Affirmed and Memorandum Opinion filed June 9, 2015.




                                         In The

                         Fourteenth Court of Appeals

                                 NO. 14-14-00508-CR

                           BRYAN SAUNDERS, Appellant
                                           V.
                          THE STATE OF TEXAS, Appellee

             On Appeal from the County Criminal Court at Law No. 14
                              Harris County, Texas
                         Trial Court Cause No. 1929966


               MEMORANDUM                            OPINION
      In this appeal from a conviction for driving while intoxicated, appellant Bryan
Saunders asserts the trial court erred in denying his motion to suppress. We affirm.

                    I.     FACTUAL AND PROCEDURAL BACKGROUND

      A police officer conducted a traffic stop of appellant’s vehicle, resulting in
appellant’s warrantless arrest and the subsequent charge of driving while intoxicated
(DWI). Appellant filed a pretrial “First Amended Motion to Suppress” asserting that the
traffic stop was not supported by reasonable suspicion and any evidence concerning
appellant’s condition, his blood-test results, the officers’ observations of appellant’s
demeanor, or field tests was not admissible. The trial court conducted a hearing on
appellant’s motion to suppress.

      At the hearing, Officer T. Hays testified that appellant’s vehicle approached in
Hays’s lane of traffic in approximately the 5900 block of Beltway 8. This movement
drew Hays’s attention, and he followed appellant’s vehicle for approximately two to
two-and-a-half miles. Hays stopped appellant after appellant failed to signal a right-
hand turn. The video from Hays’s dashboard camera was played for the trial court.
While the video was playing, Hays testified that he saw several traffic violations before
stopping appellant. He saw appellant’s vehicle cross double white lines as he was
exiting the highway; and when appellant turned right he failed to turn into the closest
right –hand lane.

      In an affidavit attached to appellant’s first amended motion to suppress, appellant
stated:

      On November 15, 2013 I was driving my automobile on Beltway 8
      traveling from 1-45 to Fairmont Parkway in Pasadena. I was traveling the
      speed limit and never weaved out of my lane of traffic. Each time I
      changed lanes, I gave the appropriate signal. When I approached Fairmont
      Parkway, I entered the turn lane and turned. I did not violate a traffic law at
      the intersection nor anywhere between 1-45 and Fairmont Parkway. A
      peace officer stopped my vehicle without reasonable suspicion, without
      probable cause, and without a violation of Texas law. The peace officer
      that stopped me did not have an arrest warrant nor a search warrant for me.
      I was stopped without my consent. I am requesting the court to suppress all
      evidence obtained by the state due to the stop of my automobile and my
      arrest on November 15, 2013 because of the above actions of the peace
      officer.

      The trial court found the following:

      I believe that I have seen multip1e traffic violations. I do believe that his
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      truck crossed over the double white line. I do believe he crossed over the
      fog line. I didn’t see a signal from the straight lane only to the right turn
      curve, whichever lane, I didn’t see him signal going into that lane. He
      didn’t look like he was driving bad, but he violated several traffic laws. But
      he wasn’t—I didn’t see him swerving and weaving and whatever have you.
      He was driving like most people used to drive, but he violated some traffic
      laws. And so I think the officer had a good reason to pull him over.

The trial court further determined that traffic violations occurred in the officer’s
presence, and the officer had “probable cause” to make the traffic stop.

      After appellant filed his appellate brief, this court abated the appeal to permit the
trial court to file findings of fact and conclusions of law. See State v. Cullen, 195
S.W.3d 696, 698–99 (Tex. Crim. App. 2006). In support of the decision to deny
appellant’s motion to suppress the trial court filed findings of fact and conclusions of
law. The trial court found, in pertinent part:

                                     Findings of Fact
      1. Deputy T. Hays with the Harris County Sheriff’s Department testified
      credibly during the hearing.
      2. On November 15, 2013, Hays observed the defendant, BRYAN
      SAUNDERS, driving a Ford pickup, a motor vehicle, on Beltway 8, Harris
      County, Texas.
      3. Hays observed the defendant weave in and out of the lane he was driving
      in several times.
      4. Hays continued to follow the defendant for two to two and a half miles
      and observed him fail to signal a right turn, cross double white lines, cross
      three lanes of traffic at one time, fail to signal for more than a hundred feet
      continuously, and turn too wide.
      5. Hays pursued the defendant in his patrol car with his emergency
      equipment on to investigate for a possible DWI.
      6. Hays made contact with the defendant and subsequently arrested him for
      DWI.
      7. Hays wrote an offense report and a search warrant for the defendant’s
      blood.
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      8. Though Hays observed the defendant make several traffic violations, he
      only included the two traffic violations in his offense report and affidavit
      for the warrant.
                                        *****
      11. Hays’s patrol vehicle was equipped with the ability to record traffic
      stops, and made such a recording during the stop of the defendant on
      November 15, 2013.
      12. The video began recording 30 seconds to one minute prior to Hays
      turning on his emergency equipment, but it did not catch all the traffic
      violations Hays observed.
      13. The Court viewed Exhibit 1 (DWI Video) and observed it captured the
      defendant commit several traffic violations.
      14. The Court finds that T. Hays was a credible witness and accepts his
      testimony as true.
      15. The Court finds that the defendant was not a credible witness and does
      not accept his testimony as true.
                                  Conclusions of Law
      1. Because the defendant failed to maintain a single lane of traffic, failed to
      signal a right turn, crossed a double white line, crossed a fog line, crossed
      three lanes of traffic at one time, fail[ed] to signal for more than a hundred
      feet continuously, and turned too wide, Deputy Hays had a reasonable
      suspicion he committed a traffic offense and the defendant was lawfully
      detained.
      2. Based on the totality of the circumstances when the defendant committed
      multiple traffic violations, including failure to signal intent to turn and
      crossing a double white line, the officer had probable cause to suspect that
      the defendant was in violation of the transportation code and possibly
      intoxicated. Deputy Hays had legal justification to stop the defendant.
      Subsequently, he developed reasonable suspicion to suspect that the
      defendant was driving while intoxicated and was justified in arresting the
      defendant for his numerous violations.
      3. The video recording supported the officer’s testimony of traffic
      violations and concern that the appellant may be intoxicated.
      The trial court denied appellant’s motion to suppress, and, after accepting
appellant’s “guilty” plea, sentenced him, pursuant to a plea bargain agreement, to 180
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days in the Harris County Jail, suspended for one year of community supervision.

                                 II.   ISSUE AND ANALYSIS

   A.     Did the trial court err in denying appellant’s motion to suppress?

        Appellant contends the trial court erred in denying his motion to suppress because
(1) Hays, in his report, only articulated traffic violations of a lane change and an illegal
right turn, which appellant argues were not illegal; and (2) the trial court improperly
based its decision on the dashboard video.

        We review a trial court’s ruling on a motion to suppress under a bifurcated
standard of review. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). At a
suppression hearing, the trial court is the sole finder of fact and is free to believe or
disbelieve any or all of the evidence presented. Wiede v. State, 214 S.W.3d 17, 24–25
(Tex. Crim. App. 2007). We give almost total deference to the trial court’s
determination of historical facts, especially when the trial court’s fact findings are based
on an evaluation of credibility and demeanor. Guzman, 955 S.W.2d at 89. We afford the
same amount of deference to the trial court’s application of the law to facts if the
resolution of those ultimate questions turns on an evaluation of credibility and
demeanor. Id. We review de novo the trial court’s application of the law to facts if
resolution of those ultimate questions does not turn on an evaluation of credibility and
demeanor. Id. If supported by the record, a trial court’s ruling on a motion to suppress
will not be overturned. Mount v. State, 217 S.W.3d 716, 724 (Tex. App.—Houston
[14th Dist.] 2007, no pet.).

        Hays was justified in conducting the traffic stop based on reasonable suspicion
that appellant had violated sections 544.004 and 545.104 of the Texas Transportation
Code. See Tex. Transp. Code Ann. §§ 544.004, 545.104 (West, Westlaw through 2013
3d C.S.). On appeal appellant argues that in his offense report Hays only noted that


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appellant failed to maintain a single lane and failed to signal. Appellant relies on Aviles
v. State, 23 S.W.3d 74 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d), to support
his position that the failure to signal and failure to maintain a single lane are not traffic
violations. In Aviles, this court found the police officer did not have reasonable
suspicion to stop the defendant because he did not make an unsafe lane change in
violation of section 545.060 of the Transportation Code. Id. at 78–79. The defendant in
Aviles signaled his intent to change lanes and deliberately moved across two lanes of
traffic to avoid a collision with a vehicle on the shoulder. Id. at 75. This court
determined that because Aviles’s multiple-lane change was not accomplished in an
unsafe manner, the police officer did not have a reasonable basis for believing Aviles
had committed a ticketable traffic offense. Id. at 78.

      A police officer lawfully conducts a temporary detention when the officer has
reasonable suspicion that an individual is involved in criminal activity. See Delafuente
v. State, 414 S.W.3d 173, 177 (Tex. Crim. App. 2013). Reasonable suspicion requires
more than a hunch; it exists only when an officer has specific, articulable facts that,
taken together with reasonable inferences from those facts, would lead the officer
reasonably to conclude that the person detained is, has been, or soon will be, engaging
in criminal activity. See id. The reasonable-suspicion determination is an objective one
made by considering the totality of the circumstances. See id. The State need not show
that appellant actually committed a traffic offense, but only that the officer reasonably
suspected that appellant was committing an offense. See Madden v. State, 242 S.W.3d
504, 508 n.7 (Tex. Crim. App. 2007). An officer’s stated purpose for a stop can neither
validate an illegal stop nor invalidate a legal stop because its legality rests on the totality
of the circumstances, viewed objectively. See Simpson v. State, 29 S.W.3d 324, 328
(Tex. App.—Houston [14th Dist.] 2000, pet. ref’d). An officer’s stated reason for a stop
is not controlling if there is an objectively reasonable basis for the stop as shown by the


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evidence. Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001). Thus, we must
determine whether the objective facts to which Hays testified show that he had
reasonable suspicion to justify stopping appellant regardless of the number of traffic
violations Hays listed on the police report.

         The police report is not part of our appellate record. Hays’s testimony reflects that
he saw several traffic violations, but only listed two in his report. The dashboard video
showed appellant’s vehicle crossing the double white line, failing to signal a right turn,
and failing to remain in the right lane after turning. Given the totality of the
circumstances, Hays’s observations and testimony are sufficient to demonstrate that
appellant violated at least one traffic law, and therefore Hays was justified in stopping
appellant based on a reasonable suspicion that appellant was in violation of the Texas
Transportation Code. See Cook, 63 S.W.3d at 927–28. We overrule appellant’s first
issue.

   B. Did the trial court err in considering the video in denying the motion to
      suppress?
         In his second issue, appellant argues that in making the statement, “I believe that
there was probable cause to make the stop based on what’s on the video,” the trial court
used an improper legal standard in reaching its determination. Appellant argues that the
trial court relied on information in the video that was not within Hays’s “rationale.”

         In determining whether an officer is justified in making a Terry stop, courts
determine whether a reasonable officer in the same situation would believe a crime had
been or was being committed. State v. Duran, 396 S.W.3d 563, 569–70 (Tex. Crim.
App. 2013) This objective standard requires reviewing courts to place themselves in the
shoes of the officer at the time of the inception of the stop—considering only the
information actually known by or available to the officer at that time. Martinez v. State,
348 S.W.3d 919, 925 (Tex. Crim. App. 2011). The court then asks, “[W]ould the facts


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available to the officer at the moment of the seizure or search warrant a man of
reasonable caution in the belief that the action taken was appropriate.” Davis v. State,
947 S.W.2d 240, 243 (Tex. Crim. App. 1997).
      Normally, this inquiry presents no significant problem, for most traffic stops are
made based upon the direct observations of unambiguous conduct or circumstances by
the stopping officer. Duran, 396 S.W.3d at 569. Information that the officer either
acquired or noticed after a detention or arrest cannot be considered. Atkins v. State, 919
S.W.2d 770, 774 (Tex. App.–Houston [14th Dist.] 1996, no pet.) (“Subsequently
discovered facts or later-acquired knowledge, like the fruits of a search, cannot
retrospectively serve to bolster probable cause at the time of the arrest.”). A detention is
either good or bad at the moment it starts. Duran, 396 S.W.3d at 570. “A post-hoc
rationalization for a traffic stop cannot be made on the basis of information learned
personally or acquired from other officers after the stop.” Id.
      Appellate courts afford almost total deference to the trial court’s determination of
facts when they review a suppression ruling. State v. Weaver, 349 S.W.3d 521, 525
(Tex. Crim. App. 2011). That same deferential standard of review applies to a trial
court’s determination of historical facts even when that determination is based on a
videotape recording admitted into evidence at a suppression hearing. Montanez v. State,
195 S.W.3d 101, 109 (Tex. Crim. App. 2006). Although appellate courts may review de
novo “indisputable visual evidence” contained in a videotape, the appellate court must
defer to the trial court’s factual finding on whether a witness actually saw what was
depicted on a videotape. See State v. Gobert, 275 S.W.3d 888, 891–92 & n. 13 (Tex.
Crim. App. 2009) (“[T]he trial judge viewed the DVD with the State’s transcript in
hand, and he found that the appellee did in fact actually declare, ‘I don’t want to give up
any right though, if I don’t got no lawyer.’ The record supports that conclusion, even as
it might also support a different conclusion. Therefore, we will not second-guess the
trial court’s determination of the facts. . . . Under these circumstances, it is appropriate
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that we defer to the trial court’s primary fact-finding function.”). We review a trial
court’s application of search-and-seizure law to the facts de novo, and we will affirm the
ruling if the record reasonably supports it and it is correct on any theory of law
applicable to the case. Weaver, 349 S.W.3d at 525.
      The question in today’s case is whether Hays’s observations independent of the
video were sufficient to create a reasonable suspicion that appellant committed a traffic
offense. The trial court decides that fact. See Duran, 396 S.W.3d at 571. Appellate
courts must view the trial court’s factual findings in the light most favorable to its
conclusion.
      At the hearing, Hays testified that he saw appellant cross double white lines as
appellant exited the freeway, fail to signal more than one hundred feet before turning,
cross three lanes of traffic at once, and make a right turn too wide, failing to turn into
the nearest lane. After hearing Hays’s testimony and reviewing the video, the trial court
determined that appellant committed multiple traffic violations, and that the video
recording supported Hays’s testimony of traffic violations. In its conclusions of law, the
trial court concluded that Hays had reasonable suspicion to stop appellant because
appellant “failed to maintain a single lane of traffic, failed to signal a right turn, crossed
a double white line, crossed a fog line, crossed three lanes of traffic at one time, fail[ed]
to signal for more than a hundred feet continuously, and turned too wide.” The trial
court found that the video captured appellant committing several traffic violations, but
also found that Hays saw appellant commit several traffic violations. The trial court
concluded that the video “supported the officer’s testimony of traffic violations[.]”
      The trial court incorrectly noted at the hearing that Hays could stop appellant for
“traffic violations [that] occurred in the presence of the officer” rather than those the
officer actually observed. See Duran, 396 S.W.3d at 570 (trial court cannot base finding
of reasonable suspicion on “post-hoc rationalization” of violations officer observed).
Although this reasoning is incorrect, the trial court’s ruling can be upheld on Hays’s
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testimony that he saw those violations at the time he stopped appellant, and that he did
not rely solely on the video submitted later at the hearing. See Weaver, 349 S.W.3d at
525 (appellate court will affirm the trial court’s ruling if the record reasonably supports
it and it is correct on any theory of law applicable to the case).

      Hays testified, and the trial court found, that appellant committed multiple traffic
violations, including failure to signal intent to turn and crossing a double white line. The
trial court further found that Hays was credible and that the video evidence supported
the officer’s testimony. Therefore, the officer was justified by reasonable suspicion to
conduct an investigative detention of appellant. See LeCourias v. State, 341 S.W.3d
483, 489 (Tex. App.—Houston [14th Dist.] 2011, no pet.). We overrule appellant’s
second issue.

      We affirm the trial court’s judgment.




                                        /s/    Kem Thompson Frost
                                               Chief Justice



Panel consists of Chief Justice Frost and Justices Boyce and McCally.
Do Not Publish — Tex. R. App. P. 47.2(b).




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