       In his only issue, appellant argues that the trial court erred by denying his motion to
suppress evidence because the State did not present specific, articulable facts
demonstrating that reasonable suspicion existed for the stop. On remand, the State argues
that we should remand the case to allow the trial court to make supplemental findings of
fact and conclusions of law to clarify ―which facts the trial court believed and what
reasonable inferences it drew from those facts to conclude that the car in which [a]ppellant
was a passenger impeded traffic.‖ Appellant argues the trial court‘s findings of fact are
sufficient, no credibility determinations need to be made (there were no live witnesses at
the suppression hearing), and no remand is necessary. We agree with appellant.

I. Burden of Proof

       In order to suppress evidence allegedly obtained in violation of the Fourth
Amendment, the defendant must produce evidence rebutting the presumption of proper
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police conduct. Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). The
defendant meets his initial burden by establishing that a warrantless search or seizure
occurred. Id. The burden then shifts to the State to prove the reasonableness of the
search or seizure. Id.

       The offense report prepared by Officer Davis was admitted by agreement of both
parties. The report demonstrates that a warrantless search and seizure was made, and the
State does not challenge that here. Therefore, the burden is on the State to establish the
reasonableness of the search and seizure. See id.

II. Standard of Review

       In a hearing on a motion to suppress, the trial judge is the sole factfinder and judge
of the weight and credibility of the evidence. Mendoza, 365 S.W.3d at 669. Thus, we
give almost total deference to the court‘s determination of historical facts and credibility.
Id. (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)). We review a
trial judge‘s historical factual findings and credibility determinations for an abuse of
discretion.   Id.   However, ultimate legal rulings that determine whether reasonable
suspicion or probable cause existed are subject to de novo review. Id. at 669-70 (citing
Ornelas v. United States, 517 U.S. 690, 696, 699 (1996)); see also Guzman, 955 S.W.2d at
87–89 (―The amount of deference a reviewing court affords to a trial court‘s ruling on a
‗mixed question of law and fact‘ (such as the issue of probable cause) often is determined
by which judicial actor is in a better position to decide the issue. . . . The appellate courts
may review de novo ‗mixed questions of law and fact‘ not [turning on an evaluation of
credibility and demeanor].‖). Sometimes it is not clear precisely what historical facts a
trial judge found or what the judge‘s credibility determinations were. Mendoza, 365
S.W.3d at 670. Thus, upon the request of a losing party, the trial judge must make explicit
historical findings of fact and credibility determinations. Id. If the appellate court
determines that the trial court‘s findings are ambiguous or insufficient to resolve the legal


                                              4
issue, then the case should be remanded to the trial court to make findings of fact with
greater specificity. Id.

III. Reasonable Suspicion and Impeding Traffic

       Whether the officer had reasonable suspicion to initiate the traffic stop is analyzed
in two parts. Id. at 669-70. The first part of the analysis is based on the events that
occurred leading up to the stop or search and involves only a determination of historical
facts reviewed for an abuse of discretion. Id. The second part, whether these historical
facts amount to reasonable suspicion when viewed from the standpoint of an objectively
reasonable officer, is a mixed question of law and fact, reviewable de novo. Id. at 670.
Here, the only evidence admitted during the hearing on the motion to suppress was Officer
Davis‘s offense report, so the trial court‘s findings of fact were based solely on that. We
review the trial court‘s determination of these historical facts for an abuse of discretion.
See id. at 669.

       An officer conducts a lawful stop when he has reasonable suspicion to believe that
an individual is violating the law. Ford, 158 S.W.3d at 492. 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 an individual is, has been, or
is about to be engaged in criminal activity. Id. There is a difference between specific,
articulable facts on the one hand and conclusory statements or opinions on the other.
Castro v. State, 227 S.W.3d 737, 742 (Tex. Crim. App. 2007).              Mere conclusory
statements are not an effective substitute for specific, articulable facts when the nature of
the offense requires an officer to make a subjective determination. Id. (noting that
whether driver changed lanes without signaling was an objective determination, unlike
following too closely, speeding, or being intoxicated, which are subjective
determinations).

       Under Texas law, a vehicle ―may not drive so slowly as to impede the normal and
reasonable movement of traffic, except when reduced speed is necessary for safe operation
                                             5
or in compliance with law.‖ Tex. Transp. Code § 545.363(a). ―Slow driving, in and of
itself, is not a violation of the statute; a violation only occurs 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.). Other Texas courts have found
certain evidence insufficient to support reasonable suspicion under the ―impeding traffic‖
statute. See, e.g., Gonzales, 276 S.W.3d at 93–95 (no reasonable suspicion existed where
defendant was traveling 45 miles per hour in a 65 mile-per-hour zone—which the officer
―considered impeding traffic‖—and the officer could not recall the amount of traffic on the
highway. The court stated, ―An officer‘s conclusory statement that the law has been
violated is not sufficient to prove reasonable suspicion.‖); Richardson v. State, 39 S.W.3d
634, 636–39 (Tex. App.—Amarillo 2000, no pet.) (no reasonable suspicion existed where
defendant was traveling 45 miles per hour in the right-hand lane, only one vehicle passed
defendant, there was little or no traffic for defendant to impede, and defendant slowly
increased his speed to 57 miles per hour); see also U.S. v. Coronado, 480 F. Supp. 2d 923,
927–29 (W.D. Tex. 2007) (government failed to show that reasonable suspicion existed
where defendant was traveling 53 miles per hour in the left lane where the speed limit was
65 miles per hour and officer testified that there were ten to fifteen cars behind defendant‘s
car but did not testify as to how long he observed the backup of vehicles).

       IV. Application

       Here, the trial court concluded ―[t]he officer had probable cause for the stop because
the defendant was driving slow and impeding traffic.‖ In light of Mendoza, the State
urges us to remand the case for the trial court to make supplemental findings of fact and
conclusions of law because the State contends ―[t]he trial court‘s finding that the [vehicle]
‗impeded traffic‘ could have been shorthand for a finding of the component facts that there
was traffic congestion in the left lane caused by the [vehicle] traveling 13 miles-an-hour
below the speed limit in the left lane, or it could have been a mislabeled conclusion of law.‖
We disagree. The trial court‘s finding neither could be shorthand for evidence that was

                                              6
not presented at the hearing, nor could the trial court‘s statement that the vehicle was
impeding traffic be a mislabeled conclusion of law. The trial court unambiguously stated
that it accepted the officer‘s statement ―as fact‖ under the section entitled ―Findings of
Fact‖ and separately concluded ―the defendant . . . was impeding traffic‖ under the section
entitled ―Conclusions of Law.‖ Thus, the trial court both concluded as a matter of fact and
as a matter of law that the vehicle was impeding traffic.

              A.     No need for remand.

       We shall examine the basis for the trial court‘s finding that the vehicle impeded
traffic to determine whether the trial court should be required to supplement its findings, as
in Mendoza. In Mendoza, an officer stopped the defendant and arrested her for driving
while intoxicated. Mendoza, 365 S.W.3d at 667. After hearing the officer‘s testimony,
the trial court granted the defendant‘s motion to suppress, concluding the officer lacked
reasonable suspicion to make the traffic stop. Id. Based on the trial judge‘s written
factual findings, the court of appeals inferred that the judge must have believed the
officer‘s testimony and held that the judge‘s legal conclusion that the officer did not have
reasonable suspicion to stop the defendant‘s car was in error. Id. The Court of Criminal
appeals reversed, finding that the trial judge‘s written findings were ambiguous and did not
include a credibility determination, and remanded the case to the court of appeals with
instructions to abate the case to the trial judge to prepare supplemental findings. Id.

       The facts of Mendoza are distinguishable. In Mendoza, the trial court included in
its factual findings what the Court of Criminal Appeals referred to as ―weasel words‖ that
showed the trial court may not have believed the officer‘s testimony (i.e. ―the officer
‗believed‘ [defendant] was speeding; he ‗noticed‘ her weaving a few times; he ‗stated‘ that
she would continuously slow down‖; et cetera). See id. at 671. Here, on the other hand,
the trial court‘s factual findings included no ―weasel words‖: the trial court expressly




                                              7
accepted the officer‘s statement that the vehicle was impeding traffic ―as fact.‖2 The trial
court did not make any factual findings with regard to the officer‘s other statements in the
offense report; however, it is clear that the trial court believed the statements supporting the
officer‘s conclusion that the vehicle was impeding traffic. We thus conclude that the trial
court‘s factual findings were sufficiently clear to show what historical facts it relied on in
reaching its conclusion.

        B.        Abuse of discretion.

        We must determine whether the trial court abused its discretion in crediting the
officer‘s statement that the vehicle was impeding traffic. See id. at 669-70. The only
facts stated in Officer Davis‘s report relevant to whether the vehicle was impeding traffic
are that (1) Davis observed traffic congestion in the inside westbound lane of I-10, 3
(2) traffic volume was moderate, and (3) Davis paced appellant‘s car traveling 52 miles per
hour in a 65 mile-per-hour zone.

        In Ford, the police officer who made the traffic stop testified at the hearing on the
motion to suppress that he saw a vehicle ―following too close behind‖ another vehicle.
158 S.W.3d at 491. That was the only testimony given by the officer describing the
circumstances leading up to the traffic stop. Id. The Court of Criminal Appeals stated
that ―[the officer] only stated that Ford was ‗following too close.‘ The record reveals an
absence of any facts allowing an appellate court to determine the circumstances upon
which [the officer] could reasonably conclude that Ford actually was, had been, or soon
would have been engaged in criminal activity.‖ Id. at 493. The court held that the
evidence before the trial court ―indicated only that in [the officer‘s] judgment, Ford was
following another car too closely . . . . The State failed to elicit any testimony pertinent to



        2
         Moreover, the written findings here could not be revised to include a credibility determination
because no witnesses testified.
        3
            The report perhaps implies, but does not state, that the vehicle was traveling in that lane.
                                                        8
what facts would allow [the officer] to objectively determine Ford was violating a traffic
law.‖ Id. at 494.

       Here, Officer Davis‘s offense report merely stated that the traffic volume was
moderate, that there was congestion in the left lane, and that appellant‘s vehicle was
traveling 13 miles per hour below the speed limit while the officer was following it. There
was no evidence that the normal and reasonable movement of traffic was impeded by
appellant‘s driving. Specifically, there was no evidence presented that appellant‘s car was
the cause of the congestion, that the moderate traffic volume was unusual for the time of
day, whether cars were forced to pass appellant, how long the officer observed the traffic
congestion behind appellant, or that traveling 13 miles below the speed limit was
unreasonable given the traffic and weather conditions at the time. The officer‘s opinion
that appellant was ―impeding traffic,‖ without specific, articulable facts to substantiate it, is
insufficient to support the existence of reasonable suspicion. See Castro, 227 S.W.3d at
742; Ford, 158 S.W.3d at 493. The State failed to elicit sufficient testimony as to facts
that would ―allow [Officer Davis] to objectively determine [appellant] was violating a
traffic law.‖ Ford, 158 S.W.3d at 494.

                                       CONCLUSION

       The trial court abused its discretion by crediting the officer‘s statement that the
vehicle was impeding traffic. Accordingly, the record does not justify a reasonable
suspicion that appellant was violating the law, and the trial court erred in denying
appellant‘s motion to suppress evidence. We reverse the trial court‘s judgment and
remand for proceedings consistent with this opinion.


                                            /s/       Martha Hill Jamison
                                                      Justice

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

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