                                                                                 PD-0693-15
                      PD-0693-5                                COURT OF CRIMINAL APPEALS
                                                                                AUSTIN, TEXAS
                                                               Transmitted 7/8/2015 11:25:08 AM
                                                                  Accepted 7/9/2015 4:14:04 PM
                                                                                 ABEL ACOSTA
                               IN THE                                                    CLERK
                     COURT OF CRIMINAL APPEALS

LISA D. WALL,                  §
     APPELLANT                 §
V.                             §               NO. PD-0693-15
                               §
THE STATE OF TEXAS,            §
     APPELLEE                  §

APPELLANT’S PETITION FOR DISCRETIONARY REVIEW OF THE DECISION
      OF THE COURT OF APPEALS FOR THE SECOND COURT DISTRICT
       OF TEXAS IN CAUSE NUMBER 02-13-00552-CR, AFFIRMING THE
       JUDGMENT OF THE TRIAL COURT IN CAUSE NUMBER CR-2012-
     01008-D IN COUNTY CRIMINAL COURT NO. 4 OF DENTON COUNTY,
            TEXAS; THE HONORABLE JOE BRIDGES, PRESIDING.
                                   §§§
                APPELLANT’S PETITION FOR REVIEW
                                   §§§
                                         JASON ZENDEH DEL
                                         Lead Counsel for Appellant
                                         The Zendeh Del Law Firm
                                         7600 San Jacinto Place, Suite 200
                                         Plano, Texas 75024
                                         Telephone (214) 919-3600
                                         Facsimile (214) 919-3599
                                         Jason@zenlawfirm.com
                                         State Bar Number 24044988



      July 9, 2015




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                   IDENTITY OF PARTIES AND COUNSEL

      The trial judge was the Honorable Joe Bridges, the presiding judge of

County Criminal Court No. 4 of Denton County, Texas.

      Appellant is Lisa D. Wall, who was the Defendant in the below trial court

case. Appellant was represented at trial and on appeal by Jason Zendeh Del of the

Zendeh Del Law Firm. This attorney’s address is 7600 San Jacinto Place, Suite

200, Plano, Texas 75024.

      The State of Texas, which is represented by Denton County District

Attorney Paul Johnson, is also a party to this litigation. At trial, the State was

represented by Sarah Wood. On appeal, the State was represented by Catherine

Luft. The address of these attorneys is Denton County District Attorney’s Office,

1450 E. McKinney Street, Denton, Texas 76209.




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                                               TABLE OF CONTENTS

TABLE OF AUTHORITIES .................................................................................... v

STATEMENT REGARDING ORAL ARGUMENT .............................................. 1

STATEMENT OF THE CASE ................................................................................ 2

PROCEDURAL HISTORY AND COURT OF APPEALS’ OPINION .................. 3

QUESTION FOR REVIEW ..................................................................................... 4

STATEMENT OF FACTS ...................................................................................... 5

DISCUSSION ........................................................................................................... 6

         I. The Court of Appeals opinion………………………………………….....6

         II. Reasonable suspicion in a motion to suppress…………………………..6

                  Fourth Amendment…………………………………………………...8

         III. The court of appeals upheld the conviction, and reversed the trial

         court’s judgment, when the evidence did not support the determination that

         Officer Padgett possessed reasonable suspicion to initiate the traffic stop.10

CONCLUSION....................................................................................................... 14

PRAYER................................................................................................................. 15

CERTIFICATE OF COMPLIANCE ...................................................................... 16

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CERTIFICATE OF SERVICE ............................................................................... 16

COURT OF APPEALS’ OPINION........................................................................ 17




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                                      TABLE OF AUTHORITIES

CASES

Abney v. State, 394S.W.3d 542 (Tex. Crim. App. 2013).......................................... 7

Amador v. State, 275 S.W.3d 872 (Tex. Crim. App. 2009) ...................................... 7

Armendariz v. State, 123 S.W.3d 401 (Tex. Crim. App. 2003), cert. denied, 541

U.S.      974 (2004).................................................................................................... 8

Brown v. Texas, 443 U.S. 47 (1979) ......................................................................... 9

Cady v. Dombrowski, 413 U.S.433 (1973) ............................................................. 10

Corbin v. State, 85 S.W.3d 272 (Tex. Crim. App. 2002......................................... 10

Ford v. State, 158 S.W.3d 488 (Tex. Crim. App. 2005) ....................................... 6, 7

Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997) ....................................... 7

State v. Kerwick, 393 S.W.3d 270 (Tex. Crim. App. 2013) ............................. 11, 13

State v. Stevens, 235 S.W.3d 736 (Tex. Crim. App. 2007)....................................... 8

Terry v. Ohio, 392 U.S. 1 (1968) ................................................................... 8, ,9, 13

United States v. Brigmont-Ponce, 422 U.S. 873 (1975) ........................................... 8

Wall v. State, No. 02-13-00552-CR, 2015 WL 2169307 (Tex. App.—Fort Worth

May 7, 2015 ) (memo op.) (not for publication)................................. 3, 6, 10, 11, 14
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Whren v. United States, 517 U.S. 806 (1996) ....................................................... 8, 9

Wright v. State, 7 S.W.3d 148 (Tex. Crim. App. 1999) ........................................... 9

STATUTES

U.S. Cons. Amend. IV .............................................................................................. 8

Tex. Cons. Art. 1,§10................................................................................................ 8




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                               IN THE
                     COURT OF CRIMINAL APPEALS

LISA D. WALL,                       §
     APPELLANT                      §
V.                                  §             NO. PD-0693-15
                                    §
THE STATE OF TEXAS,                 §
     APPELLEE                       §

APPELLANT’S PETITION FOR DISCRETIONARY REVIEW OF THE DECISION
    OF THE COURT OF APPEALS FOR THE SECOND DISTRICT OF TEXAS
    IN CAUSE NUMBER 02-13-00552-CR, AFFIRMING THE JUDGMENT OF
     THE TRIAL COURT IN CAUSE NUMBER CR-2012-01008-D IN COUNTY
        CRIMINAL COURT NO. 4 OF DENTON COUNTY, TEXAS; THE
                 HONORABLE JOE BRIDGES, PRESIDING.


             STATEMENT REGARDING ORAL ARGUMENT

    Oral argument is not necessary to resolve the issues raised by this case.




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                         STATEMENT OF THE CASE

      Appellant was convicted of the misdemeanor offense of Driving While

Intoxicated (“DWI”). [CR 111] The trial court sentenced Appellant to 300 days

confinement in the Denton County Jail and a $500 fine. [CR 111] However, the

trial court suspended the imposition of the jail sentence and placed Appellant on

fifteen months of community supervision. [CR 111]




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       PROCEDURAL HISTORY AND COURT OF APPEALS’ OPINION

      On appeal, Appellant argued that the trial court abused its discretion by

denying Appellant’s motion to suppress the evidence obtained during the unlawful

stop of Appellant’s vehicle. [App. brief at 3]

      A panel of judges from the Second District Court of Appeals affirmed the

trial court’s judgment. Wall v. State, No. 02-13-00552-CR, 2015 WL 2169307, at

*1 (Tex. App.—Fort Worth, May 7, 2015) (memo op.) (not for publication). In its

opinion, however, the appellate court sustained Appellant’s issue that the trial court

erred when it found in its findings of fact that the officer had reasonable suspicion

to stop Appellant on the basis of disregarding a control device or making an overly

wide U-turn. Id. at *4. The court of appeals went on to determine that the trial

court did err when it ruled to deny Appellant’s motion to suppress on the basis that

the officer had reasonable suspicion that Appellant was engaged in criminal

activity. Id. at *5. The trial court had made findings of fact, after hearing evidence

at the suppression hearing, that Appellant’s driving was not reasonable suspicion

of DWI. [CR 104] The court of appeals upheld the trial court’s judgment under

this theory.




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                            QUESTION FOR REVIEW

      Did the court of appeals erroneously review and affirm the trial court’s

ruling on the motion to suppress? Specifically, did the appellate court improperly

uphold the motion to suppress on a theory that the trial court had found did not

exist (i.e., that the officer had reasonable suspicion to stop Appellant’s vehicle and

initiate a temporary detention) in its findings of fact and conclusions of law?




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                                                                STATEMENT OF FACTS

              On December 18, 2011, Appellant was driving her pickup truck1 in Denton

County, Texas. [2 RR 7-9] At approximately 2:00 a.m., Corey Padgett, a police

officer with the Denton Police Department, pulled his patrol car behind

Appellant’s vehicle at the intersection of Fulton and University. [2 RR 7-9] He

stated that Appellant was travelling eastbound. [2 RR 10] Officer Padgett testified

that the light at the intersection was flashing yellow, which indicated that cars were

to proceed with caution through the light. [2 RR 9] He stated that Appellant,

however, was completely stopped at the light for a longer than normal period. [2

RR 9, 12]

              Officer Padgett then testified that Appellant proceeded through the light and

approached a second flashing yellow light at Alice and University. [2 RR 13]

There, Appellant slowed down significantly in the middle of the intersection, but

she did not completely stop her vehicle. [2 RR 13] He then stated that after

proceeding through the intersection, Appellant changed lanes, got into the left-

hand lane, and made a U-turn. [2 RR 14] At that point, Officer Padgett turned on

his overhead patrol lights and Appellant pulled her vehicle into a Kroger parking

lot. [2 RR 25-26]




!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
1
    Appellant will refer to her truck as a “vehicle” throughout the brief.
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                                             DISCUSSION
I. The Court of Appeals’ opinion.
        The Fort Worth court of appeals determined that the trial court’s finding that

the officer did not have reasonable suspicion to stop Appellant’s vehicle on the

basis of DWI was not supported by the evidence. Id. at 5. The appellate court

upheld Appellant’s conviction under this theory.                        Id.    However, the court of

appeals agreed with Appellant and went on to state in its opinion that the trial

court’s findings that Appellant committed traffic offenses (i.e., making an

improper U-turn and disregarding a traffic control device) were not supported by

evidence. Wall, 2015 WL 2169307, at *4.2

II. Reasonable suspicion in a motion to suppress.
        “To suppress evidence on an alleged Fourth Amendment violation, the

defendant bears the initial burden of producing some evidence that rebuts the

presumption of proper police conduct.” Ford v. State, 158 S.W.3d 488, 492 (Tex.

Crim. App. 2005). When a defendant meets the burden by establishing that the

search or seizure occurred without a warrant, the burden shifts to the State to prove

that the search or seizure was prompted by reasonable suspicion that an individual




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2
  !Appellant’s brief will not focus on this theory because the court of appeals held that the officer did not
have reasonable suspicion to stop Appellant’s vehicle on the basis of committing a traffic offense.
However, Appellant will brief this issue if this Court so requests.


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was violating the law. Abney v. State, 394 S.W.3d 542, 547 (Tex. Crim. App.

2013); see also Amador v. State, 275 S.W.3d 872, 878 (Tex. Crim. App. 2009).

      Here, at the beginning of the suppression hearing, the State stipulated that

this case involves a warrantless arrest. [2 RR 7] Therefore, this stipulation shifted

the burden to the State to establish the reasonableness of the warrantless detention.

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

      A court of appeals reviews a trial court’s denial of a motion to suppress

under a bifurcated standard of review to evaluate the totality of the circumstances

and determine whether reasonable suspicion exists. See Abney, 394 S.W.3d at 547;

Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). The court of appeals

will give “almost total deference to the trial court’s determination of historical

facts, especially when the trial court’s findings are based on an evaluation of

credibility and demeanor.”      Abney, 394 S.W.3d at 547; see also Guzman, 955

S.W.2d at 89.

      The court of appeals will then review the trial court’s legal ruling de novo

unless its explicit fact findings that are supported by the record are also dispositive

of the legal ruling. Ford, 158 S.W.3d at 493. The appellate court must uphold the

trial court’s ruling if it is supported by the record and correct under any theory of

law applicable to the case even if the trial court gave the wrong reason for its


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ruling.    State v. Stevens, 235 S.W.3d 736, 740 (Tex. Crim. App. 2007);

!Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003), cert. denied,

541 U.S. 974 (2004).

      Fourth Amendment

      The United States Constitution protects persons against “unreasonable

searches and seizures.” U.S. Cons. amend. IV. The United States and Texas

Constitutions proclaim that law enforcement personnel may not search an

individual absent a warrant based on probable cause. Id.; Tex. Cons. art. 1,§10. It

has long been the rule, however, that a temporary investigative detention and pat

down search for possible weapons or contraband without a warrant is permissible

provided the officer has a reasonable belief the individual has been engaged in

criminal activity or is armed. See generally Terry v. Ohio, 392 U.S. 1 (1968).

      A seizure under the Fourth Amendment must be objectively reasonable in

light of the particular circumstances of the case. See id. at 21-22. Whether a

traffic stop is reasonable depends on “a balance between the public interest and the

individual’s right to personal security free from arbitrary interference by law

enforcement.” United States v. Brigmont-Ponce, 422 U.S. 873, 878 (1975). A

seizure based on reasonable suspicion or probable cause will generally be




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reasonable. Whren v. United States, 517 U.S. 806, 818 (1996); Terry, 392 U.S. at

21-23.

      For an officer to initiate a traffic stop, the officer must have more than a

mere hunch. Whren, 517 U.S. at 818. The officer must be able to articulate

objective facts and circumstances that demonstrate he or she reasonably believed

the Defendant was engaged in criminal activity. See, eg., Brown v. Texas, 443

U.S. 47, 51 (1979) (to detain, officers must “have a reasonable suspicion, based on

objective facts, that the individual is involved in criminal activity”); Terry, 392

U.S. at 30 (reasonable suspicion exists only where policeman reasonably

concludes, inter alia, “that criminal activity may be afoot”).

      The law does provide, however, that if a police officer objectively has

reasonable suspicion or probable cause that an offense has been committed then he

or she may reasonably seize an individual through the exercise of his community

caretaking function. Wright v. State, 7 S.W.3d 148, 151-52 (Tex. Crim. App.

1999). This is the so-called community caretaking function and is the exception to

the warrant requirement. Id. at 151.

      An integral part of a police officer’s duty is to “serve and protect.” Id. As

part of this duty, a police officer can approach and assist an individual whom he or

she believes is in need of help. Id. An officer will act reasonable “when he


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stopped the vehicle out of concern for the welfare of the [Defendant]” and not to

investigate the Defendant. Id.

      This doctrine necessarily examines the intent of the officer when he or she

invokes the doctrine. Importantly, both the United States Supreme Court and the

Court of Criminal Appeals of Texas have held that the “community caretaking

function, however, is ‘totally divorced from the detention, investigation, or

acquisition of evidence relating to the violation of a criminal statute.” Cady v.

Dombrowski, 413 U.S. 433, 441 (1973); Corbin v. State, 85 S.W.3d 272, 276-77

(Tex. Crim. App. 2002). That is, a police officer cannot cloak his intent to conduct

a criminal investigation, by invoking the community caretaking function. Corbin,

85 S.W.3d at 276-77. Thus, an officer’s subjective intent is paramount in those

cases. Id.

III. The court of appeals upheld the conviction, and reversed the trial court’s
judgment, when the evidence did not support the determination that Officer
Padgett possessed reasonable suspicion to initiate the traffic stop.
      As stated above, the appellate court affirmed Appellant’s conviction on the

theory that Officer Padgett had reasonable suspicion to stop Appellant’s vehicle on

the basis of DWI. Wall, 2015 WL 2169307, at *5-6. In doing so, the court of

appeals reversed the trial court’s finding and conclusion that Officer Padgett did

not have reasonable suspicion to temporarily detain Appellant on this theory. Id.

      The trial court made the following relevant findings of fact:
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      The Court finds the driving of the defendant is not reasonable
      suspicion of driving while intoxicated. Caution in entering an
      intersection is proper. The Defendant sat at the intersection for 26
      seconds that the [sic] Officer Padgett could observe and that is not
      obstructing a highway.


      But the court finds the defendant could be stopped for disregarding
      the traffic control device and making a wide turn over the white line.
      Holt v. State, 724 S.W.2d 914 (Tex. App.-San Antonio 1987). The
      Court is finding that the Video showing the action is sufficient
      without the officer testifying that he saw this or was relying on it.
      [CR 104-05]


      The appellate court, however, citing State v. Kerwick on the basis that

“reasonable suspicion is a mixed question of law that is reviewed de novo on

appeal,” determined that the trial court’s findings were not supported by the record

and that Officer Padgett did possess reasonable suspicion to stop Appellant’s

vehicle on the basis of suspected DWI. 393 S.W.3d 270, 273 (Tex. Crim. App.

2013); Wall, 2015 WL 2169307, at *5. The appellate court based its determination

on (1) Appellant’s “prolonged stop” at one flashing yellow light, (2) delayed

response to brake and subsequently almost complete stop in the middle of the

another flashing yellow light intersection, (3) Officer Padgett’s testimony that he

had made previous DWI stops at a flashing yellow light at the exact location that

Appellant’s vehicle was travelling, and (4) Officer Padgett’s testimony that




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Appellant was driving her vehicle at approximately 2:00 a.m. on a weekend in an

area that bars are located. Id.




      At the suppression hearing, Officer Padgett testified as follows:

      [State]:      And at what point did you suspect the driver to be
                    intoxicated?

      [Officer]:    Upon contact with them and after speaking with them.

      [State]:      And what about their driving habits led you to suspect
                    them for DWI?

      [Officer]:    I’ve had DWIs before where somebody stops at a
                    flashing yellow light on University; at that exact area,
                    actually. So stopping at flashing yellow lights is not
                    normal. The time of the day. It’s 2:00 a.m. Bars close.
                    It’s when most of our DWIs happen.

      ....
      [Appellant]: And on that occasion, and also in your report, you listed
      two very specific reasons as to why you pulled over Ms. Wall, why
      you indicated that traffic stop; is that correct?

      [Officer]:    Yes.

      [Appellant]: And those two very specific reasons are she, one,
      disregarded a traffic control device; and, two, you wanted to do a
      welfare check. Is that correct?

      [Officer]: I believe that’s in the reason part of the LEADRS, but it
      also – in the PC narrative, it also states the possible intoxication.

      ....


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         [Appellant]: And at a prior hearing, when you testified under oath, we
         talked about this case and you gave two reasons that you stopped Ms.
         Wall; disregarding a traffic control device and checking on her
         welfare. Is that correct?

         [Officer]:    Yes.

         [Appellant]: And as a matter of fact, I specifically asked you, “Were
         there any other reasons to stop her?” And you stated, “No.” Do you
         recall that?

         [Officer]:    I believe so.

         [Appellant]: Okay. I also asked you precisely when did this incident
         turn into a DWI investigation. And your response then was only after
         you made contact with her and you went into your – your clues of
         intoxication, odor, that type of thing. Do you recall that?

         [Officer]:    Yes.

    [2 RR 15, 17-18]

         Here, the record clearly supports the trial court’s finding that Appellant’s

driving was not reasonable suspicion of DWI. [CR 104-05] During his testimony

at the suppression hearing, Officer Padgett testified that he did not have reasonable

suspicion that Appellant was driving while intoxicated.           2 RR 15, 17-18]

Therefore, when the appellate court viewed the evidence in the light most

favorable to the trial court’s ruling, the court should have affirmed the trial court’s

finding. See Kerwick, 393 S.W.3d at 273.

         As stated in Terry v. Ohio, reasonable suspicion only exists when a police

officer reasonably concludes that “criminal activity may be afoot.” 392 U.S. at 30.
                                          13!
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Officer Padgett stated under examination from both the State and Appellant that he

did not suspect DWI until he stopped Appellant’s vehicle and made contact with

her. [2 RR 15, 17-18] The officer testified that the only reasons he listed for

stopping Appellant’s vehicle were (1) disregarding a traffic control device and (2)

welfare check. [2 RR 17-18] Only after further examination from the prosecutor

did Officer Padgett state Appellant’s driving habits led him to suspect DWI. [2 RR

15] Clearly, based on his own testimony, Officer Padgett did not have reasonable

suspicion to stop Appellant’s vehicle on the basis of DWI. Although the court of

appeals pointed out that Officer Padgett testified to the factors that he considered

justified his stop of Appellant’s vehicle on suspicion of DWI, this testimony came

after Officer Padgett stated that he did not suspect DWI until after he approached

her vehicle. [2 RR 15]

      As such, the appellate court erroneously determined that when viewing the

evidence in the light most favorable to the trial court’s ruling that the trial court’s

determination that Officer Padgett did not possess reasonable suspicion to stop

Appellant’s vehicle was not supported by the record. Wall, 2015 WL 2169307, at

*5.

                                   CONCLUSION
      The Second District Court of Appeals erroneously determined that Officer

Padgett had reasonable suspicion to stop Appellant’s vehicle on the basis of DWI.

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First, after reviewing the evidence, the trial court found that the evidence did not

support the reasonable suspicion argument. Second, the evidence presented at the

trial court does not support a determination by the appellate court that the officer

had reasonable suspicion to temporarily detain Appellant.         The trial court’s

findings of fact are supported by the record and therefore, should be dispositive of

the ruling. See Ford, 158 S.W. 3rd at 493. This Court should reverse the Fort

Worth Court of Appeal’s opinion and hold that the trial court’s finding that the

officer did not have reasonable suspicion to stop Appellant’s vehicle on the basis

of DWI was correct and supported by the record.

                                     PRAYER
      Appellant prays that her petition be granted and that the Court of Appeals’

judgment be reversed in part as it applies to the officer having reasonable suspicion

of DWI to stop Appellant’s vehicle and render the judgment that the lower court

should have rendered (i.e., reversing Appellant’s conviction).         Alternatively,

Appellant prays that the court of appeals’ judgment affirming the trial court’s

judgment be reversed.




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                                        Respectfully submitted,

                                        ___________________________
                                        Jason A. Zendeh Del
                                        Lead Counsel for Appellant
                                        The Zendeh Del Law Firm
                                        7600 San Jacinto Place, Suite 200
                                        Plano, Texas 75024
                                        Telephone (214) 919-3600
                                        Facsimile (214) 919-3599
                                        Jason@zenlawfirm.com
                                        State Bar Number 24044988



                       CERTIFICATE OF COMPLIANCE


      I certify that this document contains 3,494 words.


                                        ___________________________
                                        Jason A. Zendeh Del



                          CERTIFICATE OF SERVICE

      A copy of Appellant’s petition for discretionary review has been sent to

Denton County District Attorney’s Office, Attn: Appellate Division, via fax (940)

349-2601, on the dame date as filing.



                                        ___________________________
                                        Jason A. Zendeh Del


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    APPENDIX- COURT OF APPEALS’ OPINION




                    17!
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                   2015 WL 2169307
     Only the Westlaw citation is currently available.

     SEE TX R RAP RULE 47.2 FOR DESIGNATION                                   II. FACTUAL AND PROCEDURAL
            AND SIGNING OF OPINIONS.                                                  BACKGROUND3

       DO NOT PUBLISH TEX. R. APP. P. 47.2(B)                        Officer Corey Padgett, driving his patrol unit, approached
             Court of Appeals of Texas,                              an intersection where he observed Wall stopped at a
                    Fort Worth.                                      flashing yellow light. Wall remained stopped for several
                                                                     seconds, and cross-traffic, which had a flashing red light,
                Lisa D. Wall, Appellant                              drove warily through the intersection when Wall did not.
                           v.                                        After a few seconds, Wall drove through the intersection,
                The State of Texas, State                            and Officer Padgett followed her.

    NO. 02–13–00552–CR | DELIVERED: May 7, 2015                      As Wall approached another intersection with a flashing
                                                                     yellow light, she braked hard but late, coming to an
FROM COUNTY CRIMINAL COURT NO. 4 OF                                  almost complete stop in the middle of the intersection.
DENTON COUNTY, TRIAL COURT NO. CR–2012–                              Before her vehicle completely stopped, Wall accelerated
01008–D                                                              through the intersection, changed lanes, and made a U-
                                                                     turn. Based on Wall’s curious driving behavior, Officer
Attorneys and Law Firms
                                                                     Padgett initiated a traffic stop.
Jason Zendeh Del, Plano, TX, for Appellant.
                                                                     When Officer Padgett began talking with Wall, he
Paul Johnson, Dist Atty., Catherine Luft, Asst. Dist. Atty.,         observed that her eyes were glassy and red, her speech
Denton, TX, for State.                                               was slurred, and that she had a slight smell of alcohol.
                                                                     Officer Padgett administered standard field sobriety tests,
PANEL: LIVINGSTON, C.J.; WALKER and GABRIEL,                         and Wall displayed six clues of intoxication on the
JJ.                                                                  horizontal gaze nystagmus test. Officer Padgett arrested
                                                                     Wall for driving while intoxicated, and a subsequent
                                                                     blood draw revealed that Wall had a blood alcohol
              MEMORANDUM OPINION1                                    concentration of .16.

                                                                     Wall filed a motion to suppress evidence seized as a result
SUE WALKER, JUSTICE                                                  of Officer Padgett’s traffic stop, arguing that Officer
                                                                     Padgett lacked reasonable suspicion to stop her vehicle.
                                                                     At the suppression hearing, Officer Padgett testified that
                                                                     Wall’s reaction to the two lights had made him suspect
                                                                     that she was intoxicated. He explained that stopping at a
                  I. INTRODUCTION2
                                                                     flashing yellow light is not normal, even if it is not a
                                                                     traffic violation to do so. From his training, Officer
*1 Appellant Lisa D. Wall appeals her conviction for
                                                                     Padgett knew that intoxicated drivers often fail to follow
driving while intoxicated. After the trial court denied her
                                                                     traffic signals, and he considered a driver’s inability to
motion to suppress evidence, Wall pleaded no contest.
The trial court assessed her punishment at 300 days’                 respond properly to a flashing yellow light to be a big
confinement, which the court suspended; the trial court              indicator of intoxication. In fact, Officer Padgett had
                                                                     made prior DWI stops at a flashing yellow light “at that
placed Wall on community supervision for fifteen
                                                                     exact area” of the road that Wall was travelling. Given
months. Wall perfected this appeal.
                                                                     Wall’s driving behavior and the fact that it was around
                                                                     2:00 a.m. on a weekend day in a neighborhood with many
In her sole issue, Wall argues that the trial court erred by
                                                                     bars, Officer Padgett suspected that Wall was intoxicated.
denying her motion to suppress. The State raises a cross-
point, asserting that although the trial court correctly
                                                                     *2 The trial court admitted and reviewed a video
denied Wall’s motion to suppress, the denial was proper
                                                                     recording of the traffic stop. After the hearing, the trial
on an alternative ground rejected by the trial court—that
                                                                     court denied Wall’s suppression motion. In its findings of
the stop of Wall’s vehicle was justified based on the
arresting officer’s reasonable suspicion that Wall was               fact and conclusions of law, the trial court determined that
driving while intoxicated. Because we sustain Wall’s                 Wall’s driving did not give rise to reasonable suspicion
                                                                     that she was driving while intoxicated. But the trial court
issue but also sustain the State’s cross-point, we will
                                                                     concluded that Officer Padgett could have stopped Wall
affirm the trial court’s judgment.
                                                                     for either of the two traffic violations that Officer Padgett
                                                                     had observed: Wall’s disregard of a traffic control device
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and Wall’s U-turn, which the trial court considered too               novo unless its explicit fact findings that are supported by
wide because Wall allegedly straddled the turning lane’s              the record are also dispositive of the legal ruling. Id. at
white line in the turn.                                               818. We must uphold the trial court’s ruling if it is
                                                                      supported by the record and correct under any theory of
                                                                      law applicable to the case even if the trial court gave the
                                                                      wrong reason for its ruling. State v. Stevens, 235 S.W.3d
                                                                      736, 740 (Tex.Crim.App.2007); Armendariz v. State, 123
            III. STANDARDS OF REVIEW                                  S.W.3d 401, 404 (Tex.Crim.App.2003), cert. denied,541
                                                                      U.S. 974 (2004).
              A. MOTION TO SUPPRESS

We review a trial court’s ruling on a motion to suppress
evidence under a bifurcated standard of review. Amador                         B. STATUTORY CONSTRUCTION
v. State, 221 S.W.3d 666, 673 (Tex.Crim.App.2007);
Guzman        v.    State,   955    S.W.2d      85,     89            Statutory construction is a question of law that we review
(Tex.Crim.App.1997). In reviewing the trial court’s                   de novo. Yazdchi v. State, 428 S.W.3d 831, 837
decision, we do not engage in our own factual review.                 (Tex.Crim.App.2014). In construing a statute, we seek to
Romero       v.   State,    800   S.W.2d     539,     543             effectuate the collective intent or purpose of the
(Tex.Crim.App.1990); Best v. State, 118 S.W.3d 857, 861               legislators who enacted the legislation. Id. We look first
(Tex.App.–Fort Worth 2003, no pet.). The trial judge is               to the statute’s literal text, and we read words and phrases
the sole trier of fact and judge of the credibility of the            in context and construe them according to the rules of
witnesses and the weight to be given their testimony.                 grammar and common usage unless they have acquired
Wiede      v.    State,    214   S.W.3d     17,     24–25             technical or particular meaning. Id. When statutory
(Tex.Crim.App.2007); State v. Ross, 32 S.W.3d 853, 855                language is clear and unambiguous, we give effect to its
(Tex.Crim.App.2000), modified on other grounds byState                plain meaning unless to do so would lead to absurd
v. Cullen, 195 S.W.3d 696 (Tex.Crim.App.2006).                        consequences that the legislature could not have possibly
                                                                      intended. Id. at 837–38.
Therefore, we give almost total deference to the trial
court’s rulings on (1) questions of historical fact, even if
the trial court’s determination of those facts was not based
on an evaluation of credibility and demeanor, and (2)
application-of-law-to-fact questions that turn on an                       IV. THE TRIAL COURT’S FINDINGS AND
evaluation of credibility and demeanor. Amador, 221                                   CONCLUSIONS
S.W.3d at 673; Montanez v. State, 195 S.W.3d 101, 108–
09 (Tex.Crim.App.2006); Johnson v. State, 68 S.W.3d                   *3 The trial court’s findings of fact and conclusions of
644, 652–53 (Tex.Crim.App.2002). Concerning questions                 law included the following:
of historical fact, even when a video tape of the stop
exists, the trial court’s factual determinations are entitled           The Court finds the driving of the defendant is not
to almost total deference so long as they are supported by              reasonable suspicion of driving while intoxicated.
the record. SeeTucker v. State, 369 S.W.3d 179, 185                     Caution in entering an intersection is proper. The
(Tex.Crim.App.2012); Montanez v. State, 195 S.W.3d                      Defendant sat at the intersection for 26 seconds that the
101, 109 (Tex.Crim.App.2006). Concerning application-                   [sic] Officer Padgett could observe and that is not
of-law-to-fact questions that do not turn on the credibility            obstructing a highway.
and demeanor of the witnesses, we review the trial court’s
rulings on those questions de novo. Amador, 221 S.W.3d                  But the court finds the defendant could be stopped for
at 673; Estrada v. State, 154 S.W.3d 604, 607                           disregarding the traffic control device and making a
(Tex.Crim.App.2005); Johnson, 68 S.W.3d at 652–53.                      wide turn over the white line.

                                                                        ....
Stated another way, when reviewing the trial court’s
ruling on a motion to suppress, we must view the                        The Court therefore denies the motion to suppress.
evidence in the light most favorable to the trial court’s
ruling. Tucker, 369 S.W.3d at 185; Wiede, 214 S.W.3d at
24; State v. Kelly, 204 S.W.3d 808, 818
(Tex.Crim.App.2006). When the trial court makes explicit
fact findings, we determine whether the evidence, when                    V. LAW ON WARRANTLESS DETENTIONS
viewed in the light most favorable to the trial court’s
ruling, supports those fact findings. Kelly, 204 S.W.3d at            The Fourth Amendment protects against unreasonable
818–19. We then review the trial court’s legal ruling de              searches and seizures by government officials. U.S.
                                                                19!
!
Const. amend. IV; Wiede, 214 S.W.3d at 24. To suppress                498, 503–04 (Tex.App.–Fort Worth 2008, pet. ref’d)
evidence because of an alleged Fourth Amendment                       (following cases that interpret the statute as proscribing,
violation, the defendant bears the initial burden of                  not just a movement, but an unsafe movement).
producing evidence that rebuts the presumption of proper
police conduct. Amador, 221 S.W.3d at 672; seeYoung v.
State, 283 S.W.3d 854, 872 (Tex.Crim.App.), cert.
denied,558 U.S. 1093 (2009). A defendant satisfies this
burden by establishing that a search or seizure occurred                  V. REASONABLE SUSPICION OF DRIVING
without a warrant. Amador, 221 S.W.3d at 672. Once the                            WHILE INTOXICATED
defendant has made this showing, the burden of proof
shifts to the State, which is then required to establish that         *4 As detailed below, the evidence—viewed in the light
the search or seizure was conducted pursuant to a warrant             most favorable to the trial court’s finding that the
or was reasonable. Id. at 672–73; Torres v. State, 182                evidence supported a traffic-offense stop of Wall for
S.W.3d 899, 902 (Tex.Crim.App.2005); Ford v. State,                   disregarding a traffic control device or for making an
158 S.W.3d 488, 492 (Tex.Crim.App.2005).                              overly wide U-turn and viewed in the light most favorable
                                                                      to its finding that the evidence did not support a
To justify a brief detention for investigative purposes, the          reasonable suspicion that Wall was driving while
officer must be able to articulate something more than an             intoxicated—does not support these findings. SeeKelly,
“inchoate and unparticularized suspicion or ‘hunch.’ ”                204 S.W.3d at 820–21 (holding evidence viewed in light
Foster v. State, 326 S.W.3d 609, 613–14 (Tex.Crim.App.                most favorable to trial court’s ruling did not support it). In
2010) (citing Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868,           fact, the video from Officer Padgett’s dash cam
1883 (1968)). Specifically, the officer must have some                indisputably negates the trial court’s findings that Wall
minimal level of objective justification for making the               committed the traffic offenses of disregarding a traffic
stop; when the officer can “point to specific and                     control device and making an overly wide turn over the
articulable facts which, taken together with rational                 white line. SeeTucker, 369 S.W.3d at 185 (“If the video
inferences from those facts, reasonably warrant [the]                 evidence does not support the trial court’s conclusion,
intrusion” on the freedom of the person being detained, an            then the court of appeals should reverse.”); State v.
investigative detention is reasonable. Id. (citing Terry,             Houghton, 384 S.W.3d 441, 446 (Tex.App.–Fort Worth
392 U.S. at 21); seeDerichsweiler v. State, 348 S.W.3d                2012, no pet.) (“We thus give almost total deference to
906, 914 (Tex.Crim.App.2011); Brother v. State, 166                   the trial court’s factual determinations unless the video
S.W.3d 255, 257 (Tex.Crim.App.2005). A brief intrusion                recording indisputably contradicts the trial court’s
is warranted, for instance, where the officer reasonably              findings.”).
suspects that the person detained actually is, has been, or
soon will be engaged in criminal activity. Derischweiler,             Looking first to whether Wall’s reaction to the flashing
348 S.W.3d at 914; Brother, 166 S.W.3d at 257. The                    yellow light constituted a traffic violation, the
reasonableness of a given detention turns on the totality of          transportation code simply states that a driver facing a
the circumstances, which considers the public and private             flashing yellow light “may” proceed with caution.
interests that are at stake. Brother, 166 S.W.3d at 259 n.6.          SeeTex. Transp. Code Ann. § 544.008(b). Nothing in the
                                                                      provision proscribes stopping or excessively decelerating
An officer has probable cause to stop and arrest a driver if          at a flashing yellow light. See id. Generally, the term
he observes the driver commit a traffic offense. State v.             “may” indicates an element of discretion rather than
Gray, 158 S.W.3d 465, 469–70 (Tex.Crim.App.2005);                     compulsion, which is better communicated with words
seeState v. Ballman, 157 S.W.3d 65, 70 (Tex.App.–Fort                 like “shall.” See, e.g.,Ford v. State, 305 S.W.3d 530, 539
Worth 2004, pet. ref’d). Relevant here, the transportation            (Tex.Crim.App.2009) (discussing difference between
code provides: “The operator of a vehicle facing a                    “may” and “must” or “shall”). For example, in the
flashing yellow signal may proceed through an                         preceding subsection of the same statute, the
intersection or past the signal only with caution.” Tex.              transportation code states that a driver facing a flashing
Transp. Code Ann. § 544.008(b) (West 2011). Texas law                 red signal “shall” stop. See Tex. Transp. Code Ann. §
governing U-turns on a divided highway and not at an                  544.008(a) (West 2011); see alsoYazdchi, 428 S.W.3d at
intersection, as in this case, requires that the turn be made         837 (holding that words are interpreted in context); Ford,
at a location where the dividing physical barrier allows              305 S.W.3d at 539 (discussing consistent use of the term
and be made safely and not at the crest of a hill or in the           “may” throughout the article relevant there). Giving the
middle of a curve. SeeTex. Transp. Code Ann. §§                       may-proceed-with-caution language of section 544.008(b)
545.063(b)(1), 545.102, 545.103 (West 2011). Regarding                its plain meaning, Wall’s overreaction to the flashing
lane compliance, a violation for failure to maintain a                yellow light, although unusual, did not violate that
single lane requires that a driver’s deviation from a lane            section. SeeTex. Transp. Code Ann. § 544.008(b). The
be made in an unsafe manner. SeeTex. Transp. Code Ann.                evidence, viewed in the light most favorable to the trial
§ 545.060(a) (West 2011); Fowler v. State, 266 S.W.3d                 court’s finding that Wall disregarded a traffic-device,
                                                                      does not support this finding. SeeYazdchi, 428 S.W.3d at
                                                                20!
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837 (holding that statutes are reviewed de novo); Amador,             flashing-yellow-light intersection were contextualized by
221 S.W.3d at 673 (de novo review of application-of-law-              Officer Padgett’s testimony that he observed Wall driving
to-fact questions); Estrada, 154 S.W.3d at 607 (same);                at 2:00 a.m. on a weekend in a neighborhood with bars.
Johnson, 68 S.W.3d at 652–53 (same).                                  According to Officer Padgett, intoxicated drivers are often
                                                                      confused by flashing traffic control signals, and he noted
Looking next to whether Wall’s U-turn constituted a                   that he had made prior DWI stops at a flashing yellow
traffic offense, the video does not support the trial court’s         light in “that exact area” of the road that Wall was
finding that it did. Although Wall traversed the turning              travelling. Officer Padgett thus articulated something
lane’s white line while entering the turning lane, she did            more than an “inchoate and unparticularized suspicion or
not re-cross it prior to or during her U-turn. Wall made              ‘hunch.’ ” Foster, 326 S.W.3d at 613–14. Considering the
the U-turn at a proper opening in the barrier and not at the          totality of the circumstances, Officer Padgett possessed
crest of a hill or near a curve. SeeTex. Transp. Code Ann.            “some minimal level of objective justification for making
§§ 545.063(b)(1); 545.102. No cars were near, and there               the stop” because he pointed to specific and articulable
is no evidence the turn was done in an unsafe manner.                 facts—Wall’s peculiar driving through two flashing-
SeeTex. Transp. Code Ann. § 545.103. Thus, even                       yellow-light intersections, the fact that intoxicated drivers
assuming Wall re-crossed the right line or prolonged her              are often confused by flashing-light intersections, the fact
transition across it, there is no evidence that the                   that Officer Padgett had made other DWI arrests in this
movement was unsafe, and thus it was not a violation. See             very location at the flashing-light intersections, the fact
Tex. Transp. Code Ann. §§ 545.060(a); Fowler, 266                     that Wall was driving at 2:00 a.m. on a weekend in a
S.W.3d at 503–04; see alsoTex. Transp. Code Ann. §                    location near bars—which, taken together with rational
545.103 (requiring all turns and movements be done                    inferences from those facts, provided reasonable
safely). Other than the video, there was no evidence of               suspicion that Wall was engaged in criminal activity,
Wall’s U-turn, and Officer Padgett did not mention, either            DWI. See Id.(citing Terry, 392 U.S. at 15); see
in his affidavit or in his testimony, that Wall’s U-turn was          alsoDerichsweiler, 348 S.W.3d at 914; Brother, 166
improperly performed. Thus, again, giving these                       S.W.3d at 257. The evidence, viewed in the light most
transportation code sections their plain meaning, no                  favorable to the trial court’s finding that Officer Padgett
evidence exists in the record that Wall violated them. The            did not possess reasonable suspicion to initiate a
evidence, viewed in the light most favorable to the trial             temporary detention of Wall, does not support this
court’s finding, does not support the trial court’s finding           finding. SeeState v. Kerwick, 393 S.W.3d 270, 273
that Wall’s U-turn constituted a traffic violation.                   (Tex.Crim.App.2013) (“[R]easonable suspicion is a
SeeYazdchi, 428 S.W.3d at 837 (statutes reviewed de                   mixed question of law that is reviewed de novo on
novo); Amador, 221 S.W.3d at 673 (de novo review of                   appeal.”); Amador, 221 S.W.3d at 673 (noting de novo
application-of-law-to-fact questions); Estrada, 154                   review of application-of-law-to-fact questions); Estrada,
S.W.3d at 607 (same); Johnson, 68 S.W.3d at 652–53                    154 S.W.3d at 607 (same); Johnson, 68 S.W.3d at 652–53
(same); see alsoTucker, 369 S.W.3d at 185 (holding that               (same).
appellate courts cannot uphold a finding if the video
record does not support it); Houghton, 384 S.W.3d at 446              We overrule the portion of Wall’s sole issue asserting that
(same).                                                               we should not affirm the denial of her motion to suppress
                                                                      on the ground that Officer Padgett possessed reasonable
*5 Having determined that the traffic-offense findings and            suspicion to stop her. We sustain the State’s cross-point
conclusions made by the trial court in denying Wall’s                 challenging the trial court’s finding and conclusion that
motion to suppress are not supported by the evidence, we              Officer Padgett did not possess reasonable suspicion to
sustain the portion of Wall’s issue challenging these                 initiate a temporary detention of Wall. We affirm the trial
findings.                                                             court’s denial of Wall’s motion to suppress on this theory.
                                                                      SeeStevens, 235 S.W.3d at 740 (holding that appellate
We next address Wall’s alternative argument and the                   courts may uphold a trial court’s judgment under any
State’s cross-point. Wall alternatively argues that we                applicable theory of law supported by the record);
cannot affirm the trial court’s denial of her motion to               Armendariz, 123 S.W.3d at 404 (same).
suppress on the ground that Officer Padgett possessed
reasonable suspicion that Wall was engaged in the
criminal activity of DWI because the trial court correctly
found and concluded that he did not. The State argues that
this finding by the trial court is not supported by the                                  VI. CONCLUSION
evidence.
                                                                      *6 Having determined that the trial court’s denial of
Wall’s prolonged stop at one flashing-yellow-light                    Wall’s motion to suppress was proper based on the theory
intersection and her delayed application of her brakes and            that Officer Padgett possessed reasonable suspicion to
quick, almost complete stop in the middle of the next                 initiate a temporary detention of Wall, we affirm the trial
                                                                      court’s judgment.
                                                                21!
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                                                                                  Not Reported in S.W.3d, 2015 WL 2169307
                                                                                  !
All Citations


    Footnotes!
!
1!            SeeTex.!R.!App.!P.!47.4.!
              !
!
2!            This! case! was! originally! submitted! without! oral! argument! on! Friday,! May! 30,! 2014,! before! a! panel! consisting! of! Chief!
              Justice!Livingston,!Justice!Gardner,!and!Justice!Gabriel.!The!court,!on!its!own!motion!on!January!15,!2015,!ordered!this!case!
!             reset!without!oral!argument!on!February!5,!2015;!assigned!this!case!to!a!new!panel,!consisting!of!Chief!Justice!Livingston,!
              Justice!Walker,!and!Justice!Gabriel;!and!assigned!the!undersigned!to!author!the!opinion.!
              !
3!            As!set!forth!below,!the!events!leading!up!to!the!stop!were!recorded!by!Officer!Padget’s!dash!cam!video!recorder;!we!have!
              reviewed!the!video.!
!             !



    !
        End$of$Document$                                                      ©!2015!Thomson!Reuters.!No!claim!to!original!U.S.!Government!Works.!
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