                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-14-00059-CR


KEVIN DEAN DUNN                                                  APPELLANT

                                      V.

THE STATE OF TEXAS                                                     STATE


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      FROM COUNTY CRIMINAL COURT NO. 1 OF TARRANT COUNTY
                   TRIAL COURT NO. 1298839

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                                 OPINION

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                               I. INTRODUCTION

      Appellant Kevin Dean Dunn appeals his conviction for driving while

intoxicated with a blood alcohol concentration of .15 or higher, a class-A

misdemeanor.   See Tex. Penal Code Ann. 49.04(a), (d) (West Supp. 2014).

Dunn pleaded not guilty, but a jury found him guilty; the trial court assessed

Dunn’s punishment at ninety days’ confinement and a $1,250.00 fine. The trial
court suspended imposition of Dunn’s sentence and placed him on community

supervision for a twenty-four month term. In his first two issues, Dunn argues

that the trial court erred by denying his motion to suppress because (1) the

arresting officer lacked reasonable suspicion or probable cause to stop his

vehicle and (2) the search warrant affidavit made by the officer in order to seize a

sample of Dunn’s blood contained false statements or statements made with a

reckless disregard for their truth. In his third issue, Dunn asserts that error exists

in the court’s charge because it contained an improper instruction stating that a

traffic stop is valid when it is premised on reasonable suspicion that the person

committed a traffic offense. We will affirm.

                                  II. BACKGROUND

      One evening in August at around 11:00 p.m., while City of Grapevine

Police Officer Daniel McClain was on patrol, Dunn pulled up next to Officer

McClain’s patrol car at a red light. Officer McClain’s dash-cam video recorded

the evening’s events and shows that when the light turned green, Dunn

accelerated ahead of Officer McClain. As Dunn drove, he drifted into Officer

McClain’s lane, requiring Officer McClain to slow down to avoid a collision. Dunn

corrected his vehicle, and Officer McClain changed lanes, so that his patrol car

was following directly behind Dunn’s vehicle. When Dunn’s vehicle drifted the

other direction and topped the broken white line, prompting a driver in the

adjacent lane to brake, Officer McClain stopped Dunn for failing to maintain a




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single lane of travel. It was late at night, and Officer McClain thought Dunn could

be driving while intoxicated.

      In an affidavit for a search warrant to obtain a sample of Dunn’s blood,

Officer McClain stated that when he began talking with Dunn, he smelled a

“strong odor of an alcoholic beverage” and observed that Dunn had bloodshot,

watery eyes and spoke “with a thick tongue.” At Officer McClain’s request, Dunn

got out of his vehicle. Officer McClain noted that Dunn swayed as he stood and

that Dunn walked unsteadily. Dunn refused to perform field sobriety tests; Officer

McClain arrested him for driving while intoxicated.

      Dunn refused to consent to a blood draw; Officer McClain prepared an

affidavit for a search warrant to obtain a specimen of Dunn’s blood and obtained

a warrant. Dunn’s blood alcohol content exceeded .15.

      Dunn filed two separate motions to suppress: one challenging the grounds

for the stop and arrest, the other contending that Officer McClain’s statements in

his affidavit were false or made with a reckless disregard for the truth. The trial

court conducted successive, back-to-back hearings on Dunn’s two motions to

suppress and denied them.1


      1
        The trial court issued findings of fact concerning Dunn’s second motion to
suppress and we previously abated this appeal at Dunn’s request to permit the
trial court to make findings of fact concerning Dunn’s first motion to suppress.
The trial court supplemented its findings and conclusions with findings regarding
the first motion to suppress, stating that Officer McClain was a credible and
reliable witness at the suppression hearing and that he possessed reasonable
suspicion to stop Dunn’s vehicle. Dunn then filed a motion requesting that this
court disregard the trial court’s supplemental findings of fact and conclusions of

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           III. THE CONSTITUTIONAL PREREQUISITE TO A TRAFFIC STOP

      Dunn’s first and third issues are premised on the contention that the United

States Supreme Court in Whren v. United States, 517 U.S. 806, 116 S. Ct. 1769

(1996), “without announcing that a substantive change had occurred,

mysteriously raised” the prerequisite for a stop based on a traffic violation from

reasonable suspicion to probable cause. Consequently, in his first issue, Dunn

argues that the trial court erroneously denied his first suppression motion

because Officer McClain did not have probable cause for the stop. Dunn’s third

issue claims that the jury charge incorrectly instructed that reasonable suspicion

of a traffic offense justifies a stop when, according to Dunn’s interpretation of

Whren, probable cause is required for such a stop.

                       A. Law Governing Traffic Stops

      The Fourth Amendment protects against unreasonable searches and

seizures by government officials. U.S. Const. amend. IV; Wiede v. State, 214

S.W.3d 17, 24 (Tex. Crim. App. 2007). 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.

Amador v. State, 221 S.W.3d 666, 672 (Tex. Crim. App. 2007); see Young v.


law. Dunn complains of the trial court’s supplemental conclusion that Officer
McClain possessed reasonable suspicion to stop him. Because we review this
conclusion and the facts upon which it is based in connection with Dunn’s first
two issues, and because Dunn requested the supplemental findings of fact and
conclusions of law, we deny his motion that we disregard them.


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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 without a warrant. Amador, 221 S.W.3d at 672. Once the defendant

has made this showing, the burden of proof shifts to the State, which is then

required to establish that the search or seizure was conducted pursuant to a

warrant or was reasonable. Id. at 672–73; Torres v. State, 182 S.W.3d 899, 902

(Tex. Crim. App. 2005); Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App.

2005).

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

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

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

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

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

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

S.W.3d 43, 52 (Tex. Crim. App. 2010); Ford, 158 S.W.3d at 492. 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 the officer to reasonably conclude that a particular person is,

has been, or soon will be engaged in criminal activity. Ford, 158 S.W.3d at 492.

This is an objective standard that disregards any subjective intent of the officer

making the stop and looks solely to whether an objective basis for the stop

exists. Id.


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      Dunn’s argument that Whren raised the prerequisite for a traffic stop to

probable cause is the same argument that was advanced by the defendant in

United States v. Lopez-Soto, and we agree with the Ninth Circuit’s response:

      Lopez-Soto argues that the Supreme Court’s decision in Whren . . .
      stands for the proposition that an officer must have probable cause
      to make a traffic stop. He relies on the Court’s observation that, “[a]s
      a general matter, the decision to stop an automobile is reasonable
      where the police have probable cause to believe that a traffic
      violation has occurred.”

           Prior to Whren, it was settled law that reasonable suspicion is
      enough to support an investigative traffic stop.

            ....

             We do not believe that the Court in Whren intended to change
      this settled rule. The passage on which Lopez-Soto relies tells us
      only that probable cause is sufficient to support a traffic stop, not
      that it is necessary. If the Supreme Court announced in Whren a
      new rule of law, as Lopez-Soto contends, we would expect it to have
      acknowledged the change and explained its reasoning. Such an
      explanation is notably absent from the Whren opinion. Instead, the
      facts of Whren involved speeding and failure to signal, and the
      parties agreed that, from these facts, the police had probable cause
      to make the disputed stop. This threshold agreement allowed the
      Whren Court to address a different issue, namely the constitutional
      relevance of the officers’ subjective intent in making the stop, to
      which the Court gave sustained attention. Given that probable
      cause was clearly satisfied on the facts before the Court in Whren
      and that the Court directed its focus elsewhere, we do not believe
      that the casual use of the phrase “probable cause” was intended to
      set a new standard.

            . . . [T]he Fourth Amendment requires only reasonable
      suspicion in the context of investigative traffic stops.

205 F.3d 1101, 1104–05 (9th Cir. 2000) (citations omitted).




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      The Ninth Circuit’s treatment of the argument accords with Texas law. See

Ford, 158 S.W.3d at 492 (“An officer conducts a lawful temporary detention when

he has reasonable suspicion to believe that an individual is violating the law.”);

see also, e.g., Delafuente v. State, 414 S.W.3d 173, 179 (Tex. Crim. App. 2013)

(“Taken together, these facts and inferences are sufficient to lead a reasonable

officer to conclude that appellant was engaged in criminal activity, namely a

violation of [Texas Transportation Code] Section 545.363(a).”); Abney v. State,

394 S.W.3d 542, 548 (Tex. Crim. App. 2013) (“In this case, the State was

required to show that the officer had reasonable suspicion that Appellant

committed the traffic violation of driving in the left lane without passing when a

sign (a traffic control device) prohibited such action.”).

      Because reasonable suspicion is the threshold for a traffic stop, the trial

court’s jury charge was not erroneous, and we overrule Dunn’s third issue. See

Sanchez v. State, 418 S.W.3d 302, 308 (Tex. App.—Fort Worth 2013, pet. ref’d)

(citing Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012)) (“[I]f [jury-

charge] error did not occur, our analysis ends.”). We now turn to whether the

facts support the trial court’s finding that Officer McClain had reasonable

suspicion to stop Dunn for failing to maintain a single lane of travel.

                              B. Motion to Suppress

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

bifurcated standard of review. Amador, 221 S.W.3d at 673; Guzman v. State,

955 S.W.2d 85, 89 (Tex. Crim. App. 1997). In reviewing the trial court’s decision,


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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,

214 S.W.3d at 24–25; State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000),

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

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

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

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

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

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

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

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, as here,

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.


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

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

Id. at 818. We must uphold the trial court’s ruling if it is supported by the record

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

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

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

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

      The Transportation Code provides, “An operator on a roadway divided into

two or more clearly marked lanes for traffic: (1) shall drive as nearly as practical

entirely within a single lane and (2) may not move from the lane unless that

movement can be made safely.” Tex. Transp. Code Ann. § 545.060(a)(1)(2)

(West 2011). Officer McClain saw Dunn drift from his lane twice, which can be

seen on the video. And contrary to Dunn’s assertion on appeal, the drifting was

unsafe; Officer McClain as well as another driver had to slow down to avoid

hitting Dunn.2 Viewing the video and Officer McClain’s testimony in the light most


      2
        Dunn asserts that Officer McClain’s self-described “evasive maneuver”
involved only taking his foot off the accelerator and did not involve braking or
making a quick movement. Regardless, deceleration, whether by braking or
discontinuing acceleration, in response to a weaving driver, is evasive, and
unsafe weaving does not require that other drivers brake or make quick, furtive
movements. See Taylor v. Sate, 916 S.W.2d 680, 681–82 (Tex. App.—Waco
1996, pet. ref’d) (considering swerving into another lane and almost hitting an
officers’ vehicle therein to be unsafe driving); see also Yeakley v. State, No. 03-
09-00584-CR, 2011 WL 677391, at *4 (Tex. App.—Austin Feb. 25, 2011, pet.
dism’d) (holding that surrounding drivers’ use of caution to avoid the appellant’s
weaving vehicle did not render the weaving safe).


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favorable to the trial court’s ruling, see Wiede, 214 S.W.3d at 24; Kelly, 204

S.W.3d at 818–19, Montanez, 195 S.W.3d at 109, we conclude that the record

supports the trial court’s ruling. We overrule Dunn’s first issue.

                     IV. VERACITY OF AFFIDAVIT STATEMENTS

      Dunn’s second issue is premised on Franks v. Delaware, in which the

United States Supreme Court held,

      [W]here the defendant makes a substantial preliminary showing that
      a false statement knowingly or intentionally, or with reckless
      disregard for the truth, was included by the affiant in the warrant
      affidavit, and if the alleged false statement is necessary to the
      finding of probable cause, the Fourth Amendment requires that a
      hearing be held at the defendant’s request.

438 U.S. 154, 155–56, 98 S. Ct. 2674, 2675 (1978).

      In conducting a Franks suppression review, we use the same bifurcated

review outlined in the previous section, giving almost total deference to the trial

court’s rulings on questions of historical fact and application-of-law-to-fact

questions that turn on an evaluation of credibility and demeanor while reviewing

de novo application-of-law-to-fact questions that do not turn on credibility and

demeanor. Davis v. State, 144 S.W.3d 192, 201 (Tex. App.—Fort Worth 2004,

pet. ref’d) (op. on reh’g). An affidavit supporting a search warrant begins with the

presumption of validity. Franks, 438 U.S. at 171, 98 S. Ct. at 2684; Cates v.

State, 120 S.W.3d 352, 355 (Tex. Crim. App. 2003). It is the defendant’s burden

to rebut that presumption by proving by a preponderance of the evidence that the

affiant made false statement deliberately or with a reckless disregard for the



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truth. Franks, 438 U.S. at 156, 171, 98 S. Ct. at 2676, 2684; Davis, 144 S.W.3d

at 201. The defendant must also show that absent the false information, the

remaining content is insufficient for probable cause. Franks, 438 U.S. at 156,

171–72, 98 S. Ct. at 2676, 2684–85; Davis, 144 S.W.3d at 201; see Cates, 120

S.W.3d at 356.

      In its findings of fact and conclusions of law, the trial court stated that the

affidavit statements were all borne out by the testimony at the suppression

hearing and that there was no proof that Officer McClain deliberately made false

statements or made statements with a reckless disregard for the truth. Dunn

disagrees,   challenging   several   of   the   affidavit   statements   and   noted

observations, including the statement that Dunn drifted into Officer McClain’s

lane and almost collided with his patrol vehicle, that appellant had a strong odor

of alcohol, that Dunn “spoke with a thick tongue[,]” that Dunn’s clothing was

disorderly, that Dunn swayed and staggered, and that Dunn had an

uncooperative attitude.    Having already determined that the video supports

Officer McClain’s description of Dunn drifting into his lane in an unsafe manner,

this statement in the affidavit is not false. See Franks, 438 U.S. at 156, 171–72,

98 S. Ct. at 2676, 2684–85 (instructing that information that is proven to be false

and to have been made intentionally, knowingly, or with a reckless disregard for

the truth is to be omitted and the rest of the affidavit reviewed for probable

cause); Davis, 144 S.W.3d at 201 (same); see Cates, 120 S.W.3d at 356 (same).




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Officer McClain’s observations in his affidavit that Dunn’s eyes were bloodshot,

red, and watery were not challenged before the trial court or on appeal.

      The only evidence that Dunn claims establishes the falsity of Officer

McClain’s affidavit and testimony is the video of the stop. We note, however, that

the video sheds no light on Officer McClain’s assertion that Dunn smelled

strongly of alcohol. Moreover, although slight swaying is arguably visible on the

video, in general the subtleties of swaying, slight staggering, and even speaking

“thick-tongued” are not always amenable to being captured by a video camera

installed in an officer’s patrol vehicle parked several feet away, especially when

the stop occurs when it is dark outside as in this case, or by the audio equipment

worn by the officer. See Tucker v. State, 369 S.W.3d 179, 187 n.1 (Tex. Crim.

App. 2012) (Womack, J., concurring) (noting that the evidentiary value of video

evidence often depends on other factors because “[t]he clarity of the video is

often dependent on the lighting, angle or focus of the camera, or the camera’s

distance from the object recorded” and “[t]he audio may be inaudible due to the

tone of the speaker, static, or other background noise”). Viewing the video in the

light most favorable to the trial court’s ruling, it supports the court’s implicit finding

that the officer’s affidavit statements were accurate. See id. at 185 (“The court of

appeals should view the video in the light most favorable to the trial court’s ruling

and assume that the trial court made implicit findings that support the denial of

Appellant’s motion to suppress.”); Montanez, 195 S.W.3d at 109.




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      Even assuming that the video evidence did not corroborate Officer

McClain’s affidavit and testimony as implicitly found by the trial court, it did not

disprove his affidavit or testimony or expose a deliberate falsehood or reckless

disregard for the truth.   Dunn’s belief that the video did not support Officer

McClain’s affidavit statements—which Dunn characterizes on appeal as Officer

McClain’s “purely subjective” opinions—is the type of suspicion better channeled

into a robust cross-examination rather than serving as a foundation for a Franks

hearing. See Franks, 438 U.S. at 171, 98 S. Ct. at 2684 (“[T]he challenger’s

attack must be more than conclusory and must be supported by more than a

mere desire to cross-examine.”). In short, without more evidence, Dunn failed to

rebut the affidavit’s presumption of validity with a preponderance of the evidence

showing Officer McClain made false statements deliberately or with a reckless

disregard for the truth. Franks, 438 U.S. at 156, 171, 98 S. Ct. at 2676, 2684;

Cates, 120 S.W.3d at 355; Davis, 144 S.W.3d at 201. And we must respect the

trial court’s finding that Officer McClain was credible at the hearing, see Davis,

144 S.W.3d at 201, and implicit finding that the video supported Officer McClain’s

affidavit statements, see Tucker, 369 S.W.3d at 185. Accordingly, we overrule

Dunn’s second issue.




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                               V. CONCLUSION

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



                                                 /s/ Sue Walker
                                                 SUE WALKER
                                                 JUSTICE

PANEL: GARDNER, WALKER, and GABRIEL, JJ.

PUBLISH

DELIVERED: May 21, 2015




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