                                                                                ACCEPTED
                                                                            12-15-00128-CR
                                                               TWELFTH COURT OF APPEALS
                                                                             TYLER, TEXAS
                                                                     10/16/2015 11:38:56 PM
                                                                                  Pam Estes
                                                                                     CLERK

                  NUMBER 12-15-00128-CR

       IN THE TWELFTH DISTRICT COURT OF APPEALS      FILED IN
                                             12th COURT OF APPEALS
                     TYLER, TEXAS                  TYLER, TEXAS
                                                  10/16/2015 11:38:56 PM
                                                         PAM ESTES
                                                           Clerk
                ROBERT LAFAYETTE WALKER,
                        Appellant
                            v.
                   THE STATE OF TEXAS,
                         Appellee

From the County Court at Law Number 3 of Smith County, Texas
             Trial Cause Number 003-82609-14

                      STATE’S BRIEF

               ORAL ARGUMENT REQUESTED

                    D. MATT BINGHAM
                 Criminal District Attorney
                    Smith County, Texas

                      AARON REDIKER
                 Assistant District Attorney
            State Bar of Texas Number 24046692
            Smith County Courthouse, 4th Floor
                     Tyler, Texas 75702
                   Phone: (903) 590-1720
                    Fax: (903) 590-1719
            Email: arediker@smith-county.com
                                                     TABLE OF CONTENTS


Index of Authorities ............................................................................................................ 2
Statement of Facts............................................................................................................... 3
Summary of Argument....................................................................................................... 4
I.ISSUES ONE THROUGH THREE: When the arresting officer observed appellant cross the
solid yellow center line of the two-lane, two-way roadway and drive on the wrong
side of the road, he had reasonable suspicion to initiate a traffic stop;
corroboration of the 911 caller’s report of a drunk driver was unnecessary. .......... 5
Standard of Review ............................................................................................................. 5
Argument.............................................................................................................................. 6
Certificate of Compliance ................................................................................................ 14
Certificate of Service ........................................................................................................ 14




                                                                   1
                                                  INDEX OF AUTHORITIES


Texas Cases
Armitage v. State, 637 S.W.2d 936 (Tex. Crim. App. 1982) ............................................... 7
Bracken v. State, 282 S.W.3d 94 (Tex. App.—Fort Worth 2009, pet. ref’d) ............... 8, 11
Carmouche v. State, 10 S.W.3d 323 (Tex. Crim. App. 2000) .............................................. 8
Garcia v. State, 827 S.W.2d 937 (Tex. Crim. App. 1992) .................................................... 7
Griffin v. State, 54 S.W.3d 820 (Tex. App.—Texarkana 2001, pet. ref’d) .................. 8, 12
Gutierrez v. State, 221 S.W.3d 680 (Tex. Crim. App. 2007) ............................................... 6
Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997) ................................................... 5
Jaganathan v. State, No. PD-1189-14, 2015 Tex. Crim. App. LEXIS 920 (Tex. Crim. App.
   Sept. 16, 2015) ............................................................................................................ 7, 11
Madden v. State, 242 S.W.3d 504 (Tex. Crim. App. 2007) ............................................... 10
Montanez v. State, 195 S.W.3d 101 (Tex. Crim. App. 2006) .............................................. 6
Pierce v. State, No. 12-14-00073-CR, 2015 Tex. App. LEXIS 4435 (Tex. App.—Tyler Apr.
   30, 2015, pet. ref’d) ....................................................................................................... 12
State v. Elias, 339 S.W.3d 667 (Tex. Crim. App. 2011) ....................................................... 7
State v. Ross, 32 S.W.3d 853 (Tex. Crim. App. 2000) (footnote omitted) ................. 6, 11
Tucker v. State, 369 S.W.3d 179 (Tex. Crim. App. 2012) ................................................... 9
Tyler v. State, 161 S.W.3d 745 (Tex. App.—Fort Worth 2005, no pet.) ......................... 12
Valtierra v. State, 310 S.W.3d 442 (Tex. Crim. App. 2010) .............................................. 10


Texas Statutes
Tex. Transp. Code Ann. § 545.051 ..................................................................................... 8
Tex. Transp. Code Ann. § 545.063 ..................................................................................... 8




                                                                 2
                            NUMBER 12-15-00128-CR

                   IN THE TWELFTH DISTRICT COURT OF APPEALS
                                 TYLER, TEXAS

                          ROBERT LAFAYETTE WALKER,
                                  Appellant
                                      v.
                             THE STATE OF TEXAS,
                                   Appellee

         From the County Court at Law Number 3 of Smith County, Texas
                      Trial Cause Number 003-82609-14

                                 STATE’S BRIEF

TO THE HONORABLE COURT OF APPEALS:

   Comes now the State of Texas, by and through the undersigned Assistant

Criminal District Attorney, respectfully requesting that this Court overrule

appellant’s alleged issues and affirm the judgment of the trial court in the above-

captioned cause.


                                STATEMENT OF FACTS

      Dispatched to check on a possible drunk driver following a 911 call, Trooper

Richard Hoover spotted both appellant and the 911 caller close to Cumberland



                                        3
Road in Tyler, Texas (II Rep.’s R. at 12). Trooper Hoover began following both

vehicles, and soon observed appellant cross the solid yellow dividing line onto the

wrong side of the road (Id. at 13-14). Based on appellant’s traffic violation that he

had just witnessed, Trooper Hoover initiated the stop and subsequently arrested

him for the offense of driving while intoxicated (Id. at 15-16). Appellant filed a

motion to suppress evidence from the traffic stop that the trial court denied

following a hearing during which the State offered the testimony of Trooper

Hoover and a copy of the patrol car video of the traffic stop (Id. at 29-34; State’s Ex.

2).


                                 SUMMARY OF ARGUMENT

      Where, as here, the in-car video of the traffic stop did not clearly show the

traffic violation, the trial court, as the sole trier of fact and judge of the credibility

of the witnesses and the weight to be given their testimony in appellant’s motion

to suppress hearing, was free to believe the officer’s testimony that he had

observed appellant driving on the wrong side of the road. The real factual issue

turned on the credibility of the witness: whether Trooper Hoover reasonably

                                            4
believed appellant drove on the wrong side of the roadway, not whether the

videotape shows appellant doing so.


I. ISSUES ONE THROUGH THREE: When the arresting officer observed appellant cross
the solid yellow center line of the two-lane, two-way roadway and drive on the
wrong side of the road, he had reasonable suspicion to initiate a traffic stop;
corroboration of the 911 caller’s report of a drunk driver was unnecessary.

                                STANDARD OF REVIEW

   A bifurcated standard of review is applied to a trial court’s ruling on a pretrial

motion to suppress evidence:

      [A]s a general rule, the appellate courts, including this Court, should afford
      almost total deference to a trial court's determination of the historical facts
      that the record supports especially when the trial court's fact findings are
      based on an evaluation of credibility and demeanor. The appellate courts,
      including this Court, should afford the same amount of deference to trial
      courts’ rulings on “application of law to fact questions,” also known as
      “mixed questions of law and fact,” if the resolution of those ultimate
      questions turns on an evaluation of credibility and demeanor. The appellate
      courts may review de novo “mixed questions of law and fact” not falling
      within this category. (citations omitted).

Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). “In reviewing a trial

court's ruling on a motion to suppress, we review the evidence in the light most

favorable to the trial court's ruling.” Gutierrez v. State, 221 S.W.3d 680, 687 (Tex.


                                         5
Crim. App. 2007). “[W]hen the trial court fails to file findings of fact, we view the

evidence in the light most favorable to the trial court's ruling and assume that the

trial court made implicit findings of fact that support its ruling as long as those

findings are supported by the record. If the trial judge's decision is correct on any

theory of law applicable to the case, the decision will be sustained.” State v. Ross,

32 S.W.3d 853, 855-856 (Tex. Crim. App. 2000) (footnote omitted). Lastly, “the

deferential standard of review in Guzman applies to a trial court's determination

of historical facts when that determination is based on a videotape recording

admitted into evidence at a suppression hearing.” Montanez v. State, 195 S.W.3d 101,

109 (Tex. Crim. App. 2006).


                                     ARGUMENT

   In her three alleged issues, appellant argues that the trial court erred in

denying her pretrial motion to suppress because the arresting officer did not have

reasonable suspicion to initiate the traffic stop for the following reasons: the

patrol car video did not support the testimony of the officer, the anonymous

caller’s observations of appellant’s driving were never “corroborated” by the

                                         6
officer, and the anonymous caller failed to give a “detail description,” respectively

(Appellant’s Br. 2-19). “An officer may make a warrantless traffic stop if the

‘reasonable suspicion’ standard is satisfied.” Jaganathan v. State, No. PD-1189-14,

2015 Tex. Crim. App. LEXIS 920, at *5 (Tex. Crim. App. Sept. 16, 2015). “A police

officer has reasonable suspicion to detain a person if he has specific, articulable

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

reasonably to conclude that the person detained is, has been, or soon will be

engaged in criminal activity.” State v. Elias, 339 S.W.3d 667, 674 (Tex. Crim. App.

2011). “[A] traffic violation committed in an officer's presence authorizes an initial

stop.” Armitage v. State, 637 S.W.2d 936, 939 (Tex. Crim. App. 1982). “As long as an

actual violation occurs, law enforcement officials are free to enforce the laws and

detain a person for that violation, regardless of whatever the usual practices or

standards of the local law enforcement agency are and regardless of the officer's

subjective reasons for the detention.” Garcia v. State, 827 S.W.2d 937, 944 (Tex. Crim.

App. 1992).




                                          7
   Barring several exceptions inapplicable in appellant’s case, a person violates

the rules of the road by not driving on the right side of the roadway. Tex. Transp.

Code Ann. §§ 545.051(a), 545.063 (West 2014). At the hearing on appellant’s motion

to suppress, Trooper Hoover testified that he observed appellant cross the solid

yellow center line of the two-lane, two-way roadway and drive on the wrong side

of the road (II Rep.’s R. at 13-14, 16, 22-23). “This observation alone was enough to

create a reasonable suspicion that appellant had violated the law.” Bracken v. State,

282 S.W.3d 94, 97-98 (Tex. App.—Fort Worth 2009, pet. ref’d). “Traveling across the

yellow line into oncoming traffic is a traffic violation in itself and does not require

the additional element of an unsafe maneuver by the driver as does Tex. Transp.

Code Ann. § 545.060.” Griffin v. State, 54 S.W.3d 820, 823 (Tex. App.—Texarkana 2001,

pet. ref’d).

   Nevertheless, appellant claims that the patrol car video of the traffic stop

presented “indisputable visual evidence” contradicting Trooper Hoover’s

testimony (Appellant’s Br. 11; State’s Ex. 2). See Carmouche v. State, 10 S.W.3d 323,

332 (Tex. Crim. App. 2000) (“[T]he videotape presents indisputable visual evidence


                                          8
contradicting essential portions of Williams' testimony.”). As Judge Alcala noted

in his concurring opinion in Tucker v. State, 369 S.W.3d 179, 187 n.1 (Tex. Crim. App.

2012) (Alcala, J., concurring):

      Rarely will videotape evidence actually be “indisputable.” Audio and video
      recordings can be conclusive as to what and how events transpired, but their
      evidentiary value often depends on other factors, even when that evidence
      captures events as they are transpiring. The 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.

Here, the video does not show much of anything leading up to the traffic stop with

clarity, especially prior to Trooper Hoover passing the 911 caller’s vehicle (State’s

Ex. 2). Hoover testified that the violation occurred prior to this point:

      A.     It’s in the video prior to me going around the vehicle.

      Q.     We don’t see it, do we?
      A.     I can’t help that the camera is posted over – is stationed over my
      passenger seat and it’s zoomed way out.
             So I can’t, while I’m driving down the road, make sure the camera
      captures everything while I’m trying to stop people that are crossing yellow
      lines.




                                          9
(II Rep.’s R. at 23-24). During direct examination, Trooper Hoover explained:

      A.     Yeah. The camera is zoomed out so it can capture – on a traffic stop,
      it can see all around the car so the camera makes it look further – him look
      further away than what he really is.
             So when I’m parked two car lengths back from a car, you can actually
      see the car and see both sides of it. So he is not as far away as the camera
      portrays it to be.

(Id. at 13). Due to the angle of the dashboard camera, the video did not capture the

violation that Hoover observed, but it does not contradict his testimony. See

Valtierra v. State, 310 S.W.3d 442, 450 (Tex. Crim. App. 2010) (“But in the present case,

the tape recording does not contradict Officer Moncada's testimony; it is simply

inaudible and therefore does not affirmatively support his testimony.”); Madden v.

State, 242 S.W.3d 504, 516 (Tex. Crim. App. 2007) (“Only if the video clearly showed

that appellant affirmatively did not do something that Trooper Lily said that he

did do, and the video clearly would have shown that conduct if it had occurred,

would there be some affirmative evidence of a disputed historical fact.”). Moreover,

the real factual issue is whether Trooper Hoover reasonably believed appellant

drove on the wrong side of the roadway, not whether the videotape shows



                                           10
appellant doing so. Madden, 242 S.W.3d at 516. See also Jaganathan, 2015 Tex. Crim.

App. LEXIS 920, at *6 (“The question in this case is not whether appellant was guilty

of the traffic offense but whether the trooper had a reasonable suspicion that she

was.”). The issue then turned on the credibility of Trooper Hoover, and as the

Court of Criminal Appeals explained in Ross:

      In a motion to suppress hearing, the trial court is the sole trier of fact and
      judge of the credibility of the witnesses and the weight to be given their
      testimony. Accordingly, the judge may believe or disbelieve all or any part
      of a witness's testimony, even if that testimony is not controverted. This is
      so because it is the trial court that observes first hand the demeanor and
      appearance of a witness, as opposed to an appellate court which can only
      read an impersonal record.

Ross, 32 S.W.3d at 855 (footnotes omitted). The trial court was free to believe

Trooper Hoover’s testimony that he had observed appellant driving on the wrong

side of the road, and viewing the evidence in the light most favorable to its ruling,

it did not abuse its discretion in finding that Hoover reasonably believed appellant

had committed a traffic violation, justifying the initial detention. See Bracken, 282

S.W.3d at 97-98 (holding officer’s observation of appellant driving on the wrong

side of the road provided reasonable suspicion justifying traffic stop even though


                                         11
the video appeared to show his car only “drifting back and forth” in his lane); Pierce

v. State, No. 12-14-00073-CR, 2015 Tex. App. LEXIS 4435, at *6-7 (Tex. App.—Tyler

Apr. 30, 2015, pet. ref’d) (mem. op., not designated for publication) (trial court free

to rely on testimony of the officer where video did not clearly show traffic

violation). Therefore, the trial court did not err in denying appellant’s motion to

suppress, and appellant’s first, second, and third issues should be overruled. See

Tyler v. State, 161 S.W.3d 745, 750 (Tex. App.—Fort Worth 2005, no pet.) (“Because

we have determined that Officer Young had probable cause to stop appellant based

on his observance of two traffic violations, we need not address appellant's

contention that the anonymous tip did not provide Officer Young with reasonable

suspicion or probable cause to stop appellant.”); Griffin, 54 S.W.3d at 822 (“If the

officer made a valid traffic stop, the existence of another motive for the stop is

irrelevant because the prohibition against pretextual stops has been abandoned in

Texas.”).




                                          12
                                     PRAYER

   WHEREFORE, PREMISES CONSIDERED, the State of Texas prays that the Court

overrule appellant’s alleged issues and affirm the judgment of the County Court at

Law Number 3 of Smith County, Texas, in the above-captioned cause.

                                            Respectfully submitted,

                                            D. MATT BINGHAM
                                            Criminal District Attorney
                                            Smith County, Texas



                                            /s/ Aaron Rediker
                                            Aaron Rediker
                                            Assistant District Attorney
                                            SBOT #: 24046692
                                            100 North Broadway, 4th Floor
                                            Tyler, Texas 75702
                                            Office: (903) 590-1720
                                            Fax: (903) 590-1719 (fax)
                                            arediker@smith-county.com




                                       13
                            CERTIFICATE OF COMPLIANCE

   Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), the undersigned

attorney certifies that the word count for this document is 1,981 words as

calculated by Microsoft Word 2013.

                                            /s/ Aaron Rediker
                                            Aaron Rediker


                              CERTIFICATE OF SERVICE

   The undersigned attorney hereby certifies that on this 16th day of October 2015,

the State’s Brief in the above-numbered cause has been electronically filed, and a

legible copy of the State's Brief has been sent by email to Beverly D. Melontree,

attorney for appellant, at Bmelontree@icloud.com.




                                            /s/ Aaron Rediker
                                            Aaron Rediker




                                       14
