                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-08-388-CR


SAMUEL CENDEJAS FERNANDEZ                                         APPELLANT

                                       V.

THE STATE OF TEXAS                                                      STATE

                                   ------------

     FROM COUNTY CRIMINAL COURT NO. 6 OF TARRANT COUNTY

                                   ------------

                                  OPINION

                                   ------------

      In two related issues, appellant Samuel Cendejas Fernandez appeals his

conviction for driving while intoxicated (DWI),1 contending that the police did

not have reasonable suspicion to stop his pickup. We affirm.




      1
          … See Tex. Penal Code Ann. § 49.04(a) (Vernon 2003).
                              Background Facts

      A few minutes after two o’clock on the morning of September 14, 2007,

on Camp Bowie Boulevard, Fort Worth Police Officer Kenneth Simmons heard

Fernandez’s black pickup loudly squeal its tires and saw light smoke coming

from the tires as the pickup fishtailed about two feet outside of its lane of

traffic. Because he concluded that Fernandez was traveling without control and

unsafely, Officer Simmons immediately went to his own car, drove behind

Fernandez’s pickup, and initiated a traffic stop. The traffic stop led to the

State’s charging Fernandez with DWI.

      Fernandez filed several pretrial motions, including a motion to suppress

all evidence obtained following the police’s stop of his pickup because the

police allegedly made the stop without a search warrant or any reasonable

suspicion of criminal activity. The trial court denied Fernandez’s motion to

suppress, and then Fernandez entered an open plea of nolo contendere,

received a sentence of thirty days’ confinement and a $750 fine, and filed his

notice of appeal. The State asked the trial court to enter findings of fact and

conclusions of law related to the suppression issue, and the trial court did so

by adopting the State’s suggested findings and conclusions.




                                       2
                     The Legality of Fernandez’s Detention

      In his first issue, Fernandez argues that the trial court erred by denying

his motion to suppress and finding that Officer Simmons had reasonable

suspicion to pull him over and detain him for, among other offenses, reckless

driving.

Standard of review

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

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

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

1997). In reviewing the trial court’s decision, we do not engage in our own

factual review. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App.

1990); Best v. State, 118 S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, no

pet.). The trial judge is the sole trier of fact and judge of the credibility of the

witnesses and the weight to be given their testimony. Wiede v. State, 214

S.W.3d 17, 24–25 (Tex. Crim. App. 2007); State v. Ross, 32 S.W.3d 853,

855 (Tex. Crim. App. 2000), modified on other grounds by State v. Cullen, 195

S.W.3d 696 (Tex. Crim. App. 2006).             Therefore, we give almost total

deference to the trial court’s rulings on (1) questions of historical fact, even if

the trial court’s determination of those facts was not based on an evaluation of

credibility and demeanor, and (2) application-of-law-to-fact questions that turn

                                         3
on an evaluation of credibility and demeanor. Amador, 221 S.W.3d at 673;

Montanez v. State, 195 S.W.3d 101, 108–09 (Tex. Crim. App. 2006);

Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002). But when

application-of-law-to-fact questions do not turn on the credibility and demeanor

of the witnesses, we review the trial court’s rulings on those questions de

novo. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607

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

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

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

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

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

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

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

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

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

Id. at 819. We must uphold the trial court’s ruling if it is supported by the

record and correct under any theory of law applicable to the case even if the

trial court gave the wrong reason for its ruling. State v. Stevens, 235 S.W.3d

736, 740 (Tex. Crim. App. 2007); Armendariz v. State, 123 S.W.3d 401, 404

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

                                        4
Applicable law and analysis

      “An officer must have probable cause to stop a vehicle and arrest the

driver for a traffic violation without a warrant.” State v. Ballman, 157 S.W.3d

65, 70 (Tex. App.—Fort Worth 2004, pet. ref’d); see State v. Ballard, 987

S.W.2d 889, 892 (Tex. Crim. App. 1999). Alternatively, an officer may stop

and detain a driver, rather than arrest the driver, on reasonable suspicion of

criminal activity. Tex. Dep’t of Public Safety v. Gilfeather, 293 S.W.3d 875,

879–80 (Tex. App.—Fort Worth 2009, no pet.) (en banc op. on reh’g) (holding

that an officer’s stop of a car was justified because the officer reasonably

suspected the offense of speeding); Fowler v. State, 266 S.W.3d 498, 502

(Tex. App.—Fort Worth 2008, pet. ref’d) (en banc); see Terry v. Ohio, 392 U.S.

1, 20–22, 88 S. Ct. 1868, 1879–80 (1968); Ford v. State, 158 S.W.3d 488,

492 (Tex. Crim. App. 2005); Carmouche v. State, 10 S.W.3d 323, 328–29

(Tex. Crim. App. 2000); Bracken v. State, 282 S.W.3d 94, 97–99 (Tex.

App.—Fort Worth 2009, pet. ref'd). Reasonable suspicion exists when, based

on the totality of the circumstances, the officer has specific, articulable facts

that when combined with rational inferences from those facts, would lead him

to reasonably conclude that a particular person is, has been, or soon will be

engaged in criminal activity. Ford, 158 S.W.3d at 492.



                                       5
      Reasonable suspicion is an objective standard that disregards any

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

objective basis for the stop exists. Id. In other words, “the fact that the officer

does not have the state of mind which is hypothecated by the reasons which

provide the legal justification for the officer’s action does not invalidate the

action taken as long as the circumstances, viewed objectively, justify that

action.” Garcia v. State, 827 S.W.2d 937, 942 n.5 (Tex. Crim. App. 1992)

(quoting Scott v. United States, 436 U.S. 128, 138, 98 S. Ct. 1717, 1723

(1978)); see also State       v. Patterson, 291      S.W.3d     121, 123     (Tex.

App.—Amarillo 2009, no pet.) (explaining that the “subjective reasons uttered

by the officer to legitimize the stop have no bearing on the outcome if the

totality of the circumstances nonetheless would lead a police officer to

reasonably suspect that crime is afoot”).

      “It is well settled that a traffic violation committed in an officer’s

presence authorizes an initial stop.” Armitage v. State, 637 S.W.2d 936, 939

(Tex. Crim. App. [Panel Op.] 1982); see Walter v. State, 28 S.W.3d 538, 542

(Tex. Crim. App. 2000). The State “is not required to show a traffic offense

was actually committed, but only that the officer reasonably believed a violation

was in progress.” Tex. Dep’t of Pub. Safety v. Fisher, 56 S.W.3d 159, 163




                                        6
(Tex. App.—Dallas 2001, no pet.); see Tex. Dep’t of Pub. Safety v. Axt, 292

S.W.3d 736, 739 (Tex. App.—Fort Worth 2009, no pet.).

      One of the trial court’s conclusions of law states that Officer Simmons

had reasonable suspicion that Fernandez had committed the traffic offense of

reckless driving. A person commits that offense when the person drives a

vehicle in willful or wanton disregard for the safety of persons or

property.   Tex. Transp. Code Ann. § 545.401(a) (Vernon 1999).           “In the

context of reckless driving, ‘willful and wanton disregard’ means the ‘deliberate

and conscious indifference to the safety of others.’”     Brown v. State, 183

S.W.3d 728, 733 (Tex. App.— Houston [1st Dist.] 2005, pet. ref’d).

Obviously, “[p]roof of an evil or malicious intent is not an element of reckless

driving.” White v. State, 647 S.W.2d 751, 753 (Tex. App.—Fort Worth 1983,

pet. ref’d). The trial court adopted the following findings of fact that support

its reckless driving conclusion:

      C     “Officer Simmons saw [Fernandez’s] vehicle rapidly
            accelerate in speed, causing the vehicle to fishtail and the
            tires to cross over the divider lane approximately two feet”;

      C     “Officer Simmons heard [Fernandez’s] vehicle make a loud
            screech and observed smoke coming from the tires as a
            result of the tires squealing”;

      C     “At the time of the offense, there was other traffic traveling
            on Camp Bowie . . .[,] and [Fernandez] could have possibly



                                       7
            wrecked into somebody when his car crossed over into other
            lanes of traffic”; and

      C     “Officer Simmons described the driving behavior as unsafe
            and typical of someone who is not in control of their
            vehicle.”

      The record, when viewed in the light most favorable to the court’s ruling,

supports these findings. See Wiede, 214 S.W.3d at 24; Kelly, 204 S.W.3d at

818–19. Fernandez argues (and the dissenting opinion asserts), however, that

the testimony does not identify vehicles alongside, nor in proximity to him when

he fishtailed and that the facts therefore still do not amount to reasonable

suspicion of reckless driving. But Officer Simmons testified that there was

other traffic on the same street as Fernandez when he went into more than one

lane of traffic, that Fernandez put other drivers in “danger” because he “could

have possibly wrecked,” and, most importantly, that there were “maybe three”

cars immediately in the vicinity of Fernandez’s pickup.2      Fort Worth Police



      2
        … Any relevance of the dissenting opinion’s inclusion of beyond-the-
record details concerning the length of Camp Bowie Boulevard is negated by
Officer Simmons’s testimony that three vehicles were in Fernandez’s immediate
vicinity when he peeled out. See Dissenting Op. at 12–13. Officer Simmons’s
testimony in that regard also belies the dissenting opinion’s statements that
there is “no evidence of another vehicle . . . near Appellant’s vehicle during the
three seconds of acceleration.” Id. at 20. The dissenting opinion’s attempt to
guess that Fernandez’s car might have been traveling the opposite direction and
across a broad grassy median on Camp Bowie Boulevard from the other cars on
the boulevard reconstructs the phrase “immediate vicinity” and is unsupported
by the record. And contrary to the dissenting opinion’s statement, we are not

                                        8
Officer Steven Pelton, who was patrolling Camp Bowie Boulevard on the

morning of Fernandez’s arrest, also saw Fernandez’s pickup peeling out and

heard its tires squealing, and he also believed that Fernandez was operating the

pickup unsafely.

      While part of the record indicates that there were no cars in the specific

lane of traffic that Fernandez fishtailed into at the precise time that he did so, 3

we agree with the State that the language of the reckless driving statute does

not require actions that caused a wreck or nearly caused a wreck. See, e.g.,

Jiron v. State, No. 05-08-00056-CR, 2009 WL 866213, at *3 (Tex.

App.—Dallas Apr. 2, 2009, no pet.) (not designated for publication) (holding

that an officer had reasonable suspicion for a traffic stop when the defendant’s

car spun its tires while accelerating through an intersection, moved side to side


speculating at all about the positioning of cars in relation to Fernandez’s car; we
are simply viewing the “immediate vicinity” testimony in the light most
favorable to the trial court’s ruling, as we are constrained by binding precedent
to do. See id. at 12; Wiede, 214 S.W.3d at 24.
      3
          … The State’s prosecutor asked Officer Simmons:

      Q.      Okay. So he did go into other lanes of traffic?

      A.      Yes, ma’am.

      Q.   And if there had been cars there, he could have possibly hit
      them?

      A.      Yes ma’am.

                                         9
through the intersection, and “could have damaged other vehicles or property

or injured a person in the area”); Moore v. State, No. 14-02-00388-CR, 2003

WL 1087997, at *1–2 (Tex. App.—Houston [14th Dist.] Mar. 13, 2003, no

pet.) (mem. op., not designated for publication) (upholding the denial of a

motion to suppress and concluding that law enforcement had reasonable

suspicion of reckless driving when a car drove at a high rate of speed into a

parking lot where people were standing, causing bystanders to step up onto the

sidewalk, and then quickly left the parking lot while squealing its tires).

Thus, Officer Simmons could have reasonably suspected that Fernandez drove

his pickup with willful or wanton disregard for others’ safety. See Tex. Transp.

Code Ann. § 545.401(a).

      The dissenting opinion’s expression that an officer cannot stop a car

based on reasonable suspicion of a moving traffic violation 4 contravenes recent

binding precedent. See Gilfeather, 293 S.W.3d at 879; Bracken, 282 S.W.3d

at 97–99; see also Strauss v. State, 121 S.W.3d 486, 490 (Tex.

App.—Amarillo 2003, pet. ref’d) (“It is clear that an officer who witnesses a

traffic violation has sufficient authority to stop the vehicle.”); McQuarters v.

State, 58 S.W.3d 250, 255 (Tex. App.—Fort Worth 2001, pet. ref’d).




      4
          … See Dissenting Op. at 13–19.

                                      10
Also, the dissenting opinion’s implication that Officer Simmons needed an

investigatory reason to stop Fernandez is incorrect; an officer is justified to stop

a driver and arrest him or issue a ticket to him when the officer actually sees

a traffic violation because that may be sufficient probable cause. See Tex.

Transp. Code Ann. § 543.001 (Vernon 1999); Tex. Code Crim. Proc. Ann. art.

14.01(b) (Vernon 2005); Azeez v. State, 248 S.W.3d 182, 189–90 (Tex. Crim.

App. 2008); State v. Gray, 158 S.W.3d 465, 469 (Tex. Crim. App. 2005).

And even if a purely investigative reason for Officer Simmons’s stop had been

required and Officer Simmons could not have stopped Fernandez simply with

the goal of issuing a citation or making an arrest, the dissent’s broad statement

that reckless driving is “not a circumstance that can be clarified by . . . further

investigation” 5 is not true; an officer may have questions stemming from what

he just witnessed, such as whether something was wrong with the driver, the

driver’s car, or the car’s tires that caused the apparent reckless driving.

Such questions could assist the officer in investigating reckless driving —and

not merely describe “a community caretaking function” 6 —since as even the

dissenting opinion recognizes, reckless driving requires “deliberate” or

“conscious” indifference to others’ safety. See Dissenting Op. at 22; Brown,


      5
          … Dissenting Op. at 18.
      6
          … See Dissenting Op. at 19.

                                        11
183 S.W.3d at 733. Thus, there could be as many reasons to investigate

reckless driving, and to ensure that an officer had seen an actual offense, as

there are for any other crime.

      Fernandez principally relies on the Austin Court of Appeals’s opinion in

State v. Guzman to support his argument that Officer Simmons did not have

reasonable suspicion for stopping his pickup.        240 S.W.3d 362 (Tex.

App.—Austin 2007, pet. ref’d). In Guzman, the defendant had spun his tires,

and after the police officer saw smoke coming from the tires, he immediately

pulled Guzman over for “exhibition of acceleration.” Id. at 365. The Austin

court held that at the time of Guzman’s conduct, there was no exhibition of

acceleration offense, and it also held that Guzman’s conduct could not have

created reasonable suspicion of speeding or DWI. Id. at 366–368. The court

did not address whether Guzman’s conduct could have qualified as reckless

driving, and even if it had, the circumstances in Guzman are factually distinct

from the facts here because Guzman did not fishtail into another lane of traffic

with cars in his immediate vicinity.

      For all of these reasons, we hold that the trial court did not err by

concluding that Officer Simmons had reasonable suspicion that Fernandez

committed reckless driving, and we overrule a portion of Fernandez’s first issue




                                       12
on that basis.7 Because we hold that the trial court did not err by concluding

that the stop of Fernandez’s pickup was justified on the reckless driving basis,

we will not address whether Officer Simmons also had reasonable suspicion of

his racing, DWI, or violating a city noise ordinance. 8 See Tex. R. App. P. 47.1;

Rotenberry v. State, 245 S.W.3d 583, 589 (Tex. App.—Fort Worth 2007, pet.

ref’d). Thus, we also overrule the remainder of Fernandez’s first issue and his

second issue.




      7
        … We clearly do not hold, as the dissenting opinion says that we do, that
“it is not necessary for property or persons to be near enough for their safety
to be at risk for a driver to violate the reckless driving statute” or that “merely
allowing your tires to cross a lane line when no other car is near enough to be
placed in danger is a violation of the law.” Dissenting Op. at 23. We hold only
that, viewing the testimony in the light most favorable to the trial court’s ruling,
Fernandez’s fishtailing into another lane of traffic with cars in the immediate
vicinity meets the requirements for a detention for reckless driving under the
transportation code.
      8
       … We should avoid issuing advisory opinions on issues that do not affect
the disposition of a case. See Ferrell v. State, 968 S.W.2d 471, 474 (Tex.
App.—Fort Worth 1998, pet. ref’d). Thus, we will not address the dissenting
opinion’s lengthy analysis of whether the facts could justify reasonable
suspicion of racing under the transportation code. See Dissenting Op. at 6–11.


                                        13
                                 Conclusion

     Having overruled Fernandez’s issues, we affirm the trial court’s judgment.




                                          TERRIE LIVINGSTON
                                          JUSTICE




PANEL: LIVINGSTON, DAUPHINOT, and MCCOY, JJ.

DAUPHINOT, J. filed a dissenting opinion.

PUBLISH

DELIVERED: February 11, 2010




                                     14
                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                              NO. 2-08-388-CR


SAMUEL CENDEJAS FERNANDEZ                                         APPELLANT

                                       V.

THE STATE OF TEXAS                                                      STATE

                                   ------------

     FROM COUNTY CRIMINAL COURT NO. 6 OF TARRANT COUNTY

                                   ------------

                          DISSENTING OPINION

                                   ------------

      Because I do not read the record in the same way as the majority, I would

hold that the record does not support the trial court’s denial of Appellant’s

motion to suppress and reverse the trial court’s ruling.

I. Background Facts

      At about 2:15 a.m. on September 14, 2007, the two police officers were

interviewing another driving while intoxicated (DWI) suspect at a 7-11 parking
lot in the 9100 block of Camp Bowie Boulevard in Fort Worth. 1 The officers’

testimony conflicts regarding exactly where Appellant began the driving that

drew their attention. As I read the record, they both heard the loud squeal of

tires. Officer Simmons heard the squeal and then looked up to see Appellant’s

truck already on Camp Bowie Boulevard:

      Q.       Okay. Once you heard this [squeal], did you also observe the
               vehicle that was causing the noise?

      A.       Yes, ma’am.2

      In response to the trial court’s question, Officer Simmons testified that

Appellant was at a traffic light when he accelerated, causing the tires to

squeal.3 Although there is no mention of it in the offense report, and indeed no

mention of it at any time prior to trial, even in discussions with his sergeant,

Officer Simmons announced for the first time at trial that he observed the

pickup “fishtailing” during the three seconds of acceleration.




      1
          … II R.R. at 5.
      2
          … Id. at 6.
      3
          … Id. at 21.

                                         2
      Sergeant Pelton testified that he saw Appellant’s pickup “exiting a strip

mall and they were peeling their tires, braking [sic] traction out on the

roadway.” 4

      Q.       Okay. So you heard the actual squealing or screeching of
               tires?

      A.       Yes, ma’am.

      Q.       Did you see anything or did you just hear it?

      A.       I just heard it. I looked over, then I saw the—I saw the
               pickup truck exiting.5

Sergeant Pelton denied that he saw the pickup fishtailing and explained that he

did not include the fishtailing in his report because he “didn’t get that

information at the scene.” 6

      At the civil hearing regarding Appellant’s driver’s license suspension

(“ALR hearing”), Sergeant Pelton testified that the reason Appellant was pulled

over was that “it was 2:00 o’clock in the morning, he was in front of a

nightclub, and that he peeled out . . . .” 7 There was no mention of fishtailing




      4
          … Id. at 23.
      5
          … Id. at 24.
      6
          … Id. at 28.
      7
          … Id. at 28–29.

                                         3
in the offense report or at the ALR hearing. Indeed, there was no mention of

fishtailing until the hearing on Appellant’s motion to suppress.8

      Sergeant Pelton admitted that he had no information “[o]ther than the

fact that he was peeling out in front of the—or exiting the parking lot onto the

roadway” 9 and that “peeling out does not violate the Texas Transportation

Code.” 10 Sergeant Pelton also testified that contrary to his testimony at the

ALR hearing, the nearest bar was “actually a couple blocks down.” 1 1         He

testified that he had relied on Google Earth before trial to clarify where he had

been in relation to the bar. “Actually, I didn’t witness him leaving the bar. It

was the strip mall adjacent to the 7-Eleven that I was at.” 12 Officer Simmons

had earlier testified that the nearest bar was about a mile away.13

      When asked to confirm Officer Simmons’s testimony that Appellant had

been stopped at a traffic light, Sergeant Pelton could not. “There was a light

there, but I—I couldn’t say whether or not he was stopped at the light. I did



      8
          … Id. at 29.
      9
          … Id.
      10
           … Id.
      11
           … Id. at 30.
      12
           … Id.
      13
           … Id. at 9–10.

                                       4
see him exiting the parking lot.     My focus went back to the person I was

with.” 14

         Sergeant Pelton was able to testify that the squeal lasted “like, maybe,

three—three seconds or so.” 15 It occurred when the pickup was moving from

the parking lot to the roadway. “[I]t would have been in transition.” 16 Sergeant

Pelton explained that the lane Appellant pulled out into was lane two, the lane

adjacent to the parking lot.17 Again, he reiterated that squealing one’s tires is

not a traffic offense.18

         There was also testimony that there were cars in the parking lot that

Sergeant Pelton believed Appellant had exited and speculation that somebody

could have been starting a car at the time Appellant allegedly left the parking

lot.19

         As to creating danger for other vehicles, again, the testimony was

speculative:



         14
              … Id.
         15
              … Id. at 31.
         16
              … Id. at 33.
         17
              … Id. at 34.
         18
              … Id.
         19
              … Id. at 8, 26.

                                         5
      Q.       And if there had been cars there, he could have possibly hit
               them?

      A.       Yes, ma’am.20

II. Findings of Fact and Conclusions of Law

      The trial court adopted the State’s proposed findings of fact and

conclusions of law in toto with no changes or corrections. 21        Among the

conclusions of law were conclusions that Officer Simmons had reasonable

suspicion and probable cause to believe that Appellant was violating the

transportation code.       Specifically, the trial court concluded that Officer

Simmons had both reasonable suspicion and probable cause to believe that

Appellant was violating the reckless driving statute 22 and racing on the

highway.23      These conclusions are not supported by Officer Simmons’s

tentative testimony.

III. Racing

      Officer Simmons was the only witness who observed “fishtailing.” He

claimed that Appellant’s tires or tire crossed the divider line “about maybe two




      20
           … Id. at 8–9.
      21
           … C.R. at 152–58.
      22
           … See Tex. Transp. Code Ann. § 545.401(a) (Vernon 1999).
      23
           … See id. § 545.420 (Vernon Supp. 2009).

                                         6
feet.” 24 There is no video record of these events, and Officer Simmons testified

that he could not remember whether his vehicle was equipped with an in-car

video camera. Officer Simmons believed that peeling out was a violation of the

transportation code prohibition against “acceleration of speed, racing.” 25 The

majority addresses only the reckless driving issue. I believe the majority should

also address the racing issue because the officer mistakenly believed that

Appellant had violated that statute; because the trial court concluded as a

matter of law that Appellant had violated that statute, justifying his detention;

and because this conclusion, like the trial court’s conclusion that the officer had

reasonable suspicion and probable cause to believe that Appellant was violating

the reckless driving statute, is wrong, leaving no valid basis for the stop or the

denial of Appellant’s motion to suppress.

      This court has previously addressed the racing statute issue under similar

circumstances. In Throneberry v. State, Throneberry screeched his tires and

fishtailed as he pulled out of an alley.26 We stated,

            The evidence . . . shows that Throneberry’s act of
      “fishtailing” out of the alley is a misdemeanor offense under section
      545.420 of the transportation code, which provides that “[a]


      24
           … II R.R. at 12.
      25
           … Id. at 11.
      26
           … 109 S.W.3d 52, 57–58 (Tex. App.—Fort Worth 2003, no pet.).

                                        7
      person may not participate in any manner in . . . an exhibition of
      vehicle speed or acceleration.” Though section 545.420 of the
      transportation code is entitled “Racing on Highway,” courts have
      rejected the narrow interpretation that the statute only applies
      where a defendant is involved in some sort of a speed competition
      with another vehicle. This same line of cases also holds that such
      offenses committed in an officer’s presence or within his view
      create probable cause to arrest the defendant without a warrant.
      Officer Ferguson testified that when he observed Throneberry’s
      vehicle exit the alley at such a rate of speed as to cause the car to
      fishtail, he believed it was a traffic violation. Accordingly, the jury
      could reasonably have believed that Throneberry committed an
      offense in Ferguson’s presence or within his view by fishtailing
      from the alley into the street.27

      But, as our sister court in Austin has explained, the racing statute has

since been modified by the legislature:

      Prior to September 1, 2003, transportation code section 545.420
      provided that “[a] person may not participate in any manner in:
      . . . (5) an exhibition of vehicle speed or acceleration or to make a
      vehicle speed record. ”The State refers us to authority holding that
      this prohibition was not limited to exhibitions of acceleration
      connected to a speed competition. See Throneberry v. State, 109
      S.W.3d 52, 57 (Tex. App.—Fort Worth 2003, no pet.). But as
      amended in 2003, section 545.420 provides that “[a] person may
      not participate in any manner in: . . . (5) in connection with a drag
      race, an exhibition of vehicle speed or acceleration or to make a
      vehicle speed record.”

            The State argues that the legislature did not intend this
      amendment to decriminalize exhibitions of acceleration that are not
      connected to speed competitions. The best evidence of legislative
      intent, however, is the language of the statute. We may go behind
      the statutory text only if it is ambiguous or if the application of the



      27
           … Id. (citations omitted).

                                        8
      statute’s plain language would lead to an absurd result that the
      legislature could not possibly have intended.               Section
      545.420(a)(5), as it now reads and as it read on the night Guzman
      was stopped, is unambiguous. It plainly prohibits exhibitions of
      vehicle speed or acceleration in connection with a drag race. There
      is nothing absurd in reading the statute as written. The legislature
      may have always intended that this subsection apply only to speed
      competitions, or it may have come to believe that without this
      limitation, the statute was subject to abuse because any increase
      of vehicle speed could be construed as an exhibition of
      acceleration.

            There is no evidence that Guzman was operating his pickup
      truck “over a common selected course, from the same place to the
      same place, for the purpose of comparing the relative speeds or
      power of acceleration of [his] vehicle . . . in a specified distance or
      time.” The trial court correctly concluded that the spinning motion
      of Guzman’s tire after the traffic light turned green did not alone
      warrant Scherbek’s suspicion that Guzman was unlawfully
      exhibiting acceleration in violation of section 545.420.28

      Similarly, although the officers in the case before us saw Appellant

accelerate so quickly that his tires squealed, the tires produced a light smoke,

and, for the first time at trial, Officer Simmons suddenly decided the vehicle

fishtailed, there is no evidence that they observed Appellant operating his

vehicle “over a common selected course, from the same place to the same

place, for the purpose of comparing the relative speeds or power of acceleration

of [his] vehicle . . . in a specified distance or time.” 29 There is no evidence that


      28
       … State v. Guzman, 240 S.W.3d 362, 366–67 (Tex. App.—Austin
2007, pet. ref’d) (selected citations and footnotes omitted).
      29
           … Tex. Transp. Code Ann. § 545.420(b)(1)(B) (defining “drag race”).

                                         9
Appellant was in competition with any other vehicle. Indeed, Officer Simmons

was unable to testify that Appellant was racing any other vehicle.30

      Although the trial court found that Officer Simmons believed that

Appellant was committing the traffic offense of rapid acceleration or racing,31

and the trial court concluded as a matter of law that Officer Simmons had

reasonable suspicion that Appellant was violating the racing statute,32 the

record does not support this finding and conclusion. Sergeant Pelton admitted

that Appellant was not stopped for violating a noise ordinance or for fishtailing,

but only for peeling out. Sergeant Pelton admitted that peeling out is not a

violation of the Texas Transportation Code. 33 Officer Simmons did not observe

a violation of the racing statute.

      Although the majority is correct in stating that an officer may lawfully

detain a driver when he reasonably believes that the driver has committed a

traffic offense, “A trooper’s incorrect belief that a motorist is in violation of




      30
           … II R.R. at 11.
      31
           … C.R. at 153.
      32
           … Id. at 155.
      33
           … II R.R. at 29.

                                       10
state traffic laws is insufficient to justify a vehicle stop.” 34 Officer Simmons’s

incorrect belief that Appellant had violated section 545.420 did not justify his

stop of Appellant. The majority should have so held.

IV. Reckless Driving

       The majority justifies the stop by holding that Officer Simmons had

reasonable suspicion to believe that Appellant had violated the reckless driving

statute and was justified in stopping Appellant to investigate whether he had,

indeed, violated the statute. The record contains general testimony about the

presence of other cars on Camp Bowie Boulevard at the time, but that

testimony was in relation to whether Appellant could have been racing another

car:

       Q.       Okay. Could you tell me how many cars were immediately
                in the vicinity?

       A.       Wasn’t a lot of cars at that time. It was a few cars, but I
                say maybe three.

       Q.       Okay. Now, was [Appellant] — was — did he appear to be
                racing those three other vehicles?

       A.       I don’t know. 35


       34
       … United States v. Granado, 302 F.3d 421, 423 (5th Cir. 2002),
superseded on other grounds by statute as stated in United States v. Contrera-
Trevino, 448 F.3d 821, 823 (5th Cir.), cert. denied, 549 U.S. 981 (2006); see
also United States v. Lopez-Valdez, 178 F.3d 282, 288 (5th Cir. 1999).
       35
            … II R.R. at 11.

                                         11
      There was no testimony that any cars were near enough to Appellant’s

vehicle to have been affected in any way by the three seconds of acceleration.

Indeed, there was no evidence that those cars were on the same side of the

curbed, grassy median or even on the roadway instead of in a parking lot. The

majority speculates that the cars in the vicinity were actually on the roadway

and on the same side of the grassy median as Appellant. There is no such

evidence in the record. Unless the City of Fort Worth were evacuated or the

street blockaded, there would always be cars somewhere on Camp Bowie

Boulevard.

      The majority does not, but should, take judicial notice of the fact that

Camp Bowie Boulevard is a major boulevard that is more than ten miles long

and is actually a segment of Highway 80 that, on its western end, merges into

I-30 and then into I-20. We held more than fifty years ago, in a case involving

Highway 80, that we may take judicial notice of that which “relates to

boundaries and limits of counties within our jurisdiction, to the relation or

contiguity of one county to another, as well as to principal highways and seats

of county government.” 36 “Highway nomenclature and designations within the

trial court’s jurisdiction are matters of common knowledge and proper subjects



      36
       … Fairall v. Sutphen, 296 S.W.2d 309, 311 (Tex. Civ. App.—Fort
Worth 1956, no writ); see also Tex. R. Evid. 201.

                                      12
for judicial notice.” 37 Courts “may take judicial notice of the location of cities,

counties, boundaries, dimensions, and distances, because geographical facts

such as these are easily ascertainable and capable of verifiable certainty.” 38

      Indeed, at the State’s request, this court went so far as to take judicial

notice of Mississippi law in performing a sufficiency analysis, although there

was never any proof of Mississippi law at trial or any request that the trial court

take judicial notice.39 The officers relied on Google Earth, and Sergeant Pelton

testified that Google Earth showed what businesses were at the location in

question and where the nearest bar was located.          If the majority does not

choose to take judicial notice of those geographical facts, they should at least

take a page from Sergeant Pelton’s book and take a look at Google Earth.

Camp Bowie Boulevard is a major thoroughfare with multiple lanes on each side

of a broad, curbed, mostly grassy median.

      As this court has explained,




      37
       … Apostolic Church v. Am. Honda Motor Co., 833 S.W.2d 553, 555
(Tex. App.—Tyler 1992, writ denied).
      38
       … 1.70 Acres v. State, 935 S.W.2d 480, 489 (Tex. App.—Beaumont
1996, no writ); see also Butts Retail, Inc. v. Diversifoods, Inc., 840 S.W.2d
770, 774 (Tex. App.—Beaumont 1992, writ denied).
      39
       … See Tate v. State, 120 S.W.3d 886, 889 (Tex. App.—Fort Worth
2003, no pet.).

                                        13
            The Fourth Amendment protects against unreasonable
      searches and seizures. To suppress evidence because of an alleged
      Fourth Amendment violation, the defendant bears the initial burden
      of producing evidence that rebuts the presumption of proper police
      conduct. A defendant satisfies this burden by establishing that a
      search or seizure occurred without a warrant. Once the defendant
      has made this showing, the burden of proof shifts to the State,
      which must then establish that the government agent conducted
      the search or seizure pursuant to a warrant or that the agent acted
      reasonably.40

      When Appellant showed that there was no warrant, the presumption that

the police acted properly was defeated, and the burden shifted to the State.

In Fowler, we addressed the question of whether merely failing to maintain a

single lane was a violation of the law or otherwise sufficient to justify the

detention of the driver. Again,

             An officer’s reasonable suspicion of an alleged traffic
      violation cannot be based on a mistaken understanding of traffic
      laws. And an officer’s honest but mistaken understanding of the
      traffic law which prompted a stop is not an exception to the
      reasonable suspicion requirement.          Thus, Officer Knotts’s
      misunderstanding that section 545.060(a) requires only crossing of
      the lane line—regardless of whether it is unsafe or dangerous to do
      so—will not support a reasonable suspicion.41

      In Fowler, there was no evidence that the driver’s allowing the tires to

cross the lane line constituted a danger to anyone because there was no vehicle



      40
       … Fowler v. State, 266 S.W.3d 498, 501–02 (Tex. App—Fort Worth
2009, pet. ref’d) (citations omitted).
      41
           … Id. at 504–05 (citations omitted).

                                        14
in the lane into which the tires crossed. Unlike the officer’s in the case now

before this court, the officer in Fowler admitted that the driving did not

endanger anyone because there was no one there.            In this case, although

Officer Simmons admitted that Appellant’s driving caused no property damage

and did not endanger any pedestrian, and although he admitted that he could

not testify that Appellant was speeding, he claimed that Appellant violated the

reckless driving statute because “if there had been cars there, he could have

possibly hit them.” 42

      The majority holds that Officer Simmons had reasonable suspicion to

believe that Appellant had committed the traffic offense of reckless driving, as

the trial court concluded as a matter of law.        The majority confuses the

reasoning justifying a Terry stop with the law allowing an officer to detain a

person who commits an offense in the officer’s presence. Terry v. Ohio stands

for the rule that

      in dealing with the rapidly unfolding and often dangerous situations
      on city streets the police are in need of an escalating set of flexible
      responses, graduated in relation to the amount of information they
      possess. For this purpose it is urged that distinctions should be
      made between a “stop” and an “arrest” (or a “seizure” of a
      person), and between a “frisk” and a “search.” Thus, it is argued,
      the police should be allowed to “stop” a person and detain him
      briefly for questioning upon suspicion that he may be connected



      42
           … II R.R. at 9.

                                        15
      with criminal activity. Upon suspicion that the person may be
      armed, the police should have the power to “frisk” him for
      weapons. If the “stop” and the “frisk” give rise to probable cause
      to believe that the suspect has committed a crime, then the police
      should be empowered to make a formal “arrest,” and a full incident
      “search” of the person. This scheme is justified in part upon the
      notion that a “stop” and a “frisk” amount to a mere “minor
      inconvenience and petty indignity,” which can properly be imposed
      upon the citizen in the interest of effective law enforcement on the
      basis of a police officer’s suspicion.43

That is, “[i]f police have a reasonable suspicion, grounded in specific and

articulable facts, that a person they encounter was involved in or is wanted in

connection with” criminal activity, they may “investigate that suspicion” by

making “a stop to check identification, to pose questions to the person, or to

detain the person briefly while attempting to obtain further information.” 44

      The police may seek further information regarding the suspicious activity.

If the police see someone loitering near a broken window of a closed business,

the police may investigate the possibility of a burglary.     If the police see

someone that they believe to be too young to lawfully operate a vehicle, they

may stop the driver to ascertain his age. But the police may not detain the

driver to investigate whether he might have participated in a burglary



      43
       … 392 U.S. 1, 10–11, 88 S. Ct. 1868, 1874 (1968) (footnotes
omitted).
      44
       … United States v. Hensley, 469 U.S. 221, 229, 232, 105 S. Ct. 675,
680, 682 (1985) (emphasis added) (citation omitted).

                                      16
somewhere at some time. An officer may not detain the suspicious loiterer to

determine whether he ever operated a motor vehicle when he was too young

to be issued a driver’s license. The purpose of the investigation at its inception

must be to obtain further information regarding the suspicion justifying the

warrantless detention.

      The majority is correct that an officer may stop a vehicle if he reasonably

suspects the driver has committed, is committing, or soon will commit an

offense. Additionally, the detention is not unlawful if, after investigation, the

officer concludes the driver did not commit that offense. But the officer must

reasonably suspect criminal activity that can be ascertained with further

investigation. That is, when an officer suspects speeding or failure to signal a

turn, nothing more can be learned from further investigation. The officer either

saw it, or he did not.     Of course, there are traffic offenses that can be

determined by further investigation, such as learning whether the driver is too

young to lawfully operate a vehicle. Also, the officer may reasonably suspect

an expired inspection sticker or license plate or that the window-tinting exceeds

lawful limits, detain the driver and vehicle for further investigation, learn that

he is wrong but view contraband in plain view inside the vehicle or determine

that the driver is intoxicated, and the stop will not be held to be unlawful

because the officer did not view a traffic offense. But the detention must be

                                       17
justified at its inception, and the search or seizure must be reasonably related

to the circumstances that justified the stop. Whether a driver was speeding,

failed to signal a turn, or drove recklessly is not a circumstance that can be

clarified by detention and further investigation.

      The Fifth Circuit instructs us regarding traffic stops:

      [W]e analyze the legality of traffic stops for Fourth Amendment
      purposes under the standard articulated in Terry v. Ohio. This
      standard is a two-tiered reasonable suspicion inquiry: 1) whether
      the officer’s action was justified at its inception, and 2) whether
      the search or seizure was reasonably related in scope to the
      circumstances that justified the stop in the first place. In addition,
      “the investigative methods employed should be the least intrusive
      means reasonably available to verify or dispel the officer’s
      suspicion in a short period of time.”

              However, once an officer’s suspicions have been verified or
      dispelled, the detention must end unless there is additional
      articulable, reasonable suspicion. “At that point, continuation of
      the detention is no longer supported by the facts that justified its
      initiation.” 45

      Here, the majority, consistent with Officer Simmons’s testimony, states

that Officer Simmons stopped Appellant because he suspected that Appellant

might have committed a traffic offense and wanted to investigate his

reasonable suspicion that Appellant might have committed a traffic offense.




      45
         … United States v. Valadez, 267 F.3d 395, 397–98 (5th Cir. 2001)
(citations omitted).

                                       18
Frankly, I don’t understand how this reasoning comports with the law. As the

Supreme Court pointed out,

      Once Knowles was stopped for speeding and issued a citation, all
      the evidence necessary to prosecute that offense had been
      obtained. No further evidence of excessive speed was going to be
      found either on the person of the offender or in the passenger
      compartment of the car.46

      Officer Simmons suspected that Appellant was either driving recklessly

or was racing. No investigation after detaining the vehicle would provide more

evidence of reckless driving or racing.     Simmons did not testify that he

reasonably suspected that Appellant was intoxicated. The majority speculates

that Officer Simmons may have had questions stemming from what he had just

witnessed, such as whether something was wrong with the driver, the driver’s

car, or the car’s tires that caused the apparent reckless driving. That is, the

majority speculates that Officer Simmons could have been combining a

community caretaking function with a criminal investigation function.       Of

course, this would be improper. Community caretaking must be totally divorced

from gathering evidence of a criminal act.47      There was no evidence to




      46
         … Knowles v. Iowa, 525 U.S. 113, 118, 119 S. Ct. 484, 488 (1998)
(citations omitted).
      47
           … Corbin v. State, 85 S.W.3d 272, 276 (Tex. Crim. App. 2002).

                                      19
preserve, and there was no need to detain Appellant to search for weapons.

Under these circumstances, the detention was not justified.

      Cobbling together disparate rules to justify the detention, the majority

relies on Terry to hold that reasonable suspicion justifies a stop to gather more

information about the suspected offense but applies the rule to a traffic offense

that is not susceptible of further investigation.48 This approach leads to a result

not justified by case law or either the state or the federal constitution.

      The majority holds that Appellant may have violated the reckless driving

statute. As the majority correctly states, “There were no cars in the specific

lane of traffic that [Appellant] fishtailed into at the precise time that he did

so.” 49 But a close reading of the record also shows that there is no evidence

of another vehicle, pedestrian, property, or animal near Appellant’s vehicle

during the three seconds of acceleration. Indeed, as stated earlier, the two

police officers were not in agreement regarding exactly where Appellant began

the driving that drew their attention. They both heard the loud squeal of tires.50

Officer Simmons believed that Appellant was at a traffic light.51 Sergeant Pelton


      48
           … See Terry, 392 U.S. at 10–11, 88 S. Ct. at 1874.
      49
           … Majority op. at 9.
      50
           … II R.R. at 5.
      51
           … Id. at 21.

                                        20
believed that Appellant’s vehicle was leaving a strip mall parking lot.52       If

Appellant was indeed pulling out of a parking lot, what Officer Simmons

believed was fishtailing could have been nothing more than the natural

movement of a vehicle turning right out of a parking lot into the adjacent lane.

      Sergeant Pelton observed a turn but no fishtailing. Clearly, it was up to

the trial court to decide which officer to believe. But even if Officer Simmons’s

testimony were believed in its entirety, he nevertheless did not testify to any

actual traffic violation—only the suspicion of a violation based on a

misunderstanding of the law.      Sergeant Pelton did not agree that Officer

Simmons should have pulled Appellant over. Sergeant Pelton testified that the

traffic stop was premature and that he would have followed Appellant to watch

his driving.53

      There was vague testimony that there were other cars on Camp Bowie

Boulevard at the time, but there was no clear testimony that there were cars

near enough to Appellant’s vehicle to be endangered. There was testimony

that there were cars in the parking lot that Officer Pelton believed Appellant had




      52
           … Id. at 23.
      53
           … Id. at 25, 28, 35.

                                       21
left and speculation that somebody could have been starting a car at the time

Appellant left the parking lot.54 Given the question posed to Officer Simmons,

      Q.       And if there had been cars there, he could have possibly hit
               them?

      A.       Yes, ma’am[,]55

the only logical inference from the evidence is that the vehicles were not near

enough to Appellant to be affected by the fishtailing. There was testimony that

no vehicle was in the adjacent lane.

      Section 545.401 of the transportation code, the reckless driving statute,

provides, “A person commits an offense if the person drives a vehicle in wilful

or wanton disregard for the safety of persons or property.” 56 As our sister

court in Houston has pointed out, “In the context of reckless driving, ‘willful

and wanton disregard’ means the ‘deliberate and conscious indifference to the

safety of others.’” 57 By its very language, the statute requires that there be

persons or property near enough to the person’s vehicle to have their safety

disregarded. A person speeding on I-35 does not do so in wilful or wanton


      54
           … Id. at 8, 26.
      55
           … Id. at 9.
      56
           … Tex. Transp. Code Ann. § 545.401(a) (Vernon 1999).
      57
        … Brown v. State, 183 S.W.3d 728, 733 (Tex. App.—Houston [1st
Dist.] 2005, pet. ref’d).

                                        22
disregard for the safety of persons driving on I-95. A person spinning donuts

on an ice-covered parking lot at Texas Christian University does not do so in

wilful or wanton disregard for the safety of persons driving down Congress

Avenue in Austin. A person peeling out on Camp Bowie Boulevard does not

constitute a threat to persons or property on the far side of the wide grassy

median or in any area other than the immediate vicinity of the vehicle.

      We must remember that the burden to justify a warrantless detention

rests squarely on the State. The State must present evidence to prove, not that

there is some circumstance in which the detention could have been lawful, but

that the detention actually was lawful. The burden was not on Appellant to

negate every possible scenario that would justify the detention.            Officer

Simmons thought he had observed a traffic violation, but he was wrong.

      I agree with Officer Pelton:        Officer Simmons stopped Appellant

prematurely and needed more than he observed to justify Appellant’s detention.

Because the majority holds that (1) the stop was lawful because Simmons

reasonably suspected that Appellant might have committed a traffic offense

that needed to be investigated when there was nothing to investigate by a

detention, (2) it is not necessary for property or persons to be near enough for

their safety to be at risk for a driver to violate the reckless driving statute, (3)

that merely allowing your tires to cross a lane line when no other car is near

                                        23
enough to be placed in danger is a violation of the law, and (4) that three

seconds of screeching tires and fishtailing absent evidence of traffic,

pedestrians, animals, or property that could have been put at risk is sufficient

to show reckless driving, I must respectfully dissent.




                                                 LEE ANN DAUPHINOT
                                                 JUSTICE

PUBLISH

DELIVERED: February 11, 2010




                                      24
