                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-13-00550-CR


ANGELA ANN RHODES A/K/A                                             APPELLANT
ANGELIA ANN DAVIS A/K/A ANGIE
ANN DAVIS

                                       V.

THE STATE OF TEXAS                                                       STATE


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          FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
                     TRIAL COURT NO. CR12371

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                        MEMORANDUM OPINION1

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                                I. INTRODUCTION

      Appellant Angela Ann Rhodes a/k/a Angelia Ann Davis a/k/a Angie Ann

Davis (Rhodes) appeals her conviction for driving while intoxicated (DWI). In two




      1
       See Tex. R. App. P. 47.4.
issues, Rhodes argues that the trial court erred by denying her motion to

suppress. We will affirm.

                                 II. BACKGROUND

      The State indicted Rhodes for the offense of driving while intoxicated,

subsequent offense. After the trial court denied her motion to suppress, Rhodes

pleaded guilty and elected to have a jury assess punishment. The jury assessed

punishment at eight years’ confinement. The trial court suspended the imposition

of the sentence and entered a judgment that Rhodes be placed on community

supervision for six years. This appeal involves the trial court’s denial of Rhodes’s

motion to suppress.

      Granbury Police Officer Colin Walker testified at the first of three hearings

regarding Rhodes’s motion to suppress. Walker testified that he was working the

night shift as a patrol officer on the night of November 17 and early morning of

November 18, 2012. Just after 1:00 a.m. on November 18, 2012, Walker, in his

patrol unit driving westbound, approached the intersection of Highway 377 and

Western Hills Trail. According to Walker, this intersection was the primary route

used for patrons exiting a bar called Wild Country Night Club, which was located

on Western Hills Trail just south of Highway 377.       Walker averred that Wild

Country Night Club is frequented by persons who are sometimes arrested for

DWI. He also stated that this intersection was “dangerous” and that police had

worked “many accidents there.” As Officer Walker approached the intersection,




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a black 2005 Honda Accord approaching the intersection on Western Hills Trail

drew his attention. Rhodes was driving the Accord.

      Walker testified that he observed Rhodes’s vehicle fail to properly stop at

the stop sign as it approached the intersection. More specifically, Walker said

that he observed Rhodes pull past the “stop line” so that the rear bumper of her

vehicle was in front of the stop line before it came to a complete stop. At the

same time, Walker observed another vehicle traveling eastbound on Highway

377. By Walker’s account, the eastbound vehicle nearly struck Rhodes’s vehicle

due to the manner in which she improperly came to a stop. Walker said that

because this was a dangerous intersection, the stop sign and adjacent stop line

on Western Hills Trail were purposely set back from Highway 377 for safety

reasons. Walker said that it would not have been a traffic violation for the vehicle

to make a complete stop behind the stop line and then inch forward to get a

better view but that because Rhodes did not come to a stop until she was all the

way past the stop line, she had committed a traffic violation. Notably, Walker did

not specifically say how far beyond the stop line Rhodes’s back bumper was

when her vehicle came to a complete stop.             Using a photograph of the

intersection, the State had Walker show the trial court the location of the stop line

and the stop sign.

      Walker averred that Rhodes’s failure to stop at the designated “stop line”

gave him probable cause to stop her vehicle for a traffic violation. In addition,

Walker testified that based on his training and experience, given the time of


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morning, the location of a neighboring bar whose patrons had been arrested for

multiple DWI offenses, the dangerous nature of the intersection, and Rhodes’s

near collision with another vehicle, he had reasonable suspicion to stop her for

DWI.

       Rhodes called John Schloeman at the first hearing, and he testified that he

was a private investigator who lived in Hood County. Schloeman said he was a

retired 28-year    veteran   of the Fort Worth Police Department               whose

responsibilities previously included patrol, gang, violent crimes, zero intolerance,

and fatality-accident investigations.   Schloeman was not present at the time

Walker stopped Rhodes, but he said that he reviewed Walker’s written arrest

report. Schloeman said that he took photographs of the intersection of Western

Hills Trail and Highway 377 at the location where Officer Walker indicated he

spotted Rhodes’s alleged failure to stop. Utilizing one of his own photographs,

Schloeman opined that the stop line at the intersection was heavily worn and not

clearly visible. Schloeman averred that the transportation code required drivers

to stop at the stop line adjacent to a stop sign but that in the absence of a “clearly

marked” stop line, the transportation code required the driver to stop at the place

nearest the roadway where the operator could safely view approaching traffic.

       According to Schloeman, the stop line at the intersection in question did

not meet the definition of a clearly marked stop line. Rhodes also admitted into

evidence an alleged scaled diagram of the intersection in question that

Schloeman had rendered.        Using the diagram, Schloeman disputed Walker's


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testimony that Rhodes’s vehicle would have nearly struck a vehicle traveling in

the outermost eastbound lane of Highway 377. Schloeman testified that the stop

line adjacent to the stop sign was just over twenty-nine feet from the outside of

the nearest lane of traffic. By Schloeman’s account, the edge of the pavement

on Highway 377 was approximately nineteen feet from the stop line and the

length of Rhodes’s vehicle was fifteen feet nine inches. Thus, by Schloeman’s

measurements, Rhodes could have pulled three feet past the stop line without

interfering with traffic on Highway 377. Schloeman opined that if another vehicle

passed in the outside eastbound lane of Highway 377, it would have been at

least thirteen feet beyond the point Rhodes’s vehicle stopped if Rhodes’s back

bumper was just beyond the stop line.

      Schloeman said that he had driven past the intersection at nighttime and

that he was unable to see the stop line from what he determined would have

been Walker’s perspective. Schloeman also said that the street light across the

intersection was not working at the time he drove by the intersection but that he

did not know if it was working at the time Walker stopped Rhodes. Schloeman

made a video of the intersection at 1:00 a.m. on February 8, 2013, and Rhodes

attempted to introduce the video into evidence. The State objected to the video

on the basis that Schloeman had admitted he made the video in February of

2013 and had no knowledge of the lighting conditions or the condition of the stop

line on November 18, 2012, the morning Walker stopped Rhodes. The Court




                                        5
sustained the objection. At the end of this first hearing, the trial court denied

Rhodes’s motion to suppress.

      At the second hearing on Rhodes’s motion to suppress, Rhodes testified

that prior to the hearing, she viewed the February 2013 video made by

Schloeman. Rhodes said that as far as she recalled, the lighting in the video was

the same as it was on the night Walker stopped and arrested her.            Rhodes

testified that she drove by the intersection several times in the days following her

arrest and could not see a stop line at the intersection. According to Rhodes,

most of the times that she drove by the intersection, it was after dark. Rhodes

also said that she could not see the stop sign at night when traveling along

Highway 377.

      Rhodes averred that on the morning Walker stopped and arrested her, as

she was approaching the intersection of Western Hills Trail and Highway 377,

she saw a police officer ahead, so she stopped at the stop sign and then eased

up to make sure she could proceed safely. Rhodes testified that she did nothing

to impede traffic on Highway 377 in any way.

      On cross-examination, the State questioned Rhodes about her perception

of the events. Rhodes agreed that the stop happened just after 1:00 a.m. and

admitted she was coming from the Wild Country Night Club. Rhodes said that

she had consumed four alcoholic beverages prior to being pulled over that

morning—two prior to going to the Wild Country Night Club and two more at the

club. Rhodes said that she believed her perception was clear on the morning of


                                         6
the arrest, but she agreed her perception would not have been as clear as a

trained police officer familiar with the area and where the stop sign and stop line

were located. During the hearing, Rhodes’s attorney said that he was attempting

to lay a proper predicate so that he could have two videos that Schloeman had

made of the intersection “admitted for purposes of suppression.”          But even

though Rhodes testified at the second hearing, her attorney never sought to

admit the videos into evidence for any other purpose than as part of her “offer of

proof.”

      In the third hearing related to Rhodes’s motion to suppress, Rhodes

ultimately supplemented her offer of proof with the two videos from Schloeman,

one purported to be of him driving by the intersection at night traveling at forty-

five miles per hour and a second one purported to be him driving by the

intersection at night traveling at thirty-five miles per hour.   The state did not

object to them being made a part of her offer of proof.

      The trial court entered findings of facts and conclusions of law. Among

other findings, the trial court found that Rhodes had “failed to come to a stop at or

behind the stop line” and that she had failed “to come to a complete stop and

nearly collide[d] with a vehicle that was traveling eastbound on [] Highway 377.”

In its conclusions of law, the trial court concluded that Walker “had reasonable

suspicion that [Rhodes] may [have been] intoxicated and therefore engaging in

the criminal activity of driving while intoxicated based upon [her] abnormal driving

behavior, the time of night, the location in relation to the drinking establishment,


                                         7
and the officer’s experience.” The trial court also concluded that Walker had

probable cause to believe Rhodes had committed a traffic violation. After her

plea, the jury’s assessment of punishment, and the trial court’s entry of judgment,

this appeal followed.

                                  III. DISCUSSION

      In part of her first issue, Rhodes argues that the trial court erred by

denying her motion to suppress because the trial court’s finding of fact that she

“fail[ed] to come to a complete stop and nearly collide[d] with a vehicle” is not

supported by the record. Rhodes argues that the record establishes that she did

in fact stop and that there was sufficient space between where her vehicle did

stop and oncoming traffic.     Specifically regarding the near collision, Rhodes

contends that the record possesses “empirical evidence that is directly at odds

with Walker’s testimony” that she nearly collided with another vehicle and that

“Walker’s claim of the near collision involves substantial speculation on his part.”

Thus, according to Rhodes, this court should ignore this finding of fact and

review “the issue of the purported near collision . . . on the de novo bases [sic].”

According to Rhodes, without this finding of fact, the trial court’s conclusion of

law that Walker possessed reasonable suspicion that she was driving while

intoxicated was incorrect and the trial court should have sustained her motion to

suppress.

      We conclude that the record supports the trial court’s finding that Rhodes

nearly collided with another vehicle, and even assuming that the trial court’s


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finding that Rhodes failed “to come to a complete stop” is to be interpreted that

she never stopped at all—as opposed to that she failed to properly stop, the trial

court’s conclusion of law that Walker possessed reasonable suspicion to stop

Rhodes is still supported by the record and the trial court did not err by denying

her motion to suppress.

      A.     Standard of Review on Motion to Suppress

      We review a trial court’s ruling on a motion to suppress evidence under a

bifurcated standard of review.      Amador v. State, 221 S.W.3d 666, 673 (Tex.

Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

In reviewing the trial court’s decision, we do not engage in our own factual

review. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Best v.

State, 118 S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, no pet.). The trial

judge is the sole trier of fact and judge of the credibility of the witnesses and the

weight to be given their testimony. Wiede v. State, 214 S.W.3d 17, 24–25 (Tex.

Crim. App. 2007); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000),

modified on other grounds by State v. Cullen, 195 S.W.3d 696 (Tex. Crim. App.

2006). Therefore, we give almost total deference to the trial court’s rulings on

(1) questions of historical fact, even if the trial court’s determination of those facts

was not based on an evaluation of credibility and demeanor, and (2) application-

of-law-to-fact questions that turn on an evaluation of credibility and demeanor.

Amador, 221 S.W.3d at 673; Montanez v. State, 195 S.W.3d 101, 108–09 (Tex.

Crim. App. 2006); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App.


                                           9
2002). But when application-of-law-to-fact questions do not turn on the credibility

and demeanor of the witnesses, we review the trial court’s rulings on those

questions de novo. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d

604, 607 (Tex. Crim. App. 2005); Johnson, 68 S.W.3d at 652–53.

      Stated another way, when reviewing the trial court’s ruling on a motion to

suppress, we must view the evidence in the light most favorable to the trial

court’s ruling. Wiede, 214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808, 818

(Tex. Crim. App. 2006). When the trial court makes explicit fact findings, we

determine whether the evidence, when viewed in the light most favorable to the

trial court’s ruling, supports those fact findings. Kelly, 204 S.W.3d at 818–19.

We then review the trial court’s legal ruling de novo unless its explicit fact

findings that are supported by the record are also dispositive of the legal ruling.

Id. at 818.

      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 even if the trial court gave

the wrong reason for its ruling. State v. Stevens, 235 S.W.3d 736, 740 (Tex.

Crim. App. 2007); Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App.

2003), cert. denied, 541 U.S. 974 (2004).

      B.      Reasonable Suspicion to Stop

      A detention, as opposed to an arrest, may be justified on less than

probable cause if a person is reasonably suspected of criminal activity based on

specific, articulable facts. Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880


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(1968); Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000). An

officer conducts a lawful temporary detention when he or she has reasonable

suspicion to believe that an individual is violating the law. Crain v. State, 315

S.W.3d 43, 52 (Tex. Crim. App. 2010); Ford v. State, 158 S.W.3d 488, 492 (Tex.

Crim. App. 2005). Reasonable suspicion exists when, based on the totality of the

circumstances, the officer has specific, articulable facts that when combined with

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

a particular person is, has been, or soon will be engaged in criminal activity.

Ford, 158 S.W.3d at 492. This is an objective standard that disregards any

subjective intent of the officer making the stop and looks solely to whether an

objective basis for the stop exists. Id.

      Specifically to DWI offenses as basis for temporary detentions, time of day

is a relevant factor in determining reasonable suspicion that a driver could be

intoxicated.   Foster v. State, 326 S.W.3d 609, 613 (Tex. Crim. App. 2010).

Furthermore, location near a bar district where police have made numerous

arrests for DWI is a relevant factor in determining reasonable suspicion that a

driver is intoxicated. Id. And a driver’s erratic driving may furnish a sufficient

basis to form reasonable suspicion that a driver is intoxicated. James v. State,

102 S.W.3d 162, 172 (Tex. App.—Fort Worth 2003, pet ref’d). Moreover, law

enforcement training or experience may factor into a reasonable-suspicion

analysis, but reliance on this special training is insufficient to establish




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reasonable suspicion justifying a temporary detention absent objective factual

support. Ford, 158 S.W.3d at 492.

      C.     Analysis

      Here, Rhodes argues that the trial court’s conclusion of law that Walker

had reasonable suspicion to stop her for DWI is not supported by the record

because there is no evidence that she nearly collided with another vehicle.

Rhodes’s argument is built upon her interpretation of Walker’s testimony that

Rhodes did not stop until her back bumper was past the stop line, which was

adjacent to the stop sign. Rhodes interprets this testimony to mean that her back

bumper was barely past the stop line. Thus, according to Rhodes, buttressed by

the evidence she presented at the suppression hearing, she could have “pulled

up three feet past the stop line and still not be interfering with somebody [who’s]

driving on the shoulder of the road.”

      But Rhodes’s interpretation is not the only possible interpretation of

Walker’s testimony, and the trial court evidently interpreted Walker’s testimony

differently than she does. See Amador, 221 S.W.3d at 673 (reasoning that a

reviewing court is to give almost total deference to the trial court’s rulings on

questions of historical facts, even if the trial court’s determination of those facts

was not based on an evaluation of credibility and demeanor). Indeed, Walker

never testified as to how far Rhodes’s back bumper was in relation to the stop

line or stop sign; rather, Walker testified that Rhodes’s vehicle proceeded

through the stop line to an extent that “The rear bumper of [her] vehicle was in


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front of the designated stop line.” Walker’s very next statement was that “[a]t that

very time, another vehicle was traveling eastbound . . . and almost struck

[Rhodes’s vehicle].” A logical interpretation of this testimony is that Rhodes’s

back bumper was past the stop line far enough that the front of her vehicle

almost entered into the intersection and struck a vehicle heading toward her from

the east. See Kelly, 204 S.W.3d at 818–19 (reasoning that when a trial court

makes explicit fact findings, a reviewing court should determine whether the

evidence, when viewed in the light most favorable to the trial court’s ruling,

supports those fact findings).   Moreover, even assuming that the trial court’s

finding of fact that Rhodes never came “to a complete stop” is undermined by

Walker’s testimony that she did in fact stop before colliding with the oncoming

vehicle, that testimony alone does not eviscerate the trial court’s conclusion of

law that Walker possessed reasonable suspicion that Rhodes was driving while

intoxicated.

      When viewing the evidence in the light most favorable to the trial court’s

ruling, the totality of the circumstances demonstrates that Walker had reasonable

suspicion that Rhodes was driving while intoxicated. Wiede, 214 S.W.3d at 24.

The record evidence reveals that Rhodes nearly collided with a vehicle at an

intersection that Walker testified is “a dangerous area” and that the police had

“worked many accidents there.” See Ford, 158 S.W.3d 494 (reasoning that law

enforcement experience may factor into a reasonable-suspicion analysis); see

also James, 102 S.W.3d at 172 (“Erratic or unsafe driving may furnish a sufficient


                                        13
basis for a reasonable suspicion that the driver is intoxicated even absent

evidence of violation of a specific traffic law.”). Walker further testified that the

intersection where he observed Rhodes is a common thoroughfare for patrons of

a club where alcoholic drinks are served and whose patrons are sometimes

arrested for DWI. See Foster, 326 S.W.3d at 613 (reasoning that “location near

a bar district where police have made numerous DWI arrests is also a relevant

factor in determining reasonable suspicion”). Walker also testified that 1:00 a.m.

in the morning is a factor he considered in forming his suspicion that Rhodes was

driving while intoxicated. See id. (reasoning that “time of day is a relevant factor

in determining reasonable suspicion”). We hold that the trial court correctly found

that Walker possessed specific, articulable facts that when combined with

rational inferences, led him to form a reasonable suspicion that Rhodes was

driving while intoxicated. See id. at 614 (reasoning that in light of the time of

night, the location, the officer’s training and experience, and defendant’s

aggressive driving, it was rational for the officer to have inferred that the

defendant may have been intoxicated). We overrule this portion of Rhodes’s first

issue.

         Having determined that the trial court correctly made the determination that

Walker possessed reasonable suspicion to stop and detain Rhodes for suspicion

of DWI and that the trial court’s conclusion of law is supported by the record, we

must uphold the trial court’s ruling to deny Rhodes’s motion to suppress and we

need not address the remainder of her first issue nor her second issue at all.


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See Stevens, 235 S.W.3d at 740; Armendariz, 123 S.W.3d at 404; see also State

v. Plambeck, 182 S.W.3d 365, 367 (Tex. Crim. App. 2005) (en banc) (“A court is

not required to address issues that become moot because of the resolution of

other issues.”).

                                 IV. CONCLUSION

      Having overruled a portion of Rhodes’s first issue and not needing to

address the remainder of her issues, we affirm the trial court’s judgment.




                                                   /s/ Bill Meier

                                                   BILL MEIER
                                                   JUSTICE

PANEL: WALKER, MEIER, and GABRIEL, JJ.

WALKER, J., concurs without opinion.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: February 5, 2015




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