                                                                        PD-1129-15
                        PD-1129-15                     COURT OF CRIMINAL APPEALS
                                                                       AUSTIN, TEXAS
                                                     Transmitted 8/31/2015 12:00:00 AM
                                                        Accepted 9/1/2015 11:24:31 AM
                                                                        ABEL ACOSTA
          COURT OF CRIMINAL APPEALS                                             CLERK



                           PD-____-15

      Sergio Manuel Nava, Jr., Appellant,
                       v.
           State of Texas, Appellee.
                    On Discretionary Review from
                         No. 05-14-00242-CR
                    Fifth Court of Appeals, Dallas

                On Appeal from No. CR12-1388
             County Court at Law, Rockwall County



       Petition for Discretionary Review

   Patrick Short
   603 White Hills Drive
   Rockwall, Texas 75087
   Phone: 972-771-1441
   Fax: 972-771-0377
   patrick@patrickshort.com
   Texas Bar No. 21216900
   Attorney for Appellant


                ORAL ARGUMENT NOT REQUESTED




September 1, 2015
                   Identity of Parties, Counsel, and Judges


Sergio Manuel Nava, Jr., Appellant

Patrick Short, Attorney for Appellant at Suppression Hearing and on Appeal,
603 White Hills Drive, Rockwall, Texas 75087, phone (972) 771-1441, fax (972)
771-0377, email: patrick@patrickshort.com

State of Texas, Appellee.

Kenda Culpepper, Rockwall County District Attorney, Attorney for Appellee,
1111 E. YellowJacket Lane Suite 201, Rockwall, Texas 75087, phone (972) 204-
6800, fax (972) 204-6809.

Jeff Shell, Rockwall County Assistant District Attorney, Appellate Division,
Attorney for Appellee on Appeal, 1111 E. YellowJacket Lane Suite 201,
Rockwall, Texas 75087, phone (972) 204-6800, fax (972) 204-6809.

Jennifer Barnes Molina, Rockwall County Assistant District Attorney,
Attorney for Appellee at Suppression Hearing, 1111 E. YellowJacket Lane
Suite 201, Rockwall, Texas 75087, phone (972) 204-6800, fax (972) 204-6809.

Jon Thatcher, Rockwall County Assistant District Attorney, Attorney for
Appellee at Suppression Hearing, 1111 E. YellowJacket Lane Suite 201,
Rockwall, Texas 75087, phone (972) 204-6800, fax (972) 204-6809.

Hon. Brian Williams, Presiding Judge at Suppression Hearing, Rockwall
County Court at Law, 1111 E. YellowJacket Lane Suite 403, Rockwall, Texas
75087, phone (972) 204-6412, fax (972) 204-6419.




                                  Page 2 of 27
                                               Table of Contents

Identity of Parties, Counsel, and Judges .............................................................. 2

Table of Contents .................................................................................................... 3

Table of Authorities ............................................................................................... 5

Statement Regarding Oral Argument ................................................................. 8

Statement of the Case ............................................................................................. 9

Procedural History ............................................................................................... 11

Questions or Grounds for Review....................................................................... 13

Argument .............................................................................................................. 14

Question for Review One: In violation of the Fourth and
Fourteenth Amendments of the United States Constitution, the	  
Court	   of	   Appeals	   erred	   when	   it	   affirmed	   the	   trial	   court’s	  
denial	   of	   Appellant’s motion to suppress evidence because
there was no reasonable suspicion appellant committed any
crime or driving violation. ................................................................................. 14

Question for Review Two: In violation of the Fourth and
Fourteenth Amendments of the United States Constitution, the
Court of Appeals erred when it affirmed the trial court’s
denial of Appellant’s motion to suppress evidence because the
totality of the circumstances did not support reasonable
suspicion or probable cause that appellant committed an
offense justifying the stop. .................................................................................. 21

Conclusion and Prayer......................................................................................... 25

Certificate of Service ............................................................................................ 26

Certificate of Compliance with Tex. Rule App. Proc. 9.4.................................. 27


                                                     Page 3 of 27
Appendix A: Findings of Fact and Conclusions of Law

Appendix B: Judgment and Opinion of the Court of Appeals in Nava v. State,
No. 05-14-00242-CR, 2015 WL 3936819 (Tex. App. June 26, 2015)
(Memorandum Opinion).




                                Page 4 of 27
                                              Table of Authorities

Cases

Alabama v. White, 496 U.S. 325 (1990) .............................................. 15, 16, 17, 21

Amador v. State, 275 S.W.3d 872 (Tex. Crim. App. 2009) ................................... 19

Arizpe v. State, 308 S.W.3d 89 (Tex. App. San Antonio

2010, no pet.) ............................................................................................. 16, 17, 21

Armstrong v. State, 550 S.W.2d 25 (Tex. Crim. App. 1977) ................................. 16

Brother v. State, 166 S.W.3d 255 (Tex. Crim. App. 2005) ................................... 16

Brown v. Texas, 433 U.S. 47 (1979) ...................................................................... 16

Coolidge v. New Hampshire, 403 U.S. 443 (1971) ............................................... 15

Curtis v. State, 238 S.W.3d 376, 380 (Tex. Crim. App. 2007) .............................. 21

Florida v. Royer, 460 U.S. 491 (1983)................................................................... 16

Ford v. State, 158 S.W.3d 488 (Tex. Crim. App. 2005) ........................... 14, 17, 21

Garcia v. State, 43 S.W.3d 527 (Tex. Crim. App. 2001) ................................ 15, 16

Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997) .............................. 19

Kelly v. State, 721 S.W.2d 586 (Tex. App. Houston [1st Dist.]

1986, no pet.). ........................................................................................................ 16

Livingston v. State, 731 S.W.2d 744 (Tex. App. Beaumont

1987, pet. ref.) ........................................................................................................ 15

Martinez v. State, 348 S.W.3d 919 (Tex. Crim. App. 2011) ........................... 15, 17

                                                      Page 5 of 27
Pesina v. State, 676 S.W.2d 122 (Tex. Crim. App. 1984) ............................... 17, 21

Pham v. State, 175 S.W.3d 767 (Tex. Crim. App. 2005) ................................. 19, 20

Rhodes v. State, 945 S.W.2d 115 (Tex. Crim. App. 1997),

cert. denied, 522 U.S. 894 (1997) ................................................................... 15, 17

State v. Bryant, 161 S.W.3d 758 (Tex. App. Fort Worth 2005, no pet.) ................ 16

State v. Cullen, 227 S.W.3d 278 (Tex. App. San Antonio 2007, pet. ref.) ...... 17, 21

Wehring v. State, 276 S.W.3d 666 (2008) .............................................................. 18

Zayas v. State, 972 S.W.2d 779 (Tex. App. Corpus Christi

1998, pet. ref.) ................................................................................................. 15, 17


Constitutions

U.S. Const. Amend. IV .................................................................................. passim

U.S. Const. Amend. XIV ................................................................................ passim

Tex. Const. Art. 1, § 9 ....................................................................................... 9, 11


Statutes and Rules

Tex. Code Crim. Proc. Art. 14.01 .......................................................................... 20

Tex. Code Crim. Proc. Art. 38.23 .......................................................... 9, 11, 19, 20

Tex. Pen. Code § 49.04 .......................................................................................... 11

Tex. Rule App. Proc. 9.4 ........................................................................................ 27


                                                    Page 6 of 27
Tex. Rule App. Proc. 9.5 ........................................................................................ 26

Tex. Rule App. Proc. 68.4 ........................................................................................ 8

Tex. Rule App. Proc. 68.11 .................................................................................... 26

Tex. Transp. Code § 545.051 ............................................. 14, 17, 18, 21, 22, 23, 24




                                                  Page 7 of 27
                      Statement Regarding Oral Argument

      Appellant does not request oral argument. See Tex. Rule App. Proc. 68.4(c).

This is a meritorious appeal of a criminal case. Appellant believes that the facts

and legal arguments are adequately presented in this petition.




                                    Page 8 of 27
To The Honorable Judges of the Court of Criminal Appeals:

       Sergio Manuel Nava, Jr., Appellant, respectfully submits this petition for

discretionary review:

                                Statement of the Case

       This petition for discretionary review requests that this Court review the

judgment and opinion of the Fifth Court of Appeals in Nava v. State, No. 05-14-

00242-CR, 2015 WL 3936819 (Tex. App. June 26, 2015) (Memorandum Opinion).

       Appellant was stopped by Deputy Chris Mitchell of the Rockwall County

Sheriff's Department on August 14, 2012, on the south service road of Interstate

30, at approximately mile marker 73. (RR, Vol. 2 pgs. 8, 9, 10)1. Such stop

violated the Fourth and Fourteenth Amendments of the United States Constitution,

and/or Article 1, Section 9 of the Texas Constitution and the statutory violation

pursuant to Texas Code of Criminal Procedure Article 38.23.

       The trial court erred by denying Appellant’s motion to suppress evidence

because based upon the evidence (1) there was not reasonable suspicion that

Appellant committed any crime or driving violation that was not attenuated from

the only violation, and (2) the totality of the circumstances did not support

1
  The Clerk’s Record, is comprised of three volumes: Clerk’s Record, Revised Clerk’s Record
and Supplemental Clerk’s Record. Apparently the Clerk’s Record was numbered incorrectly so
referenced in this Petition will be “RCR” and “CR-Supp.” followed by the page number of the
Clerk’s Record. The Reporter’s Record, comprised of four volumes, is referenced as “RR”
followed by the volume number and the page number, so page 2 of volume 2 is referenced as
“RR2, 2.”
                                         Page 9 of 27
reasonable suspicion or probable cause that appellant committed an offense

justifying the stop.




                               Page 10 of 27
                                  Procedural History

      This case is an appeal of a negotiated plea of guilty following the trial

court’s denial of Appellant’s Motion to Suppress, entered on February 20, 2014 in

Rockwall County Court at Law under Cause Number CR12-1388. Appellant was

charged by information for Driving While Intoxicated under Texas Penal Code

§ 49.04. The information alleged that on or about August 14, 2012, Appellant

operated a motor vehicle in a public place while not having the normal use of

mental or physical faculties by reason of the introduction of alcohol, a controlled

substance, a drug, a dangerous drug, or a combination of two or more such

substances, or any other substance into his body, or by having an alcohol

concentration of at least 0.08.

                                  Motion to Suppress

      Prior to trial, Appellant filed a motion to suppress evidence, asking the court

to suppress all the evidence obtained after the stop of Appellant’s vehicle including

but not limited to the following evidence: (1) a alcohol concentration test results,

(2) HGN results, (3) field sobriety test results, (4) any video depicting events

transpiring after the stop, (5) video and opinions of the arresting officer found to be

formed after the stop. U.S. Const. Amend. IV & XIV; Tex. Const. Art. 1, §9; Tex.

Code Crim. Proc. Art. 38.23. The court denied Appellant’s Motion to Suppress

evidence on February 7, 2014.

                                     Page 11 of 27
      After the trial court signed its order denying the motion to suppress,

appellant entered a negotiated plea of guilty and the trial court signed its Judgment

and Order Granting Community Supervision. (CR, pgs. 55-57). The trial court

sentenced appellant to 365 days in the Rockwall County Jail, but the sentence was

suspended and appellant was placed on community supervision for fifteen (15)

months and ordered to pay a fine of $800, along with court costs, and was required

to comply with the other terms and conditions of community supervision. (CR,

pgs. 55-57).

      On or about July 18, 2014, Appellant filed Defendant’s Request for Findings

of Fact and Conclusions of Law. (CR, pgs. 4-5). This Court abated Appellant’s

appeal and the trial court’s findings of fact and conclusions of law were filed on

August 21, 2014. (See Appendix A).

                                 Court of Appeals

      Appellant appealed the conviction. On June 26, 2015, the Fifth Court of

Appeals affirmed the conviction. Nava v. State, No. 05-14-00242-CR, 2015 WL

3936819 (Tex. App. June 26, 2015) (Memorandum Opinion). (See Appendix B).

Appellant filed a Motion for Rehearing on July 13, 2015, and the Court of Appeals

denied the motion on July 30, 2015. This petition for discretionary review follows.




                                    Page 12 of 27
                       Questions or Grounds for Review

      The first question is whether, in violation of the Fourth and Fourteenth

Amendments of the United States Constitution, the Court of Appeals erred in

affirming the trial court’s denial of Appellant’s motion to suppress because there

was no reasonable suspicion appellant committed any crime or driving violation?

      The pages of the record in which the first matter complained of are found

throughout the Reporter’s Record and Clerk’s Record; especially on page 11 and

21 of the Reporter’s Record, Volume 2.

      The second question is whether, in violation of the Fourth and Fourteenth

Amendments of the United States Constitution, the Court of Appeals erred when it

affirmed the trial court’s denial of Appellant’s motion to suppress evidence

because the totality of the circumstances did not support reasonable suspicion or

probable cause that appellant committed an offense justifying the stop?

      The pages of the record in which the second matter complained of are also

found throughout the record; especially on the following pages: Reporter’s Record

Volume 2, pages 11, 2, 13, and 17.




                                     Page 13 of 27
                                          Argument

I.	   Question for Review One: In violation of the Fourth and Fourteenth
Amendments of the United States Constitution, the	  Court	  of	  Appeals	  erred	  
when	  it	  affirmed	  the	  trial	  court’s	  denial	  of	  Appellant’s motion to suppress
evidence because there was no reasonable suspicion appellant committed any
crime or driving violation.

A. The opinion of the Court of Appeals ignores the facts and the law.

       In affirming the trial court below, the Court of Appeals relied entirely too

much on the implicit findings the trial court supposedly made in their denial of

Appellant’s motion to suppress. The Court of Appeals determined that the record

and the trial court’s findings support the fact that the “trial court could have

reasonably concluded that Deputy Mitchell had reasonable suspicion to stop

appellant for failing to drive on the right-hand side of the road.” App. B, pg. 8. See

Tex. Transp. Code § 545.051(a).

       The Court of Appeals further makes the conclusory determination that there

was reasonable suspicion Appellant committed a traffic offence. As shown below,

there was no actual violation of the transportation code to constitute “criminal

activity.” See Ford v. State, 158 S.W.3d 488, 492-93 (Tex. Crim. App. 2005)

(Reasonable suspicion exists when, based on the totality of the circumstances, the

officer has articulable facts, when combined with rational inferences, lead the

officer to conclude a person is, has been, or soon will be, engaged in criminal

activity).

                                          Page 14 of 27
      When this Court reviews the reasonableness of the officer’s actions from his

perspective as a reasonable officer at the scene, and not with the advantage of

hindsight, there is no unusual activity on the part of the Appellant in this case. See

Garcia v. State, 43 S.W.3d 527, 531-532 (Tex. Crim. App. 2001); Rhodes v. State,

945 S.W.2d 115, 117-118 (Tex. Crim. App. 1997), cert. denied, 522 U.S. 894

(1997); Zayas v. State, 972 S.W.2d 779, 790 (Tex. App. Corpus Christi 1998, pet.

ref.); Martinez v. State, 348 S.W.3d 919, 923 (Tex. Crim. App. 2011); Alabama v.

White, 496 U.S. 325, 330-332 (1990); U.S. Const. Amend. IV and XIV.

      The Court of Appeals erred in affirming the trial court’s decision to deny

Appellant’s motion to suppress. Thus, Appellant asks the Court of Criminal

Appeals to grant discretionary review.

B. Reasonable suspicion to stop a motorist in general

      Vehicles are entitled to the same basic Fourth Amendment protection against

unreasonable search and seizure as other personal property. Coolidge v. New

Hampshire, 403 U.S. 443, 456-64 (1971); Livingston v. State, 731 S.W.2d 744, 747

(Tex.App. Beaumont 1987, pet. ref.). In order to stop and detain a motorist without

running afoul of the Fourth and Fourteenth Amendments and Texas Constitution

Article 1, § 9, a police officer must have reasonable suspicion based upon specific

and articulable facts that the motorist engaged in or is about to engage in criminal

activity. Brother v. State, 166 S.W.3d 255, 257 (Tex. Crim. App. 2005). These

                                    Page 15 of 27
facts must amount to more than a mere suspicion, but need not be based upon an

officer’s personal observations. Id. at 258-59; Arizpe v. State, 308 S.W.3d at 91-92.

      An encounter is not considered a “seizure’” for Fourth Amendment

purposes, and there is no investigative detention unless a detention has occurred.

Florida v. Royer, 460 U.S. 491, 497-498 (1983); State v. Bryant, 161 S.W.3d 758,

761 (Tex.App. Fort Worth 2005, no pet.). An investigative detention is permitted

only if the officer has a reasonable suspicion, based on objective facts, the

individual is involved in criminal activity. See Brown v. Texas, 433 U.S. 47, 52

(1979); Kelly v. State, 721 S.W.2d 586, 587 (Tex.App. Houston [1st Dist.] 1986,

no pet.). Reasonable suspicion is suspicion founded on articulable facts that, in

light of the officer’s experience and general knowledge, lead to the reasonable

conclusion that criminal activity is being conducted and the detained person is

connected with the activity. Armstrong v. State, 550 S.W.2d 25, 30-31 (Tex. Crim.

App. 1977); Alabama, 496 U.S. at 331-32.

      Reasonable suspicion is an objective determination, so the particular

motivation of the officer for making an investigatory detention does not matter if

there was an objectively reasonable basis for the officer’s actions. See Garcia, 43

S.W.3d at 531. The reasonableness of an officer’s actions is judged from the

perspective of a reasonable officer at the scene, without the advantage of hindsight;

allowances are made under rapidly changing circumstances when officers must

                                    Page 16 of 27
make quick decisions. Id. at 531-532; Rhodes, 945 S.W.2d at 117-8; Zayas, 972

S.W.2d at 790.

      In Martinez, the Court of Criminal Appeals held “[T]he determination of

reasonable suspicion is dependent upon both the content of the information known

to the officer and its degree of reliability. . . .Those facts must show unusual

activity, some evidence that connects the detainee to the unusual activity, and some

indication that the unusual activity is related to crime.” Martinez, 348 S.W.3d at

923; Alabama, 496 U.S. at 330.        This determination is made by objectively

considering the “totality of the circumstances,” which includes both the quantity

and quality of information. Id., Ford, 158 S.W.3d at 492-93; Arizpe, 308 S.W.3d

at 92; State v. Cullen, 227 S.W.3d 278, 282 (Tex. App. San Antonio 2007, pet.

ref.); Pesina v. State, 676 S.W.2d 122, 127 (Tex. Crim. App. 1984).

C. Findings of fact were unsupported by the record.

      In violation of the Fourth and Fourteenth Amendments of the United States

Constitution, the trial court erred by denying Appellant’s motion to suppress

evidence because based upon the evidence, (a) the stop was predicated on findings

of fact unsupported by the record (a violation of Texas Transp. Code Sec. 545.051)

because the video tape evidence and Deputy Mitchell’s own testimony show the

only time the Appellant could have crossed over and driven on the left side of the

roadway observed by Deputy Mitchell was when Mitchell was approaching Nava

                                    Page 17 of 27
before they passed each other. There is no testimonial evidence of this occurring

directly or by any reasonable inference of the trial court; therefore, Finding of Fact

#2 (“…cross over the solid-center line into the oncoming lane…”) is not supported

by the record. App. A.

      Although the findings of fact and conclusions of law state a violation of

Texas Transportation Code 545.051, this is an issue of law that is reviewed de

novo by this appellate court and not an issue that is given nearly total deference.

Wehring v. State, 276 S.W. 3d 666, 669, (Ct. App. – Texarkana, 2008).

       The 29 seconds of video tape evidence and Deputy Mitchell’s own

testimony evidences that the only time Nava could have driven in violation of Tex.

Transp. Code Sec. 545.051 was before they passed each other going in opposite

directions (Appellant eastbound, and Deputy Mitchell westbound) on the service

road before Deputy Mitchell made his U-turn. Deputy Mitchell’s testimony clearly

states he checked his side-view mirror after only noting speed (30/60) in his

testimony without referencing that Appellant had also crossed over into the

oncoming lane before they passed one another on the service road. (RR2, 11:1-9,

21:21-23; State’s Exhibit “1” DVD In car Video). The State relied on the fact that

Deputy Mitchell testified that Appellant “…cross[ed] over the solid-center line into

the oncoming lane…” Id. This is a conclusory statement. The record on appeal

does not support Deputy Mitchell’s assertion. Id.

                                     Page 18 of 27
      The trial court did not make a finding of fact regarding the credibility and

demeanor of any witness. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App.

1997).

E. The State has the burden to prove reasonableness of the initial stop.

      The burden in this case is on the State to prove the reasonableness of the

seizure, which was the initial stop. A defendant who alleges a violation of

the Fourth Amendment has the burden of producing evidence that rebuts the

presumption of proper police conduct. Amador v. State, 275 S.W.3d 872, 878 (Tex.

Crim. App. 2009). The defendant carries this burden simply by establishing that

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

the reasonableness of the seizure. Id. The stop of defendant by the officer clearly

was without a warrant, so the State now has the burden. However, the State cannot

meet it.

      In addition, a defendant who moves for suppression under Texas Code of

Criminal Procedure Article 38.23 due to the violation of a statute has the burden of

producing evidence of a statutory violation. Pham v. State, 175 S.W.3d 767, 772

(Tex.Crim.App. 2005). When the defendant meets this burden, the State bears the

burden to prove compliance with the Statute. Id. Article 38.23(a) provides that

“[N]o evidence obtained by an officer or other person in violation of any

provisions of the Constitution or laws of the State of Texas, or of the Constitution

                                    Page 19 of 27
or laws of the United States of America, shall be admitted in evidence against the

accused on the trial of any criminal case.” Tex. Code Crim. Proc. Art. 38.23(a).

Article 38.23(b)’s good-faith exception does not apply because no warrant is at

play here. Tex. Code Crim. Proc. Art. 38.23(b). Thus, Appellant met his burden of

producing evidence of a statutory violation; the State must now prove compliance

with Article 14.01. Pham, 175 S.W.3d at 772; Tex. Code Crim. Proc. Art. 38.23(a).




                                   Page 20 of 27
II. Question for Review Two: In violation of the Fourth and Fourteenth
Amendments of the United States Constitution, the Court of Appeals erred
when it affirmed the trial court’s denial of Appellant’s motion to suppress
evidence because the totality of the circumstances did not support reasonable
suspicion or probable cause that appellant committed an offense justifying the
stop.

      In affirming the decision of the trial court, the Court of Appeals concluded

that, as a matter of law, Appellant violated the transportation code and this

violation was the reasonable suspicion for Deputy Mitchell’s DWI investigation. A

reasonable suspicion determination is made by objectively considering the totality

of circumstances. Ford v. State, 158 S.W.3d 488, 492-493 (Tex. Crim. App. 2005).

“Totality of the circumstances” includes both the quantity and quality of

information. Alabama v. White, 496 U.S. at 330; Arizpe v. State, 308 S.W.3d at 92;

State v. Cullen, 227 S.W.3d 278, 282 (Tex. App. San Antonio 2007, pet. ref.);

Pesina v. State, 676 S.W.2d 122, 127 (Tex. Crim. App. 1984). In this case, there is

no totality of the circumstances because there was no violation of any traffic laws

committed.

      This court of appeals erred in issuing its decision in that this court’s

decision recognizes that “...even if Deputy Mitchell did not have reasonable

suspicion to stop appellant based on a violation of [the Texas Transportation

Code] section 545.051 he had reasonable suspicion to stop appellant for DWI.

Whether an officer has reasonable suspicion to stop a motorist for DWI depends


                                   Page 21 of 27
on the totality of the circumstances. Curtis v. State, 238 S.W.3d 376, 380 (Tex.

Crim. App. 2007).” App. B, pg. 8. [Because this court of appeals recognizes the

diametrically opposed testimony regarding this specific articulable fact and

alleged violation based on Deputy Mitchell’s testimony]. And, that the trial court

specifically asked the State of Texas which statute it was relying on and it

responded—Texas Transportation Code § 545.051. (RR-37: 7, 14). This court of

appeals in its background and procedural history even notes “the vehicle never

crosses it [center yellow line] entirely.” App. B, pg. 8. Thus, Texas

Transportation Code section 545.051 clearly was not violated.

      If Deputy Mitchell did not have reasonable suspicion to stop appellant based

on a violation of section 545.051, the only articulable facts left would be: 1)

appellant was going below the speed limit and 2) “swerving within [his] lane a

couple more times...” This would have been in only 29 seconds of observation—

the “totality of the circumstances.”

      Deputy Mitchell testifies that his offense report doesn’t state appellant

crossed over the fog line—thus indicating appellant could not have “swerve[d]”

much less “driven” on the unimproved shoulder of the road. (RR2, 24) This is also

noted by this court of appeals because it notes that Deputy Mitchell did not include

in his report that appellant did “swerve” on the unimproved shoulder of the road in

footnote 1 of its opinion. App. B, pg. 2. Secondarily, Deputy Mitchell testified that

                                       Page 22 of 27
he “document[ed]” “driving on a unimproved shoulder” in his report when he did

not. (RR2, 14). Therefore, this is not an articulable fact to support reasonable

suspicion of driving while intoxicated because Mitchell admittedly did not include

this in his report, yet testified he did. Is Mitchell’s memory credible?

      In addition, the trial court stood silent on the issue of the officer’s credibility.

It made no finding of fact regarding the credibility of the officer’s testimony.

      The only finding of fact that could plausibly be based on credible evidence

would be findings of fact number 1—dealing with speed and swerve within its

lane. App. A. And, because of this, conclusion of law number 1 could not be based

on the credible evidence. Clearly, conclusion of law number 2 is not accurate in

law or fact because even if one believed that appellant “drove” or even “swerved”

one time on the unimproved shoulder of the road, it would not violate section

545.051 of the Texas Transportation Code. App. A.

      The court of appeals notes that “Deputy Mitchell’s testimony that he saw

appellant’s vehicle cross over the solid center line into the oncoming lane of

traffic, and then return to the ‘proper lane’, was sufficient to create a reasonable

suspicion that a traffic violation was in progress” is a correct statement of the law.

App. B, pg. 8. However, the videotape evidence does not support this. Even

Mitchell’s own testimony doesn’t support this assertion. No doubt Deputy

Mitchell’s testimony states appellant’s vehicle crossed over the solid center line—

                                      Page 23 of 27
but when? If we don’t know when, then the trial court could not have reasonably

concluded Deputy Mitchell had reasonable suspicion to stop appellant for failing to

drive on the right-hand side of the road. Tex. Transp. Code § 545.051(a). Thus,

leaving the trial court to find reasonable suspicion that appellant was driving while

intoxicated based on only appellant’s speed (which Mitchell testified was not a

consideration, (RR2, 31)) and swerving within his lane as being the only

articulable facts to support the totality of the circumstances test.




                                      Page 24 of 27
                              Conclusion and Prayer

      The Court of Appeals erred when it affirmed the trial court’s denial of

Appellant’s motion to suppress evidence because based upon the evidence, (a)

there was no reasonable suspicion appellant committed any crime or driving

violation, and (b) the totality of the circumstances did not support reasonable

suspicion or probable cause that appellant committed an offense justifying the stop.

      For the reasons stated in this petition, Appellant respectfully prays this Court

grant discretionary review, find that the Court of Appeals erred, reverse the

judgment of the Court of Appeals, grant the relief requested in this petition, and

remand this case back to the trial court for further proceedings.




                                       Respectfully submitted,

                                       Patrick Short
                                       603 White Hills Drive
                                       Rockwall, Texas 75087
                                       Phone: 972-771-1441
                                       Fax: 972-771-0377
                                       patrick@patrickshort.com
                                       Texas Bar No. 21216900
                                       Attorney for Appellant


                                       /s/ Patrick Short

                                       Patrick Short


                                     Page 25 of 27
                             Certificate of Service

      This certifies that on August 30, 2015, a true and correct copy of the

foregoing document was forwarded to all counsel of record via the following: See

Tex. Rule App. Proc. 9.5 (2014) and 68.11 (2014).

     1. Jeff Shell                                    □ By Fax
        Assistant District Attorney                   □ By Certified Mail, RRR
        Rockwall, Texas                               □ By First Class Mail
        Appellate Section                             □ By Hand-Delivery
        1111 E. Yellowjacket Lane, Ste. 201           □X Email Delivery
        Rockwall, Texas 75087




                                     /s/ Patrick Short

                                     Patrick Short




                                  Page 26 of 27
            Certificate of Compliance with Tex. Rule App. Proc. 9.4

      This certifies that this document complies with the type-volume limitations
because this document is computer-generated and does not exceed 4,500 words.
See Tex. Rule App. Proc. 9.4(i)(2)(D). Using the word-count feature of Microsoft
Word, the undersigned certifies that this document contains 2,488 words in the
document except in the following sections: caption, identity of parties and counsel,
statement regarding oral argument, table of contents, index of authorities,
statement of the case, statement of issues presented, statement of jurisdiction,
statement of procedural history, signature, proof of service, certification, certificate
of compliance, and appendix. This document also complies with the typeface
requirements because it has been prepared in a proportionally-spaced typeface
using 14-point font. See Tex. Rule App. Proc. 9.4 (2014).



                                        /s/ Patrick Short

                                        Patrick Short




                                     Page 27 of 27
AFFIRMED; Opinion Filed June 26, 2015.




                                             In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      No. 05-14-00242-CR

                         SERGIO MANUEL NAVA, JR., Appellant
                                        V.
                            THE STATE OF TEXAS, Appellee

                          On Appeal from the County Court at Law
                                  Rockwall County, Texas
                             Trial Court Cause No. CR12-1388

                            MEMORANDUM OPINION
                 Before Chief Justice Wright, Justice Myers, and Justice Evans
                                   Opinion by Justice Myers
       Appellant Sergio Manuel Nava, Jr. appeals the trial court’s denial of his pretrial motion to

suppress. In one issue, he argues the trial court erred by denying the motion to suppress because

there was no reasonable suspicion he committed any offense and the totality of the circumstances

does not support reasonable suspicion or probable cause. We affirm.

                          BACKGROUND AND PROCEDURAL HISTORY

       On August 14, 2012, Deputy Chris Mitchell of the Rockwall County Sheriff's

Department saw a vehicle traveling eastbound on the south service road of Interstate 30. It was

traveling at 30 miles an hour in a 60 miles per hour zone. Deputy Mitchell used an in-car radar

to determine the vehicle’s speed. The vehicle was first located at approximately mile marker 73,

just east of the 551 entrance ramp in Rockwall County, Texas. Deputy Mitchell was traveling

westbound and the vehicle was traveling eastbound.
           When the vehicle passed Deputy Mitchell, he looked into his side rearview mirror and the

vehicle appeared to “swerve” onto the unimproved shoulder of the road.1 At that point, the

deputy stopped his police cruiser, made a U-turn, and attempted to catch up to the vehicle. As

Deputy Mitchell approached, he saw the vehicle cross over the solid center line into the

oncoming lane and then return to its “proper lane.” The deputy also observed the vehicle

“swerving within its lane touching the center stripe a couple more times after that.” He initiated

a traffic stop of the vehicle by turning on his overhead red and blue lights. Deputy Mitchell

made the traffic stop at approximately mile marker 74 in Rockwall County.

           The State ultimately charged appellant with the misdemeanor offense of driving while

intoxicated. A DVD containing video from Deputy Mitchell’s in-car video camera was admitted

at trial. When the video begins at 02:52:00 a.m., the image is partially obscured by lines of

static-type interference for several seconds. After that, the video shows the vehicle driving along

the center yellow line and swerving slightly just inside the right lane. The vehicle’s two left tires

touch the yellow line numerous times and go over it several times, but the vehicle never crosses

it entirely. At 02:52:29 a.m., the deputy turns on his overhead lights and initiates the stop of

appellant’s vehicle.

           After the trial court signed its order denying the motion to suppress, appellant entered a

negotiated plea of guilty. The trial court sentenced appellant to 365 days in the Rockwall County

Jail, but the sentence was suspended and appellant was placed on community supervision for

fifteen months and ordered to pay a fine of $800, along with court costs. The trial court issued

the following findings of fact:

           1. Deputy Chris Mitchell of the Rockwall County Sheriff’s Office observed a
           vehicle traveling at 30 miles per hour in a 60 miles per hour zone and swerve
           within it’s [sic] lane.

   1
       Deputy Mitchell testified that he did not include this fact in his report.



                                                                         –2–
       2. Deputy Mitchell also observed the vehicle drive on an unimproved shoulder,
       and cross over the solid center-line into the oncoming lane. These two driving
       infractions happened near mile marker 73 of the Interstate 30 south service road.

       3. Based upon observations of defendant’s driving, Deputy Mitchell became
       suspicious that defendant might be driving while intoxicated.

       4. Deputy Mitchell’s observations occurred while defendant was operating his
       motor vehicle in the County of Rockwall, State of Texas.

       5. Deputy Mitchell initiated the traffic stop in the County of Rockwall.

       6. Deputy Mitchell positively identified the driver as the defendant, Sergio
       Manuel Nava, Jr.

The court’s conclusions of law were as follows:

       [1.] Deputy Mitchell articulated probable cause that defendant drove on an
       unimproved shoulder, and crossed over the solid center-line into the oncoming
       lane.

       [2.] Driving on an unimproved shoulder, and crossing the solid center-line into the
       oncoming lane is a traffic violation under section 545.051 of the Texas
       Transportation Code.

       [3.] The vehicle was seized pursuant to a legal traffic stop.

       [4.] Deputy Mitchell articulated a reasonable belief that defendant was operating
       his vehicle while intoxicated.

                                           DISCUSSION

       In his issue, appellant argues that the trial court erred by denying the motion to suppress

because (1) there was no reasonable suspicion appellant committed any crime or driving

violation and (2) the totality of the circumstances did not support reasonable suspicion or

probable cause that appellant committed an offense justifying the stop.

       We review a trial court’s ruling on a motion to suppress for an abuse of discretion, and

will overturn the trial court’s ruling only if it is outside the zone of reasonable disagreement.

Johnson v. State, 414 S.W.3d 184, 192 (Tex. Crim. App. 2013); Martinez v. State, 348 S.W.3d

919, 922 (Tex. Crim. App. 2011). We apply a bifurcated standard of review, giving almost

complete deference to the trial court’s determination of historical facts and mixed questions of

                                                –3–
law and fact that rely upon an assessment of the credibility and demeanor of a witness, but

applying a de novo standard of review to pure questions of law and mixed questions that do not

depend on credibility determinations. Arguellez v. State, 409 S.W.3d 657, 662 (Tex. Crim. App.

2013); Martinez, 348 S.W.3d at 923.

       The trial court is the sole trier of fact and the judge of the credibility of the witnesses and

the weight to be given to their testimony. Garza v. State, 213 S.W.3d 338, 346 (Tex. Crim. App.

2007). The court may choose to believe or disbelieve any or all of a witness’s testimony, even if

the testimony is uncontroverted, because the court had the opportunity to observe the witness’s

demeanor and appearance. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). If,

as in this case, the trial court issues express findings of fact, we review the evidence in the light

most favorable to the trial court’s ruling and determine whether the evidence supports the factual

findings. Id. We review the trial court’s application of the law of search and seizure to the facts

de novo. Id. We will sustain the trial court’s ruling if it is reasonably supported by the record

and correct under any theory of law applicable to the case. Id.

       A “stop” by a law enforcement officer “amounts to a sufficient intrusion on an

individual’s privacy to implicate the Fourth Amendment’s protections.” Carmouche v. State, 10

S.W.3d 323, 328 (Tex. Crim. App. 2000). However, a law enforcement officer may stop and

briefly detain a person suspected of criminal activity on less information than is constitutionally

required for probable cause to arrest. Terry v. Ohio, 392 U.S. 1, 21 (1968); Carmouche, 10

S.W.3d at 328. In order to stop or briefly detain an individual, an officer must have “reasonable

suspicion” that an individual is violating the law. Ford v. State, 158 S.W.3d 488, 492 (Tex.

Crim. App. 2005). Reasonable suspicion exists when the officer has some minimal level of

objective justification for making the stop, i.e., when the officer can “point to specific and

articulable facts which, taken together with rational inferences from those facts, reasonably

                                                –4–
warrant [the] intrusion.” Terry, 392 U.S. at 21; see also Alabama v. White, 496 U.S. 325, 329–

30 (1990). In making a reasonable suspicion determination, we disregard the subjective intent or

motive of the officer making the stop and consider solely, under the totality of the circumstances,

whether there was an objective basis for the stop. Ford, 158 S.W.3d at 492–93. An officer may

lawfully stop and reasonably detain a person for a traffic violation. Garcia v. State, 827 S.W.2d

937, 944 (Tex. Crim. App. 1992); see also Walter v. State, 28 S.W.3d 538, 542 (Tex. Crim. App.

2000); Johnson v. State, 365 S.W.3d 484, 488–89 (Tex. App.––Tyler 2012, no pet.); Holmquist

v. State, No. 05–13–01388–CR, 2015 WL 500809, at *4 (Tex. App.––Feb. 5, 2015, pet. filed)

(not designated for publication).

       In this case, appellant challenges the trial court’s finding that Deputy Mitchell observed a

vehicle traveling at 30 miles per hour in a 60 miles per hour zone. Appellant points out that

Deputy Mitchell admitted on cross-examination that he was not saying appellant’s speed

impeded the normal and reasonable movement of any traffic or that appellant was driving at an

unsafe speed. In Delafuente, the Texas Court of Criminal Appeals noted that “[d]riving at a

speed that is less than the posted limit is not, by itself, sufficient for reasonable suspicion; a

violation occurs only when the normal and reasonable movement of traffic is impeded.”

Delafuente v. State, 414 S.W.3d 173, 178 (Tex. Crim. App. 2013) (citing Tex. Dept. Pub. Safety

v. Gonzales, 276 S.W.3d 88, 93 (Tex. App.––San Antonio 2008, no pet.)). Appellant therefore

argues that his “speed was not a violation of the Texas Transportation Code and his speed was

not the basis for reasonable suspicion for the stop.”

       However, appellant’s speed was not the only observation that was cited in support of

reasonable suspicion. The trial court also found that appellant’s vehicle swerved within its lane.

Appellant likewise challenges this finding, arguing that “[s]werving within its lane, unless it is

done unsafely, is not a violation of Texas Transportation Code § 545.060.” Section 545.060

                                                –5–
provides that an operator on a roadway divided into two or more clearly marked lanes for traffic

shall drive as nearly as practical entirely within a single lane and may not move from the lane

unless that movement can be made safely. See TEX. TRANSP. CODE ANN. § 545.060. But,

section 545.060 was not the stated basis for the trial court’s ruling. The court’s second finding of

fact states that the deputy also observed appellant’s vehicle driving on an unimproved shoulder

and crossing over the solid center line into the oncoming lane. It concluded that “[d]riving on an

unimproved shoulder, and crossing the solid center-line into the oncoming lane is a traffic

violation under section 545.051 of the Texas Transportation Code.” Section 545.051 provides

that a motorist must drive on the right-hand side of the road absent circumstances that are not at

issue here: the motorist is passing another vehicle, an obstruction necessitates moving to the left

of the center of the road, the motorist is on a road divided into three marked lanes, or the

motorist is on a roadway restricted to one-way traffic. See id. § 545.051(a). If none of these

circumstances exists, then a single instance of crossing into the oncoming-traffic lane on a two-

lane road is a violation of the statute. See Bracken v. State, 282 S.W.3d 94, 98 (Tex. App.––Fort

Worth 2009, pet. ref’d); Rubeck v. State, 61 S.W.3d 741, 745 (Tex. App.––Fort Worth 2001, no

pet.) (op. on reh’g); Crawford v. Texas Dept. of Public Safety, No. 03–10–00070–CR, 2011 WL

2437687, at *3 (Tex. App.––June 16, 2011, no pet.) (mem. op., not designated for publication).

A violation of the statute creates reasonable suspicion justifying the stop. See Bracken, 282

S.W.3d at 98; Crawford, 2011 WL 2437687, at *3. Furthermore, unlike a violation of section

545.060, a violation of section 545.051 does not require an unsafe maneuver. Compare TEX.

TRANSP. CODE ANN. § 545.060(a) with TEX. TRANSP. CODE ANN. § 545.051(a); see also

Johnson, 365 S.W.3d at 489; Crawford, 2011 WL 2437687, at *3.

       Appellant also challenges the trial court’s second finding of fact, noting that Deputy

Mitchell testified that the vehicle “appeared to swerve” once onto the unimproved shoulder of

                                                –6–
the roadway after passing the deputy as he looked into his side-view mirror, and that he could not

say how much of the car actually swerved onto the unimproved shoulder of the roadway or for

how long it did so. Appellant argues that he drove on the right side of the road and that the video

recording from the deputy’s in-car camera did not show him driving in the oncoming lane of

traffic. According to the record, however, Deputy Mitchell testified that, as he approached the

vehicle, he saw it cross over the center line into the oncoming lane of traffic and return to the

“proper lane.” His testimony was as follows:

       Q. Did you continue to observe the driving of the vehicle?

       A. Yes, ma’am.

       Q. What else did you observe?

       A. As I approached the vehicle, I observed the vehicle cross over the center––
       solid center line into the oncoming lane and then––and then return back to the
       proper lane.

       Q. Did you observe anything else?

       A. Other than that, I observed the vehicle swerving within its lane touching the
       center stripe a couple more times after that.

Deputy Mitchell also testified:

       Q. What about crossing the double center lines? Why did that draw your attention
       to the vehicle?

       A. Because that’s a violation of Texas traffic law.

       Q. And the weaving within the lane?

       A. Once again, that’s––in conjunction with other indicators, that can be an
       indicator of intox––of intoxication.

       Q. And I think you also mentioned hitting the center line but not crossing it?

       A. Correct, yes. While––when the vehicle was swerving, it was touching the
       yellow––the center yellow line.

       Q. And why was that important to you?

       A. It just showed that it could be an indicator of possible driving while
       intoxicated.
                                         –7–
       Q. Why did you pull the defendant over?

       A. Due to reasonable suspicions of the vehicle speed, the swerving within its lane,
       and then the traffic violations of driving on an unimproved shoulder and crossing
       the center line.

An officer may legally initiate a traffic stop if he has a reasonable basis for suspecting that a

person has committed a traffic offense. See Johnson, 365 S.W.3d at 488–89. Deputy Mitchell’s

testimony that he saw appellant’s vehicle cross over the solid center line into the oncoming lane

of traffic, and then return to the “proper lane,” was sufficient to create a reasonable suspicion that

a traffic violation was in progress. See TEX. TRANSP. CODE ANN. § 545.051(a); Rubeck, 61

S.W.3d at 745 (officer’s observation of defendant’s vehicle crossing center line one time

provided reasonable suspicion for traffic stop based on section 545.051(a)); Emmers v. State, No.

06–11–00034–CR, 2011 WL 2518869, at *4 (Tex. App.––Texarkana June 23, 2011, pet. ref’d)

(mem. op., not designated for publication) (concluding that officer had reasonable suspicion that

traffic violation was committed by virtue of fact that defendant failed to remain in the right half

of the roadway, in violation of section 545.051(a)). Accordingly, the trial court could have

reasonably concluded that Deputy Mitchell had reasonable suspicion to stop appellant for failing

to drive on the right-hand side of the road. See TEX. TRANSP. CODE ANN. § 545.051(a).

       Additionally, even if Deputy Mitchell did not have reasonable suspicion to stop appellant

based on a violation of section 545.051, he had reasonable suspicion to stop appellant for DWI.

Whether an officer has reasonable suspicion to stop a motorist for DWI depends on the totality of

the circumstances. Curtis v. State, 238 S.W.3d 376, 380 (Tex. Crim. App. 2007). A stop for

DWI is justified when the officer has specific articulable facts that, taken together with rational

inferences from those facts, lead him to conclude that a motorist is driving under the influence.

See id. at 380–81. A court may find reasonable suspicion even though “each fact in isolation

may be insufficient.” State v. Kerwick, 393 S.W.3d 270, 275 (Tex. Crim. App. 2013). Given


                                                 –8–
Deputy Mitchell’s observations regarding the speed of the vehicle, swerving within its lane, and

the fact that it crossed over the solid center line into the oncoming lane of traffic before returning

to its “proper lane,” the trial court could have reasonably concluded, based on the totality of the

circumstances, that the deputy had reasonable suspicion to stop appellant for DWI. Therefore,

the trial court did not err by denying appellant’s motion to suppress. We overrule appellant’s

issue.

         We affirm the trial court’s judgment.



                                                              / Lana Myers/
                                                              LANA MYERS
                                                              JUSTICE

Do Not Publish
TEX. R. APP. P. 47
140242F.U05




                                                 –9–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

SERGIO MANUEL NAVA, JR., Appellant                     On Appeal from the County Court at Law,
                                                       Rockwall County, Texas
No. 05-14-00242-CR         V.                          Trial Court Cause No. CR12-1388.
                                                       Opinion delivered by Justice Myers. Chief
THE STATE OF TEXAS, Appellee                           Justice Wright and Justice Evans
                                                       participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered this 26th day of June, 2015.




                                                –10–
