                                                                                ACCEPTED
                                                                             03-17-00333-Cr
                                                                                  21564467
                                                                  THIRD COURT OF APPEALS
                                                                            AUSTIN, TEXAS
                                                                           1/2/2018 5:26 PM
                                                                          JEFFREY D. KYLE
                                                                                     CLERK
                  Appellate Cause Numbers
                      03-17-00333-CR
                      03-17-00334-CR                FILED IN
                                              3rd COURT OF APPEALS
__________________________________________________________
                                                  AUSTIN, TEXAS
                                                   1/2/2018 5:26:15 PM
               IN THE COURT OF APPEALS          JEFFREY D. KYLE
           FOR THE THIRD DISTRICT OF TEXAS           Clerk
                        AT AUSTIN
__________________________________________________________

              THE STATE OF TEXAS, Appellant

                             v.

               BRANDOM GARRETT, Appellee
__________________________________________________________

          On Appeal From the County Court at Law #2
          Cause Numbers 2015CR1738 & 2015CR1742
                    Comal County, Texas
         The Honorable Charles A. Stephens, II Presiding
  _____________________________________________________

                  BRIEF FOR THE STATE
__________________________________________________________

                                                    Jennifer Tharp
                                         Criminal District Attorney
                                                                 By
                                                  Joshua D. Presley
                                                    SBN: 24088254
                                               Appellate Prosecutor
                                   150 N. Seguin Avenue, Suite #307
                                                     (830) 221-1300
                                                 Fax (830) 608-2008
                                        New Braunfels, Texas 78130
                                      E-mail: preslj@co.comal.tx.us
                                              Attorney for the State

            Oral Argument Respectfully Requested
                      Identity of Parties and Counsel

                  Attorney for Appellee, Brandom Garrett

AT TRIAL & ON APPEAL
Lance S. Turnbow
lanceturnbow@hotmail.com
401-B South LBJ Drive, Suite 8
San Marcos, TX 78666

               Attorneys for the Appellant, The State of Texas

AT TRIAL
Ms. Abigail Whitaker & Mr. Lance Kennedy
Assistant District Attorneys
COMAL COUNTY CRIMINAL DISTRICT ATTORNEY’S OFFICE
150 N. Seguin Avenue, Suite 307
New Braunfels, Texas 78130
Telephone: (830) 221-1300
Facsimile: (830) 608-2008

ON APPEAL
Joshua D. Presley
Assistant District Attorney
COMAL COUNTY CRIMINAL DISTRICT ATTORNEY’S OFFICE
150 N. Seguin Avenue, Suite 307
New Braunfels, Texas 78130
Telephone: (830) 221-1300
Facsimile: (830) 608-2008
Email: preslj@co.comal.tx.us




                                     ii
                                               Table of Contents

Index of Authorities ...................................................................................................v

I. Issues Presented ......................................................................................................1

II. Statement of Facts .................................................................................................2

III. Statement of the Case...........................................................................................7

Summary of the Argument.......................................................................................17

IV. Argument ...........................................................................................................18

                  A. Trooper Nolan Had Reasonable Suspicion Appellee Was
                  Speeding. .............................................................................................20

                  B. Trooper Nolan Had Reasonable Suspicion Appellee Was Driving
                  in the Left Lane Without Passing.. ....................................................26

                            1. Courts have found reasonable suspicion when an officer
                            does not observe a defendant until several miles after the sign,
                            even when there are several entrances in between.. ...............27

                            2. Texas Courts – including the Court of Criminal Appeals –
                            have found reasonable suspicion of a ‘left lane for passing
                            only violation’ even where the officer observed the violation
                            for less time than in the instant case, and regardless of
                            whether the defendant might ultimately have a defense to the
                            conduct......................................................................................30

                            3. Based on the totality of Trooper Nolan’s observations, he
                            had reasonable suspicion regardless of whether Appellee
                            might ultimately have a defense to the conduct, and the
                            possibility of ‘selective enforcement’ was likewise irrelevant..
                            ...................................................................................................32

                  C. The Trial Court’s Findings Are Not Supported by the Record and
                  Warrant Reversal in and of Themselves............................................36


                                                              iii
                   D. The Trial Court – Even After Remand – Has Continued to
                   Refuse to Explicitly Answer Potentially Dispositive Issues the State
                   Raised in its May 22nd Supplemental Request for Essential Findings.
                   .............................................................................................................43

                   E. Alternatively, the Court Should Again Abate and Remand the
                   Case and Require the Trial Court to Make Explicit Essential
                   Findings on the State’s Requested Potentially Dispositive Issuse. ..49

V. Prayer ..................................................................................................................52

Certificate of Service ...............................................................................................53

Certificate of Compliance ........................................................................................53




                                                               iv
                                            Index of Authorities

                                                         Cases

Abney v. State, 394 S.W.3d 542 (Tex. Crim.
 App. 2013).................................................................................................. 6, 27, 37

Castro v. State, 03-12-00730-CR, 2015 WL
 1214402 (Tex. App.—Austin Mar. 13,
 2015, pet. ref’d) (not designated for
 publication)............................................................................................................14

Cedano v. State, 24 S.W.3d 406 (Tex.
 App.—Houston [1st Dist.] 2000, no pet.) .............................................................19

Dillard v. State, 550 S.W.2d 45 (Tex. Crim.
 App. 1977).............................................................................................................20

Earvin v. State, 14-14-000702-CR, 2015
 WL 4104701 (Tex. App.—Houston [14th
 Dist.] July 7, 2015) (pet. ref’d Nov. 18,
 2015) (not designated for publication). .................................................................30

Earvin v. State, 2015 WL 4104701 (Tex.
 App.—Houston [14th Dist.] July 7, 2015),
 petition for discretionary review refused
 (Nov. 18, 2015.......................................................................................................27

Garcia v. State, 827 S.W.2d 937 (Tex. Crim.
 App. 1992).............................................................................................................20

Gordon v. State, 801 S.W.2d 899 (Tex.
 Crim. App. 1990) ........................................................................................... 18, 39



                                                            v
Hamal v. State, 390 S.W.3d 302 (Tex. Crim.
 App. 2012).............................................................................................................19

Jaganathan v. State, 479 S.W.3d 244 (Tex.
  Crim. App. 2015), reh’g denied (Feb. 10,
  2016).............................................................................................................. passim

Jaroszewicz v. Texas Dep’t of Pub. Safety,
  03-15-00340-CV, 2016 WL 4506163
  (Tex. App.—Austin Aug. 26, 2016, no
  pet.) (not designated for publication) ............................................................. 21, 25

Kirkland v. State, 400 S.W.3d 625 (Tex.
 App.—Beaumont 2013, pet. ref’d) .......................................................................12

Leming v. State, 493 S.W.3d 552 (Tex.
 Crim. App. 2016), reh’g denied (July 27,
 2016)............................................................................................................... 12, 24

MacQuarrie v. State, 06-11-00077-CR,
 2011 WL 4090047 (Tex. App.—
 Texarkana Sept. 15, 2011, pet. ref’d) (not
 designated for publication)....................................................................................13

Maki v. State, 05-07-00486-CR, 2008 WL
 2688535 (Tex. App.—Dallas July 10,
 2008, pet. ref’d) (not designated for
 publication)............................................................................................................13

Marrero v. State, 03-14-00033-CR, 2014
 WL 4400771 (Tex. App.—Austin Sept. 4,
 2014, no pet.).........................................................................................................14




                                                            vi
Marrero v. State, 03-14-00033-CR, 2016
 WL 240908 (Tex. App.—Austin Jan. 14,
 2016, no pet.) (not designated for
 publication)..................................................................................................... 12, 14

Masquelette v. State, 579 S.W.2d 478 (Tex.
 Crim. App. 1979) ..................................................................................................21

Masquelette v. State, 579 S.W.2d 478 (Tex.
 Crim. App. [Panel Op.] 1979) ...............................................................................13

Maysonet v. State, 91 S.W.3d 365 (Tex.
 App.—Texarkana 2002, no pet.) ...........................................................................21

Maysonet v. State, 91 S.W.3d 365 (Tex.
 App.—Texarkana 2002, no pet.) ...........................................................................13

McVickers v. State, 874 S.W.2d 662 (Tex.
 Crim. App. 1993) ..................................................................................................20

Mills v. State, 99 S.W.3d 200 (Tex. App.—
 Fort Worth 2002, no pet.)......................................................................................21

Mills v. State, 99 S.W.3d 200 (Tex. App.—
 Fort Worth 2002, pet. ref’d) ..................................................................................13

Mouton v. State, 101 S.W.3d 686
 (Tex.App.—Texarkana 2003) ...............................................................................26

Mouton v. State, 101 S.W.3d 686 (Tex.
 App.—Texarkana 2003, no pet.) .............................................................................6

Navarette v. California, 134 S. Ct. 1683
 (2014) ....................................................................................................................20

                                                             vii
Ochoa v. State, 994 S.W.2d 283 (Tex.
 App.—El Paso 1999, no pet.). ....................................................................... 12, 24

Perales v. State, 117 S.W.3d 434 (Tex.
 App.—Corpus Christi 2003) .................................................................................21

State v. Adams, 454 S.W.3d 48 (Tex.
  App.—San Antonio 2014, no pet.) .......................................................................50

State v. Cadena, 08-09-00322-CR, 2010 WL
  5541180 (Tex. App.—El Paso Dec. 29,
  2010, no pet.) (not designated for
  publication)............................................................................................................21

State v. Cullen, 195 S.W.3d 696 (Tex. Crim.
  App. 2006)...............................................................................................................7

State v. Dubord, 03-15-00553-CR, 2016 WL
  858929 (Tex. App.—Austin Mar. 2, 2016,
  no pet.) (not designated for publication) ...............................................................50

State v. Elias, 08-08-00085-CR, 2012 WL
  4392245 (Tex. App.—El Paso Sept. 26,
  2012, pet. ref’d) (not designated for
  publication)............................................................................................................47

State v. Elias, 339 S.W.3d 667 (Tex. Crim.
  App. 2011).................................................................................................. 7, 43, 51

State v. Garrett, 03-17-00333-CR, 2017 WL
  3044379 (Tex. App.—Austin July 14,
  2017, no pet. h.) (not designated for
  publication)..................................................................................................... 15, 46




                                                            viii
State v. Mazuca, 375 S.W.3d 294 (Tex.
  Crim. App. 2012) ..................................................................................................18

State v. Munsey, 424 S.W.3d 767 (Tex.
  App.—Fort Worth 2014).......................................................................................19

State v. Piedra, 13-13-00540-CR, 2015 WL
  5576346 (Tex. App.—Corpus Christi June
  25, 2015, no pet.) (not designated for
  publication)............................................................................................................42

State v. Worrell, 03-16-00749-CR, 2017 WL
  3222050 (Tex. App.—Austin July 26,
  2017, pet. ref’d) (not designated for
  publication)............................................................................................... 17, 25, 36

Tanner v. State, 228 S.W.3d 852 (Tex.
 App.—Austin 2007, no pet.) .......................................................................... 12, 19

United States v. Castillo, 28 F. Supp. 3d 673
 (S.D. Tex. 2014) ....................................................................................... 14, 22, 27

United States v. Castillo, 804 F.3d 361 (5th
 Cir. 2015), cert. denied, 136 S. Ct. 1481
 (2016) ............................................................................................................. 26, 29

Warren v. State, 05-08-01431-CR, 2009 WL
 3467013 (Tex. App.—Dallas Oct. 29,
 2009, no pet.) (not designated for
 publication)..................................................................................................... 23, 39

Whren v. US, 517 U.S. 806 (1996) ..........................................................................20




                                                            ix
                                               Statutes & Rules

Tex. R. App. P. 44.4...................................................................................................7

Tex. R. Civ. P. 298 ...................................................................................................15

Tex. Transp. Code Ann. § 544.011 ......................................................................6, 34




                                                           x
                             I. Issues Presented

1. Where the totality of the facts and circumstances – including Trooper
   Nolan’s estimation that Appellee was speeding in light of Nolan’s extensive
   training and experience and Nolan’s confirmation of Appellee’s speeding on
   Nolan’s extensively and properly used and tested radar gun – demonstrated
   probable cause to believe Appellee was violating a Traffic Law, did Nolan
   have reasonable suspicion to conduct a traffic stop?

2. Where the totality of the facts and circumstances – including Trooper
   Nolan’s personal observation of and video evidence confirming Appellee’s
   driving in the left lane without passing for a longer period of time than that
   found sufficient in other Texas Courts – warranted reasonable suspicion that
   Appellee was committing the offense Driving in the Left Lane Without
   Passing, did the Trial Court err in granting the motion to suppress?

3. Where the Trial Court’s findings indicate it apparently found Appellee was
   driving 75 miles in a 70-mile-per-hour zone, but the Trial Court incorrectly
   applied the law to this fact to conclude Appellee had not actually committed
   the offense of speeding, did the Trial Court err in finding no reasonable
   suspicion of a speeding violation and suppressing the evidence?

4. Where each of the Trial Court’s detailed and explicit findings and
   conclusions are internally inconsistent and clearly erroneous based on
   established law, should the Court rely on the Trial Court’s other general
   findings and conclusions which do not cite to and have no basis in the
   record?

5. Where the State timely requests findings and conclusions under Cullen,
   details the potentially dispositive issues for the Trial Court, reminds the Trial
   Court of the impending appellate deadline, the Trial Court apparently refuses
   to file any findings, the case is abated and remanded for the Trial Court to
   make its essential findings, and the Trial Court acknowledges the State’s
   detailed request but nevertheless continues to refuse making explicit findings
   on the issues, should this Court recognize the Trial Court implicitly found
   said issues favored the State – as the court of appeals in Elias ultimately did?

6. Alternatively, where the State timely requested findings and detailed the
   potentially dispositive issues, should the Court abate and remand under
   Cullen and Elias where the Trial Court refused to make essential findings
   necessary for this Court to review its application of the law to the facts?
                                       1
                                   II. Statement of Facts1

       Trooper Jason Nolan is a certified peace officer and special agent with the

Texas Department of Public Safety (hereinafter “DPS”) (II R.R. at 6). At the time

of the hearing, Nolan had served 13-and-a-half years with DPS (id.). Nolan had an

associate’s degree in criminal justice, and he was only 11 hours shy of earning his

bachelor’s degree when he was accepted by DPS (id.).



                                           Speeding

       Nolan had made at least 200 stops for speeding as a trooper with DPS (id. at

30). Based on his training, Nolan was able to “approximate [an individual’s] speed

.... within 5-miles per hour” (id. at 15). Nolan would verify his approximations by

using his radar unit (id.; see also id. at 34 (Nolan would observe speeding based on

his training and confirm it with radar; “radar is really a secondary method to

confirm the speed”). Nolan had specialized training and instruction on the use of

his radar unit, including his initial field certification training upon joining DPS and

his recertification every two years since then (id. at 7). In his over 13 years with

DPS, Nolan had generally operated his radar unit as part of his “daily duty ....

[t]raffic and accident investigation were an every day thing at DPS” (id.).



1
 The State includes its Statement of the Case after its Statement of Facts because the procedural
history related to the Trial Court’s findings flows more naturally after the facts elicited at the
hearing.


                                                2
      Nolan explained that his radar worked off of the doppler principal, emitting

a signal which is reflected back to the radar’s antenna to determine a vehicle’s

speed (see id. at 7). The radar unit was tested in at least two different ways (id. at

7-8). First, Nolan would perform an internal circuit test both before and after his

shifts (id.; see also id. at 32). Nolan would hold down a test button and the radar

unit would run through an internal calibration test (id. at 27). Second, Nolan would

perform a tuning fork test to calibrate the radar “the way [he] was taught. The way

the manufacturer requires it calibrated” using two different forks the manufacturer

provided (id. at 28-29, 8). The two tuning forks tested the radar unit at both 25 and

40 miles per hour to get a better reading (id. at 28-29, 33-34). Moreover, in the

event the radar ever malfunctioned, the unit’s display would read “fail” (id. at 29).

Given Nolan’s extensive training, experience and the rigorous and varied multiple

daily testing of his radar unit, Nolan was confident that his over-200 speeding

stops were “100-percent accurate as far as speed” and that he had not made any

mistakes with his radar gun (id. at 30).

      Nolan was on duty on the side of Interstate Highway 35 – facing the

northbound lane – on May 29, 2015 (id. at 8). Nolan had verified that his radar unit

was working “properly” and “accurately” that day at the beginning of his shift,

using both the internal circuit test and the tuning forks (id.; see also id. at 16). It

was still daytime at around 7:31 p.m. when Nolan observed Appellee’s white Ford

F-250 pickup come over the hill (id. at 8, 16; see also State’s Ex. 5 at 0:50 (in the

                                           3
far left lane)). Based on his training and experience, Nolan approximated “that

[Appellee] appeared to be driving over the posted speed limit[]. Generally in that

location most people are” (II R.R. at 15 (also noting many speeding violations

occur at that location)). After noticing Appellee was driving in excess of the 70-

mile-per-hour speed limit, Nolan used his radar gun to verify that Appellee was

driving “75 in a 70” (id. at 15-16). Nolan also observed that Appellee was

committing another traffic offense, in that Appellee was driving in the left lane

without passing.



                     Driving in the Left Lane Without Passing

      Nolan was familiar with that section of IH35. Prior to May 29, 2015, Nolan

had a “left lane for passing only” sign installed on that northbound section of 35

“because of the issues we were having” (id. at 23; see also III R.R. at 4 (front view

of sign with entry ramp merging into right lane), 5 (back of sign, facing

southbound)). Even traffic on the final entry ramp before Nolan’s parked position

should have seen the sign (II R.R. at 13, 14, 24).

      In addition to speeding, when Nolan first observed Appellee come over the

hill, Nolan “observed [Appellee’s F-250] to be in the left lane and it was not

passing” (id. at 15; see also State’s Ex. 5 at 0:50). Appellee’s truck was around

eight to ten car lengths ahead of the truck it in the middle lane (II R.R. at 19; see

also State’s Ex. 5 at 0:50). On the video, Appellee is not passing or attempting to

                                          4
pass another vehicle for some time (see State’s Ex. 5 at 0:50). At around 1:23 into

the video, Appellee is parallel to a vehicle in the far right lane, and at around 1:40

a vehicle moves into the middle lane next to Appellee (see id.). Nolan observed

Appellee for a “[g]ood amount of time” (II R.R. at 17), noting there was plenty of

time and distance for Appellee to make a safe transition back into the middle lane

(id. at 19). After observing two traffic violations – speeding and driving in the left

lane without passing – Nolan initiated a traffic stop (id. at 17).



                      Appellee’s Motion to Suppress Hearing

      At the outset of the hearing on the motion to suppress, Appellee

acknowledged that “we’re just arguing about the traffic stop” (II R.R. at 5). Only

one witness –Trooper Nolan –testified at the hearing on Appellee’s motion to

suppress (see generally II R.R.). The State also introduced maps, photographs of

the area, and video from Trooper Nolan’s dash camera (see generally III R.R.,

State’s Ex. 5). Appellee introduced no evidence, cited outdated caselaw, and his

cross-examination focused on arguments such as “[Trooper Nolan,] you can’t say

with exact certainty – you can’t say there’s no way [the radar gun] malfunctioned

on that day” (II R.R. at 29 (emphasis added)), that it was “possible ... your radar is




                                           5
measuring” another vehicle (id. at 31 (emphasis added)),2 and that “[w]e’re talking

just 5 miles over [the speed limit], agreed?” (id. at 35 (emphasis added)).

       In closing, the State cited Nolan’s two observed traffic violations: speeding

and driving in the left lane without passing, arguing he had at least reasonable

suspicion – and likely probable cause – to make the traffic stops (id. at 35-36

(citing, e.g., Tex. Transp. Code Ann. § 544.011, 544.001; Mouton v. State, 101

S.W.3d 686, 690 (Tex. App.—Texarkana 2003, no pet.); Abney v. State, 394

S.W.3d 542, 549 (Tex. Crim. App. 2013) (citing Mouton with approval); id. at 39

(pointing out Nolan’s testimony, evidence and the video showed Appellee was not

passing for over a mile)).

       Regarding the driving-in-the-left-lane offense, Appellee claimed notice of

the sign was not an issue, and instead claimed Appellee was passing and giving

“plenty of room” to the car behind him (II R.R. at 38). Appellee argued “[h]e

wasn’t somebody hanging out in the left lane, mile after mile, after mile blocking

the road” (id.). As for Appellee’s speeding, Appellee argued that under Kelly and

“Ochoa v. State 994 S.W.2d,” Trooper Nolan had to “explain the actual

calculation” his radar gun used to determine speed (id. at 38-39). Appellee also

minimized his 5-miles-an-hour excess of the speed limit (see id. at 39; see also I

C.R. at 65 (Appellee’s proposed finding for the Trial Court stated that “[t]he
2
  As noted infra, to meet its burden at the suppression hearing the State is not required to
establish an offense was committed beyond a reasonable doubt, but only whether the officer had
a reasonable suspicion an offense had been committed. In any event, Appellee’s cross-
examination which would appear to require “exact certainty” surpasses even the beyond-a-
reasonable-doubt standard.

                                              6
defendant’s speed, 75 in a 70, was reasonable and prudent for the driving

conditions at the time of the stop”); id. at 52 (State points out Appellee’s apparent

admission and incorrect standard); id. at 68 (Appellee argues his proposed finding

was not an admission)). The Trial Court granted the motion to suppress without

explaining its reasoning (id. at 40).



                                III. Statement of the Case

       In the circumstances of this case, the Trial Court is required to provide

findings and conclusions adequate to allow this Court review its decision. As the

Court of Criminal Appeals in State v. Cullen held:

       ...upon the request of the losing party on a motion to suppress
       evidence, the trial court shall state its essential findings. By “essential
       findings,” we mean that the trial court must make findings of fact and
       conclusions of law adequate to provide an appellate court with a basis
       upon which to review the trial court’s application of the law to the
       facts.

State v. Cullen, 195 S.W.3d 696, 699 (Tex. Crim. App. 2006); see also State v.

Elias, 339 S.W.3d 667, 676-77 (Tex. Crim. App. 2011) (the omission of findings

and conclusions with respect to a potentially dispositive fact issue constitutes a

“failure ... to act” for purposes of Tex. R. App. P. 44.4).

       The State has attempted to present its case and the underlying potentially

dispositive factual matters to the Court.3 On May 1, 2017, the Trial Court signed


3
 The State’s numerous and respectful filings, infra, were undertaken first in the hopes that the
Trial Court would reconsider and deny the Motion to Suppress – potentially obviating the need

                                               7
the order granting the Defendant’s Motion to Suppress after the hearing (I C.R. at

19). The State timely filed its original Request for Findings of Fact and

Conclusions of Law on May 9, 2017 (I Supp. C.R. at 4). The State timely appealed

on May 19, 2017 (I C.R. at 21). The State then filed a Supplemental Request with

the Trial Court detailing essential and potentially dispositive issues and suggesting

proposed essential findings on May 22nd (I C.R. at 31).4 Citing to the applicable

portions of the record and case law, the State asked the Trial Court to make

specific essential findings and conclusions as to:


                                      Findings of Fact5

   1. Whether Trooper Nolan’s Testimony at the suppression hearing was
      credible and whether the facts were as Trooper Nolan believed them to
      be, and if and to the degree the Court found it was not, explicit findings
      as to each and every assertion the Court found not credible.

   2. Whether most people speed at the location on Interstate Highway 35
      where Trooper Nolan first observed the Defendant (II R.R. at 15).

   3. Whether Trooper Nolan had over 10 years of experience as a State
      Trooper and had conducted at minimum over 200 speeding stops (id. at
      6; id. at 30).



for interlocutory appeal – and alternatively, to ensure the State could present the essential facts
on potentially dispositive issues to this Court to obtain meaningful appellate review.
Notwithstanding its persistent filings and its necessary arguments seeking reversal, the State has
great respect for the Honorable Judge of County Court at Law #2.
4
  In its Supplemental Request, the State cited State v. Cullen, 195 S.W.3d 696, 699 (Tex. Crim.
App. 2006), State v. Elias, 339 S.W.3d 667, 676-77 (Tex. Crim. App. 2011) and Tex. R. App. P.
44.4. The State also filed a Motion for Reconsideration on May 26, 2017, citing additional case
law supporting the same theories urged at the hearing (I C.R. at 49).
5
  The following – with a few minor truncations and an added footnote (n.5) – was copy/pasted
from the State’s Supplemental Request (I C.R. at 31) for the Court’s convenience.

                                                8
4. Whether State’s Exhibits 1-4 were fair and accurate depictions of the
   scene, and whether Trooper Nolan’s approximations of the various
   distances involved in this case were accurate (see id. at 9-14).

   Furthermore, whether [testimony and evidence related to specific
   locations on the maps – including the final entrance ramp and the sign –
   and distances involved were accurate] ....

5. Whether the area at issue in this case - a few miles north and south of
   Trooper Nolan’s initial stationary location on IH35 - is a relatively
   sparsely populated stretch (with relatively fewer businesses and
   residences) in between the more heavily populated cities of New
   Braunfels and San Marcos (see, e.g., State’s Ex. 5 (Dash-Cam Video)).

6. Whether – based on his training and experience – Trooper Nolan could
   observe and approximate an individual’s speed within five miles per hour
   (II R.R. at 15 (State: “Given that, plus your training, you would be able to
   ... approximate the defendant’s speed? Nolan: “Correct .... When we’re
   observing that speed we can generally tell within 5-miles per hour.”)).

7. Whether Trooper Nolan first observed the Defendant’s vehicle and
   estimated that the Defendant was driving over the posted speed limit of
   70 miles per hour (id. (Nolan: “I noticed that [the Defendant’s vehicle]
   appeared to be driving over the posted speed [limit]”)).

8. Whether Trooper Nolan then confirmed his personal estimate on his radar
   unit (id. at 34). Whether Nolan’s radar unit displayed that the Defendant
   was driving at a speed of 75 miles per hour in a 70 mile-per-hour zone
   (id. at 15-16).

9. Whether Trooper Nolan had specialized training as a peace officer on the
   operation of his radar unit (id. at 6-7).

10. Whether Trooper Nolan had field training and certification on the use of
   radar every two years, and whether he was certified on its use on May 29,
   2015 (id. at 7).

11. Whether Trooper Nolan operated his radar unit daily as part of his
   regular duties with the Texas Department of Public Safety (DPS) (id. at
   7).



                                      9
    12.Whether Trooper Nolan had performed an internal circuit test of his radar
       unit at the beginning of his shift on that date using two separate tuning
       forks, in accordance with DPS policy (id. at 16).6

    13. Whether Trooper Nolan used the two separate tuning forks provided by
       the manufacturer to calibrate his radar at different speeds - 25 and 40
       miles per hour - in order to get a more accurate reading (id. at 33-34).

    14. Whether on May 29, 2015 - the date on which Trooper Nolan observed
       the Defendant’s vehicle - Trooper Nolan found from his tests at the
       beginning of his shift that his radar unit was working properly (id. at 8
       (State: “On the day involving this defendant ... did you find the radar unit
       to be working properly?” Nolan: “Yes”), 16 (Nolan says his radar unit
       “was working” and describes the circuit tests at the beginning of the
       shift).

    15. Whether Trooper Nolan was trained and qualified to operate his radar
       device (see, e.g., supra (Findings on 3, 9-14)).

    16. Whether Trooper Nolan understood the technique to apply and use his
       radar (see, e.g., supra (Findings on 3, 9-14)) .

    17. Whether Trooper Nolan properly applied and used his radar device (see,
       e.g., supra (Findings on 3, 9-14); II R.R. at 15-16) .

    18. Whether Trooper Nolan’s radar read ‘fail’ when Trooper Nolan observed
       the Defendant's vehicle, indicating it was not working properly (id. at 29;
       see also supra (Findings on 12-14)).

    19. Whether Trooper Nolan believed his accuracy in correctly giving
       speeding tickets based on his radar gun was 100% (II R.R. at 30).

    20. Whether on May 29, 2015, the ‘left lane for passing only’ sign was
       posted after the last entrance ramp prior to where Nolan first observed the
       Defendant, and whether it was visible on the day in question (II R.R. at
       12; see also infra). Whether Nolan was the individual who requested that
       the Texas Department of Transportation put the sign up at that location
       prior to that date (II R.R. at 23 (Defense: “Do you know if that left lane
       for passing only sign was on the road then?” Nolan: “Yes, I’m the one

6
 It would appear from further review of the reporter’s record that Trooper Nolan performed both
an internal circuit test and a separate tuning fork test (II R.R. at 7-8, 27, 28-29, 32-34).

                                              10
   that had it put up .... I contacted the TxDot superintendent to put [the
   sign] up because of the issues we were having”)).

21. Whether an individual entering the final northbound ramp before
   Nolan’s stationary position - who was observing traffic signs - would
   have seen the ‘left lane for passing only’ sign (see State’s Ex. 4; II R.R.
   at 14, 24).

22. Whether the State’s Exhibit 5 - a copy of Trooper Nolan’s dash-cam
   video - was admitted into evidence at the hearing, and whether it was a
   fair and accurate depiction of the events recorded (State’s Ex. 5).

23. Whether the Defendant was already in the far left lane when Nolan
   observed him come over the hill northbound on IH35 (State’s Ex. 5 at
   :45-50). Whether it was very unlikely the Defendant had entered the
   highway from the most recent on-ramp, as the Defendant would have had
   to immediately travel across all three lanes of traffic to reach the lane
   where Nolan first observed him (see State’s Ex. 5; State’s Ex. 1-4; II
   R.R. at 9-14).

24. Whether the likelihood was over 50% – or likely much higher – that cars
   in general travelling on that section of IH35 had passed the ‘left lane for
   passing only’ sign located immediately after where the final entrance
   ramp joined the highway prior to Trooper Nolan’s position. See, e.g.,
   supra (Findings on 4, 5, 20 & 21).

25. How far Defendant’s car was ahead of the car behind him when Trooper
   Nolan first observed Defendant’s car at the top of the hill approaching
   Nolan’s stationary position (see II R.R. at 19 (around eight to ten car
   lengths or 50 meters); see also State’s Ex. 5 at 0:50). Whether a ‘car
   length’ is approximately 15 feet.

26. Whether from around the 0:50 on State’s Ex. 5 to 1:23, the Defendant is
   not passing or attempting to pass another vehicle (State’s Ex. 5). Whether
   at 1:23, the Defendant is parallel to a vehicle in the far right lane (id.).
   Whether at 1:43, the Defendant is passing a vehicle which moved into the
   middle lane (id.).

   ....




                                      11
                             Conclusions of Law

1. Whether “[f]or a peace officer to stop a motorist to investigate a traffic
   infraction, as is the case with any investigative stop, ‘proof of the actual
   commission of the offense is not a requisite.’” Leming v. State, 493
   S.W.3d 552, 561 (Tex. Crim. App. 2016), reh’g denied (July 27, 2016).

2. Whether it is or “is not necessary to show that an individual actually
   violated a traffic regulation; “[i]t is sufficient to show the officer
   reasonably believed that a violation was in progress.” Marrero v. State,
   03-14-00033-CR, 2016 WL 240908, at *3 (Tex. App.—Austin Jan. 14,
   2016, no pet.) (not designated for publication).

3. Whether “[a]n officer may not act solely on a hunch, but his
   determination of “the likelihood of criminal activity need not rise to the
   level required for probable cause, and it falls considerably short of
   satisfying a preponderance of the evidence standard.” Tanner v. State,
   228 S.W.3d 852, 856 (Tex. App.—Austin 2007, no pet.)....

4. Whether a reasonable suspicion determination need not rule out the
   possibility of innocent conduct. Leming v. State, 493 S.W.3d 552, 563
   (Tex. Crim. App. 2016), reh’g denied (July 27, 2016). “The possibility of
   an innocent explanation does not deprive the [detaining] officer of the
   capacity to entertain reasonable suspicion of criminal conduct. Indeed,
   the principal function of his investigation is to resolve that very
   ambiguity and establish whether the activity is in fact legal or illegal.” Id.
   at 564.

5. Whether “[i]n determining whether reasonable suspicion was present at
   the time of the investigatory stop, a trial court is required to disregard
   ‘the actual subjective intent or motive of the detaining officer[.]’”
   Kirkland v. State, 400 S.W.3d 625, 629 (Tex. App.—Beaumont 2013,
   pet. ref’d). “Instead, the trial court looks ‘to whether there was an
   objective justification for the detention.’” Id.

6. The Defendant cited Ochoa v. State at the hearing (II R.R. at 38). See 994
   S.W.2d 283, 284 (Tex. App.—El Paso 1999, no pet.). Whether, as
   Perales v. State observed regarding Ochoa, “[m]ore recently, however,
   the Texarkana Court of Appeals has held that even under Kelly, the
   underlying scientific principles of radar are indisputable and valid as a
   matter of law.” 117 S.W.3d 434, 442 (Tex. App.—Corpus Christi 2003,
   pet. ref’d) (citing Maysonet v. State, 91 S.W.3d 365, 371 (Tex. App.—
                                       12
   Texarkana 2002, no pet.), and Masquelette v. State, 579 S.W.2d 478, 481
   (Tex. Crim. App. [Panel Op.] 1979)); see also Mills v. State, 99 S.W.3d
   200, 202 (Tex. App.—Fort Worth 2002, pet. ref’d) (rejecting the
   appellant's argument regarding the scientific theory of radar based on
   Ochoa, the Court held that “[w]e agree with the principles enunciated in
   Maysonet and hold that the underlying scientific principles of radar are
   indisputable and valid as a matter of law”); MacQuarrie v. State, 06-11-
   00077-CR, 2011 WL 4090047, at *2 (Tex. App.—Texarkana Sept. 15,
   2011, pet. ref’d) (not designated for publication) (again recognizing the
   underlying scientific principles of radar - the first Kelly factor - is
   indisputable and valid as a matter of law); Maki v. State, 05-07-00486-
   CR, 2008 WL 2688535, at *2 (Tex. App.—Dallas July 10, 2008, pet.
   ref’d) (not designated for publication) (same).

7. Whether – despite the Defendant’s reliance on Ochoa – in accordance
   with the forgoing authorities, this Court concludes that the underlying
   scientific principles of radar are indisputable and valid as a matter of law.

8. Whether Trooper Nolan reasonably believed that the “left lane for
   passing only” prohibition did not allow for travelling in the far left lane
   to pass a vehicle in the far right lane.

9. Whether Trooper Nolan was mistaken as to the scope of the prohibition.
   Whether a driver may use the far left lane for passing a vehicle in the far
   right lane, even when the middle lane is open.

10. Whether – and despite the fact that the Defendant cross-examined
   Trooper Nolan about the purpose of the law (II R.R. at 21) – as the Court
   of Criminal Appeals has recently observed, it is inappropriate to
   “consider[] the purpose of the law against driving in the left lane without
   passing” in the reasonable suspicion determination:

     [The trooper] was not required to consider the purpose of the law
     in deciding whether he believed appellant had violated it. Just as
     running a stop sign is illegal even if it can be done safely, driving
     in the left lane in violation of a posted sign is illegal even if it
     can be done safely

   Jaganathan v. State, 479 S.W.3d 244, 248 (Tex. Crim. App. 2015), reh’g
   denied (Feb. 10, 2016).



                                      13
    11. Whether – and despite the fact the Defendant cross-examined Trooper
       Nolan about the fact that he did not stop another vehicle for driving in
       the left lane without passing (II R.R. at 32-33) – as courts have observed,
       “[t]o the extent there are concerns that the “Passing Only” sign is being
       selectively enforced, the Supreme Court has held that those concerns do
       not enter this Fourth Amendment calculus.” United States v. Castillo, 28
       F. Supp. 3d 673, 677 (S.D. Tex. 2014) (emphasis added), aff’d, 804 F.3d
       361 (5th Cir. 2015).

(I C.R. at 31 (also suggesting the State’s proposed findings)). The State later filed a

Notice of Past Due Findings to ensure compliance with Tex. R. Civ. P. 297 on

June 8, 2017, requesting that the Trial Court enter its findings “as soon as possible,

so that the State may review and request additional findings as necessary under

Tex. R. Civ. P. 298” (I Supp. C.R. at 6, 8).7 No findings and conclusions were filed

before the records were submitted to this Court, however.8

       After both records were on file with this Court, this Court abated and

remanded for the Trial Court to state its “‘essential’ findings of fact and

conclusions of law” on the motion to suppress. See State v. Garrett, 03-17-00333-

7
  Although technically not required in a criminal case (see Marrero v. State, 03-14-00033-CR,
2014 WL 4400771, at *1 (Tex. App.—Austin Sept. 4, 2014, no pet.) (not designated for
publication), the State filed said notice out of an abundance of caution, to ensure the Trial Court
was aware of the impending appellate deadlines, and to allow the State to request additional
findings as necessary. The notice also requested a ruling on the attached State’s Motion for
Reconsideration, which merely included additional case law supporting the theories urged at the
hearing (see Black v. State, 362 S.W.3d 626, 633 (Tex. Crim. App. 2012) (noting the trial court
has continuing jurisdiction over an interlocutory suppression ruling and may reconsider it
throughout the course of trial)) - and included a Certificate of Presentment signed by the Trial
Court’s Coordinator to ensure it was brought to the Trial Court’s attention. See also cf. Castro v.
State, 03-12-00730-CR, 2015 WL 1214402, at *4 (Tex. App.—Austin Mar. 13, 2015, pet. ref’d)
(not designated for publication) (noting presentation of a motion for new trial to a court
coordinator can satisfy the presentation requirement for such motions); Tex. R. App. P. 33.1(a).
8
  The State also filed a motion to extend time to file the clerk’s record in this Court on June 7th to
give the Trial Court additional time to enter its findings and to allow the State to request
additional findings; however, both the clerk’s and reporter’s record were on file with this Court
by June 12th.

                                                 14
CR, 2017 WL 3044379, at *1 (Tex. App.—Austin July 14, 2017, no pet. h.) (not

designated for publication). The Trial Court was ordered to submit such findings in

a supplemental clerk’s record by August 14, 2017. Id.

       The State then filed a Notice of the Third Court’s Impending Deadline to

File Findings of Fact & Conclusions of Law with the Trial Court on August 9,

2017, in which it mentioned that “as the State indicated in its Notice of Past Due

Findings ... the State may need additional time once the [Trial] Court has filed its

findings and conclusions to request any necessary additional findings and

conclusions before the record is sent to the Court of Appeals. See Tex. R. Civ. P.

298” (II Supp. C.R. at 10-11). The Trial Court received an extension from this

Court until August 25th to submit its findings and subsequently filed its findings

with the District Clerk on August 22nd (II Supp. C.R. at 7-9).

       The State immediately set to work compiling the State’s Objections and

Request for Additional Findings pursuant to Tex. R. Civ. P. 298. Because the

attorney for the State was going to be out of town from August 23rd through the

28th, he passed his work over to a colleague and asked him to file it on August 24 th,

since the clerk’s supplemental record was due on August 25th. Although he did file

the State’s Objection and Request for Additional Findings9 on August 24th, the

Clerk submitted the supplemental record and this Court reinstated the appeal
9
  See III Supp. C.R. at 4 (the requested findings largely correspond to the State’s May 22nd
request for findings, with the exception that Finding #2 (“Whether Trooper Nolan’s testimony
was not credible only to the extent that it conflicted with the video”) was added in direct
response to the Trial Court’s apparent findings, and subsequent findings have a corresponding
higher number (e.g. #2 is now #3, etc.)).

                                             15
immediately on that same date, only two days after the Trial Court filed its

findings.10 The State’s Objection and Request for Additional Findings largely

mirrored its earlier Supplemental Request for findings which had detailed the

precise and potentially dispositive issues the State needed findings on to present its

case to this Court (III Supp. C.R. at 4). The State’s earlier Supplemental Request

was acknowledged on the first page of the Trial Court’s findings, though most of

the essential and potentially dispositive issues were not explicitly addressed in the

Trial Court’s findings (II Supp. C.R. at 7).

         Finally, the State filed a second Motion to Abate & Remand, or

Alternatively, to not Deem or Presume any Findings or Conclusions in this Court

on August 29, 2017 – within the 10-day period of Texas Rule of Civil Procedure

298 to request additional findings. This Court granted the alternative relief of

continuing the appeal to briefing on September 18, 2017. The State now submits its

Brief, asking that the Court either reverse the Trial Court’s order suppressing

evidence, or alternatively, abate and remand once again and require the Trial Court

to enter its explicit findings on the potentially dispositive issues pointed out by the

State.




10
  The attorney for the State asked that the State’s Objection and Request for Additional Findings
be filed before he later discovered the Clerk apparently planned to submit and actually submitted
the supplemental record early – and this Court reinstated the appeal – on August 24th.

                                               16
                             Summary of the Argument

      The Trial Court erred in granting the motion to suppress because the State

presented credible evidence of reasonable suspicion to believe Appellee had

committed two separate traffic violations. Moreover, Appellee’s arguments at the

hearing were legally erroneous, and the Trial Courts Explicit findings indicate it

adopted Appellee’s erroneous legal conclusions. The Trial Court’s explicit findings

are internally inconsistent, clearly erroneous, and warrant reversal in themselves.

Moreover, because the Trial Court has had multiple opportunities to enter its

explicit essential findings on requested issues, its continued refusal to do so should

be interpreted as impliedly finding the facts were favorable to the State, and the

Court should reverse the order suppressing the evidence. Alternatively, this Court

should again abate and remand for the necessary essential findings.


                   Standard of Review on a Motion to Suppress

      Appellate courts will review a trial court’s ruling on a motion to suppress for

an abuse of discretion and will “overturn the ruling only if it is arbitrary,

unreasonable, or ‘outside the zone of reasonable disagreement.’” State v. Worrell,

03-16-00749-CR, 2017 WL 3222050, at *3 (Tex. App.—Austin July 26, 2017, pet.

ref’d) (not designated for publication) (citing State v. Story, 445 S.W.3d 729, 732

(Tex. Crim. App. 2014). “When a trial court makes explicit fact findings,

[reviewing courts will] determine whether the evidence viewed in the light most

favorable to the trial court's ruling supports the fact findings. Id. (citing Johnson v.
                                          17
State, 414 S.W.3d 184, 192 (Tex. Crim. App. 2013). Courts will give “almost

complete deference to the trial court’s determination of historical facts, but [will]

review court’s application of the law to those facts de novo.” Id. (citing Story, 445

S.W.3d at 732). Reviewing courts are “not bound by the trial court’s findings and

conclusions that are not supported by the record.” Id. (citing State v. Whittington,

401 S.W.3d 263, 271 (Tex. App.—San Antonio 2013, no pet.); also citing State v.

Mazuca, 375 S.W.3d 294, 308-09 (Tex. Crim. App. 2012) (“rejecting trial court’s

conclusion as to ‘flagrancy of the police action’ that was not supported by

record”)).


                                       IV. Argument11

                                    Reasonable Suspicion

       The Court of Criminal Appeals has held that “the Texas Constitution does

not impose any greater restrictions on police conduct than those imposed by the

Fourth Amendment to the United States Constitution.” Gordon v. State, 801

S.W.2d 899, 912 (Tex. Crim. App. 1990) (adopting the objective standard in

evaluating police conduct, and analyzing appellant’s constitutional claims “within

a normal constitutional framework”); see also Cedano v. State, 24 S.W.3d 406, 410

n.1 (Tex. App.—Houston [1st Dist.] 2000, no pet.) (noting “state standards for

11
  Because the Trial Court’s explicit findings and conclusions indicate it appears to have adopted
many of Appellee’s erroneous legal arguments, the State will first go through its legal standards
and precedents before reaching the Trial Court’s explicit findings, infra; the State believes
ordering its brief in this manner helps further highlight the erroneous nature of the Trial Court’s
explicit findings and conclusions.

                                                18
review of investigative stops are the same as federal standards”). In order to

conduct a traffic stop, an officer must have reasonable suspicion. Hamal v. State,

390 S.W.3d 302 (Tex. Crim. App. 2012). “Reasonable suspicion exists when an

officer is aware of specific articulable facts that, when combined with rational

inferences from those facts, would lead him to reasonably suspect that a particular

person has engaged or is engaging in criminal activity.” Id. at 306. Further, only

“some minimal level of objective justification” is required to rise to the level of

reasonable suspicion. Id.


      The State does not have to establish with absolute certainty that a crime has

occurred. State v. Munsey, 424 S.W.3d 767, 771 (Tex. App.—Fort Worth 2014).

As stated in Jaganathan v. State, “[t]he question in this case is not whether

appellant was guilty of the traffic offense but whether the trooper had a reasonable

suspicion that [h]e was.” 479 S.W.3d 244, 247 (Tex. Crim. App. 2015), reh’g

denied (Feb. 10, 2016).

      An officer’s determination need not rise to the level required for probable

cause, and it falls considerably short of satisfying a preponderance of the evidence

standard. Tanner v. State, 228 S.W.3d 852, 856 (Tex. App.—Austin 2007, no pet.)

(citing U.S. v. Arvizu, 534 U.S. 266, 274 (2002)). As one Court has observed,

“Justice Scalia, who found reasonable suspicion lacking in Navarrette, nonetheless

implied that a probability of ‘1 in 10’ or even ‘1 in 20’ would satisfy the standard.”



                                         19
Castillo v. State, 28 F. Supp. 3d 673, 675 (S.D. Tex. 2014)12, aff’d, 804 F.3d 361

(5th Cir. 2015).



     A. Trooper Nolan Had Reasonable Suspicion Appellee Was Speeding.

       Texas Transportation Code Section 545.351 states that “an operator may not

drive at a speed greater than is reasonable and prudent under the circumstances

then existing.” Section 545.352 dictates that “a speed in excess of the limits

established by Subsection (b) or under another provision of this subchapter is

prima facie evidence that the speed is not reasonable and prudent and that the

speed is unlawful.” Subsection (b) designates the lawful speed for a numbered

highway to be 70 miles per hour. Further, the posted speed limit on Interstate 35 (a

numbered highway) at the relevant location is 70 miles per hour (I C.R. at 34

(State’s Request for a Finding on #7); II R.R. at 15)).

       It has long been established that a peace officer may stop and detain a

motorist when he has a reasonable basis for suspecting that the person has

committed a traffic offense. See Whren v. US, 517 U.S. 806 (1996); Garcia v.

State, 827 S.W.2d 937 (Tex. Crim. App. 1992); McVickers v. State, 874 S.W.2d

662 (Tex. Crim. App. 1993). Further, an officer does not have to identify the exact

speed a vehicle is going in order to detain it for speeding. Dillard v. State, 550

S.W.2d 45 (Tex. Crim. App. 1977). An officer’s visual perception of ‘speeding,’

12
  Citing Navarette v. California, 134 S. Ct. 1683 (2014); id. at 1695 (Scalia, J., Ginsburg,
Sotomayor and Kagan, JJ., dissenting).

                                            20
alone, can provide sufficient reasonable suspicion or probable cause to justify a

traffic stop. See, e.g., Jaroszewicz v. Texas Dep’t of Pub. Safety, 03-15-00340-CV,

2016 WL 4506163, at *4 (Tex. App.—Austin Aug. 26, 2016, no pet.) (not

designated for publication); State v. Cadena, 08-09-00322-CR, 2010 WL 5541180,

at *3 (Tex. App.—El Paso Dec. 29, 2010, no pet.) (not designated for publication)

(evidence that officer observed speeding authorized reasonable suspicion traffic

stop of defendant).

           Additionally, the underlying scientific principles of radar have repeatedly

been found by Texas courts to be valid as a matter of law, rejecting the holding in

Ochoa that an officer must be able to testify to the inner workings of the radar unit

in order to satisfy the first prong of the Kelly test. Masquelette v. State, 579 S.W.2d

478 (Tex. Crim. App. 1979); Perales v. State, 117 S.W.3d 434 (Tex. App.—

Corpus Christi 2003); Maysonet v. State, 91 S.W.3d 365 (Tex. App.—Texarkana

2002, no pet.); Mills v. State, 99 S.W.3d 200 (Tex. App.—Fort Worth 2002, no

pet.). The State must only prove the second and third prongs of Kelly when

establishing the reliability of radar reading: that the officer knew how to operate

the radar and that it was operated correctly on the occasion in question. Perales v.

State, 117 S.W.3d 434 (Tex. App.—Corpus Christi 2003).

           Trooper Nolan testified at the hearing on the defendant’s Motion to Suppress

Evidence that he was trained in the operation of his radar unit,13 that he calibrated


13
     See I C.R. at 34 (e.g., State’s Request for a Finding on #9-10); see also II R.R. at 6-7.

                                                    21
it at the beginning of his shift,14 and that it was working properly on the day in

question.15 Nolan further detailed that he operated his radar gun in conformity with

the manufacturer’s instructions and that the reading he received was confirmed by

his own observations.16 Trooper Nolan testified that he had specific training, over

ten years’ experience in observing vehicles in motion and that he determined the

defendant’s vehicle to be speeding prior to activating his radar unit.17 He testified

that the defendant was travelling at 75 miles per hour on a section of Interstate 35

where the posted speed limit was 70 miles per hour.18

       Indeed, even Appellee himself appeared to admit he was driving at 75 miles

per hour in a 70 mile-per-hour zone; in his proposed finding of fact #5, the

Appellee states: “The [Appellee’s] speed, 75 in a 70, was reasonable and prudent

for the driving conditions at the time of the stop” (I C.R. at 65). In his proposed

conclusion of law #3, the Appellee stated “The [Appellee] was driving at a

‘reasonable and prudent’ speed as required by Texas Transportation Code section

545.351” (id. at 66).19 However, Appellee was not being tried for speeding, and the

State was not required to prove beyond a reasonable doubt that Appellee was
14
   See I C.R. at 35 (e.g., State’s Request for a Finding on #12-14); see also II R.R. at 8, 16, 33-
34.
15
   See I C.R. at 35 (e.g., State’s Request for a Finding on #12-18); see also II R.R. at 8, 15-16,
29-30, 33-34.
16
   See I C.R. at 35 (e.g., State’s Request for a Finding on #7, 13, 15-18, 19); see also II R.R. at 15
(“I noticed that [the Defendant’s vehicle] appeared to be driving over the posted speed [limit]”).
17
   See supra; see also I C.R. at 34-35 (e.g., State’s Request for a Finding on #3, 6, 7, 8); II R.R.
at 6, 30, 15-16, 34).
18
   See I C.R. at 34 (e.g., State’s Request for a Finding on #8); see also II R.R. at 15-16, 34.
19
   But see Jaganathan v. State, 479 S.W.3d 244, 249 (Tex. Crim. App. 2015) (Meyers, J.,
Johnson and Newell, JJ., dissenting) (observing the Jaganathan majority found such a focus to
be erroneous).

                                                 22
speeding to show Trooper Nolan had reasonable suspicion. See Warren v. State,

05-08-01431-CR, 2009 WL 3467013, at *3 (Tex. App.—Dallas Oct. 29, 2009, no

pet.) (not designated for publication) (where an appellant argued his speed of only

five miles over the limit was reasonable under “545.351 of the Texas

Transportation Code,” and evidence from his stop should be suppressed, the Court

held: “We disagree. Appellant was not tried for speeding. Nor was the State

required to prove beyond a reasonable doubt that appellant was speeding in order

to show Burnett had reasonable suspicion to stop appellant’s vehicle....”).20

       Appellee also attempted to have the trial court hold the State’s evidence to

an improper – indeed, practically impossible – standard. As noted supra,

Appellee’s cross-examination focused on arguments such as “[Trooper Nolan,] you

can’t say with exact certainty – you can’t say there’s no way [the radar gun]

malfunctioned on that day” (II R.R. at 29 (emphasis added)), that it was “possible

... [Nolan’s] radar [was] measuring” another vehicle (id. at 31 (emphasis added)),

and that “[w]e’re talking just 5 miles over [the speed limit], agreed?” (id. at 35

(emphasis added)). However, the State is not required to establish an offense was


20
  See also State v. Garcia, 08-15-00081-CR, 2017 WL 2570935, at *2 (Tex. App.—El Paso
June 14, 2017, pet. ref’d) (not designated for publication) (citing Madden v. State, 242 S.W.3d
504, 508 n.7 (Tex. Crim. App. 2007)), and noting that although:
       The trial court concluded that Garcia did not violate Section 545.157(b)(2)(A) ...
       the issue before the trial court was not whether Garcia was ultimately guilty of the
       traffic violation. The State was not required to prove beyond a reasonable doubt
       that Garcia actually committed the traffic offense. The issue was whether an
       objective [reasonable suspicion] basis for the stop existed based on the totality of
       the circumstances.
(emphasis added)).

                                              23
committed beyond a reasonable doubt, but only whether the officer had a

reasonable suspicion an offense had been committed. In any event, Appellee’s

cross-examination – which would appear to require “exact certainty” – surpasses

even the beyond-a-reasonable-doubt standard. See also Leming, 493 S.W.3d at 564

(“The possibility of an innocent explanation does not deprive the [detaining]

officer of the capacity to entertain reasonable suspicion of criminal conduct).

Unfortunately, as noted infra, the Trial Court’s actual findings and conclusions

indicate it adopted Appellee’s improper and impossible standard.

       The only other attack by defense counsel on speeding as a basis for the

traffic stop was that Ochoa v. State required that the officer testify to the

underlying scientific principles of the radar for the Court to find that the use of

radar was scientifically sound under Kelly (II R.R. at 38). However, as several

courts cited above have observed, this is an erroneous position.21 Since the

underlying scientific principles are valid as a matter of law – as the Trial Court

acknowledged in its conclusions (II Supp. C.R. at 9 (Conclusion #5)) – Trooper

Nolan was only required to truthfully testify that he knew how to operate the radar

and that he did it correctly on the day in question, as he did.22 Furthermore, the

determination by Trooper Nolan that the defendant was speeding prior to activating

his radar unit – standing alone – was sufficient to form reasonable suspicion given

21
   Supra, citing Masquelette, 579 S.W.2d 478;. Perales, 117 S.W.3d 434; Maysonet, 91 S.W.3d
365; Mills, 99 S.W.3d 200.
22
    See I C.R. at 34-35 (e.g., State’s Requested Findings on #6-19); see also II R.R. at 6-7, 15-16,
29-30, 33-34.

                                                24
his training and experience. See, e.g., Jaroszewicz v. Texas Dep’t of Pub. Safety,

03-15-00340-CV, 2016 WL 4506163, at *4 (Tex. App.—Austin Aug. 26, 2016, no

pet.) (not designated for publication) (“Even without crediting the radar evidence,

the ALJ could have found that the officer’s visual observation that Jaroszewicz’s

vehicle was traveling at ‘a high rate of speed for the 30 mph zone’ was sufficient to

establish reasonable suspicion for the officer to conduct the traffic stop”); State v.

Cadena, 08-09-00322-CR, 2010 WL 5541180, at *3 (Tex. App.—El Paso Dec. 29,

2010, no pet.) (not designated for publication) (evidence that officer observed

speeding authorized reasonable suspicion traffic stop of defendant).

      Based on his training and experience, upon observing Appellee travelling at

around 75 miles per hour in a 70 zone, Trooper Nolan likely had probable cause –

and in any event, reasonable suspicion – to pull Appellee over for speeding. See

Jaroszewicz, 2016 WL 4506163 at *4; Cadena, 2010 WL 5541180 at *3. The

totality of the circumstances supporting probable cause only grew stronger based

on Nolan’s extensive training, understanding, testing and experience with his radar

gun generally and on the day in question. Nolan properly verified his estimate of

Appellee’s speed on his radar gun, and any conclusion from the Trial Court that

Nolan did not properly use his radar gun on the day in question would not be

supported by the record. The Trial Court abused its discretion in denying the

motion to suppress, and this Court should reverse and order the Trial Court to deny

the motion to suppress on this basis. Worrell, 2017 WL 3222050 at *3; Hamal, 390

                                         25
S.W.3d at 306; Munsey, 424 S.W.3d at 771; Jaganathan, 479 S.W.3d at 247;

Jaroszewicz, 2016 WL 4506163 at *4; see also infra (Trial Court’s Findings and

Conclusions Unsupported and Insufficient).



   B. Trooper Nolan Had Reasonable Suspicion Appellee Was Driving in the
      Left Lane Without Passing.

      Texas Transportation Code Section 544.044 requires that “[t]he operator of a

vehicle or streetcar shall comply with an applicable official traffic-control device

placed as provided by this subtitle…” An official traffic-control device includes a

sign that is consistent with Subtitle C of the Transportation Code, put up by a

public body, and used to regulate, warn, or guide traffic. Tex. Transp. Code. Ann.

§ 541.304 (West, Westlaw through 2017 R.S.). Section 544.011 states “[i]f, on a

highway having more than one lane with vehicles traveling in the same direction,

the Texas Department of Transportation or a local authority places a sign that

directs slower traffic to travel in a lane other than the farthest left lane, the sign

must read “left lane for passing only.” A sign erected by TxDOT in accordance

with Section 544.011 is an official traffic control device and must be complied

with. Mouton v. State, 101 S.W.3d 686, 689 (Tex.App.—Texarkana 2003).

      In order for a motorist to violate Section 544.011 for travelling in the left

lane without passing, there must be a sign within a reasonable distance of the

traffic stop. United States v. Castillo, 804 F.3d 361, 365 (5th Cir. 2015), cert.

denied, 136 S. Ct. 1481 (2016). However, an officer does not need conclusive
                                         26
proof that the person actually saw the sign prohibiting the conduct, but only a

reasonable suspicion that he had seen it. Id. at 363; Navarette v. California, 134

S.Ct. 1683 (2014); Abney v. State, 394 S.W.3d 542, 549 (Tex. Crim. App. 2013).

Courts have found reasonable suspicion existed when the officer first saw the

motorist a few miles past the sign. United States v. Castillo, 28 F. Supp. 3d 673,

673 (S.D. Tex. 2014), aff’d, 804 F.3d 361 (5th Cir. 2015) (five miles from sign);

Mouton v. State at 689 (three to four miles from sign); Earvin v. State, 2015 WL

4104701, at *5 (Tex. App.—Houston [14th Dist.] July 7, 2015), petition for

discretionary review refused (Nov. 18, 2015) (six miles from sign); contrast with

Abney at 549 (15 miles from the sign was too far).



     1. Courts have found reasonable suspicion when an officer does not observe
        a defendant until several miles after the sign, even when there are several
        entrances in between.23

        Notably, Courts have even found reasonable suspicion where multiple points

of entry existed between the sign and the point at which the officer observed the

motorist. In U.S. v. Castillo, D.P.S. Trooper Collins was parked off of the highway

when he observed a Ford Explorer travelling in the left-hand lane. United States v.

Castillo, 28 F. Supp. 3d 673, 674 (S.D. Tex. 2014), aff’d, 804 F.3d 361 (5th Cir.

2015). There was a “Left Lane for Passing Only” sign roughly 5.3 miles behind

where Collins first saw the Explorer. Id. Furthermore, in that 5.3-mile interval, the

23
  As noted supra, Appellee never argued that he had not seen the sign in this case; he argued that
issue was ‘irrelevant’ because he claimed he was passing.

                                               27
highway intersected “several county roads and turnarounds, and two exit and

entrance ramps.” Id. The trooper followed the Explorer; when the young female

passenger averted her eyes, Trooper Collins pulled the vehicle over, believing it

might be a human trafficking situation. Id. at 674. The defendants were charged

with bringing in and harboring aliens; they filed a motion to suppress, arguing

Collins did not have reasonable suspicion to believe they had committed a traffic

violation. Id.

      The dispositive question in Castillo was “whether Collins had reasonable

suspicion that the Explorer passed” the “Left Lane for Passing Only” sign 5.3

miles before Collins first saw them. Id. at 675. At the outside, the district court

observed that:

      [a] Supreme Court decision from earlier this year reiterates this
      relatively low “reasonable suspicion” threshold, observing that the
      “level of suspicion the standard requires is ‘considerably less than
      proof of wrongdoing by a preponderance of the evidence,’ and
      ‘obviously less’ than is necessary for probable cause.” Justice Scalia,
      who found reasonable suspicion lacking in Navarette, nonetheless
      implied that a probability of “1 in 10” or even “1 in 20” would satisfy
      the standard.

Id. at 675 (citing Navarette v. California, 134 S. Ct. 1683 (2014); id. at 1695

(Scalia, J., Ginsburg, Sotomayor and Kagan, JJ., dissenting)).

      The district court then observed that a “substantially higher probability

exists” that the defendants had seen the “Passing Only” sign. Id. While there were

“two on-ramps, several county roads, and a few turnarounds” in the 5.3 miles

between the sign and the trooper’s locations, that stretch did not pass through
                                        28
heavily populated areas. Id. at 676. The district court recognized that the

reasonable suspicion standard required it to “make the following probabilistic

determination: What percentage of vehicles driving on [that highway] at the exact

point where Collins first observed the Explorer had passed the sign located 5.3

miles behind them?” Id. The district court ultimately concluded the likelihood was

“over 50%, and likely much higher” – well above the “1 in 10” or “1 in 20” odds it

believed Scalia would have found sufficient to satisfy the reasonable suspicion

standard. Id. Determining that “the facts of this case seem to easily surmount the

threshold for reasonable suspicion,” the district court rejected the defendant’s

claim that the stop violated the Fourth Amendment and denied the motion to

suppress. Id. at 677.

      The Fifth Circuit affirmed, noting that “Texas courts have found valid stops

that occurred between three and six miles from a sign.” United States v. Castillo,

804 F.3d 361, 365 (5th Cir. 2015), cert. denied, 136 S. Ct. 1481 (2016). Although

the defendants cited United States v. Garcia, the Fifth Circuit rejected that case,

observing that:

      We are not persuaded by Garcia’s suggestion that an officer must
      have specific knowledge that the suspect passed the sign. See 976
      F.Supp.2d at 864 (concluding the officer lacked reasonable suspicion
      because he “had absolutely no way of knowing when [the defendant]
      entered the highway”). To conclude that an officer does not have
      reasonable suspicion unless he knows the defendant passed the sign is
      essentially to require certainty that a violation occurred. This would
      raise the standard for reasonable suspicion far above probable cause or
      even a preponderance of the evidence, in contravention of the
      Supreme Court’s instructions.
                                        29
Id. at 366. The Supreme Court denied certiorari from the Fifth Circuit’s decision.

Id. Another court of appeals – citing Castillo – upheld a stop similar to Appellee’s,

observing that “[a]n officer is not required to visually observe a defendant passing

a traffic control device.” Earvin v. State, 14-14-000702-CR, 2015 WL 4104701, at

*4 (Tex. App.—Houston [14th Dist.] July 7, 2015) (pet. ref’d Nov. 18, 2015) (not

designated for publication).



   2. Texas Courts – including the Court of Criminal Appeals – have found
      reasonable suspicion of a ‘left lane for passing only violation’ even where
      the officer observed the violation for less time than in the instant case, and
      regardless of whether the defendant might ultimately have a defense to the
      conduct.

        Although Appellee argued at the hearing, that “[h]e wasn’t somebody

hanging out in the left lane, mile after mile, after mile blocking the road,” (II R.R.

at 38), that is not the standard. Notably, Earvin found the record supported a

finding that the officer reasonably believed the defendant committed “left lane for

passing only” violation when he observed him failing to pass anyone for a period

of “twenty to thirty seconds.” 2015 WL 4104701, at *1, *4. The Court of Criminal

Appeals refused Earvin’s petition for discretionary review; indeed, that Court has

upheld a finding of reasonable suspicion for travelling in the left lane for even less

time.

        In Jaganathan v. State, the Trooper observed the appellant driving in the

left lane for around 22 seconds:
                                         30
       [a]ppellant passed a “Left Lane for Passing Only” sign. About four or
       five seconds later, while Trooper Norsworthy was still in the right
       lane, he passed the sign. Appellant’s vehicle continued to travel in the
       left lane. Another four or five seconds later, Trooper Norsworthy
       moved out of the right lane, across the middle lane, and into the left
       lane. The Trooper then followed behind appellant’s vehicle in the left
       lane for ten to twelve seconds. During this interval, the middle lane
       was clear of traffic, and appellant was not passing any other vehicles.
       Appellant turned on her left turn signal, then turned it off and turned
       on her right turn signal, and then moved into the middle lane. Trooper
       Norsworthy turned on his overhead lights, and the two vehicles pulled
       to the side of the road

479 S.W.3d 244, 246 (Tex. Crim. App. 2015), reh’g denied (Feb. 10, 2016)

(emphasis added). Although the trial court denied the motion to suppress, the lower

court of appeals reversed, suggesting several justifications for the appellant’s

failure to move over. Id. Among other reasons, the court of appeals concluded that

the trooper “did not follow appellant for a sufficient amount of time or for a

sufficient distance to conclude that appellant committed a violation,” also stating

that “Trooper Norsworthy had ‘actually followed appellant in the left lane for only

twelve seconds before appellant began pulling over.’” Id. at 246-47. It also

considered the fact that the appellant had not “frustrated the purpose of the ‘Left

Lane for Passing Only’” sign because she had not impeded traffic or put others’

safety at risk. Id. at 247.

       The Court of Criminal Appeals reversed the intermediate appellate court,

concluding there was reasonable suspicion of a traffic violation. The State argued

that it was improper to consider whether the appellant had potential justifications

for not moving out of the left lane; while “such matters might entitle a defendant to
                                         31
an instruction on necessity if she were being tried for a traffic violation,” they were

not relevant to whether the officer had reasonable suspicion to stop her. Id.

(emphasis added). The Court agreed, observing that “[t]he question in this case is

not whether appellant was guilty of the traffic offense but whether the trooper had

a reasonable suspicion that she was.” Id. “An officer’s suspicion is not

unreasonable just because facts surrounding a suspected offense might ultimately

show a defense to conduct.” Id. at 248.24 The Court also recognized that it was

incorrect for the lower court to suggest the trooper should have considered ‘the

purpose of the law’ – i.e. safety – in deciding whether he suspected the appellant

had violated it. Id.



     3. Based on the totality of Trooper Nolan’s observations, he had reasonable
        suspicion regardless of whether Appellee might ultimately have a defense
        to the conduct, and the possibility of ‘selective enforcement’ was likewise
        irrelevant.

        As the majority in Jaganathan concluded, it is incorrect to focus on an

defendant’s “possible defenses to [a traffic offense] rather than whether the officer

simply had a reasonable suspicion” to believe a traffic offense had occurred. See


24
   The Jaganathan Court explicitly rejected findings similar to what the Appellee proposed (see I
C.R. at 65 (e.g., Findings 3 & 5, in which Appellee is trying to argue facts which might show a
defense to conviction for the offense)), noting such findings do not vitiate the trooper’s
reasonable suspicion of a traffic offense. Such facts would only matter if the facts establishing it
were so obvious that an objective officer would be unreasonable in failing to realize the conduct
was allowed by law. See Jaganathan, 479 S.W.3d at 248. A possibility that a defendant has a
defense – e.g. “because the white car or the officer’s car might have made it unsafe to move to
the middle lane” – would not preclude reasonable suspicion, because “[t]he reasonable suspicion
standard ‘accepts the risk that officers may stop innocent people.’” Id.

                                                32
Jaganathan v. State, 479 S.W.3d 244, 249 (Tex. Crim. App. 2015) (Meyers, J.,

Johnson and Newell, JJ., dissenting) (observing the majority found such a focus to

be erroneous). Although Appellee also cross-examined Trooper Nolan about the

purpose of the law (II R.R. at 21-22), Jaganathan observed that it is inappropriate

to “consider[] the purpose of the law against driving in the left lane without

passing” in the reasonable suspicion determination:

         [The trooper] was not required to consider the purpose of the law
         in deciding whether he believed appellant had violated it. Just as
         running a stop sign is illegal even if it can be done safely, driving
         in the left lane in violation of a posted sign is illegal even if it
         can be done safely

Jaganathan, 479 S.W.3d at 248. Finally, Appellee tried to imply Trooper Nolan

was ‘selectively enforcing’ the statute (II R.R. at 24-25, 32-34); however, this

allegation – even if it was true – is irrelevant to the reasonable suspicion analysis:

See Castillo, 28 F. Supp. 3d at 677 (“[t]o the extent there are concerns that the

‘Passing Only’ sign is being selectively enforced, the Supreme Court has held that

those concerns do not enter this Fourth Amendment calculus”) (citing Whren v.

United States, 517 U.S. 806, 813 (1996)).

      In evaluating whether a motorist was passing or not, the courts have

considered the distance or time the officer observed the person driving in the left

lane. Jaganathan, 479 S.W.3d at 246 (around 22 seconds); Earvin, 2015 WL

4104701 at *5 (20-30 seconds where individual was not passing or preparing to

pass); Mouton v. State, 101 S.W.3d at 690 (officer followed for at least a mile).

                                          33
Another consideration is the presence of other traffic on the road. In Earvin, the

defendant was actually driving slightly behind another vehicle, but did not pass it

for the 20-30 seconds which the officer observed him. 2015 WL 4104701 at *1. In

other cases, the factual background is silent as to whether other cars were present

on the road.

       Trooper Nolan testified at the hearing that he observed the defendant driving

in the left lane of I-35 and not passing any other vehicles (see State’s Ex. 5 at 0:50

(Defendant is not passing anyone), 1:23 (Defendant finally parallel to car in far

right lane, but no car in middle lane), 1:43 (Defendant is finally passing a car

which moved into the middle lane);25 compare with Jaganathan, 479 S.W.3d at

246 (middle lane clear of traffic while the defendant drives in left lane for 22

seconds). The stretch of highway in question is outside of the New Braunfels city

limits and is fairly rural with limited entry points to the interstate.26 Trooper Nolan

testified that the “Left Lane for Passing Only” sign was posted approximately a

half of a mile prior to where he first saw the defendant.27 The picture of the sign

introduced as evidence clearly shows that the sign was posted in conformity with

the requirements of Section 544.011 of the Texas Transportation Code. 28 Trooper

Nolan further testified that the last possible entrance to the interstate (prior to the
25
   See also I C.R. at 35-36 (e.g., State’s Request for Findings on #20-26); see also II R.R. at 9-
14, 15, 19, 23-24).
26
   See, e.g., I C.R. at 34 (e.g., State’s Request for a Finding on #5); III R.R. at 2-5, State’s Ex. 1
& 2 (maps show rural area with relatively few roads); State’s Ex. 3 & 4 (pictures of area before
and after sign show rural, sparsely populated surroundings), State’s Ex. 5 (same).
27
   See I C.R. at 33-36 (e.g., State’s Request for Findings on #4, 20-24); II R.R. at 9-14, 23-24.
28
   III R.R. at 4; see also Tex. Transp. Code Ann. § 544.011.

                                                 34
point where he observed the defendant) was before the sign and that it was very

likely that the defendant would have seen it, even if he had entered the highway at

that point.29 Indeed, Appellee did not contest that he had seen the sign in closing (II

R.R. at 38 (“...all this about the sign doesn’t even matter, Judge. He was

passing...”), and Appellee’s own proposed finding of fact appears to admit he

passed the sign (I C.R. at 65 (Appellee’s Proposed Finding #4 states “The

[Appellee] passed the ‘Left Lane for Passing Only’ sign but it is of no relevance

because the [Appellee] was in fact ‘passing’”).

       When Trooper Nolan first observed the defendant’s vehicle, he was in the

left lane well ahead of the vehicle in the center lane.30 Although the camera loses

sight of the defendant’s vehicle, Trooper Nolan testified that he had eyes on him

the majority of the time, and that he never saw him leave the left lane from when

he first saw him until he turned his lights on to conduct a traffic stop.31 Trooper

Nolan observed the defendant for approximately 1.5 miles (approximately 30

seconds). See id. (n.31). At no point during that time did the defendant pass or

attempt to pass another vehicle. See id.; compare with Jaganathan, 479 S.W.3d at

246 (around 22 seconds). Therefore, Trooper Nolan had sufficient reasonable

suspicion to pull over Appellee for driving in the left lane without passing shortly

29
   See, e.g., I C.R. at 33-36 (e.g., State’s Request for Findings on #4, 20-24); II R.R. at 9-14, 23-
24.
30
   See I C.R. at 33-36 (e.g. State’s Request for Findings on #4, 22-23, 25); II R.R. at 15, 19;
State’s Ex. 5 at 0:50.
31
   See I C.R. at 36 (e.g. State’s Request for Findings on #23, 25-26); II R.R. at 9-14, 17-21;
State’s Ex. 5 at 0:50-1:43.

                                                35
after a posted sign after observing him travelling in the left lane of IH35 for

approximately 30 seconds while not passing or attempting to pass another vehicle.

The Court should likewise find the Trial Court abused its discretion in denying the

motion to suppress on this basis, reverse and order the Trial Court to deny the

motion to suppress. Jaganathan, 479 S.W.3d at 246-47; Hamal, 390 S.W.3d at

306; Munsey, 424 S.W.3d at 771; see also infra (Trial Court’s Findings and

Conclusions Unsupported and Insufficient).



   C. The Trial Court’s Findings Are Not Supported by the Record and Warrant
      Reversal in and of Themselves.

      As noted supra, Courts will give “almost complete deference to the trial

court’s determination of historical facts, but [will] review court’s application of the

law to those facts de novo.” Worrell, 2017 WL 3222050, at *3. Reviewing courts

are “not bound by the trial court’s findings and conclusions that are not supported

by the record.” Id.; see also Mazuca, 375 S.W.3d at 308-09 (“rejecting trial court’s

conclusion as to ‘flagrancy of the police action’ that was not supported by

record”)).

      In the instant case, as noted in above ‘speeding’ and ‘driving in the left lane

without passing’ sections, Appellee’s cross-examination and arguments at the

hearing were contrary to established law. Unfortunately, the Trial Court’s explicit




                                          36
findings and conclusions32 indicate it adopted Appellee’s erroneous positions, were

not supported by the record, internally inconsistent, contrary to established law and

weigh in favor of disregarding them entirely and reversing the order of

suppression.

                                Trial Court’s33 Finding #2

       Although the Court’s Finding #2 finds the Trooper’s testimony regarding

whether the Appellee had seen the traffic control device ‘not credible’ – apparently

because it may have been “speculative” (II Supp. C.R. at 7) –as noted in several

cases,34 an officer does not need conclusive proof that the person actually saw the

sign prohibiting the conduct, but only a reasonable suspicion that he had seen it.

Castillo, 804 F.3d at 363; Navarette v. California, 134 S.Ct. 1683 (2014); Abney v.

State, 394 S.W.3d 542, 549 (Tex. Crim. App. 2013). Indeed, several courts have

upheld reasonable suspicion stops when the officer essentially “speculated” that

the defendant had passed the traffic control device much further back – with a

corresponding lesser probability – than in the instant case. See, e.g., Castillo, 28 F.

Supp. 3d at 674-75 (“Left Lane for Passing Only” sign roughly 5.3 miles behind

where officer first saw the defendant; also observed Justice Scalia’s dissenting

32
   The Trial Court again failed to make explicit essential findings addressing the potentially
dispositive issues (see infra).
33
     Most of the following arguments were also submitted to the Trial Court in the State’s
Respectful Objection to the Court’s Findings and Conclusions & Request for Additional
Findings and Conclusions Under Tex. R. Civ. P. 298 (III Supp. C.R. at 4 (as noted, filed two
days after the Trial Court’s findings, the day before the record was due, but just subsequent to
the filing of the supplemental record in this Court)).
34
   Including those cited in the State’s Motion for Rehearing (I C.R. at 49 (at page 6 of the
Motion)).

                                              37
opinion in Navarette that a probability of “1 in 10” or even “1 in 20” would satisfy

the reasonable suspicion standard); Castillo, 804 F.3d at 365 (the Fifth Circuit

rejected “Garcia’s suggestion that an officer must have specific knowledge that the

suspect passed the sign,” further noting that “Texas courts have found valid stops

that occurred between three and six miles from a sign”) (emphasis in original);

Hamal, 390 S.W.3d at 306 (“Reasonable suspicion exists when an officer is aware

of specific articulable facts that, when combined with rational inferences from

those facts, would lead him to reasonably suspect that a particular person has

engaged or is engaging in criminal activity”). As noted above, even Appellee did

not argue and appeared to admit he had seen the sign (II R.R. at 38; I C.R. at 65).

Furthermore, reasonable suspicion is ‘speculation,’ not certainty, as the Appellee

tried to argue at the hearing (see II R.R. at 29, 31). The Trial Court apparently

adopted Appellee’s erroneous and practically impossible standard, and this finding

was not supported by the record. See supra.



                      Trial Court’s Findings #3, 5, 6, 7 and 9

      In Findings 3, 5 and 7, the Trial Court found Nolan’s testimony that he

observed Appellee travelling over the limit of 70 miles per hour to be “not

credible;” the Court states that “[t]he [Appellee’s] vehicle did not appear to be

travelling any faster or slower than any other vehicle travelling in any lane,

including the ‘passing lane’ prior to the [Appellee’s] vehicle” (II Supp. C.R. at 7).

                                          38
        There are a few problems with these findings. First, to the extent the Trial

Court is implying ‘selective enforcement’ of the speeding statute, that is irrelevant

to the reasonable suspicion analysis. See Castillo, 28 F. Supp. 3d at 677; see also

Gordon, 801 S.W.2d at 912 (no ‘pretextual stop’ doctrine; the subjective intent of

an officer is irrelevant). Second, the Trial Court makes no finding as to “[w]hether

most people speed at the location on Interstate Highway 35 where Trooper Nolan

first observed the [Appellee],” though the State requested one.35 In fact, in Finding

6, the Court seems to credit Nolan’s testimony that “[g]enerally in that location

most people are [speeding]” (II Supp. C.R. at 7). If most people are speeding in

that location (Finding 6), and Appellee was not travelling “slower than any other

vehicle travelling in any lane,” (Finding 5) then more likely than not, Appellee was

speeding. This is more than is required to show reasonable suspicion or even

probable cause of speeding. Moreover, the Trial Court appears to rely (see, e.g.,

Finding 6) on Appellee’s proposed finding that “[t]he [Appellee’s] speed, 75 in a

70, was reasonable and prudent for the driving conditions at the time of the stop” (I

C.R. at 65).36 However, as the State pointed out in its Motion for Reconsideration,

“the State is not required to prove beyond a reasonable doubt that the [Appellee]

was speeding to show Trooper Nolan had reasonable suspicion.”37

35
    See I C.R. at 32 (Request for a Finding on #2).
36
    The Trial Court appears to assert that speeding is relative, e.g.‘if all cars are driving 90 in a 75-
mile-per-hour zone, a trooper cannot have reasonable suspicion that a given defendant was
speeding, even though he was driving 90 in a 75 zone.’
37
   I C.R. at 49 (citing Warren v. State, 2009 WL 3467013 at *3).


                                                  39
          Finding 7 is vague, in that it merely states the Appellee “was not traveling at

a ‘high rate of speed.’” The Court does not explicitly define what it believes

constitutes a ‘high rate of speed’ – whether it is evaluating that speed in

comparison to the posted speed limit or to the relative speed of other cars on the

highway. The Trial Court should have made explicit findings regarding exactly

how fast the evidence showed Appellee was driving (e.g. 75 miles per hour) and

how far above the posted speed limit that was (e.g. five miles per hour above the

70-mile-per-hour posted limit).38 Moreover, if the Court believes the reason the

Appellee was not speeding was because ‘75 in a 70 was reasonable and prudent for

the driving conditions,’ the Trial Court should have explicitly stated that was its

basis.

          Finally, the foregoing findings are internally inconsistent with Finding 9.

Despite Trooper Nolan’s testimony that it was his job to determine which vehicle’s

speed the radar “cone” was picking up – and his testimony that he has never made

a mistake when determining which vehicle’s speed he was looking at – the Court

noted he did not testify there was “no possibility that the radar had picked up the

speed of another vehicle....” (II Supp. C.R. at 8 (Finding 9)). The Trial Court made

no finding that Nolan was not credible when he stated his radar gun showed a

finding of 75 miles per hour in a 70 mile-per-hour zone, despite the State’s

requests. The Trial Court appears to conclude there is a “possibility” the radar cone


38
     See I C.R. at 32 (e.g., State’s Request for Findings on #6-8 related to Appellee’s actual speed).

                                                   40
showed someone else around Defendant was traveling at 75 miles per hour in a 70-

mile-per-hour zone. Aside from the fact that the mere ‘possibility’ of innocent

conduct does not vitiate reasonable suspicion,39 assume for the sake of argument

that Trooper Nolan did read the speed of another “vehicle in the area at the same

time” (II Supp. C.R. at 8 (Finding 9)). According to the Trial Court’s other

findings, “[t]he [Appellee’s] vehicle did not appear to be travelling any ... slower

than any other vehicle travelling in any lane....” (id. at 7-8 (Finding 5) (emphasis

added)). Even if Nolan’s radar gun showed a vehicle “around” Appellee was

traveling at 75 in a 70 zone, if Appellee was not traveling slower than any other

vehicle, Appellee was traveling at least 75 in a 70-mile-per-hour zone, and the

Trial Court should have entered an express finding to that effect. In any event,

based on the foregoing, it appears the Trial Court impliedly found Appellee was

speeding at 75 in a 70 zone, and this Court should reverse the Trial Court’s order

of suppression on this basis.40

       Based on the significant problems with all findings in which the Trial Court

explicitly details the basis for its ‘not credible’ determination, this Court should

39
   Once again, the Trial Court appears to have adopted Appellee’s erroneous and practically
unattainable standard of ‘absolute certainty,’ which is far more than reasonable suspicion
requires. As the Jaganathan Court noted:
         “A determination that reasonable suspicion exists ... need not rule out the
        possibility of innocent conduct.” The reasonable suspicion standard “accepts the
        risk that officers may stop innocent people.” The mere possibility that an act is
        justified will not negate reasonable suspicion.
479 S.W.3d at 248.
40
    See also I C.R. at 65 (in his own proposed finding of fact #5, Appellee states: “The
[Appellee’s] speed, 75 in a 70, was reasonable and prudent for the driving conditions at the time
of the stop,” appearing to admit he was speeding).

                                               41
also reject the Trial Court’s general ‘not credible’ findings which did not provide

an explicit basis (II Supp. C.R. at 7-8 (Findings 1 and 8)). Additionally, those

findings cite – and are inconsistent with – the video, which this Court may review

de novo.41 See State’s Ex. 5 at 0:50. Moreover, Finding 8 also appears to conflict

with Findings 3 and 5; the Trial Court asserts in Finding 8 that Appellee is passing

another vehicle throughout the video, but in Findings 3 and 5, the Trial Court

asserts Appellee is not travelling faster than “any other vehicle travelling in any

lane” (see II Supp. C.R. at 7-8). Because the Trial Court’s findings are conflicting

and incorrectly apply the law to the facts, its conclusions are also incorrect and not

supported by the record (see II Supp. C.R. at 8-9). Furthermore, the Trial Court

made these conclusions without explicitly making essential findings on the State’s

requested and potentially dispositive issues (I C.R. at 32-36 (e.g. State’s Request

for Findings on #6-19, 20-26); see also III Supp. C.R. at 4 (Objections and Request

for Additional Findings)).

       Because the Trial Court failed to make the requested explicit essential

findings, and because the Trial Court’s explicit findings and conclusions indicate it

adopted Appellee’s erroneous positions, were not supported by the record, were

41
  See State v. Piedra, 13-13-00540-CR, 2015 WL 5576346, at *5 (Tex. App.—Corpus Christi
June 25, 2015, no pet.) (not designated for publication) (where the Court of Appeals – in
reversing the trial court’s granting of a motion to suppress – noted that where “‘the nature of the
video evidence does not pivot on an evaluation of credibility and demeanor[,]’and where the trial
court makes no finding that a witness did not actually see what was depicted in the video, it is
acceptable to view the video evidence de novo”). In the instant case, not only did the Trial Court
never make a finding the Trooper did not see what was depicted in the video, the evidence would
not have supported such a finding if it had.


                                               42
internally inconsistent and were contrary to established law, the Trial Court’s

decision was “arbitrary, unreasonable, or ‘outside the zone of reasonable

disagreement.’” See Worrell, 2017 WL 3222050 at *3. Accordingly, this Court

should reject the Trial Court’s findings and conclusions, find the Trial Court

abused its discretion, and reverse the order of suppression. See id. at *3; see also

Mazuca, 375 S.W.3d at 308-09.42 Alternatively, the Court should abate and remand

again for the essential findings. But see infra.



     D. The Trial Court – Even After Remand – Has Continued to Refuse to
        Explicitly Answer Potentially Dispositive Issues the State Raised in its May
        22nd Supplemental Request for Essential Findings.

        In State v. Elias, the trial court granted the defendant’s motion to suppress

evidence. Although the court of appeals affirmed the case, the Court of Criminal

Appeals reversed, noting the court of appeals “should have remanded the cause to

the trial court for entry of additional, specific findings of fact” with respect to a

potentially dispositive issue. 339 S.W.3d 667, 668 (Tex. Crim. App. 2011).

        In Elias, only one witness – a sheriff’s deputy – testified at the pretrial

hearing. Id. at 669. He testified that the witness may have failed to signal a right

turn at a stop sign, potentially involving a violation of Texas Transportation Code

§ 545.104(a) (requiring a driver to use a signal when turning) or § 545.104(b)


42
   The State also argues the Trial Court erred in not granting its Motion for Reconsideration and
reverse its order suppressing the evidence. (see I C.R. at 49; I Supp. C.R. at 6; II Supp. C.R. at
7). However, in the event the Court reverses the Order of Suppression, this issue will be moot.

                                               43
(requiring a driver to signal his intention to turn continuously for at least 100 feet

before the turn). Id. at 675. Although the deputy’s articulated reason for the stop

was based on § 545.104(a), the deputy admitted at the hearing that he had not see

whether the defendant was signaling at the exact moment of the turn – though the

deputy noted the defendant had not been signaling earlier, while within 100 feet of

the turn. Id. at 670-71.

      The trial court granted the motion to suppress and “made explicit findings of

fact and conclusions of law that it obviously deemed dispositive of the motion to

suppress.” Id. at 674. However, the trial court only mentioned the fact that the

deputy could not see whether the defendant was signaling at the moment he turned;

the trial court made no finding regarding the deputy’s testimony that the defendant

was not signaling while he was within 100 feet of the turn. Id. at 674.

      The Court of Criminal appeals found the trial court had erred to conclude its

finding was dispositive of the motion to suppress. Id. Noting the standard was

whether the deputy had some objective basis for the stop, the Court observed that

“[i]t was uncontested – and the trial court did not find otherwise – that [Deputy]

Sanchez was able to see ... that there was no turn signal flashing in the moments

before the appellee made the turn, when the van was positioned within the last one

hundred feet of the intersection.” Id. at 675 (emphasis in original) (also citing §

545.104(b)).




                                         44
      The defendant tried to argue on appeal that the Court should “invoke the

Ross presumption that the trial court simply disbelieved [the deputy’s] uncontested

testimony” related the observed violation of § 545.104(b). Id. However, the Court

determined that:

      the more appropriate presumption, after Cullen, is that the explicit
      findings of fact that the trial court did enter are those it deemed
      “essential” to its ruling, and that it made no finding of fact whatsoever
      with respect to other fact or credibility issues because it regarded them
      (however erroneously) as peripheral or non-essential to its ultimate
      legal holding.

Id. at 675-76. The Court further observed that the omission of findings on the

potentially dispositive issue constituted a “failure ... to act” for purposes of Rule of

Appellate Procedure 44.4, and that the court of appeals was authorized – and in

fact, required – to first remand the cause for the entry of supplemental findings to

avoid “appellate speculation” before it could affirm the trial court’s judgment. Id.

at 676-77 (citing Tex. R. App. P. 44.4).

      In Elias, the trial court appears to have issued its findings sua sponte, and

the State apparently did not object, point out the potentially dispositive issues, and

request findings on those issues. See id. at 680 (Keller, P.J., concurring). While at

first glance Elias would appear to require an abatement and remand for the State’s

requested potentially dispositive findings, the stronger procedural history

underlying the instant case might support the conclusion that the trial court

implicitly made findings which favor the State.



                                           45
      Unlike Elias, in the instant case, the State timely requested findings, filed

proposed findings (with citations to the record), asked the trial court in the

alternative to make its own findings on explicitly detailed potentially dispositive

issues, and submitted a notice of past due findings, as noted by the Court in its

Order. State v. Garrett, 03-17-00333-CR, 2017 WL 3044379, at *1 (Tex. App.—

Austin July 14, 2017, no pet.) (not designated for publication). The Trial Court did

not make findings before the record was submitted to this Court. This Court

observed in its Order that it was abating the appeal and remanding the cause to the

Trial Court so that it could state its “‘essential’ findings of fact and conclusions of

law on the motion to suppress, as the trial court is required to do when requested

by the losing party.... We abate the appeals and remand the causes to the trial court

so that it can make its findings of fact and conclusions of law.” Id. Despite the fact

that the essential findings and the potentially dispositive issues were specifically

requested by the State, the Trial Court declined to make any express findings – for

or against the State – on the vast majority of those issues.

      In such circumstances, the Court should view the Trial Court’s continued

refusal to make explicit findings to be an implicit recognition that the facts in the

those issues were favorable to the State. In fact, this is not far removed from what

ultimately happened in Elias. Following an abatement and remand in that case for

findings regarding the deputy’s testimony of a violation of § 545.104(b), the trial

court stopped short of acknowledging the facts favored the State, finding only that:

                                          46
      ....
      7. Deputy Sanchez testified that he saw the van stopped at the
      intersection at the stop sign.

      8. Deputy Sanchez testified that he passed the van going
      approximately 50 miles per hour and drove 30 yards north on
      Zaragosa, then turned around and conducted a traffic stop of the van,
      that was traveling south on Zaragosa, because ‘it failed to signal a
      right turn from that stop.’

      9. Deputy Sanchez testified that he passed the Defendant Elias while
      the Defendant was stationary in a lawful stop and that the Defendant
      hadn’t committed a ticketable offense yet.

      10. Deputy Sanchez testified that he did not see the Defendant, Abran
      Elias (‘Elias’), fail to signal intent to turn right from his vantage point
      as he proceeded 30 yards away on Zaragosa.

      The [trial] court also made the following conclusions of law:

      1. Deputy Sanchez had no reasonable suspicion or probable cause to
      believe that Defendant Elias had committed a traffic violation in his
      presence while Defendant's Elias’ vehicle was stopped at the
      intersection of Sombra del Sol and Zaragosa, in El Paso County,
      Texas.

      2. The Court finds no reasonable suspicion to believe that the traffic
      violation charged occurred or that Defendant Elias had committed a
      different traffic offense that would have supported the traffic stop,
      specifically, a failure to signal his intention to turn within a hundred
      feet of the intersection.

      ....

State v. Elias, 08-08-00085-CR, 2012 WL 4392245, at *4 (Tex. App.—El Paso

Sept. 26, 2012, pet. ref’d) (not designated for publication) (in which the court of

appeals observed “[s]ignificantly, the trial judge did not make any express finding

that she disbelieved any aspect of Sanchez’s testimony, including his testimony

                                          47
that Elias’ van was not signaling either a left or right turn when Sanchez

approached and drove through the intersection”) (emphasis added). Recognizing

that the trial court had refused to explicitly address the matter upon abatement, the

court of appeals essentially determined the trial court had implicitly found the

testimony was favorable to the State’s position:

      In its supplemental findings, the trial court has again failed to address
      Sanchez’s testimony that the van’s turn signals were not flashing
      when he approached the intersection and the court has not made an
      adverse finding on Sanchez’s credibility on this dispositive issue.
      Given that the trial court has been given an opportunity to clarify
      whether it disbelieved any aspect of Sanchez’s testimony and has
      chosen not to do so, we conclude that the trial court believed all of
      Sanchez’s testimony and the court did not make any explicit findings
      on this dispositive issue because it has erroneously regarded the
      findings as peripheral or non-essential.

Id. at *6 (emphasis added). The court of appeals then found that the deputy’s

testimony – that the van was not signaling while at the stop sign – necessarily

meant the deputy had at least a reasonable suspicion that Elias had violated §

545.104(b) by failing to signal continuously for 100 feet prior to the turn. Id.

      In the instant case, the Trial Court has arguably had more of an opportunity

to make its essential findings; the State pointed out the potentially dispositive

issues before the record was filed with the Court and filed a notice of past due

findings, the case was abated for the Trial Court to make potentially dispositive

findings, and the Trial Court’s findings still do not explicitly address the issues

pointed out by the State. Despite the fact that the State asked the Trial Court to

state whether several of the Trooper’s factual assertions were true or not, the Trial
                                          48
Court’s refusal to make any explicit finding – either for or against the State’s

position – indicates the Trial Court implicitly found the Trooper’s factual

assertions on said issues were true. Particularly when combined with the Trial

Court’s internally inconsistent and clearly erroneous findings,43 in such

circumstances – as in Elias following its abatement – because the Trial Court has

already had multiple opportunities to make explicit findings, this Court should

recognize it implicitly found the unaddressed facts were favorable to the State’s

position on the expressly identified potentially dispositive issues. See id. In the

particular circumstances of this case, such a holding is logical, consistent with

precedent, and supports judicial efficiency.



      E. Alternatively, the Court Should Again Abate and Remand the Case and
         Require the Trial Court to Make Explicit Essential Findings on the State’s
         Requested Potentially Dispositive Issues.

          As this Court observed in State v. Dubord:

          In assessing whether reasonable suspicion existed, we consider the
          totality of the circumstances. [Ford v. State, 158 S.W.3d 488, 492–93
          (Tex. Crim. App. 2005)].

          When asked, the trial court must make findings of fact and
          conclusions of law adequate to provide us with a basis on which to
          review its application of law to the facts. State v. Saenz, 411 S.W.3d
          488, 495 (Tex.Crim.App.2013). The trial court must make findings
          covering every potentially dispositive issue that might reasonably be
          said to have arisen in the course of the suppression proceedings. State
          v. Elias, 339 S.W.3d 667, 676 (Tex.Crim.App.2011). If findings are
          requested and made but provide an inadequate basis upon which to
43
     As detailed by the State supra.

                                            49
      make a legal conclusion, we must abate and remand to the trial court
      for additional findings.

State v. Dubord, 03-15-00553-CR, 2016 WL 858929, at *1 (Tex. App.—Austin

Mar. 2, 2016, no pet.) (not designated for publication). In that case, because the

trial court’s findings and conclusions did not address the officer’s testimony that

“several events in addition to the lane changes ... formed the basis for the stop,”

including an observed speeding violation and other traffic offenses, the Court

concluded the findings did not allow it to properly assess the suppression issue and

abated and remanded the case for the necessary supplemental findings. Id. at *2.

      Similarly, in State v. Adams, the State argued the trial court had erred in

“refusing to file the more specific findings of fact requested by the State.” 454

S.W.3d 48, 49 (Tex. App.—San Antonio 2014, no pet.). The court first determined

what essential findings on potentially dispositive issues the trial court was required

to make. Id. at 42-43. After reviewing the applicable law, the court observed that:

      ...the trial court’s findings of fact and conclusions of law fall short of
      “covering every potentially dispositive issue that might reasonably be
      said to have arisen in the course of the suppression proceedings.”
      Without further findings of fact, this court cannot determine whether
      the trial court’s conclusions of law were in error. We conclude the
      State’s requested specific findings of fact are pertinent and required to
      assure the “proper presentation of” this case on appeal.

Id. at 47–48 (citing, among others: Elias, 339 S.W.3d at 675-76; Cullen, 195

S.W.3d 696; Tex. R. App. P. 44.4).

      To avoid unnecessary repetition, in the event the Court will not reverse the

order of suppression on the current record, the State relies on its cited case law,
                                         50
requested findings and argument, supra, to assert that the Trial Court in this case

has precluded the “proper presentation of” this case on appeal. See id. Despite the

State’s particular requests44 for findings on essential and potentially dispositive

issues, the Trial Court’s findings of fact and conclusions of law fall short of

“covering every potentially dispositive issue that might reasonably be said to have

arisen in the course of the suppression proceedings.” See Adams, 454 S.W.3d at

47-48. This Court should therefore abate and remand the case a second time, with

orders for the Trial Court to address the essential and potentially dispositive issues,

including those specified in the State’s Supplemental Request and its Respectful

Objection and Request for Additional Findings (I C.R. at 31-39; III Supp. C.R. at

4-21). See Adams, 454 S.W.3d at 47-48; Dubord, 2016 WL 858929 at *1-2; State

v. Mercantel, 03-16-00820-CR, 2017 WL 74415, at *1 (Tex. App.—Austin Jan. 4,

2017, no pet.) (not designated for publication); Elias, 339 S.W.3d at 675-76;

Cullen, 195 S.W.3d 696; Tex. R. App. P. 44.4.




44
  See I C.R. at 31-39 (State’s Supplemental Request for Findings of Fact and Conclusions of
Law, citing to the record and case law in asking the Trial Court to make determinations as to
“whether” certain testified-to facts occurred).

                                             51
                                   V. PRAYER

       WHEREFORE, PREMISES CONSIDERED, the State of Texas respectfully

prays that this Honorable Court reverse the Trial Court’s Order of Suppression and

order the Motion to Suppress be denied in all things. Alternatively, the State prays

that the Court abate and remand the cause to the Trial Court a second time and

order said Court to enter explicit essential findings on the potentially dispositive

issues in the case. The State also prays for all other relief to which it may be

entitled.



                                             Respectfully submitted,

                                             /s/ Joshua D. Presley
                                             Joshua D. Presley, SBN 24088254
                                             preslj@co.comal.tx.us
                                             Assistant Criminal District Attorney
                                             Comal County Courthouse Annex
                                             150 N. Seguin Avenue, Suite 307
                                             New Braunfels, Texas 78130-5191
                                             (830) 221-1300 Telephone
                                             (830) 608-2008 Fax




                                        52
                              Certificate of Service

       I, Joshua D. Presley, Assistant Criminal District Attorney for Comal County,
Texas, hereby certify that a true and correct copy of the above and foregoing
State’s Brief was sent to BRANDOM GARRETT’s attorney of record in this
matter:

      Lance S. Turnbow
      lanceturnbow@hotmail.com
      401-B South LBJ Drive, Suite 8
      San Marcos, TX 78666
      Attorney for Defendant/Appellee

By electronic service through efile.txcourts.gov to the above-listed email address
on this, the 2nd day of January, 2018. A copy of this document will also be sent to
the Trial Court’s Administrator at: evansa@co.comal.tx.us today through
efile.txcourts.gov for delivery to the Honorable Charles A. Stephens, II.

                                                    /s/ Joshua D. Presley
                                                    Joshua D. Presley


                           Certificate of Compliance

       I hereby certify, pursuant to Rule 9.4(i)(2)(B) and Rule 9.4(i)(3) of the Texas
Rules of Appellate Procedure that the instant brief is computer-generated using
Microsoft Word and said computer program has identified that there are 14,850
words or less within the portions of this brief required to be counted by Rule
9.4(i)(1) & (2) of the Texas Rules of Appellate Procedure.
       The document was prepared in proportionally-spaced typeface using Times
New Roman 14 for text and Times New Roman 12 for footnotes.

                                                    /s/ Joshua D. Presley
                                                   Joshua D. Presley




                                         53
