      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-06-00205-CR




                                  The State of Texas, Appellant

                                                  v.

                                      Roy Guzman, Appellee



           FROM THE COUNTY COURT AT LAW NO. 5 OF TRAVIS COUNTY
    NO. 705339, HONORABLE NANCY WRIGHT HOHENGARTEN, JUDGE PRESIDING



                                           OPINION


               After an information was filed accusing him of driving while intoxicated, appellee

Roy Guzman filed a motion to suppress evidence urging that the traffic stop that resulted in his arrest

for this offense was unlawful. The trial court granted the motion to suppress following a hearing,

and this appeal by the State followed. See Tex. Code Crim. Proc. Ann. art. 44.01(a)(5) (West 2006).

We affirm the court’s order.

               We previously sustained the State’s first point of error, by which it complained of the

trial court’s refusal to make findings of fact and conclusions of law. We abated the appeal and

instructed the court to make and file findings of fact and conclusions of law consistent with the

holding of the court of criminal appeals in State v. Cullen, 195 S.W.3d 696, 699 (Tex. Crim. App.

2006). After the court’s findings and conclusions were filed, we permitted the parties to file

supplemental briefs. We now address the State’s contention that the trial court erred by concluding
that Guzman’s initial detention was unlawful, and its supplemental point of error asserting that the

trial court’s findings of fact are inadequate.


                                       Adequacy of Findings

               The only witness at the suppression hearing was Austin Police Officer Nathan

Scherbek. The trial court made these findings of fact, all of which are supported by the officer’s

testimony:


               1.      Austin Police Officer Nathan Scherbek was on patrol during the
                       evening of Friday, July 1, 2005.[1]

               2.      At approximately 11:50 p.m., he stopped at a stoplight at the
                       intersection of East Cesar Chavez and the frontage road of Interstate
                       35.

               3.      Officer Scherbek’s car was the third car in line at the stoplight.

               4.      A red pickup driven by the Defendant Roy Guzman was the second
                       vehicle in line at the stoplight and was stopped directly in front of
                       Officer Scherbek’s car.

               5.      Officer Scherbek noticed that as the stoplight turned green, the
                       Defendant’s right rear tire started to spin for approximately three to
                       six seconds.

               6.      Officer Scherbek noticed that the spinning motion of the tire cause[d]
                       the tire to smoke and it caused the right rear tire to appear shiny.

               7.      Officer Scherbek immediately activated his overhead light and made
                       a traffic stop of the Defendant’s truck.




       1
         In the findings, the officer’s surname is shown as “Schorbok.” We have corrected this error
in quoting the trial court’s findings and conclusions.

                                                 2
                8.      Officer Scherbek’s in-car video camera was videotaping the
                        Defendant’s car.

                9.      The videotape of the Defendant’s car does not show the spinning tire,
                        but in the videotape it appears the back rear tire is shiny.

                10.     Officer Scherbek based his stop on his opinion that the Defendant had
                        accelerated at an unreasonable speed.

                11.     Officer Scherbek wrote in his probable cause affidavit that the
                        Defendant had committed the offense of “exhibition of acceleration.”


                In its supplemental point of error, the State urges that these findings of fact are

inadequate because the court did not make an express finding regarding the officer’s credibility. The

State urges that this is an “essential finding” under Cullen. See 195 S.W.3d at 699 (holding

that upon request, “trial court shall state its essential findings”). The “essential findings” are those

required to give the appellate court an adequate basis upon which to review the court’s application

of the law to the facts. Id. The State argues that a credibility finding is essential because without

it, the appellate court must continue to “make assumptions (or outright guesses) about a trial court’s

ruling”—the very thing the Cullen holding was intended to prevent. Id. at 698; see also State

v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000) (holding that if trial court does not

make findings of fact, appellate court must assume that trial court made implicit findings that support

its ruling).

                It is obvious that the trial court believed Scherbek’s testimony insofar as that

testimony is reflected in the court’s findings. In our review of the trial court’s ruling on the motion

to suppress, we must “afford almost total deference” to the trial court’s findings of historical fact.

Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). This deference is not dependent on

                                                   3
an express finding by the trial court that the testimony on which it relied was credible; such a finding

is implicit in the court’s having based its findings on that testimony. The State argues that “it would

make no sense to assume that the stated findings are the only evidence that the judge found credible,”

but the State does not contend that there are any unstated findings that are essential to our review of

the trial court’s ruling. It is not essential to this Court’s review that we know whether the trial court

believed or disbelieved the officer’s testimony regarding facts that were not critical—or

“essential”— to the court’s decision to grant the motion to suppress. The supplemental point of error

is overruled.


                                         Conclusions of Law

                A warrantless traffic stop is a Fourth Amendment seizure analogous to a temporary

investigative detention, and it must be justified by reasonable suspicion. Berkemer v. McCarty,

468 U.S. 420, 439 (1984); Hernandez v. State, 983 S.W.2d 867, 869 (Tex. App.—Austin 1998,

pet. ref’d). A reasonable suspicion is one that is based on specific articulable facts that, taken

together with rational inferences from those facts, lead the detaining officer to conclude that

the person detained is, has been, or soon will be engaged in criminal activity. Woods v. State,

956 S.W.2d 33, 35 (Tex. Crim. App. 1997); Hernandez, 983 S.W.2d at 869. It is the State’s burden

to prove that a warrantless detention was lawful.           State v. Huddleston, 164 S.W.3d 711,

716 (Tex. App.—Austin 2005, no pet.). Although we must defer to the trial court’s findings

of historical fact, we review de novo the court’s application of the law to those facts. Guzman,

955 S.W.2d at 89.




                                                   4
               The principal issue below was whether Scherbek reasonably suspected Guzman of

“exhibiting acceleration,” the offense the officer subjectively believed Guzman had committed. The

trial court made two conclusions of law relevant to this issue: “On Friday, July 1, 2005, there was no

offense of ‘exhibition of acceleration’ in the Transportation Code,” and “There were no facts

adduced to give Officer Scherbek reasonable suspicion that the Defendant was in violation of

Sec. 545.420—‘Racing on a Highway’ . . . .”

               Prior to September 1, 2003, transportation code section 545.420 provided that “[a]

person may not participate in any manner in: . . . (5) an exhibition of vehicle speed or acceleration

or to make a vehicle speed record.” Texas Transportation Code, 74th Leg., R.S., ch. 165, § 1,

sec. 545.420, 1995 Tex. Gen Laws 1025, 1645 (amended 2003). The State refers us to authority

holding that this prohibition was not limited to exhibitions of acceleration connected to a speed

competition. See Throneberry v. State, 109 S.W.3d 52, 57 (Tex. App.—Fort Worth 2003, no pet.).

But as amended in 2003, section 545.420 provides that “[a] person may not participate in any manner

in: . . . (5) in connection with a drag race, an exhibition of vehicle speed or acceleration or to make

a vehicle speed record.” Tex. Transp. Code Ann. § 545.420(a)(5) (West Supp. 2006).

               The State argues that the legislature did not intend this amendment to decriminalize

exhibitions of acceleration that are not connected to speed competitions. The best evidence of

legislative intent, however, is the language of the statute. Boykin v. State, 818 S.W.2d 782, 785

(Tex. Crim. App. 1991). We may go behind the statutory text only if it is ambiguous or if the

application of the statute’s plain language would lead to an absurd result that the legislature could

not possibly have intended. Id. Section 545.420(a)(5), as it now reads and as it read on the night



                                                  5
Guzman was stopped, is unambiguous. It plainly prohibits exhibitions of vehicle speed or

acceleration in connection with a drag race. There is nothing absurd in reading the statute as written.

The legislature may have always intended that this subsection apply only to speed competitions, or

it may have come to believe that without this limitation, the statute was subject to abuse because any

increase of vehicle speed could be construed as an exhibition of acceleration.

               There is no evidence that Guzman was operating his pickup truck “over a common

selected course, from the same place to the same place, for the purpose of comparing the relative

speeds or power of acceleration of [his] vehicle . . . in a specified distance or time.” Id.

§ 545.420(b)(1)(B) (defining “drag race”). The trial court correctly concluded that the spinning

motion of Guzman’s tire after the traffic light turned green did not alone warrant Scherbek’s

suspicion that Guzman was unlawfully exhibiting acceleration in violation of section 545.420.2

               The “reasonable suspicion” standard is an objective one. Garcia v. State, 43 S.W.3d

527, 530 (Tex. Crim. App. 2001). Thus, even though Scherbek’s subjective basis for stopping

Guzman was unwarranted by the facts, the stop would be lawful if the facts objectively warranted

the stop on another basis. See id. At the hearing below, the State urged two alternative bases for

upholding the stop, both of which it brings forward on appeal.

               First, the State argues that Scherbek reasonably suspected that Guzman was driving

at a speed greater than was reasonable and prudent under the circumstances. See Tex. Transp.




       2
         The State does not contend that Guzman was racing on the highway in violation of any
other subsection of the statute.

                                                  6
Code Ann. § 545.351(a) (West 1999) (speeding).3 The trial court concluded otherwise: “The

spinning of one tire (the right rear tire) as the light turned green did not violate Sec. 545.351 . . . and

did not constitute reasonable suspicion that any criminal offense had been committed or was about

to be committed.” We agree with the trial court that the spinning of one tire as Guzman’s truck

began to move from a stop, without more, does not reasonably support a suspicion that Guzman was

at that moment driving at an unreasonable or imprudent speed.

                 Finally, the State argues that the “late night hour, the location, the erratic driving, and

the lack of awareness of police presence” warranted a reasonable suspicion that Guzman was driving

while intoxicated. The trial court did not explicitly rule on this argument, which we find to be

without merit. There are innocent reasons why a tire may lose traction and spin upon acceleration

from a stop. We do not believe that a reasonable suspicion of intoxication can be based on the act

of spinning one tire under the circumstances shown here. We decline to hold that an officer may

lawfully detain on suspicion of intoxication any driver who is seen by the officer to spin a tire at a

downtown intersection at night.




        3
            The prosecutor adduced this testimony from the officer:

        Q.       Did you feel that he had accelerated at a speed that was unreasonable?

        A        Yes.

        Q        Did you feel that that was prudent or not prudent?

        A.       Not prudent.



                                                     7
              The State’s points of error are overruled and the trial court’s order granting Guzman’s

motion to suppress evidence is affirmed.




                                             __________________________________________

                                             Jan P. Patterson, Justice

Before Chief Justice Law, Justices Patterson and Pemberton;
  Dissenting Opinion by Justice Pemberton

Affirmed

Filed: August 8, 2007

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