                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-18-00051-CR

GLEN LAMAR MORNING,
                                                          Appellant
v.

THE STATE OF TEXAS,
                                                          Appellee



                         From the 361st District Court
                             Brazos County, Texas
                       Trial Court No. 16-05123-CRF-361


                          MEMORANDUM OPINION


      In one issue, appellant, Glen Lamar Morning, argues that the trial court erred in

denying his motion to suppress evidence. Specifically, Morning contends that reasonable

suspicion did not exist for the traffic stop based on an “unconfirmed” insurance status

return. We affirm.
                                 I.     STANDARD OF REVIEW

         We review the trial court's ruling on a motion to suppress evidence for an abuse

of discretion, using a bifurcated standard. See Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim.

App. 2010); Guzman v. State, 955 S.W.2d 85, 88-89 (Tex. Crim. App. 1997). We give “almost

total deference” to the trial court's findings of historical fact that are supported by the

record and to mixed questions of law and fact that turn on an evaluation of credibility

and demeanor.       Guzman, 955 S.W.2d at 89.       We review de novo the trial court's

determination of the law and its application of law to facts that do not turn upon an

evaluation of credibility and demeanor. Id. When the trial court has not made a finding

on a relevant fact, we imply the finding that supports the trial court's ruling, so long as it

finds some support in the record. State v. Kelly, 204 S.W.3d 808, 818-19 (Tex. Crim. App.

2006); see Moran v. State, 213 S.W.3d 917, 922 (Tex. Crim. App. 2007). We will uphold the

trial court's ruling if it is reasonably supported by the record and is correct under any

theory of law applicable to the case. State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App.

2006).

         When ruling on a motion to suppress, the trial judge is the sole trier of fact and

judge of the credibility of the witnesses and the weight to be given their testimony. Wiede

v. State, 214 S.W.3d 17, 24-25 (Tex. Crim. App. 2007). When reviewing a trial court's ruling

on a motion to suppress, we view all of the evidence in the light most favorable to the

ruling. Garcia-Cantu v. State, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008).


Morning v. State                                                                        Page 2
                                   II.    APPLICABLE LAW

       In a hearing on a motion to suppress based on an alleged Fourth Amendment

violation, the initial burden of producing evidence that rebuts the presumption of proper

police conduct is on the defendant. Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App.

2005); see State v. Dietiker, 345 S.W.3d 422, 424 (Tex. App.—Waco 2011, no pet.). The

defendant’s burden may be satisfied by establishing that a search or seizure occurred

without a warrant. Ford, 158 S.W.3d at 492; see Dietiker, 345 S.W.3d at 424. After this

showing is made by the defendant, the State assumes the burden of demonstrating that

the search or seizure was conducted pursuant to a warrant or was reasonable. Ford, 158

S.W.3d at 492; see Dietiker, 345 S.W.3d at 424. Here, the record indicates that the stop was

made without a warrant; thus, the State assumed the burden of proof regarding whether

reasonable suspicion for the detention existed. See Ford, 158 S.W.3d at 492.

       The Fourth Amendment to the United States Constitution provides, in part, that

“the right of the people to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be violated.” U.S. CONST. amend. IV. As a

general rule, searches conducted without a warrant are deemed unreasonable unless the

situation presents an exception to the warrant requirement. Hubert v. State, 312 S.W.3d

554, 560 (Tex. Crim. App. 2010). One such exception is the Terry stop. See Terry v. Ohio,

392 U.S. 1, 29, 88 S. Ct. 1868, 1884, 20 L. Ed. 889 (1968). Consistent with Terry, a police

officer may stop and briefly detain a person for investigative purposes if the officer has


Morning v. State                                                                      Page 3
reasonable suspicion supported by articulable facts that criminal activity may be afoot,

even if the officer lacks evidence rising to the level of “probable cause.” 392 U.S. at 29, 88

S. Ct. at 1884; see Davis v. State, 947 S.W.2d 240, 244 (Tex. Crim. App. 1997).

       A determination of reasonable suspicion is made by considering the totality of the

circumstances. Castro v. State, 227 S.W.3d 737, 741 (Tex. Crim. App. 2007). In Foster v.

State, the Court of Criminal Appeals repeated the standard for warrantless traffic stops:

       A law enforcement officer may stop and briefly detain a person for
       investigative purposes on less information than is constitutionally required
       for probable cause to arrest. In order to stop and briefly detain an
       individual, an officer must be able to articulate something more than an
       inchoate and unparticularized suspicion or hunch. Specifically, the police
       officer must have 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
       warrant the intrusion. The reasonableness of a temporary detention must
       be examined in terms of the totality of the circumstances.

326 S.W.3d 609, 613 (Tex. Crim. App. 2010) (internal quotations omitted); see Garcia v.

State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001) (noting that reasonable suspicion exists

if the officer has specific articulable facts that, when combined with rational inferences

from those facts, would lead him to reasonably suspect that a particular person has

engaged in or is, or soon will be, engaging in illegal conduct).

                                       III.    ANALYSIS

       On appeal, Morning asserts that the “ambiguous return of an insurance

verification program alone is insufficient to establish reasonable suspicion to justify a

traffic stop.” Morning further argues that “[f]or a stop to be based on the ambiguous
Morning v. State                                                                        Page 4
return, the officer making the stop will have to have indications of accuracy and reliability

from the database that produced the information.”

       “A person may not operate a motor vehicle in this state unless financial

responsibility is established for that vehicle . . . .” See TEX. TRANSP. CODE ANN. § 601.051

(West 2011). Moreover, operating a vehicle for which financial responsibility has not

been established is a misdemeanor punished by a fine. See id. § 601.191 (West Supp. 2018).

Cases involving stops based on an officer’s database-derived suspicion that the driver

may be committing this misdemeanor fall into two categories:

       In the first category . . . the courts have held an officer did not have
       reasonable suspicion where the evidence was not developed to determine
       the ambiguous answer’s meaning or reliability.             In the second
       category . . . courts have held that reasonable suspicion existed when the
       officer, through experience or training, had additional information about
       what the ambiguous answer from the database meant and some idea
       regarding the data’s reliability.

Ellis v. State, 535 S.W.3d 209, 214 (Tex. App.—Fort Worth 2017, pet. ref’d) (quoting

Swadley v. State, No. 02-15-00085-CR, 2016 Tex. App. LEXIS 13308, at **13-14 (Tex. App.—

Fort Worth Dec. 15, 2016, pet. ref’d) (mem. op., not designated for publication) (citations

omitted)).

       In the instant case, Garret Hudson, a patrol officer for the Texas A&M University

Police Department, testified that he had been a certified peace officer for three-and-a-half

years and that he has a total of seven or eight years of law-enforcement experience.

During the early morning hours of September 1, 2016, Officer Hudson observed a vehicle


Morning v. State                                                                       Page 5
driven by Morning turning from F and B Road onto Wellborn Road. While driving

behind the vehicle driven by Morning, Officer Hudson conducted a license-plate check.

Officer Hudson testified that, when conducting a license-plate check, he is “looking for

things such as registration status, obviously any TCIC/NCIC hits coming back to a stolen

vehicle, and the insurance status.” When Officer Hudson conducted the license-plate

check on the vehicle driven by Morning, the insurance status came back as

“unconfirmed.” Based on his training and experience, Officer Hudson noted that an

“unconfirmed” return means that the vehicle is not insured.

       Officer Hudson later testified that he has regularly conducted license-plate checks

during his three-and-a-half years as a peace officer and that it has been his experience

that the “unconfirmed” insurance status is “very accurate that insurance is not able to be

provided.” Officer Hudson also explained that he believes the database to be “[v]ery

accurate” and reliable and that he did not have any problems with the database on the

night in question.

       After receiving the “unconfirmed” status, Officer Hudson stopped the vehicle

driven by Morning, believing that he had reasonable suspicion that the vehicle was not

insured. At the hearing on Morning’s motion to suppress, Officer Hudson acknowledged

that he stopped Morning solely because of the “unconfirmed” insurance status. When

Officer Hudson made contact, Morning was not able to provide proof of insurance or

valid proof of financial responsibility. When Morning provided his name and birthdate,


Morning v. State                                                                    Page 6
Officer Hudson discovered that Morning had a suspended driver’s license. Morning was

subsequently arrested for driving with an invalid license.

       On appeal, Morning contends that this case belongs in the category of cases in

which courts have held that the police lacked reasonable suspicion based on the word

“unconfirmed” and no other information. See State v. Daniel, 446 S.W.3d 809, 815-16 (Tex.

App.—San Antonio 2014, no pet.); Contraras v. State, 309 S.W.3d 168, 173 (Tex. App.—

Amarillo 2010, pet. ref’d); Gonzalez-Gilando v. State, 306 S.W.3d 893, 896-97 (Tex. App.—

Amarillo 2010, pet. ref’d). We disagree.

       As noted above, Officer Hudson testified that he has regularly conducted license-

plate checks during his three-and-a-half years as a peace officer and that, based on his

experience, the database is “very accurate that insurance is not able to be provided.”

Officer Hudson further stated that he believes the database to be “[v]ery accurate” and

reliable; that he did not have any problems with the database on the night in question;

and that an “unconfirmed” return means that the vehicle is not insured. We therefore

hold that Officer Hudson had sufficient specific, articulable facts upon which to base his

inference that the vehicle Morning was driving was uninsured. See Ellis, 535 S.W.3d at

216 (citing Oliva-Arita v. State, No. 01-15-00140-CR, 2015 Tex. App. LEXIS 11925, at **8-12

(Tex. App.—Houston [1st Dist.] Nov. 19, 2015, no pet.) (mem. op., not designated for

publication)); see also TEX. TRANSP. CODE ANN. §§ 601.051, .191; Foster, 326 S.W.3d at 613;

Castro, 227 S.W.3d at 741; Garcia, 43 S.W.3d at 530.


Morning v. State                                                                     Page 7
       Nevertheless, Morning asserts that Officer Hudson’s testimony alone was

insufficient to establish the database’s reliability, focusing on all the objective information

about the database that Officer Hudson did not know. Specifically, Morning focuses on

the absence of testimony from Officer Hudson regarding the law that allowed the

database and the specific program that generated the information, as well as Officer

Hudson’s inability to define one of the terms the database can return—“[v]erify

manually.” Furthermore, Morning notes that Officer Hudson admitted that he has

chosen to “err on the side of caution” instead of relying on the database to ticket some

“unconfirmed drivers.” In making these arguments, Morning attempts to place his case

in the category with Gonzalez-Gilando, 306 S.W.3d at 896-97 and Daniel, 446 S.W.3d at 815.

       In Gonzalez-Gilando, the license-plate check conducted by the deputy resulted in

the discovery that potential liability insurance was “unavailable,” “not available,” or the

status “undocumented.” 306 S.W.3d at 894-95. The deputy testified with no further

explanation that the return led him to believe that the vehicle did not have insurance

coverage. Id. at 896-97. The Amarillo Court noted that another trooper testified that the

return could have meant either that the vehicle was insured or that it was not insured.

Id. at 897 n.2. And in concluding that the deputy lacked reasonable suspicion for the stop,

the Amarillo Court stated,

       without other evidence developing the source of the information
       comprising the database, explaining what was meant when insurance
       information was unavailable, explaining why such information would be
       unavailable, illustrating the accuracy of the database, establishing the
Morning v. State                                                                         Page 8
       timeliness of the information within the database, depicting how often
       those using the database were told that insurance information was
       unavailable, proving that the program through which the database was
       accessed was even operating at the time, and the like, we cannot accept the
       deputy’s inference as reasonable.

Id. at 897.

       We find Gonzalez-Gilando to be factually distinguishable from the case at bar. Here,

Officer Hudson testified about the meaning of “unconfirmed” and explained that: (1) he

regularly conducted license-plate checks during his three-and-a-half years as a peace

officer; (2) it has been his experience that the “unconfirmed” insurance status is “very

accurate” and reliable; and (3) he did not have any problems with the database on the

night in question. This has been held to be enough to support a finding of reasonable

suspicion to support a stop. See Ellis, 535 S.W.3d at 216; see also United States v. Broca-

Martinez, 855 F.3d 675, 680 (5th Cir. 2017) (“A state computer database indication of

insurance status may establish reasonable suspicion when the officer is familiar with the

database and the system itself is reliable. If that is the case, a seemingly inconclusive

report such as ‘unconfirmed’ will be a specific and articulable fact that supports a traffic

stop.”). And we are not persuaded by any suggestion that the State was required to

proffer evidence in support of all or most of the factors mentioned by the Gonzalez-Gilando

Court. See 306 S.W.3d at 897.

       In Daniel, the San Antonio Court of Appeals concluded that the officer lacked

reasonable suspicion that the defendant’s vehicle was being operated without insurance


Morning v. State                                                                      Page 9
to justify the warrantless stop. 446 S.W.3d at 815. The State stipulated at the suppression

hearing that the sole reason for the officer’s suspicion was based on a response from

dispatch of “unconfirmed insurance.” Id. And in response to the trial court’s question

whether the information of “unconfirmed insurance” meant that “it could have been that

[the defendant] did have insurance or it could have been that he didn’t,” the State

answered “[c]orrect.” Id. The State offered no other evidence to support a finding that

the officer had reasonable suspicion to effect the traffic stop.

       We find Daniel to be factually distinguishable from this case because, as discussed

above, the State developed evidence demonstrating that Officer Hudson had specific,

articulable facts—other than simply the database return of “unconfirmed”—upon which

he could reasonably conclude that the vehicle Morning was driving was not insured.

       Therefore, viewing the evidence in the light most favorable to the trial court’s

ruling, we conclude that the trial court did not abuse its discretion in denying Morning’s

motion to suppress. See Crain, 315 S.W.3d at 48; see also Guzman, 955 S.W.2d at 88-89. As

such, we overrule appellant’s sole issue on appeal.

                                      IV.    CONCLUSION

       We affirm the judgment of the trial court.




                                                  AL SCOGGINS
                                                  Justice
Morning v. State                                                                    Page 10
Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed October 31, 2018
Do not publish
[CR25]




Morning v. State                               Page 11
