                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana

         _________________________

              No. 06-12-00045-CR
        ______________________________


       LAWRENCE YOUNG, JR., Appellant

                          V.

         THE STATE OF TEXAS, Appellee



   On Appeal from the 188th Judicial District Court
                Gregg County, Texas
              Trial Court No. 40550-A




     Before Morriss, C.J., Carter and Moseley, JJ.
             Opinion by Justice Moseley
        Dissenting Opinion by Justice Carter
                                            OPINION

       In the early morning hours of January 25, 2011, while Texas State Trooper Jacob

Muehlstein was on patrol on Interstate 20 in Gregg County, Texas, he spotted a Nissan Altima

(which he discovered was driven by Lawrence Young, Jr.) following a white Ford Mustang.

Muehlstein stopped Young because he believed that the Altima he was driving was following the

Mustang too closely. During this stop, Muehlstein observed that Young’s eyes were red and

glassy, his hands were shaking, his breath smelled of alcohol, and he was acting very nervous.

The vehicle exhibited an unusually strong odor of air freshener. Young granted Muehlstein

permission to search the vehicle, and he found three pounds of marihuana in the trunk.

       Young was charged with possession of more than four ounces but less than five pounds

of marihuana, a state jail felony. Young filed a motion to suppress the evidence found during the

stop, arguing that the officer lacked reasonable suspicion to initiate the traffic stop. After a

hearing, the trial court denied the motion to suppress, and Young subsequently entered a plea

agreement.

       On appeal, Young’s sole point of error centers upon his contention that the trial court

erred in denying his motion to suppress, maintaining that the officer lacked the reasonable

suspicion to stop his vehicle. We affirm.

Standard of Review

       We review the trial court’s decision to deny Young’s motion to suppress evidence by

applying a bifurcated standard of review. Graves v. State, 307 S.W.3d 483, 489 (Tex. App.—



                                               2
Texarkana 2010, pet. ref’d); Rogers v. State, 291 S.W.3d 148, 151 (Tex. App.—Texarkana 2009,

pet. ref’d).

        Because the trial court is the exclusive trier of fact and judge of witness credibility at a

suppression hearing, we afford almost total deference to its determination of facts supported by

the record. State v. Ross, 32 S.W.3d 853, 856–57 (Tex. Crim. App. 2000); Carmouche v. State,

10 S.W.3d 323, 327 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim.

App. 1997). We also afford such deference to a trial court’s ruling on application of law to fact

questions, also known as mixed questions of law and fact, if the resolution of those questions

turns on an evaluation of credibility and demeanor. Villarreal v. State, 935 S.W.2d 134, 138

(Tex. Crim. App. 1996).

        While we defer to the trial court on its determination of historical facts and credibility, we

review de novo its application of the law and determination on questions not turning on

credibility. Carmouche, 10 S.W.3d at 332; Guzman, 955 S.W.2d at 89; Graves, 307 S.W.3d at

489. Since all evidence is viewed in the light most favorable to the trial court’s ruling, we are

obligated to uphold the denial of Young’s motion to suppress if it was supported by the record

and was correct under any theory of law applicable to the case. Carmouche, 10 S.W.3d at 328;

State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999). In determining whether a trial

court’s decision is supported by the record, we generally consider only evidence adduced at the

suppression hearing, because the ruling was based on that evidence, rather than evidence

introduced later at trial. Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim. App. 1996).



                                                  3
Did the officer have reasonable suspicion to stop Young’s vehicle?

       In his sole point of error, Young contends that the trial court abused its discretion in

denying his motion to suppress because “the record reflects that the officer instigated his

detention of Mr. Young based upon a perceived violation of the Transportation Code by

following another vehicle too closely.”

       Police officers may stop and detain a person if they have a reasonable suspicion that a

traffic violation is in progress or has been committed. Garcia v. State, 827 S.W.2d 937, 944

(Tex. Crim. App. 1992). A traffic stop is a detention and must be reasonable under the United

States and Texas Constitutions. See Davis v. State, 947 S.W.2d 240, 245 (Tex. Crim. App.

1997); Caraway v. State, 255 S.W.3d 302, 307 (Tex. App.—Eastland 2008, no pet.).

Reasonableness is measured in objective terms by examining the totality of the circumstances.

Ohio v. Robinette, 519 U.S. 33, 39 (1996); Spight v. State, 76 S.W.3d 761, 765 (Tex. App.—

Houston [1st Dist.] 2002, no pet.).       Reasonable suspicion must be founded on specific,

articulable facts which, when combined with rational inferences from those facts, would lead the

officer to conclude that a particular person actually is, has been, or soon will be engaged in

criminal activity. Crain v. State, 315 S.W.3d 43, 52 (Tex. Crim. App. 2010). An investigative

stop that is reasonable at its inception may violate the Fourth Amendment because of excessive

intensity or scope. Davis, 947 S.W.2d at 243 (citing Terry v. Ohio, 392 U.S. 1, 18 (1968)).

       Following too closely is a violation of Section 545.062(a) of the Texas Transportation

Code. Section 545.062(a) provides:



                                                4
        An operator shall, if following another vehicle, maintain an assured clear distance
        between the two vehicles so that, considering the speed of the vehicles, traffic,
        and the conditions of the highway, the operator can safely stop without colliding
        with the preceding vehicle or veering into another vehicle, object, or person on or
        near the highway.

TEX. TRANSP. CODE ANN. § 545.062(a) (West 2011).

        Here, Muehlstein testified that the road was dry and the weather was cold. He testified

that Young was following so closely that in the event the Mustang stopped, Young would have

been unable to stop his car without colliding into the Mustang.1 He also testified that he

(Muehlstein) had been trained in judging time, speed, and distance of automobile traffic.

Muehlstein stated that “[t]he vehicle following the Mustang was following at a distance that was

unsafe.”    In addition to that during direct examination, the following exchange took place

between the State and Muehlstein:

               Q.      How close would you estimate that they were apart? Do you have
        any kind of estimation?

               A.      Being it was that long ago I couldn’t tell you an exact foot. I’m
        not qualified to tell you distance. But it would have been, from my experience
        when I looked at it, I would have recognized that the distance he was following
        was too closely.

                Q.    In the academy or in the DPS training that you received, do you go
        over following distance and those type of things?

                A.      Yes, ma’am. We receive training in regards to time and distances
        and speeds. So we’re aware of, you know, when you -- because a lot of people
        just really don’t realize how fast they’re moving and how long it takes to actually
        stop or recognize a threat or something like that in the roadway. We do receive
        training in that.

1
 The record contains a video recording from the officer’s dash camera; however, it does not contain evidence of a
traffic violation.


                                                       5
       Young primarily relies on Ford v. State, where the Texas Court of Criminal Appeals

addressed a somewhat similar situation. 158 S.W.3d 488 (Tex. Crim. App. 2005). In Ford,

Texas State Trooper Andrew Peavy stopped Ford’s car for following too closely and during a

search of the vehicle, the officer discovered fifty-five grams of marihuana hidden in the car’s

console.     Id. at 490–91.   Ford filed a motion to suppress, arguing that the officer lacked

reasonable suspicion to have initiated the traffic stop. The trial court denied the motion and the

court of appeals affirmed that decision.

       At trial, Peavy testified that he saw Ford’s car “following a white car, following too

close.” Id. at 491. Peavy was directly behind Ford’s automobile when he made that judgment.

Id. There was no other testimony relevant to Ford’s driving. The trial court and the court of

appeals held that Peavy’s testimony presented sufficient articulable facts to form reasonable

suspicion.

       The Texas Court of Criminal Appeals reversed the trial court’s order and ordered the

motion to suppress be granted because the officer’s statement was a mere conclusory opinion and

because the record lacked specific articulable facts upon which to base reasonable suspicion. Id.

at 493. While his training and experience could be useful, the court found that Peavy’s training

and experience were “insufficient to establish reasonable suspicion absent objective factual

support.” Ford, 158 S.W.3d at 494. The court noted that if it allowed an officer’s opinion to

suffice in place of specific facts, it would eviscerate Terry’s reasonable suspicion protection by

removing the “reasonable” from the reasonable suspicion analysis. Id. at 493 (citing Terry, 392

U.S. 1). In a dissent, Judge Keller (joined by Judges Womack and Cochran) acknowledged that

                                                6
there were scant background facts provided by the testifying officer which could have provided

the basis of his conclusion that Ford was traveling too close and, thus, had violated the statute.

Judge Keller opined, however, that neither the defendant nor the trial judge “requested greater

specificity, and if greater specificity were not forthcoming, then the evidence would have been

subject to suppression. Because greater specificity was not requested in this case, I would affirm

the trial court’s judgment.” Id.2

         In order to appreciate the finite differences that slight variations in fact situations can

precipitate, one should compare Ford to Stoker v. State, 170 S.W.3d 807 (Tex. App.—Tyler

2005, no pet.), upon which the State relies. In Stoker, Trooper Fabbiani, a trooper with the Texas

Department of Public Safety, stopped Stoker for following too closely (as is the case here and as

in Ford). Id. at 809. Fabbiani testified that Stoker would not have been able to safely stop his

vehicle without colliding with the vehicle he was traveling behind if that vehicle had stopped or

slowed down. Id. at 813. He said that Stoker was “traveling at a high rate of speed” and was

“right up on another car.” Id. The Tyler Court of Appeals found that Fabbiani’s testimony

exceeded the mere “following too closely” testimony in Ford, and was therefore sufficient to

establish reasonable suspicion. Id. One can infer that the Tyler court determined that the

additional information provided from the witness stand in Stoker was sufficient to remove the



2
 This position would seem to have the effect of removing from the State some of its responsibility to present a
background of testimony which would lay the premise for the admissibility of its evidence and place some of that
burden on the defendant or the trial judge. In most circumstances, one would expect the trial judge to be neutral, not
attempting to elicit information from a witness which would bear on the admissibility of the testimony the witness is
presented to proffer. Further, one would also expect a defendant in an adversarial proceeding would hope that the
State would fail to elicit the proper predicates to assure admissibility of adverse testimony.

                                                          7
reason provided for the traffic stop being a simple conclusory statement that the law was

violated.

       Our circumstance here lies neatly equidistant between the seemingly close factual

circumstances of Ford and Stoker; although this case is not identical to either, it is difficult to

place a figurative butter knife between the facts of this case and those of either Ford or Stoker.

       As shown above, in this case, Muehlstein’s testimony articulated a bit more background

facts upon which he based his opinion that Young was violating the law than we find in the

testimony in Ford. The recitation of these background facts upon which Muehlstein rested his

opinion that Young was following too closely removed his testimony from the realm of a pure

conclusory statement. Therefore, we find that the record contains sufficient facts to support

reasonable suspicion for the traffic stop. We overrule Young’s point of error.

       We affirm the trial court’s judgment.




                                               Bailey C. Moseley
                                               Justice



                                     DISSENTING OPINION

       In Ford v. State, the police officer testified that Ford’s vehicle was “following too close

behind another vehicle.” 158 S.W.3d 488 (Tex. Crim. App. 2005). This presented no factual

detail to allow a neutral magistrate to evaluate Ford’s conduct. Here, the testimony is very

similar. The officer testified Young was following too close and would have been unable to stop

                                                 8
without colliding with the vehicle he was behind. He specifically denied having any knowledge

of the distance and stated he was not qualified to estimate it. But he recited that “he was

following too closely.”

       Except for the binding precedent from the Texas Court of Criminal Appeals, I could

accept the premise that the officer’s testimony was a shorthand rendition of the facts when he

stated the vehicle was following too closely and would not be able to stop in time to avoid a

collision. But the majority in the Ford case rejected that idea even though it was proposed in the

dissent. Id. at 496 (Keller, P.J., dissenting). I cannot see any substantive difference in the

testimony that the defendant was “following too close” behind another vehicle and that the

defendant was following too close and could not stop to avoid a collision. Each of those

statements is an opinion that the driver was violating the law without providing any factual

details. The Texas Court of Criminal Appeals found that allowing a police officer’s opinion to

replace specific facts removed the “reasonable” element from the “reasonable suspicion”

requirement. Id. at 493. “Mere opinions are ineffective substitutes for specific, articulable facts

in a reasonable-suspicion analysis.” Id. This case, like Ford, relies on mere opinions.

       Finally, it appears the majority opinion gives equal weight to the Texas Court of Criminal

Appeals opinion in Ford and the Tyler Court of Appeals opinion in Stoker. While I am often

persuaded by opinions from my colleagues in Tyler, their opinion is not binding precedent for

the State of Texas, whereas the Texas Court of Criminal Appeals opinion is.




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      I respectfully dissent.




                                         Jack Carter
                                         Justice

Date Submitted:       October 4, 2012
Date Decided:         October 19, 2012

Publish




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