                                                                       ACCEPTED
                                                                   14-14-00957-CR
                                                   FOURTEENTH COURT OF APPEALS
                                                                HOUSTON, TEXAS
                                                              9/16/2015 2:23:26 PM
Nos. 14-14-00957-CR; 14-14-00959-CR                          CHRISTOPHER PRINE
                                                                            CLERK

               In the
         Court of Appeals
              For the                           FILED IN
    Fourteenth District of Texas         14th COURT OF APPEALS
                                            HOUSTON, TEXAS
            At Houston                   9/16/2015 2:23:26 PM
                                         CHRISTOPHER A. PRINE
                                       Clerk

        Nos. 1424405; 1424406
  In the 337th Criminal District Court
        Of Harris County, Texas
       

 GERALINE GREGORY LINCOLN
          Appellant
             V.
    THE STATE OF TEXAS
           Appellee
       

  STATE’S APPELLATE BRIEF
       

                            DEVON ANDERSON
                            District Attorney
                            Harris County, Texas
                            MELISSA P. HERVEY
                            Assistant District Attorney
                            Harris County, Texas
                            State Bar Number: 24053741

                            CATINA HAYNES
                            Assistant District Attorney

                            1201 Franklin Street, Suite 600
                            Houston, Texas 77002
                            Telephone: (713) 755-5826
                            Fax Number: (713) 755-5809
                            Hervey_Melissa@dao.hctx.net

ORAL ARGUMENT NOT REQUESTED
               STATEMENT REGARDING ORAL ARGUMENT

      Because this Court has already set this case for submission on the briefs of

the parties, without oral argument, the State does not request oral argument.

However, the State would like to reserve the right to present oral argument if this

Court should reconsider its submission decision and decide that it will hear oral

argument, afterall.

                      IDENTIFICATION OF THE PARTIES

      Pursuant to Texas Rules of Appellate Procedure 38.1(a) and 38.2(a)(1)(A), a

complete list of the names of all interested parties, and the names and addresses of

all trial and appellate counsel, is provided below:

      Counsel for the State:

             Devon AndersonDistrict Attorney of Harris County

             Melissa P. HerveyAssistant District Attorney on appeal

             Catina Haynes; Jennifer Falk—Assistant District Attorneys at
             suppression hearing

             Harris County District Attorney’s Office
             1201 Franklin Street, Suite 600
             Houston, Texas 77002

      Appellant or Criminal Defendant:

             Geraline Gregory Lincoln




                                           i
        Counsel for Appellant:

                 Megan E. Smith—Defense Counsel on appeal

                 917 Franklin Street, Suite 310
                 Houston, Texas 77002

                 Kendric M. Ceaser—Defense Counsel at suppression hearing

                 1302 Waugh Drive, No. 367
                 Houston, Texas 77019

        Trial Judge:

                 Honorable Renee Magee—Presiding Judge of the 337th Criminal
                 District Court


                                     TABLE OF CONTENTS

STATEMENT REGARDING ORAL ARGUMENT ................................................i

IDENTIFICATION OF THE PARTIES ....................................................................i

TABLE OF CONTENTS .......................................................................................... ii

INDEX OF AUTHORITIES.................................................................................... iii

STATEMENT OF THE CASE .................................................................................. 1

STATEMENT OF FACTS ........................................................................................ 2

SUMMARY OF THE ARGUMENT ........................................................................ 4

REPLY TO APPELLANT’S SOLE POINT OF ERROR ......................................... 5

        I.    STANDARD OF REVIEW REGARDING DENIAL OF APPELLANT’S
              MOTION TO SUPPRESS .............................................................................. 5

        II. REASONABLE SUSPICION TO INITIATE A TRAFFIC STOP ........................... 7

                                                      ii
         III. THE TRIAL COURT PROPERLY DENIED APPELLANT’S MOTIONS TO
              SUPPRESS UPON CONCLUDING THAT THE POLICE HAD REASONABLE
              SUSPICION TO DETAIN APPELLANT FOR A TRAFFIC OFFENSE ................. 8

CONCLUSION AND PRAYER ............................................................................. 15

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

CERTIFICATE OF SERVICE ................................................................................ 17


                                     INDEX OF AUTHORITIES

CASES

Abney v. State,
  394 S.W.3d 542 (Tex. Crim. App. 2013) ...........................................................7, 8
Amador v. State,
 275 S.W.3d 872 (Tex. Crim. App. 2009) ...............................................................5
Carmouche v. State,
  10 S.W.3d 323 (Tex. Crim. App. 2000) ...........................................................5, 12
Carroll v. United States,
  267 U.S. 132 (1925) ...............................................................................................8
Castro v. State,
  227 S.W.3d 737 (Tex. Crim. App. 2007) .............................................................14
Ford v. State,
  158 S.W.3d 488 (Tex. Crim. App. 2005) ...............................................................7
Harrison v. State,
 205 S.W.3d 549 (Tex. Crim. App. 2006) ...............................................................6
Jaganathan v. State,
  No. PD-1189-14, slip op. (Tex. Crim. App. Sept. 16, 2015) ...............................14
Krug v. State,
  86 S.W.3d 764 (Tex. App.—
  El Paso 2002, pet. ref’d) .........................................................................................9



                                                         iii
Martinez v. State,
 358 S.W.3d 919 (Tex. Crim. App. 2011) ...............................................................6
Miller v. State,
 418 S.W.3d 692 (Tex. App.—
 Houston [14th Dist.] 2013, pet. ref’d) ......................................................... 7, 8, 15
State v. Dixon,
  206 S.W.3d 587 (Tex. Crim. App. 2006) ...........................................................6, 7
State v. Duran,
  396 S.W.3d 563 (Tex. Crim. App. 2013) .............................................................13
State v. Elias,
  339 S.W.3d 667 (Tex. Crim. App. 2011) .................................................. 8, 14, 15
State v. Ross,
  32 S.W.3d 853 (Tex. Crim. App. 2000) .............................................................5, 6
State v. Woodard,
  341 S.W.3d 404 (Tex. Crim. App. 2011) ...............................................................7
Terry v. Ohio,
  392 U.S. 1 (1968) ...................................................................................................8
Turrubiate v. State,
  399 S.W.3d 147 (Tex. Crim. App. 2013) ...............................................................5
Valtierra v. State,
  310 S.W.3d 442 (Tex. Crim. App. 2010) ...................................................... 5, 6, 7
Zuniga-Hernandez v. State,
  No. 14-14-00346-CR, 2015 WL 4930576 (Tex. App.—
  Houston [14th Dist.] Aug. 18, 2015, no. pet. h.)..............................................8, 15


STATUTES

TEX. HEALTH & SAFETY CODE ANN. § 481.115(a) ....................................................1
TEX. HEALTH & SAFETY CODE ANN. § 481.115(c) ....................................................1
TEX. PENAL CODE ANN. § 46.04(a) ............................................................................1
TEX. PENAL CODE ANN. § 46.04(e) ............................................................................1
TEX. TRANSP. CODE ANN. § 544.010 .........................................................................9



                                                          iv
TEX. TRANSP. CODE ANN. § 545.051(a) .....................................................................9
TEX. TRANSP. CODE ANN. § 545.060 .........................................................................9
TEX. TRANSP. CODE ANN. § 545.104 .........................................................................9


RULES

TEX. R. APP. P. 9.4(i)................................................................................................16
TEX. R. APP. P. 38.2(a)(1)(A) ..................................................................................... i
TEX. R. APP. P. 39.1.................................................................................................... i




                                                            v
TO THE HONORABLE COURT OF APPEALS:

                            STATEMENT OF THE CASE

       In cause number 1424405, the State charged appellant by indictment with

the second-degree felony offense of possession of a controlled substance—

cocaine—in an amount weighing more than four grams, but less than 200 grams,

by aggregate weight; the State also alleged a punishment-enhancement paragraph.

(CR 1424405 – 17); see TEX. HEALTH & SAFETY CODE ANN. § 481.115(a); TEX.

HEALTH & SAFETY CODE ANN. § 481.115(c).1 In cause number 1424406, the State

charged appellant by indictment with the third-degree felony offense of unlawful

possession of a firearm by a convicted felon; the State also alleged a punishment-

enhancement paragraph.        (CR 1424406 – 15); see TEX. PENAL CODE ANN. §

46.04(a); TEX. PENAL CODE ANN. § 46.04(e).

       Appellant filed a pretrial motion to suppress in each case, which the trial

court denied after a dispositive hearing on the merits of the motion. (CR 1424405

– 13-16); (CR 1424406 – 11-14); (RR III – 3-6). On November 21, 2014, in

accordance with a plea bargain between appellant and the State, appellant pled



1
  The Clerks’ Record for appellant’s cases consists of one main volume and one supplemental
volume for each case, hereinafter referenced as (CR 1424405 – [page number]) and (CR
1424405 Supp. – [page number]), and (CR 1424406 – [page number]) and (CR 1424406 Supp. –
[page number]). The Reporter’s Record consists of four volumes, hereinafter referenced as (RR
I-IV – [page number]). Exhibits admitted by the trial court are contained in Volume IV of the
Reporter’s Record and will be cited as (RR IV – [SX or DX] [exhibit number]). References to
appellant’s brief will be cited as (AB – [page number]).
“guilty” as charged in each case, and pled “true” to the State’s punishment-

enhancement allegation in each case, and the State recommended to the trial court

that appellant be sentenced to serve eight years in the Texas Department of

Criminal Justice, Correctional Institutions Division, for each offense, with the

prison terms to run concurrently. (CR 1424405 – 32-42, 46-47); (CR 1424406 –

34-44, 48-49). The trial court accepted appellant’s “guilty” and “true” pleas;

assented to the terms of the plea-bargain agreement between appellant and the

State; and, on November 21, 2014, sentenced appellant in accordance with that

agreement. (CR 1424405 – 32-42, 46-47); (CR 1424406 – 34-44, 48-49). The

trial court certified that appellant retained the right to appeal the matters that

appellant raised in his written, pretrial motions to suppress. (CR 1424405 – 44);

(CR 1424406 – 46). Appellant timely filed written notice of appeal on November

21, 2014. (CR 1424405 – 48); (CR 1424406 – 50).

                      

                           STATEMENT OF FACTS

      On the afternoon of April 10, 2014, Deputies Robert Johnson and Mohamd

Bousalmi with the Harris County Precinct One Constable’s Office were patrolling

a neighborhood in North Houston in Johnson’s patrol car. (RR II – 6-10, 19, 22-

23, 51-52, 55). Around 5:00 PM, as the deputies were traveling westbound on

Ogden Forest Drive (Ogden), they observed appellant driving a white sedan


                                        2
northbound, down the middle of the road, on Saratoga Forest Drive (Saratoga).

(RR II – 8-10, 22, 31-32, 57). Though traffic was “[v]ery light[,]” and Saratoga

did not have painted lane-divider lines, the road was intended for two-way traffic;

thus, the deputies considered appellant’s driving in the middle of the road,

straddling the north- and southbound lanes, to be “reckless” and a traffic offense.

(RR II – 8-10, 22, 31-34, 49-50, 53, 57, 67-68). The deputies then observed

appellant “roll[] through” a stop sign at the intersection of Saratoga and Whitter

Forest Drive (Whitter), and turn onto Whitter without signaling the turn. (RR II –

10-11, 20, 34-35, 53, 55-56, 71).

       Johnson and Bousalmi began to pursue appellant in the Johnson’s patrol car,

intending to stop appellant for the traffic offenses. (RR II – 11-12). As they did

so, the deputies observed appellant turn left onto Wildforest Drive (Wildforest),

again without signaling the turn. (RR II – 11-12, 38-39, 56-57). Johnson followed

appellant onto Wildforest and activated the emergency lights on Johnson’s patrol

car, at which point appellant “accelerated at a high rate of speed.” (RR II – 12, 41-

42).   Appellant then hurriedly turned into the driveway of a residence on

Wildforest, parked his car, and “immediately tr[ied] to exit the vehicle and distance

himself from it.” (RR II – 13, 41-42, 48, 56-57). Johnson “[t]old [appellant] to get

back into [appellant’s] vehicle for officer’s [sic] safety[,]” and appellant complied.

(RR II – 12, 56).

                                          3
      Johnson observed that appellant was “very nervous[,]...couldn’t sit

still[,]...kept on looking in all directions[,] and he was sweating” when Johnson

spoke to him. (RR II – 13). Johnson also noted the smell of marijuana when

Johnson approached appellant’s vehicle, and observed that the female passenger in

appellant’s car also appeared to be nervous.      (RR II – 13-14).      Because of

appellant’s behavior, Johnson asked the female passenger whether there were any

narcotics in appellant’s vehicle; the passenger “hesitated at first and then she

stated, ‘no[,]’” but she then conceded, “he might.” (RR II – 14). The passenger

also admitted to Johnson that there was a firearm inside of appellant’s car. (RR II

– 14). Johnson confirmed that appellant had two open warrants for his arrest, and

took him into custody. (RR II – 15). The police then recovered a firearm and

cocaine from appellant’s vehicle. See (CR 1424405 – 17); (CR 1424406 – 15).

                       

                       SUMMARY OF THE ARGUMENT

      The trial court properly denied appellant’s motions to suppress upon

concluding that, under the totality of the circumstances and using an objective

standard, the police had at least reasonable suspicion to believe that appellant had

committed a traffic infraction and, thus, did not violate the Fourth Amendment by

detaining appellant.

                       

                                         4
            REPLY TO APPELLANT’S SOLE POINT OF ERROR

      In appellant’s only point of error on appeal, appellant argues that the trial

court abused its discretion by denying appellant’s motions to suppress, and

reiterates appellant’s contentions to the trial court that the police violated the

Fourth Amendment by detaining appellant without any reasonable justification.

   I. Standard of Review Regarding Denial of Appellant’s Motion to Suppress

      A trial court’s decision to deny a defendant’s motion to suppress is

examined on appeal for abuse of discretion using a bifurcated standard of review.

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

State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000).            In the first part of the

bifurcated review, an appellate court “give[s] almost total deference to a trial

court’s express or implied determination of historical facts….” State v. Ross, 32

S.W.3d 853, 856 (Tex. Crim. App. 2000); see Valtierra v. State, 310 S.W.3d 442,

447 (Tex. Crim. App. 2010). In the second portion of the review, an appellate

court evaluates de novo the trial court’s application of the law to the facts.

Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013).

       In a hearing on a defendant’s motion to suppress, the trial court is the sole

factfinder and judge of the credibility of the witnesses, and is the exclusive arbiter

of the weight to be given to the witnesses’ testimony and evidence admitted.

Valtierra, 310 S.W.3d at 447. A trial court is entitled to believe or disbelieve all or

                                          5
any part of any witness’s testimony, even if that testimony is uncontroverted.

Valtierra, 310 S.W.3d at 447; Ross, 32 S.W.3d at 855. A reviewing court should

be especially deferential to a trial court’s determination of historical facts that turn

on the trial court’s evaluation of the credibility of the witnesses because the trial

court was best able “to observe the witness[es’] demeanor and appearance.”

Valtierra, 310 S.W.3d at 447.

      If the trial court makes express findings of fact, an appellate court “view[s]

the evidence in the light most favorable to [the trial court’s] ruling and

determine[s] whether the evidence supports [those] factual findings.” Id. When

findings of fact are not entered by a trial court, a reviewing court still views the

evidence in the light most favorable to the trial court’s ruling, but also “‘assume[s]

[that] the trial court made implicit findings of fact that support its ruling[,] as long

as those findings are supported by the record.’” Valtierra, 310 S.W.3d at 447

(quoting Harrison v. State, 205 S.W.3d 549, 552 (Tex. Crim. App. 2006)); Ross,

32 S.W.3d at 855.

      A trial court does not abuse its discretion by denying a motion to suppress

unless that decision lies outside the “zone of reasonable disagreement.” Martinez

v. State, 358 S.W.3d 919, 922 (Tex. Crim. App. 2011); State v. Dixon, 206 S.W.3d

587, 590 (Tex. Crim. App. 2006). As a general rule, appellate courts view the

evidence in the light most favorable to the trial court’s ruling and, thus, should

                                           6
“afford the prevailing party ‘the strongest legitimate view of the evidence and all

reasonable inferences that may be drawn from that evidence.’” State v. Woodard,

341 S.W.3d 404, 410 (Tex. Crim. App. 2011). Further, a reviewing court must

affirm a trial court’s ruling to deny a motion to suppress “if that ruling is

‘reasonably supported by the record and is correct on any theory of law applicable

to the case.’” Valtierra, 310 S.W.3d at 447-48 (quoting Dixon, 206 S.W.3d at

590).

   II. Reasonable Suspicion to Initiate a Traffic Stop

        A traffic stop, like any other investigative detention, requires a police officer

to have reasonable suspicion of criminal activity. See Abney v. State, 394 S.W.3d

542, 548 (Tex. Crim. App. 2013); Miller v. State, 418 S.W.3d 692, 696 (Tex.

App.—Houston [14th Dist.] 2013, pet. ref’d) (“If an officer has a reasonable basis

for suspecting a person has committed a traffic offense, then the officer legally

may initiate a traffic stop.”).      Reasonable suspicion exists if the officer has

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

facts, would lead the officer to reasonably suspect that a particular person is, has

been, or soon will be engaged in criminal activity. Abney, 394 S.W.3d at 548;

Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). The State does not

have to establish with absolute certainty that a crime occurred or was underway;




                                            7
rather, the State must simply meet its burden of proving that, under the totality of

the circumstances, the seizure was reasonable. Abney, 394 S.W.3d at 548.

      Courts evaluate the reasonableness of the detention objectively, disregarding

the actual subjective intent or motive of the detaining officer. See Terry v. Ohio,

392 U.S. 1, 21-22 (1968) (“[I]n making [the] assessment [regarding the

reasonableness of a detention,] it is imperative that the facts be judged against an

objective standard: would the facts available to the officer at the moment of the

seizure...‘warrant a man of reasonable caution in the belief’ that the action taken

was appropriate?”) (quoting Carroll v. United States, 267 U.S. 132 (1925)); State

v. Elias, 339 S.W.3d 667, 674 (Tex. Crim. App. 2011). Thus, an officer’s stated

purpose for a traffic stop can neither validate an illegal stop nor invalidate a legal

stop because the stop’s legality rests on the totality of the circumstances, viewed

objectively.”   Zuniga-Hernandez v. State, No. 14-14-00346-CR, 2015 WL

4930576, at *2 (Tex. App.—Houston [14th Dist.] Aug. 18, 2015, no. pet. h.);

Miller, 418 S.W.3d at 696.

   III.   The Trial Court Properly Denied Appellant’s Motions to Suppress upon
          Concluding that the Police had Reasonable Suspicion to Detain
          Appellant for a Traffic Offense

      In the suppression hearing, Johnson and Bousalmi testified that they

detained appellant after witnessing him commit five traffic violations: (1) failure




                                          8
to maintain a single lane,2 or failure to drive on the right half of the roadway; 3 (2)

failure to stop at a stop sign;4 (3) failure to signal a turn (onto Whitter);5 (4) failure

to signal a turn (onto Wildforest);6 and (5) failure to signal a turn (into the

driveway of the residence on Wildforest).7 The deputies unwaveringly explained

that they had a clear and unobstructed view of appellant’s vehicle when they

observed those infractions; that it was daytime and the weather was clear; and that

neither the position of the sun nor the tint on the patrol car’s windows affected

visibility. (RR II – 19-20, 30, 48, 55-56, 63-64, 68).

       The State also proffered a video of the deputies’ pursuit and stop of

appellant, recorded by the video equipment mounted on the dashboard of

Johnson’s patrol car. See (RR IV – SX 2). The video confirms that appellant

failed to signal his turn into the driveway, but does not show appellant’s first four

traffic violations. Id. Johnson explained that his video-recording equipment was

functioning properly on the offense date, but that the first four infractions are not




2
  See TEX. TRANSP. CODE ANN. § 545.060.
3
  See TEX. TRANSP. CODE ANN. § 545.051(a).
4
  See TEX. TRANSP. CODE ANN. § 544.010.
5
  See TEX. TRANSP. CODE ANN. § 545.104.
6
  See TEX. TRANSP. CODE ANN. § 545.104.
7
  See TEX. TRANSP. CODE ANN. § 545.104; see also Krug v. State, 86 S.W.3d 764, 766-67 (Tex.
App.—El Paso 2002, pet. ref’d) (holding that Transportation Code Section 545.104(a) applies to
a vehicle turning into a private driveway and, thus, the defendant’s failure to signal such a turn
so constituted a traffic violation).
                                                9
apparent on the video because of the way that Johnson’s patrol car was positioned,

relative to appellant’s vehicle, during the events leading up to the stop:

      The dash cam would not show, you know, the turn signals due to the
      way my patrol car was positioned. My patrol vehicle was positioned
      westbound, but then I was facing northbound watching for the
      probable cause for the defendant to display. Also, when traveling
      north on Saratoga, once again, my camera was pointed northbound
      and [appellant] was traveling westbound on Whitter Forest. (RR II –
      16).

Additionally, Johnson described that, because he is unable to turn or adjust the

view of his dashboard camera while he is operating his patrol car, but he is able to

move his head, he is able to personally observe more than what the camera can

capture on video. (RR II – 47-49). Toward that end, Johnson and Bousalmi both

averred that they saw appellant’s traffic violations from where they sat in

Johnson’s patrol car, even if the fixed-position dashboard camera did not capture

the infractions on the video. (RR II – 19-20, 30, 47-48, 68).

      Appellant testified in his defense at the suppression hearing and claimed that

he drove entirely on the right side of the road, that he came to a full stop at the stop

sign at the intersection of Saratoga and Whitter, and that he used his turn signal at

every turn. (RR II – 87-89, 93).

      At the conclusion of the hearing, the trial court denied appellant’s motions to

suppress and orally made the following findings of fact and conclusions of law, in

pertinent part:

                                          10
The Court makes the finding that the detention was by way of a traffic
stop and that there was no warrant that existed for that traffic stop.
And it is that traffic stop and the probable cause for the traffic stop
which is at issue in the hearing. I make the finding that the officers,
Officer Johnson and Officer Bousalmi, testified to five different – five
separate and distinct reasons for a traffic stop.

And the Court makes the findings that they were articulated as first
being a stop for driving into the lane of oncoming traffic or not
remaining in a single lane of traffic along the drive of Saratoga Forest
Drive, which was testified to by both Officer Johnson and Officer
Bousalmi. The second was an articulated reason for the stop, for
failure to stop at a stop sign at the corner of Saratoga and Whitter.
And that was testified to by both Officer Johnson and Officer
Bousalmi.

The third reason was for failure to signal a turn at the corner of
Saratoga and Whitter. The fourth one would be for failure to signal a
turn at the corner of Whitter and Wildforest. And the fifth one will be
failure to signal a turn from Wildforest into the driveway at 8711
Wildforest. And both officers testified to those three different failure
to signal locations.

I make the finding that there was a videotape of the stop and 30
seconds before the stop. And I do make a finding that on that
videotape it did not clearly show four out of those five violations. I
do make a finding that although the violations were not shown on
videotape, the videotape did not contradict the officers’ testimony.
The violations just were not shown.

And I make a finding that the officers did explain a reason, an
objective reason for why four out of the five violations were not
shown on the videotape of the traffic stop, but that the final violation
that they articulated, which would be the turn from Wildforest Drive
into and onto the driveway at 8711 Wildforest, that was shown on the
videotape that was provided from the officers’ patrol vehicle.

The Court finds that the officers’ testimony was credible as to all of
the reasons articulated, in spite of the fact that four of the five were
not shown on the videotape from the officers’ patrol vehicle. And I
                                  11
      find that Officer Johnson had an objectively reasonable suspicion that
      a traffic violation had occurred before stopping [appellant’s] vehicle.

      I find the government did prove by a preponderance of the evidence
      that no Fourth Amendment violation of [appellant’s] rights had
      occurred as a result of this traffic stop, and that the totality of the
      circumstances -- that under the totality of the circumstances and the
      evidence presented, that the stop was reasonable because the police
      officers did have probable cause to detain [appellant] for traffic
      violations observed in Inwood Forest Subdivision on July 12th, 2014,
      [sic] and the motion to suppress is denied. (RR III – 4-6).

These findings demonstrate that the trial court, presiding as the sole factfinder and

judge of the witnesses’ credibility, explicitly found the officers’ testimony

regarding appellant’s numerous traffic violations credible, and found appellant’s

contradictory testimony to not be credible.

      The trial court’s findings are entitled to near-total deference because,

contrary to appellant’s supposition, they are not contradicted by indisputable visual

evidence; that is, unlike in Carmouche v. State, 10 S.W.3d 323 (Tex. Crim. App.

2000), cited by appellant, this is not a case where the video irrefutably shows that

the circumstances were not as the officers testified. See Carmouche, 10 S.W.3d at

332 (refusing, in the “narrow circumstances” of the case, to give almost total

deference to the trial court’s finding of voluntary consent when the video of the

interaction “present[ed] indisputable visual evidence contradicting essential

portions of [the officer’s] testimony.”).     Rather, here, the officers’ dashboard

camera was in a fixed position facing out of the front of the patrol car and could

                                         12
not be safely adjusted while the encounter was in progress. (RR II – 47-48). Thus,

the camera was able to record only the scene directly in its forward-facing view as

Johnson maneuvered the vehicle. This means that, although the officers could

physically swivel their heads to view matters occurring to the far left and right of

the patrol car, the dashboard video would not be able to capture such events, or

show any of the peripheral scene beyond the scope of the camera’s fixed vantage

point.

         Accordingly, the video does not definitively corroborate either the deputies’

or appellant’s testimony about appellant’s first four traffic violations—though it

does substantiate the deputies’ account that appellant committed the fifth violation

by failing to signal his turn into the driveway—and, so, it would be inappropriate

for this Court to review the video de novo and disregard the trial court’s findings

regarding the historical facts and the credibility of the witnesses. Instead, this

Court should defer to the trial court’s explicit findings that the deputies personally

saw appellant commit the five traffic violations, given that those findings are

wholly based on the court’s evaluation of the deputies’ credibility, and that they

are not contradicted by indisputable visual evidence. See State v. Duran, 396

S.W.3d 563, 572-74 (Tex. Crim. App. 2013) (asserting that an appellate court must

give “almost total deference” to the trial judge’s fact findings which are based on

the judge’s evaluation of credibility and which are not contradicted by

                                           13
“indisputable visual evidence.”); see also Jaganathan v. State, No. PD-1189-14,

slip op., at *6 (Tex. Crim. App. Sept. 16, 2015) (recognizing that “there is a

difference between what an officer sees during an ongoing event and what [an

appellate    court]    see[s]   when      reviewing     a    video.”),    available    at

http://www.search.txcourts.gov/Case.aspx?cn=PD-1189-14&coa=coscca.

      Because the trial court was in the best position to evaluate the witnesses’

credibility and demeanor, it was not unreasonable for the judge to have credited

Johnson’s and Bousalmi’s testimony that they observed appellant commit all five

of the traffic offenses and, thus, to have concluded from the totality of the

circumstances that the deputies had reasonable suspicion to detain appellant for

any or all those infractions. See Castro v. State, 227 S.W.3d 737, 742-43 (Tex.

Crim. App. 2007) (finding the trial court’s decision to credit the officer’s testimony

that he observed the defendant commit a traffic offense reasonable, given that the

trial judge was in the best position to observe the officer’s credibility and

demeanor); Elias, 339 S.W.3d at 675 (holding that the officer’s testimony that the

defendant failed to properly signal a turn, when viewed objectively, supported a

legal conclusion that there existed at least a reasonable suspicion that the defendant

had committed a traffic infraction). The trial court’s decision in this regard was

appropriate even if this Court determines that Johnson incorrectly identified

appellant’s first traffic offense, initially, as failure to maintain a single lane because

                                           14
Johnson’s subjective, stated belief cannot invalidate his objectively-legal stop of

appellant for failing to drive on the right half of the road, among appellant’s other

infractions. See Elias, 339 S.W.3d at 675 (“[I]t does not matter whether the

objective facts support a detention for the specific offense [that the officer]

intended to detain [the defendant] for as long as the facts otherwise objectively

support a detention for some offense....”) (emphasis in original); Zuniga-

Hernandez, 2015 WL 4930576, at *2 (“An officer’s stated purpose for a traffic

stop can neither validate an illegal stop nor invalidate a legal stop because the

stop’s legality rests on the totality of the circumstances, viewed objectively.”);

Miller, 418 S.W.3d at 696 (same).

      This Court should affirm the trial court’s conclusions that no Fourth

Amendment violation occurred in this case, and that, accordingly, appellant’s

motions to suppress should be denied.

                        

                         CONCLUSION AND PRAYER

      For the foregoing reasons, the State respectfully submits that the trial court

properly denied appellant’s motions to suppress upon concluding that, under the

totality of the circumstances, the police had reasonable suspicion to detain

appellant.   Thus, the State respectfully prays that this Court will overrule

appellant’s complaints on appeal, and will affirm the trial court’s ruling.

                                          15
                                                 Respectfully submitted,


                                                 DEVON ANDERSON
                                                 District Attorney
                                                 Harris County, Texas

                                                 /S/ Melissa Hervey

                                                 MELISSA P. HERVEY
                                                 Assistant District Attorney
                                                 Harris County, Texas
                                                 State Bar Number: 24053741
                                                 1201 Franklin Street, Suite 600
                                                 Houston, Texas 77002
                                                 Telephone (713) 755-5826
                                                 Fax Number (713) 755-5809
                                                 Hervey_Melissa@dao.hctx.net




                     CERTIFICATE OF COMPLIANCE

      Pursuant to Texas Rule of Appellate Procedure 9.4(i), the undersigned

attorney certifies that there are 3,369 words in the foregoing computer-generated

document, based upon the representation provided by Microsoft Word, the word

processing program that was used to create the document, and excluding the

portions of the document exempted by Rule 9.4(i)(1).


                                                 /S/ Melissa Hervey

                                                 MELISSA P. HERVEY
                                                 Assistant District Attorney
                                       16
                                                   Harris County, Texas
                                                   State Bar Number: 24053741
                                                   1201 Franklin Street, Suite 600
                                                   Houston, Texas 77002
                                                   Telephone (713) 755-5826
                                                   Fax Number (713) 755-5809
                                                   Hervey_Melissa@dao.hctx.net




                         CERTIFICATE OF SERVICE

      This is to certify that the undersigned counsel has directed the e-filing

system eFile.TXCourts.gov to serve a true and correct copy of the foregoing

document to Megan E. Smith, appellant’s attorney of record on appeal, on

September 16, 2015, at the following e-mail address, through the electronic service

system provided by eFile.TXCourts.gov:

      megan@megansmithlaw.com


                                                   /S/ Melissa Hervey

                                                   MELISSA P. HERVEY
                                                   Assistant District Attorney
                                                   Harris County, Texas
                                                   State Bar Number: 24053741
                                                   1201 Franklin Street, Suite 600
                                                   Houston, Texas 77002
                                                   Telephone (713) 755-5826
                                                   Fax Number (713) 755-5809
                                                   Hervey_Melissa@dao.hctx.net


                                        17
