                                                                    ACCEPTED
                                                               13-15-00041-CR
                                                 THIRTEENTH COURT OF APPEALS
                                                       CORPUS CHRISTI, TEXAS
                                                          4/17/2015 9:01:12 AM
                                                              DORIAN RAMIREZ
                                                                        CLERK

        NO. 13-15-00041-CR

   IN THE COURT OF APPEALS        FILED IN
                          13th COURT OF APPEALS
FOR THE THIRTEENTH DISTRICT
                       CORPUSOFCHRISTI/EDINBURG, TEXAS
            TEXAS          4/17/2015 9:01:12 AM
       AT CORPUS CHRISTI    DORIAN E. RAMIREZ
                                         Clerk

      THE STATE OF TEXAS,
                    Appellant,
              v.

      UYLESS TROY BLAND,
                   Appellee.

         On Appeal from the
         th
      377 Judicial District Court
      Of Victoria County, Texas
      Cause No. 14-10-28227-D

 BRIEF FOR THE STATE OF TEXAS

       STEPHEN B. TYLER
      Criminal District Attorney
       Victoria County, Texas

     BRENDAN WYATT GUY
  Assistant Criminal District Attorney
        Victoria County, Texas
      205 N. Bridge St. Ste. 301,
     Victoria, Texas 77901-6576
            bguy@vctx.org
            (361) 575-0468
         (361) 570-1041 (fax)
        State Bar No. 24034895

    Attorneys for the State of Texas

ORAL ARGUMENT NOT REQUESTED
                              IDENTITY OF PARTIES AND COUNSEL

Pursuant to TEX. R. APP. P. 38.1(a) (2003), the parties to the suit are as
follows:

APPELLANT                                    The State of Texas

APPELLEE                                     Uyless Troy Bland

TRIAL JUDGE                                  The Honorable Eli Elmo Garza
                                             377th Judicial District Court
                                             Victoria, Texas

TRIAL PROSECUTOR                             Brendan Wyatt Guy
                                             State Bar No. 24034895
                                             Assistant Criminal District Attorney
                                             205 N. Bridge St. Ste 301
                                             Victoria, Texas 77901-6576

TRIAL DEFENSE ATTORNEY                       Terri Lynn Dornburg
                                             Law Offices of Brent Dornburg
                                             State Bar No. 90001553
                                             120 N. Main Street
                                             Victoria, Texas 77901

APPELLATE STATE’S                            Brendan Wyatt Guy
ATTORNEY                                     State Bar No. 24034895
                                             Assistant Criminal District Attorney
                                             205 N. Bridge St. Ste 301
                                             Victoria, Texas 77901-6576

APPELLATE DEFENSE                            William Allen White
ATTORNEY                                     State Bar No. 00788659
                                             P.O. Box 7422
                                             Victoria, Texas 77903




Brief of Appellant
Victoria County Criminal District Attorney
No. 13-15-00041-CR
                                             i
                                             TABLE OF CONTENTS

                                                                                                    PAGE (S)

IDENTITY OF PARTIES AND COUNSEL........................................... i

TABLE OF CONTENTS .................................................................... ii-iii

INDEX OF AUTHORITIES ..............................................................iv-vii

STATEMENT OF THE CASE............................................................. 1-2

ISSUES PRESENTED........................................................................... 2-3

STATEMENT OF THE FACTS ........................................................ 3-12

SUMMARY OF ARGUMENT ......................................................... 12-16

ARGUMENT ...................................................................................... 16-45

      I. The appropriate standard of review in this case is
         de novo ............................................................................................. 16

   II. A trial court is not entitled to implicit findings of
       fact when it submitted explicit findings of fact ...................... 17-21

  III. The trial court committed reversible error when it
      concluded that Section 544.010(c) of the Texas
      Transportation Code does not mandate stopping
      prior to entering an intersection when approaching
      a stop sign on a street that does not have a crosswalk
      or designated stop line ............................................................... 22-25

 IV. In the alternative, the trial court committed reversible
     error by concluding that a mistake of law could not
     justify a traffic stop .................................................................... 25-30




Brief of Appellant
Victoria County Criminal District Attorney
No. 13-15-00041-CR
                                                          ii
  V. The trial court committed reversible error by
     concluding there was not reasonable suspicion for the
     traffic stop in this case ............................................................... 30-37

 VI. The free air sniff of and search of Appellee’s vehicle
     were lawful................................................................................. 38-45

PRAYER .................................................................................................. 45

SIGNATURE ........................................................................................... 45

CERTIFICATE OF COMPLIANCE ................................................... 46

CERTIFICATE OF SERVICE ............................................................. 47




Brief of Appellant
Victoria County Criminal District Attorney
No. 13-15-00041-CR
                                                      iii
                                             INDEX OF AUTHORITIES


                                      United States Supreme Court Cases

Heien v. North Carolina, 135 S. Ct. 530 (2014) .......................... 14, 26-29

Illinois v. Caballes, 543 U.S. 405 (2005) ................................................. 38

United States v. Sokolow, 490 U.S. 1 (1989) ........................................... 31



                                    United States Court of Appeals Cases

United States v. Alvarado-Zarza,
13-50745, 2015 WL 1529102 (5th Cir. 2015) .......................................... 27

United States v. Granado, 302 F. 3d 421 (5th Cir. 2002) ....................... 26

United States v. Lopez-Valdez, 178 F.3d 282 (5th Cir. 1999) ................. 26

United States v. Miller, 146 F. 3d 274 (5th Cir. 1998) ............................ 26



                                                  Texas Cases

Amador v. State, 221 S.W. 3d 666 (Tex. Crim. App. 2007) .................. 16

Aviles v. State, 23 S.W. 3d 74
(Tex. App.-Houston [14th Dist] 2000, pet. ref’d) .................................. 31

Branch v. State, 335 S.W. 3d 893
(Tex. App.-Austin 2011, pet. ref’d) ................................................. 38, 44

Byron v. State, 07-05-0131, 2006 WL 1490677
(Tex. App.-Amarillo 2006, pet. ref’d)
(mem. op)(not designated for publication) ........................................... 43
Brief of Appellant
Victoria County Criminal District Attorney
No. 13-15-00041-CR
                                                      iv
Cullen v. State, 195 S.W. 3d 696 (Tex. Crim. App. 2006) ......... 13, 17-20
............................................................................................................. 35, 38

Derichsweiler v. State, 348 S.W. 3d 906 (Tex. Crim. App. 2011) .. 31, 42

Duff v. State, 546 S.W. 2d 283 (Tex. Crim. App. 1977) ....................... 40

Estrada v. State, 30 S.W. 3d 599
(Tex. App.-Austin 2000, pet. ref’d) ....................................................... 43

Evans v. State, 14-13-00642-CR, 2015 WL 545702
(Tex. App.-Houston [14th Dist]. 2015)(mem. op) .................................. 27

Ford v. State, 158 S.W. 3d 488 (Tex. Crim. App. 2005) ............ 30-31, 33

Goudeau v. State, 209 S.W. 3d 713
(Tex. App.-Houson [14th Dist.] 2006, no pet) ................................... 25-26

Haas v. State, 172 S.W. 3d 42
(Tex. App.-Waco 2005, pet. ref’d) ......................................................... 44

Hamal v. State, 390 S.W. 3d 302 (Tex. Crim. App. 2012) ........ 16, 31, 43

Harrison v. State, 7 S.W. 3d 309
(Tex. App.-Houston [1st Dist] 1999, pet. ref’d) ..................................... 44

Lambeth v. State, 221 S.W. 3d 831
(Tex. App.-Ft. Worth 2007, pet. ref’d).................................................. 41

Kothe v. State, 152 S.W. 3d 54 (Tex. Crim. App. 2004) ....................... 39

Parker v. State, 297 S.W. 3d 803
(Tex. App.-Eastland 2009, pet. ref’d).................................................... 40

Powell v. State, 5 S.W. 3d 369
(Tex. App.-Texarkana 1999, pet. ref’d) ................................................ 43

Powell v. State, 898 S.W. 2d 821 (Tex. Crim. App. 1994) .................... 44

Brief of Appellant
Victoria County Criminal District Attorney
No. 13-15-00041-CR
                                                           v
State v. Krall, 13-12-00469-CR
(Tex. App.-Corpus Christi 2013, pet. ref’d)
(mem. op.)(not designated for publication) ............................... 13, 19-21

State v. Police, 377 S.W. 3d 33
(Tex. App.-Waco 2012, no pet) ........................................................ 24, 29

State v. Ross, 32 S.W. 3d 853 (Tex. Crim. App. 2000) ......................... 17

State v. Tercero, 01-14-00120-CR, 2015 WL 1544519
(Tex. App.-Houston [1st Dist.] 2015)
(opinion subject to withdrawal) ............................................................. 28

State v. Weaver, 349 S.W. 3d 521 (Tex. Crim. App. 2011)................... 16

York v. State, 342 S.W. 3d 528 (Tex. Crim. App. 2011) ....................... 31



                                             United States Constitution


U.S. CONST. amend. IV................................................................... 26, 38



                                                  Texas Statutes

TEX. CODE CRIM. PROC. art 38.23 (West 2005) ....................... 28-29

TEX. GOV’T CODE §311.021 (West 2013) ......................................... 23

TEX. PENAL CODE ANN §12.42 (West 2014) ..................................... 2

TEX. TRANSP. CODE §544.010 (West 2011) ........................ ii, 2, 12-13
...................................................................................................22-25, 29-30




Brief of Appellant
Victoria County Criminal District Attorney
No. 13-15-00041-CR
                                                         vi
                                             Texas Rules

TEX. R. APP. 9.4..................................................................................... 46

TEX. R. APP. 38.1...................................................................................... i




Brief of Appellant
Victoria County Criminal District Attorney
No. 13-15-00041-CR
                                                    vii
                                                NO. 13-15-00041-CR

                                  IN THE COURT OF APPEALS
                             FOR THE THIRTEEN DISTRICT OF TEXAS
                                      AT CORPUS CHRISTI

THE STATE OF TEXAS,…...….…………………………………..Appelant

v.

UYLESS TROY BLAND,…...……………………………………...Appellee

                                                    * * * * *

                                     STATE’S BRIEF ON THE MERITS

                                                    * * * * *

TO THE HONORABLE COURT OF APPEALS:

            COMES NOW, THE STATE OF TEXAS, by and through her Criminal

District Attorney, Stephen B. Tyler, and as Appellant in the above numbered

and entitled cause, and files this the Appellant’s brief showing:

                                             STATEMENT OF THE CASE

            Appellee was charged by indictment with one count of Possession of

Substance in Penalty Group 1 in an amount of less than one gram and one

count of Possession of a Substance in Penalty Group 3 in an amount of less

than 28 grams.                       [CR-I-5-6].   Both offenses were alleged to have been

committed within a drug free zone. [CR-I-5]. The Possession of Substance

in Penalty Group 1 allegation (Count 1) was further enhanced pursuant to
Brief of Appellant
Victoria County Criminal District Attorney
No. 13-15-00041-CR
                                                        1
Section 12.42(a) of the Texas Penal Code due to Appellee having a prior

felony conviction. [CR-I-6]. On January 16, 2015, Appellee filed a motion

to suppress. [CR-I-13-15]. A hearing was held on that motion on January

23, 2015. [RR-I-1]. That same day, the Honorable Eli Garza presiding,

granted Appellee’s motion to suppress with a written order. [CR-I-18-19].

The State timely filed its notice of appeal on January 26, 2015. [CR-I-20-

23]. On that same day the State also requested written findings of fact and

conclusions of law. [CR-I-25-26]. On January 28, 2015, the trial court

issued its written findings of fact and conclusions of law. [CR-I-36-38].

                                             ISSUES PRESENTED

      1) Is the legal standard for review in this case de novo?

      2) Is a trial court entitled to implicit findings of fact on matters it did not
         address in its written findings of fact?

      3) Did the trial court err by concluding that Section 544.010(c) of the
         Texas Transportation Code does not require vehicles to stop prior to
         entering an intersection when that intersection has a stop sign and
         there is no crosswalk or designated stop line on the street?

      4) Did the trial court err by concluding that a mistake of law could not
         justify a traffic stop?

      5) Did the trial court commit reversible error by finding that the police
         did not have reasonable suspicion to conduct a traffic stop on the
         Appellee?

      6) Was the free air sniff conducted on Appellee’s vehicle lawful?

Brief of Appellant
Victoria County Criminal District Attorney
No. 13-15-00041-CR
                                                    2
      7) Was the search of Appellee’s vehicle lawful?

                                             STATEMENT OF THE FACTS

            Appellee was indicted on October 2, 2014 with one count of

Possession of a Substance in Penalty Group 1 in an amount of less than one

gram, and one count of Possession of a Substance in Penalty Group 3 in an

amount of less than 28 grams. [CR-I-5]. Both offenses were enhanced due

to taking place within a drug free zone. Id. On January 16, 2015, Appellee

filed a motion to suppress. [CR-I-13-15]. The trial court conducted a

hearing on this motion to suppress on January 23, 2015. [RR-I-1].

            The State first called Detective Dennis Paine of the Victoria Police

Department. [RR-I-7]. Detective Paine initially established that he was a

certified peace officer who had been a peace officer for 6.5 years. [RR-I-8].

He also established that he had received specialized training on traffic

enforcement and had served as a patrol officer for 4.5 years. Id.

            Detective Paine then testified that on July 28, 2014, he was

conducting undercover surveillance of the 2500 block of Rendon Street in

Victoria, Texas. [RR-I-8-9]. Detective Paine then explained the police were

monitoring that area because the Victoria Police Department had received

numerous Crime Stopper tips about criminal activity in that location and had

stopped numerous people leaving that location who were then discovered to
Brief of Appellant
Victoria County Criminal District Attorney
No. 13-15-00041-CR
                                                       3
have crack cocaine on them. [RR-I-9]. Detective Paine also established that

the location they were monitoring was on a dead end street, that there were

about five houses on that street, and that the police were monitoring it from

within a couple of hundred yards. [RR-I-10-11].

            Detective Paine then described how, on July 28, 2014, he observed a

vehicle leaving the monitored area and described how his unmarked vehicle

followed that vehicle. [RR-I-11]. He further stated they had only been

monitoring the area for from five to ten minutes when they saw this vehicle

leave the area and followed it. [RR-I-11]. Detective Paine also confirmed

that he did not actually see this vehicle at the suspect location. Id.

            Detective                Paine   then   described   following   the   vehicle   for

approximately two miles before he observed a traffic violation. [RR-I-12].

Detective Paine then stated that the traffic offense occurred when the vehicle

turned from Stayton Street onto Brownson Street. Id. He also described the

vehicle driving around in circles prior to the traffic stop occurring and

theorized that the vehicle’s odd movement could be due to it trying to throw

off police surveillance. [RR-I-13].

             Detective Paine then stated that his vehicle was approximately two

car lengths behind the suspect vehicle. Id. He also described how there

were two other officers in the vehicle with him, with him being in the front
Brief of Appellant
Victoria County Criminal District Attorney
No. 13-15-00041-CR
                                                       4
passenger seat, Sergeant Fetters driving, and Detective McDonald in the

backseat. [RR-I-13-14].

            Detective Paine then described seeing the vehicle they were following

approach a stop sign and stop with the front of the vehicle protruding into

the intersection. [RR-I-14]. Detective Paine then explained that the suspect

vehicle was far enough into the intersection that its front tires were in the

intersection. Id.

            Detective Paine then confirmed that the intersection where this traffic

offense occurred did not have a designated stop line on the street. [RR-I-

16]. Detective Paine then testified that he did not initiate the actual traffic

stop on the Appellee but rather relayed the information about the traffic

violation to Detective Kelly Gibbs, who initiated the actual traffic stop.

[RR-I-16-17]. Detective Paine also established that Detective Gibbs knew

from the information he provided which vehicle to stop, where that vehicle

had come from, and why the police were monitoring that area. [RR-I-17-

18].

            On cross-examination Detective Paine indicated he did not know if

Detective McDonald and Sergeant Fetters also observed the traffic violation.

[RR-I-21].



Brief of Appellant
Victoria County Criminal District Attorney
No. 13-15-00041-CR
                                             5
            On re-direct, Detective Paine testified that he had not observed

Appellee’s vehicle enter Rendon Street but rather only saw it depart from

that area. [RR-I-31]. Detective Paine also confirmed that in the time he was

following the Appellee’s vehicle, it never stopped at a McDonalds or

anywhere else. Id.

            Detective Paine then testified that as to the location of the traffic

offense (the Stayton-Brownson intersection), he did not observe any

obstructions on Brownson Street. [RR-I-31-32].

            The State then called Detective Kelly Gibbs. [RR-I-34]. Detective

Gibbs established she was a certified peace officer with over eight years

experience, and that she was a police canine handler.              [RR-I-34-35].

Detective Gibbs then testified that she was on duty the night of July 28, 2014

in a marked police vehicle, and that she was at that time aware of the police

surveillance of the 2500 Rendon Street area and was familiar with the

history of criminal activity in that area. [RR-I-36].

            Detective Gibbs then testified to being called over to assist with a

vehicle that the undercover surveillance team was following, to observing

the undercover vehicle, and to being informed about a traffic violation that

had been committed by the vehicle the undercover team was following.



Brief of Appellant
Victoria County Criminal District Attorney
No. 13-15-00041-CR
                                             6
[RR-I-36-37]. Detective Gibbs also described being informed of which

vehicle had committed the traffic offense. [RR-I-37].

            Detective Gibbs then described conducting a traffic stop on the

suspect vehicle. [RR-I-38]. She also confirmed she had been informed that

the vehicle had stopped in the intersection.                        Id.   Detective Gibbs then

testified that the stopped vehicle contained both a driver and a passenger.

[RR-I-39]. She then identified the Appellee as the driver of the vehicle. Id.

            Detective Gibbs then described observing nervous behavior from both

the driver and passenger.                        [RR-I-40]. Detective Gibbs also testified to

recognizing the Appellee from a narcotics investigation with which she had

been involved with in the last three years. [RR-I-41].

            Detective Gibbs then described how she questioned the Appellee and

how he was evasive with her and would not answer her questions about from

where he had come.                           [RR-I-42].   She also indicated that the Appellee

indicated he had prior drug charges from around 1996. Id. Detective Gibbs

then indicated she requested permission to search the vehicle, which

Appellee denied. [RR-I-43].

            Detective Gibbs then described questioning the passenger, who also

indicated prior arrests for drug charges. Id. Detective Gibbs also indicated

that the passenger stated that the two of them had come from McDonalds.
Brief of Appellant
Victoria County Criminal District Attorney
No. 13-15-00041-CR
                                                          7
[RR-I-43-44]. This was different testimony from the Appellee who never

mentioned anything about stopping at a McDonalds.              [RR-I-44].   The

entirety of Detective Gibbs’s conversations with both the Appellee and his

passenger was recorded and admitted into evidence as State’s Exhibit 1.

[State’s Exhibit 1; RR-I-15].

            Detective Gibbs then indicated that approximately seven minutes into

the traffic stop she made the decision to run her canine over the Appellee’s

vehicle. [RR-I-44]. Detective Gibbs confirmed the canine free air sniff was

conducted before the traffic stop was complete as she had not yet run the

Appellee and his passenger’s names and still needed to check on the paper

plates on their vehicle. [RR-I-45].

            Detective Gibbs then established that both herself and her canine

partner, Robby, were certified to conduct free air sniffs for narcotics and

described her history with using Robby. [RR-I-46-48]. She also confirmed

that Robby was with her on the scene that night, so there was no delay to

bring him to the location of Appellee’s vehicle. [RR-I-46]. Detective Gibbs

then described how she conducts a free air sniff and established that Robby

alerted for the odor of narcotics when conducting the free air sniff on

Appellee’s vehicle. [RR-I-48-49].



Brief of Appellant
Victoria County Criminal District Attorney
No. 13-15-00041-CR
                                             8
            Detective Gibbs then described searching the vehicle after Robby

alerted on it and locating drug paraphernalia, cocaine, and Ambien pills

within the vehicle.                          [RR-I-49-50].   Detective Gibbs then sponsored the

admission of her and Robby’s certification documents into evidence. [RR-I-

51-52; State’s Exhibit 3].

            After the completion of Detective Gibbs’ testimony, the State rested.

[RR-I-52]. The Appellee then called Detective Jimmy McDonald to testify.

[RR-I-55].

            Detective McDonald established that he had been a peace officer for

over seven years and had approximately three years experience as a patrol

officer.              [RR-I-55].                Detective McDonald then described how he

encountered the Appellee on July 28, 2014 as part of his role in a

surveillance operation off of Rendon Street.                             [RR-I-56].   Detective

McDonald was unsure how long he was involved in surveying the Rendon

area but said it could have been just a few minutes or as much as a hour.

[RR-I-57].

            Detective McDonald then describe following Appellee’s vehicle as it

drove in a circular pattern. [RR-I-58]. Detective McDonald also confirmed

that Appellee’s traffic violation occurred at the Brownson and Stayton

intersection. [RR-I-60].
Brief of Appellant
Victoria County Criminal District Attorney
No. 13-15-00041-CR
                                                             9
            Detective McDonald then testified that he observed Appellee’s

vehicle stopped on the inside point, which is past the curb and the stop sign.

[RR-I-66].                Detective McDonald was unable to state how much of the

vehicle was past the stop sign. [RR-I-68]. He also did not recall if there was

anything along the curb of Brownson Street at the time that the officer’s

observed the traffic violation. Id.

            The Appellee then called Sergeant Clay Fetters of the Victoria Police

Department. [RR-I-69]. Sergeant Fetters established he had been with the

Victoria Police Department for five years and had specialized training in

regards to traffic code enforcement. [RR-I-69-70]. Sergeant Fetters then

advised he came into contact with the Appellee on July 28 after conducting

surveillance of a known narcotics location at 2500 block of Rendon Street.

[RR-I-70].

            Sergeant Fetters then described following Appellee’s vehicle through

several streets and established that the Appellee was driving in a circular

pattern through the neighborhood.              [RR-I-72-73].   Sergeant Fetters also

stated they were about three car lengths behind Appellee’s vehicle. [RR-I-

74]. Sergeant Fetters also explained how he was driving the vehicle, and

that it was the primary responsibility of the passengers to make observations,

so he could focus on driving safely. Id.
Brief of Appellant
Victoria County Criminal District Attorney
No. 13-15-00041-CR
                                              10
            When asked by Appellee’s counsel if he observed the Appellee

commit a traffic violation, Sergeant Fetters answered that it appeared to him

that the Appellee went into the intersection, past the stop sign. [RR-I-75].

            On cross-examination Sergeant Fetters testified that while they were

following the Appellee he never stopped at a McDonalds. [RR-I-77].

            The trial court granted the Appellee’s motion to suppress. [RR-I-91].

Nothing in the trial court’s pronouncement from the bench indicated the trial

court found any of the testifying officers to not be credible or reliable. [RR-

I-90-91]. Rather the trial court analysis seemed to be based on a conclusion

that a mistake of law would not justify an erroneous traffic stop. [RR-I-91].

            On January 26, 2015, the State requested written findings of fact and

conclusions of law. [CR-I-25-26]. On January 28, 2015, the trial court

issued its findings of fact and conclusions of law. [CR-I-36-38]. The trial

court did not issue any findings of fact that any of the officers had testified

untruthfully or that the officers were not credible. Id. The trial court did

conclude that neither Sergeant Fetters nor Detective McDonald observed the

alleged traffic violation. [CR-I-37]. The trial court did not make a similar

finding that Detective Paine did not observe the alleged traffic violation.

[CR-I-36-38].



Brief of Appellant
Victoria County Criminal District Attorney
No. 13-15-00041-CR
                                             11
             The trial court held that the officers did, “not understand or are

mistaken as to a driver’s responsibility under Transportation Code §544.010

(2014).”              [CR-I-37].             The trial court also concluded that “an officer’s

mistaken understanding of the law will not justify a stop.” Id. The trial

court’s findings concluded that Appellee’s vehicle did not enter the

intersection and concluded that the police did not have reasonable suspicion

to initiate a traffic stop. [CR-I-38]. The trial court’s findings did not state

that it was unreasonable for Detective Paine to conclude that Appellee had

stopped with his vehicle in the intersection. [CR-I-36-38]. The trial court’s

findings did not address the legality of the free air sniff conducted on

Appellee’s vehicle or the legality of the subsequent search of Appellee’s

vehicle other than to note that a canine free air sniff was conducted on

Appellee’s vehicle and the canine that performed the free air sniff detected

the presence of contraband in the Appellee’s vehicle. [CR-I-36-38].

                                     SUMMARY OF THE ARGUMENT

            This appeal turns on questions of law and mixed questions of law and

fact that relate to whether an investigating officer had reasonable suspicion.

As such the correct standard of review for this appeal is de novo.

            A trial court is not entitled to have implicit findings of fact made on

its behalf on matters that were not addressed in the trial court’s explicit
Brief of Appellant
Victoria County Criminal District Attorney
No. 13-15-00041-CR
                                                         12
findings of fact. Allowing a trial court to be given the benefit of implicit

findings when it made explicit findings undercuts the entire purpose of the

Cullen rule in requiring trial courts on request to prepare findings of fact. To

the extent that the Krall case held otherwise and established a precedent that

trial courts would still be given the benefit of implicit findings even when

the trial court prepared explicit findings, Krall should be overruled. In the

alternative, this case is distinguishable from Krall as here unlike in Krall, the

State actually requested findings of fact which places a greater obligation on

the trial court to prepare findings of fact that fully address the basis of the

trial court’s ruling.

            Section 554.010(c) of the Texas Transportation Code requires when

approaching an intersection with a stop sign on a road that does not have a

crosswalk or designated stop line, that the motorist stop their vehicle prior to

entering the intersection.                   That is the most logical interpretation of the

statute, and it is the interpretation that is consistent with that of the other

Texas appellate court which has examined this statute. As such, the trial

court committed reversible error when it concluded that under such

circumstances the statute did not necessarily require motorists to stop before

entering the intersection.



Brief of Appellant
Victoria County Criminal District Attorney
No. 13-15-00041-CR
                                                     13
            In the alternative even if Detective Paine did misinterpret the statute,

his observations of Appellee stopping his vehicle in the intersection still

established reasonable suspicion to stop the Appellee because reasonable

suspicion can be based on a mistake of law, so long as that mistake of law is

reasonable. The Supreme Court established that principle in the recent

Heien case, and that same principle should be applied in Texas courts. As

such, the trial court committed reversible error by concluding that a mistake

of law could not provide reasonable suspicion to justify a traffic stop.

            The investigating officers had reasonable suspicion to initiate a traffic

stop on Appellee’s vehicle.                  Detective Paine observed conduct that he

believed constituted a traffic stop. It does not matter if Appellee actually did

in fact commit a traffic offense as reasonable suspicion does not require that

the suspect actually be guilty of an offense. The trial court did not issue any

findings stating that it found Detective Paine’s testimony to be lacking in

credibility or in reliability which, because the trial court was obligated to

issue findings of fact stating its essential findings, the trial court would have

been obligated to do if it felt that Detective Paine’s testimony was not

credible or reliable. As such, since the trial court did not make any findings

concluding that Detective Paine lacked credibility or reliability, his



Brief of Appellant
Victoria County Criminal District Attorney
No. 13-15-00041-CR
                                                 14
observations of a possible traffic offense were sufficient to establish

reasonable suspicion.

            The free air sniff and search of Appellee’s vehicle were both legal.

The trial court did not issue any findings addressing the legality of either the

free air sniff or the search of Appellee’s vehicle and thus since the trial court

was obligated to issue findings concerning the essential findings behind its

ruling, the trial court clearly accepted the testimony concerning these

operations and agreed that they were legal.

            Furthermore, the free air sniff was legal both because Detective Gibbs

did not unduly prolong the traffic stop by conducting the free air sniff, and

also because from the totality of information the investigating officers had

obtained prior to conducting the free air sniff, they had reasonable suspicion

that Appellee’s vehicle contained narcotics which would justify them

extending the traffic stop to conduct a free air sniff.

            The free air sniff performed on Appellee’s vehicle was conducted by a

trained and certified narcotics detection dog. The dog alerted for the odor of

narcotics on the vehicle and that gave the investigating officers probable

cause that there were narcotics within the vehicle. When officers have

probable cause that a vehicle contains narcotics, they may search the vehicle



Brief of Appellant
Victoria County Criminal District Attorney
No. 13-15-00041-CR
                                             15
without a warrant. As such the search of the vehicle was lawful, and the

evidence obtained as a result of that search should not have been suppressed.

                                             ARGUMENT

      I. The appropriate standard of review in this case is de novo.

            A trial court’s ruling on a motion to suppress is reviewed under a

bifurcated standard of review. Amador v. State, 221 S.W. 3d 666, 673 (Tex.

Crim. App. 2007). The trial court’s determination of facts is entitled to

almost total deference, so long as it is supported by the record. State v.

Weaver, 349 S.W. 3d 521, 525 (Tex. Crim. App. 2011). However, the

application law to fact questions that do not turn on the credibility and

demeanor of witnesses is reviewed de novo. Amador, 221 S.W. 3d at 673.

Moreover, whether the facts known to an officer amounted to reasonable

suspicion is a mixed question of law and fact and is thus subject to de novo

review. See Hamal v. State, 390 S.W. 3d 302, 306 (Tex. Crim. App. 2012).

All the matters at issue in this appeal are legal questions or mixed questions

of fact and law concerning whether the investigating officer’s had

reasonable suspicion. Therefore this case is subject to de novo review.




Brief of Appellant
Victoria County Criminal District Attorney
No. 13-15-00041-CR
                                                16
   II. A trial court is not entitled to implicit findings of fact when it
       submitted explicit findings of fact.

            When a trial court fails to file findings of fact it is entitled to have the

evidence considered in the light most favorable to its ruling and is further

entitled to whatever implicit findings of fact support its ruling as long as

those findings are supported by the record. See State v. Ross, 32 S.W. 3d

853, 855 (Tex. Crim. App. 2000)(emphasis added.) However, there is no

logical reason to extend the same deference to the trial court’s rulings when

the trial court has filed findings of fact. When the trial court has actually

submitted findings of fact the responsibility should fall on the trial court to

submit complete findings of fact that fully address the rationale behind the

court’s rulings. As such the trial court should not be deemed to have made

implicit findings of fact on matters that the court did not address in its

explicit written findings.

            It is well established that the losing party to a suppression hearing has

an absolute right upon timely request to receive written findings of fact and

conclusions of law from the trial court that express the “essential findings”

of the trial court. See Cullen v. State, 195 S.W. 3d 696, 699 (Tex. Crim.

App. 2006).                     The “essential findings” are the findings of fact and

conclusions of law “adequate to provide an appellate court with a basis upon

Brief of Appellant
Victoria County Criminal District Attorney
No. 13-15-00041-CR
                                                  17
which to review the trial court’s application of the law to the facts.” Cullen,

195 S.W. 3d at 699.                          The purpose of requiring these findings is to inform

the appellate courts of the findings of fact for which the trial court’s rulings

are based. Id. Not having such findings effectively forces appellate courts

to guess about a trial court’s ruling on a motion to suppress. Id. at 698. That

is unfair to both the parties and the appellate courts and will ultimately serve

to reduce professionalism and accountability within the criminal justice

system itself. Thus the requirement set down by the Court of Criminal

Appeals in Cullen that trial courts, upon request of the losing party at a

suppression hearing, submit their essential findings, is a sensible

requirement that helps to promote the efficient administration of justice.

            The potential benefits of the Cullen rule are greatly undercut if

implicit findings are still written into the explicit findings of trial court’s on

matters the trial court did not address in their explicit written findings. Such

a practice effectively eviscerates Cullen as it removes all obligation from the

trial court to draft thorough findings of fact that fully explain all of the

essential findings of the trial court. Indeed if the trial court is still to be

given the benefit of implicit findings over matters it did not address in its

explicit findings then the smarter practice for trial judges is obviously to say

as little as possible in their explicit findings, so as to maximize the
Brief of Appellant
Victoria County Criminal District Attorney
No. 13-15-00041-CR
                                                          18
advantage they receive from having comprehensive implicit findings

imparted to their findings on any matter they did not directly address in their

explicit findings. The natural consequence of such behavior is that it once

again leaves appellate courts having to guess at the reasoning behind the trial

court’s rulings; the very wrong that Cullen aimed to eliminate.

            Accordingly, in cases where trial courts submit explicit findings of

fact they should not be given credit for implicit findings on any matter they

did not specifically address in their explicit findings. Now such a rule would

mean overturning the precedent established by this Honorable Court in the

Krall case where implicit findings were read into the explicit findings

submitted by the trial court in that case. See State v. Krall, 13-12-00469-CR

at 4, 8 (Tex. App.-Corpus Christi 2013, pet. ref’d)(mem. op.)(not designated

for publication.) However, since required trial judges to be bound by their

explicit written findings of fact helps to better insure the effecient

administration of justice and is the approach that is most consistent with the

policy goals set down by the Court of Criminal Appeals in Cullen, the State

respectfully requests this Honorable Court overrule Krall on this point and

refuse to impart implicit findings of fact into the explicit findings of fact

submitted by trial courts.



Brief of Appellant
Victoria County Criminal District Attorney
No. 13-15-00041-CR
                                             19
            In the alternative even if this Honorable Court is unwilling to disturb

the precedent established in Krall, the current case is readily distinguishable

from Krall.                  In the present case the State, as the losing party at the

suppression hearing, actively requested findings of fact and conclusions of

law from the trial court. [CR-I-25-26]. That is different from the situation

in Krall where the trial court issued its findings of fact and conclusions of

law not in response to a request from the losing party at the suppression

hearing, but rather on its own initiative as part of the order it issued granting

the motion to suppress. See Krall, 13-12-00469-CR at 2.

            Per Cullen, it is the losing party requesting findings of fact that

triggers the trial court’s obligation to submit its essential findings. See

Cullen, 195 S.W. 3d at 699. Such a requirement is quite reasonable. It puts

the burden on the losing party to seek elucidation for the trial court’s ruling

which is only proper. And it is likewise only logical that when a party takes

active steps to request findings of fact, that party is much more entitled to

receive comprehensive findings than a party who did not actively request

findings. Likewise it is only logical that a trial court has a far greater

obligation to prepare thorough findings when such findings have been

requested by a party than when the trial court is simply submitting findings

on its own initiative. A party that did not bother to request findings of fact
Brief of Appellant
Victoria County Criminal District Attorney
No. 13-15-00041-CR
                                                 20
and conclusions of law has assumed the risk of an incomplete appellate

record and therefore has no one to blame but itself when implicit findings

are read into the record, but a party that has actively sought findings has

made a genuine effort to establish an accurate understanding of the

reasoning for the trial court’s ruling, and therefore it should be entitled to

have a complete explanation of the reasoning behind the trial court’s rulings

included within the record.

            With such an understanding in mind, it is clear that this case is readily

distinguishable from Krall because here, unlike in Krall, the State actively

sought out findings of fact and conclusions of law. As such since the State

made the effort to obtain an accurate record from the trial court, the trial

court had a much greater obligation here than in Krall to prepare findings of

fact and conclusions of law that fully covered its essential findings in the

case. As such even if it was appropriate in Krall to read implicit findings

into the trial court’s explicit findings, here the trial court should be held to a

higher standard, and thus the trial court should be bound by what it released

as its essential findings in this case and should not have implicit findings

added to those explicit findings.




Brief of Appellant
Victoria County Criminal District Attorney
No. 13-15-00041-CR
                                             21
 III. The trial court committed reversible error when it concluded that
      Section 544.010(c) of the Texas Transportation Code does not
      mandate stopping prior to entering an intersection when
      approaching a stop sign on a street that does not have a crosswalk
      or designated stop line.

         The first question at issue in this case concerning the legality of the

traffic stop itself is whether Section 554.010(c) of the Texas Transportation

Code requires vehicles, when approaching an intersection with a stop sign

on a street that does not have a crosswalk or designated stop line on it, to

stop prior to entering the intersection or whether under certain circumstances

the statute allows motorists to stop with some portion (or even all) of their

vehicle actually in the intersection. The investigating officer, Detective

Paine, believed that under such circumstances the statute required motorists

to stop their vehicle before entering the intersection. [RR-I-22]. The trial

court disagreed with that interpretation and concluded that, “the officer’s do

not understand or are mistaken as to a driver’s responsibility under

Transportation Code §544.010 (2014).”             [CR-I-37].   The trial court’s

interpretation of the statute is in error.

            Now admittedly Section 544.010(c) of the Texas Transportation Code

does not expressly state that in the absence of a crosswalk or clearly marked

stop line, a vehicle operator must, when approaching a stop sign, stop before

entering the intersection. However, that requirement is certainly implied by
Brief of Appellant
Victoria County Criminal District Attorney
No. 13-15-00041-CR
                                             22
the statute because it is the only logical interpretation of that statute. The

obvious purpose of Section 554.010(c) of the Texas Transportation Code is

to prevent traffic accidents. Therefore it is clearly necessary to have people

stop before entering dangerous intersections. (The law would not ameliorate

the risk of traffic accidents at dangerous intersections if it permitted people

to take any portion of their vehicles into the intersection before stopping to

make sure that it was safe to do so because as soon as any portion of their

vehicle enters the intersection they would be at risk of being hit by

oncoming vehicles.)

            Texas law presumes in interpreting statutes that the legislature

intended a “just and reasonable result.”               See TEX. GOV’T CODE

§311.021(3). For Section 554.010(c) to achieve a just and reasonable result,

it requires that in the absence of a crosswalk or designated stop line, people

stop their vehicles before entering the intersection.             That is the only

interpretation that makes the statute workable and therefore that is the only

interpretation that can achieve a just and reasonable result.

            It is also notable that the only appellate court to give an in-depth look

at this statute came to the same conclusion: that in the absence of a

crosswalk or designated stop line, the statute requires stopping before

entering the intersection. The Waco Court of Appeals evaluated Section
Brief of Appellant
Victoria County Criminal District Attorney
No. 13-15-00041-CR
                                             23
554.010(c) during their consideration of the Police case and concluded that

“the plain language of the statute does not refer to a stop sign as an indicator

of anything other than a signal that a stop is required prior to entering the

intersection.” State v. Police, 377 S.W. 3d 33, 38 (Tex. App.-Waco 2012,

no pet)(emphasis added.) That is the most logical interpretation of the

statute and therefore should be adopted within this jurisdiction as well.

            Accordingly, it is clear that Detective Paine did not misinterpret

Section 554.010(c). His interpretation that the statute requires that when a

driver approaches a stop sign on a street that does not have a crosswalk or

designated stop line, that driver must stop his vehicle before entering the

intersection, is the correct interpretation of the statute, and therefore it is the

interpretation that should have been applied in this case. To the extent the

trial court held otherwise, the trial court committed plain error.

            This error caused great harm to the State’s case. The State’s sole

justification for the traffic stop was the violation of this statute. Therefore it

was essential for the trial court to correctly interpret the application of the

statute to get a proper ruling in this case.        Obviously the trial court’s

conclusion that there was not reasonable suspicion to support that a traffic

offense occurred in this case is untenable if the trial court misapplied the

statute at issue. Additionally, an improper interpretation of the statute would
Brief of Appellant
Victoria County Criminal District Attorney
No. 13-15-00041-CR
                                             24
likely unfairly impact how the trial court interpreted the weight and

credibility of the testimony of the investigating officers. (Obviously a fact

finder is going to give less weight to the testimony of a police officer when

the fact finder erroneously believes that police officer does not understand

the law he is charged with enforcing.) Therefore the trial court’s error on

this matter would have colored every aspect of its deliberations in this case.

Accordingly, since this error caused great harm to the State’s case, the trial

court’s decision should be reversed.

  IV. In the alternative, the trial court committed reversible error
      by concluding that a mistake of law could not justify a traffic
      stop.

          In the alternative, even if this Honorable Court concludes that the trial

court correctly interpreted Section 554.010(c) of the Texas Transportation

Code, the trial court still committed reversible error by concluding that “an

officer’s mistaken understanding of the law will not justify a stop.” [CR-I-

37].

        The trial court relied upon the Goudeau case for its determination that a

mistaken belief in the law could not justify a traffic stop. See [CR-I-37];

Goudeau v. State, 209 S.W. 3d 713, 716 (Tex. App.-Houson [14th Dist.]

2006, no pet). Goudeau itself primarily relied upon a series of 5th Circuit

cases for its determination that a traffic stop could not be based upon an
Brief of Appellant
Victoria County Criminal District Attorney
No. 13-15-00041-CR
                                             25
officer’s mistaken understanding of the traffic law. See Goudeau, 209 S.W.

3d at 716; United States v. Granado, 302 F. 3d 421, 423 (5th Cir. 2002);

United States v. Lopez-Valdez, 178 F.3d 282, 289 (5th Cir. 1999); United

States v. Miller, 146 F. 3d 274, 279 (5th Cir. 1998). That legal principal was

certainly valid at the time Goudeau was decided, but it has now been

superseded by the United States Supreme Court’s recent Heien decision

which established that a traffic stop could be based on a mistake of law, so

long as the mistake of law was reasonable. See Heien v. North Carolina,

135 S. Ct. 530 (2014).

            In Heien, the Supreme Court specifically noted that “the ultimate

touchstone of the Fourth Amendment is ‘reasonableness.’” Id. at 536. The

Supreme Court then explained that “to be reasonable is not to be perfect”

and confirmed that “the Fourth Amendment allows for some mistakes on the

part of government officials.” Id. The Supreme Court then further advised

that “the limit is that the mistakes must be those of reasonable men.” Id.

The Supreme Court then established that “reasonable men make mistakes of

law, too, and such mistakes are no less compatible with the concept of

reasonable suspicion. Reasonable suspicion arises from the combination of

an officer’s understanding of the facts and his understanding of the relevant

law. The officer may be reasonable mistaken on either ground.” Heien, 135
Brief of Appellant
Victoria County Criminal District Attorney
No. 13-15-00041-CR
                                             26
S. Ct. at 536. Thus Heien clearly overturns the rationale of Goudeau and its

forebears on this particular legal issue, and as such the trial court erred when

it concluded that a mistake of law would not justify a traffic stop. Heien

makes clear that a traffic stop can be based on a mistake of law, so long as

that mistake was reasonable.

            Now it remains an open question of if Heien applies in Texas courts.

The 5th Circuit in its recent Alvarado-Zarza case certainly seemed to believe

that Heien applies to Texas cases as in that case the 5th Circuit, rejected a

Heien based argument, not because it concluded that Heien did not apply in

Texas courts but rather because it concluded that the investigating officer’s

mistake of law in that case was not reasonable.           See United States v.

Alvarado-Zarza, 13-50745, 2015 WL 1529102 at 2-3 (5th Cir. 2015). By

addressing the Heien issue on the merits of the claim, the 5th Circuit

implicitly recognized that Heien applies in Texas cases. Likewise at least

one Texas appellate court has done likewise, rejecting a Heien based mistake

of law argument on the merits of the claim rather than on a categorical

determination that Heien does not apply in Texas courts. See Evans v. State,

14-13-00642-CR, 2015 WL 545702 at 4 n. 5 (Tex. App.-Houston [14th Dist].

2015)(mem. op). (Though at least one Texas appellate court seems opposed

to applying Heien in Texas cases or at least opposed to applying Heien when
Brief of Appellant
Victoria County Criminal District Attorney
No. 13-15-00041-CR
                                             27
the issue is a nonconsensual search of a person. See State v. Tercero, 01-14-

00120-CR, 2015 WL 1544519 at 7 (Tex. App.-Houston [1st Dist.]

2015)(opinion subject to withdraw).)

           At any rate, while the issue of whether Heien applies in Texas cases

has not been definitively settled yet, the State contends that Heien should

apply in Texas cases. The reasoning of Heien as to why reasonable mistakes

of law do not void reasonable suspicion is logical and thus there is no good

reason for Texas courts not to apply the same sensible standard in judging an

officer’s reasonable mistake of law. Furthermore, as already discussed the

prior Texas law holding that a mistake of law could not justify a traffic stop

was itself based primarily on federal cases. Since the federal foundational

cases for that principle are no longer applicable, there is little reason for

Texas courts to continue to apply that doctrine. Instead Texas courts should

apply the standard set down by the Supreme Court which recognizes that

reasonable suspicion can still be had from a mistake of law, so long as the

mistake of law was reasonable. Nor does Article 38.23 of the Texas Code of

Criminal Procedure bar the application of Heien; that statute only forbids the

introduction of evidence obtained in violation of the law or the Constitution

of the State of Texas or the United States. Heien though makes a convincing

case that evidence obtained from a reasonable mistake of law is not obtained
Brief of Appellant
Victoria County Criminal District Attorney
No. 13-15-00041-CR
                                             28
in violation of the Constitution or of the law, and it is difficult to see how

evidence obtained from a reasonable mistake of law could be considered to

have been obtained in violation of the laws or Constitution of either Texas or

the United States. As such evidence obtained from a reasonable mistake of

the law should not be deemed as to trigger Article 38.23, and therefore there

is no reason such evidence should be inadmissible in Texas courts.

            If Heien is deemed to apply in Texas courts, then the question

becomes whether Detective Paine’s interpretation of the Section 554.010(c)

of the Texas Transportation Code was reasonable, and clearly his

interpretation of the statute was objectively reasonable. Detective Paine’s

interpretation of the statute is certainly a plausible reading of the statute.

After all, his interpretation of the statute is consistent with the obvious

purpose of the statute (to help avoid traffic accidents.) And, as already

discussed, Detective Paine’s conclusion that the statute requires stopping

before entering the intersection is the same conclusion the Waco Court of

Appeals reached in the Police case. An officer can hardly be said to have

unreasonably interpreted a statute if his interpretation of the statute tracks

with the interpretation of the only Texas appellate court that has seriously

evaluated that statute.



Brief of Appellant
Victoria County Criminal District Attorney
No. 13-15-00041-CR
                                             29
            As such even if it is concluded that Detective Paine’s interpretation of

Section 554.010(c) was incorrect, his mistake of law was clearly a

reasonable mistake. Accordingly, that mistake of law can still form the basis

for reasonable suspicion that he observed an offense, and it was plain error

for the trial court to hold otherwise.

            The trial court’s error on this point clearly caused harm to the State, as

the trial court’s determination on if there was reasonable suspicion for the

traffic stop would likely have been very different if the court had accepted

that a reasonable mistake of law could still furnish reasonable suspicion to

justify a traffic stop. As such since the trial court’s error caused clear harm

to the State’s case, the trial court’s ruling should be reversed.

   V. The trial court committed reversible error by concluding there
      was not reasonable suspicion for the traffic stop in this case.

            Regardless of which interpretation of Section 554.010(c) is applied, it

is clear that the investigating officers had reasonable suspicion to initiate a

traffic stop of Appellee’s vehicle. An officer conducts a lawful detention

when he has reasonable suspicion to believe that an individual is violating

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

Reasonable suspicion exists if the officer has specific, articulable facts that

when combined with rational inferences from those facts would lead the

Brief of Appellant
Victoria County Criminal District Attorney
No. 13-15-00041-CR
                                             30
officer to reasonably conclude that a particular person is, has been, or soon

will be engaged in criminal activity. Ford, 158 S.W. 3d at 492. Reasonable

suspicion is an objective standard that disregards any subjective intent of the

officer in making the stop and focuses instead on whether there was an

objectively justifiable basis for the detention. See Derichsweiler v. State,

348 S.W. 3d 906, 914 (Tex. Crim. App. 2011). It is therefore necessary to

look at the totality of the circumstances to see if reasonable suspicion has

been met. Id.                    The test is whether the facts available to the officer at the

moment of detention would warrant a person of reasonable caution to

believe the action taken was appropriate. See Aviles v. State, 23 S.W. 3d 74,

77 (Tex. App.-Houston [14th Dist] 2000, pet. ref’d).

            Furthermore, reasonable suspicion is a very low standard. Reasonable

suspicion requires considerably less proof than proof of wrong-doing by the

preponderance of the evidence. See United States v. Sokolow, 490 U.S. 1, 7

(1989). Indeed reasonable suspicion requires less proof than probable cause

which itself is “far short of preponderance of the evidence.” See York v.

State, 342 S.W. 3d 528, 543 n. 86 (Tex. Crim. App. 2011). Reasonable

suspicion requires only “some minimal level of objective justification” to

justify a traffic stop. See Hamal, 390 S.W. 3d at 306.

            In this case the testimony of Detective Paine established that he
Brief of Appellant
Victoria County Criminal District Attorney
No. 13-15-00041-CR
                                                     31
saw the Appellee commit a traffic offense. [RR-I-14]. Sergeant Fetters

likewise testified that it appeared to him that Appellee’s vehicle “was into

the intersection” though Sergeant Fetters did caution that his vantage point

was not as good as Detective Paine’s. [RR-I-75]. Detective McDonald

similarly noted that he observed Appellee’s vehicle stopped “past the curb”

at the intersection of Stayton and Brownson Street, though Detective

McDonald did state that he did not observe the vehicle fail to stop prior to

that. [RR-I-66].

            The suspect conduct Detective Paine and Sergeant Fetters observed

(Appellee, when approaching an intersection with a stop sign, allegedly

stopping his vehicle in the intersection) is conduct that if true either

constituted a traffic offense or is conduct that it was reasonable for the

officers to believe constituted a traffic offense. Therefore as long as it was

reasonable for the officers to believe they had observed a traffic violation

then the officers had reasonable suspicion to initiate a traffic stop on

Appellee’s vehicle.

            Now in the present case the trial court made the specific factual

determination that Appellee’s vehicle did not actually enter the intersection.

[CR-I-38]. As such the trial court made a factual determination that a traffic

offense did not actually occur in this case. The trial court also made a
Brief of Appellant
Victoria County Criminal District Attorney
No. 13-15-00041-CR
                                             32
specific factual determination that Sergeant Fetters and Detective McDonald

did not observe the Appellee’s commit the alleged traffic offense. [CR-I-

37]. Those factual determinations must be respected since it is the trial

court’s prerogative as the fact finder to decide such factual questions.

However, those determinations are not dispositive of the question of whether

the officers had reasonable suspicion that a traffic offense occurred because

the State is not required to prove a traffic offense actually happened in order

to establish reasonable suspicion of the traffic offense.

             The trial court’s legal analysis was therefore flawed because after

concluding that the Appellant did not enter the intersection, it concluded

there was no traffic violation and from that concluded that there was not

reasonable suspicion to justify the traffic stop. [CR-I-38]. The trial court’s

ruling thus effectively required the State to prove the traffic offense actually

happened in order to establish reasonable suspicion to justify the traffic stop.

This is improper because that is not what Texas law requires in order to

justify a traffic stop. The State does not have to prove a traffic violation

actually occurred; it just has to show that the investigating officers had

reasonable suspicion that a traffic violation occurred. See Ford, 158 S.W.

3d at 492. If reasonable suspicion is established then the traffic stop is valid



Brief of Appellant
Victoria County Criminal District Attorney
No. 13-15-00041-CR
                                             33
even if the suspect ultimately turns out to be completely innocent of the

suspected offense which provided the initial reasonable suspicion.

             In this case even with the trial court discounting the testimony of

Sergeant Fetters and Detective McDonald as to what they observed about

Appellee’s vehicle at the Stayton-Brownson intersection, the testimony of

Detective Paine is sufficient by itself to establish reasonable suspicion that a

traffic offense occurred. Detective Paine was unambiguous that he observed

Appellee’s vehicle stop “well past the curb” with the car “from the front tires

forward” being in the intersection. [RR-I-14]. Detective Paine’s testimony

also established that there was sufficient light and he had an adequate

vantage point and close position to observe Appellee’s vehicle. [RR-I-13-

14]. And unlike with Sergeant Fetters, the trial court did not issue any

findings stating that Detective Paine did not actually observe what he

testified to observing. [CR-I-36-38]. Thus Detective Paine’s testimony

established specific, articulable facts that made it reasonable for him to

believe Appellee had committed a traffic offense.

             Now the trial court could have chosen to disbelieve Detective Paine’s

testimony about what he testified to observing on July 28, 2014, or the trial

court could have concluded Detective Paine’s testimony was insufficiently

reliable to provide a basis for reasonable suspicion, but the trial court did not
Brief of Appellant
Victoria County Criminal District Attorney
No. 13-15-00041-CR
                                             34
do so. The trial court issued explicit findings of fact for this case, and

nowhere in those findings of fact did the trial court ever dispute the honesty

or reliability of Detective Paine’s testimony. [CR-I-36-38]. The trial court

also did not make any verbal pronouncement that it found Detective Paine’s

testimony to be lacking in credibility or reliability. [RR-I-90-91]. And at no

point in this case did the trial court ever conclude that Detective Paine lied

about what he testified to observing. [RR-I-90-91; CR-I-36-38]. Nor did

the trial court make any findings that Detective Paine’s testimony that he

observed Appellee commit a traffic violation was unreasonable. [RR-I-90-

91; CR-I-36-38].

            A trial court is required to issue its “essential findings” that explain

the reasoning behind its decision on a motion to suppress upon the request of

the losing party to said motion. See Cullen, 195 S.W. 3d at 699. As such

since the trial court did not issue any findings stating that it found Detective

Paine’s testimony to not be credible or reliable, such a determination was

clearly not part of the trial court’s essential findings for this case. And

indeed the State contends that since Cullen requires the trial court to include

the essential findings behind its ruling in its findings of fact, the fact that the

trial court did not make any findings stating that it found Detective Paine’s

testimony to be lacking in credibility or reliability, necessarily requires a
Brief of Appellant
Victoria County Criminal District Attorney
No. 13-15-00041-CR
                                             35
conclusion that the trial court did find Detective Paine to be a credible and

reliable witness, since the court would have been obligated to state otherwise

in its findings if it did not find Detective Paine to be credible and reliable.

(The same obligation would obviously not apply in reverse since the trial

court finding Detective Paine to be credible and reliable is obviously not an

essential finding that has to be included in the trial court’s findings if the

trial court’s determination that Detective Paine was credible and reliable did

not ultimately impact its determination in this case.) Nor is there anything

inconsistent with the trial court seemingly accepting Detective Paine as a

credible and reliable witness and still concluding that he was wrong that

Appellee committed a traffic offense. It is entirely possible to believe that

someone reasonably and honestly believes something and still believe that

person is wrong about what they saw. And Detective Paine can be wrong

about what he saw and still have reasonable suspicion to justify a traffic

stop.

            Since the trial court did not find that Detective Paine was being

untruthful or that his testimony was unreliable, it is clear that Detective

Paine’s testimony was sufficient to establish reasonable suspicion that

Appellee committed a traffic offense (or at least had engaged in conduct that

it was reasonable for Detective Paine to believe constituted a traffic offense.)
Brief of Appellant
Victoria County Criminal District Attorney
No. 13-15-00041-CR
                                             36
Detective Paine’s testimony may not have been enough to prove that

Appellee actually committed the suspected traffic offense, but it did not have

to be since proving the traffic offense actually happened is not required to

establish reasonable suspicion for a traffic stop.              Detective Paine’s

observations that he believed he observed what he reasonably believed was a

traffic offense are sufficient under the totality of the circumstances present in

this case to establish the minimal level of objective justification needed to

establish reasonable suspicion to justify a traffic stop. Therefore the trial

court’s legal determination to the contrary (which seemingly required the

State to prove an actual traffic offense occurred rather than just prove that

Detective Paine had reasonable suspicion that a traffic offense occurred) was

reversible error and must be overturned.

  VI. The free air sniff on and search of Appellee’s vehicle were lawful.

            The trial court based its entire ruling on the question of whether there

was reasonable suspicion for the stop of Appellee’s vehicle and did not

really address the legality of the free air sniff of Appellee’s vehicle or the

subsequent search of the vehicle which found the contraband narcotics.

[CR-I-36-38]. Since the trial court did not submit written findings on these

matters, it is clear that consideration of these matters was not part of the trial

court’s “essential findings” as to why it granted the motion to suppress. The
Brief of Appellant
Victoria County Criminal District Attorney
No. 13-15-00041-CR
                                             37
trial court would have been obligated to address these issues in its written

findings of fact if these issues had formed any part of the trial court’s

decision to grant the motion to suppress. See Cullen, 195 S.W. 3d at 399.

Therefore from the fact that the trial court did not address these issues in its

findings of fact, it is clear that the trial court found Detective Gibbs

testimony to be credible and reliable and did not find anything legally

objectionable about either the free air sniff or the search of Appellee’s

vehicle. With that in mind the State shall still address the legality of the free

air sniff of Appellee’s vehicle and the search of Appellee’s vehicle, so as to

avoid any question of procedural default on these matters.

            The evidence presented at the suppression hearing established that

Detective Gibbs could legally conduct a free air dog sniff on Appellee’s

vehicle. A sniff of the exterior of a car be a trained canine during a lawful

traffic stop is not a search within the meaning of the Fourth Amendment.

See Illinois v. Caballes, 543 U.S. 405, 409 (2005); Branch v. State, 335

S.W. 3d 893, 900 (Tex. App.-Austin 2011, pet. ref’d). However, the officer

may not unduly prolong the traffic stop to conduct the free air sniff, unless

the officer first develops reasonable suspicion that the car contains

contraband. See Caballes, 543 U.S. at 407; Branch, 335 S.W. 3d at 900. In

the present case both of those factors justified the free air sniff as Detective
Brief of Appellant
Victoria County Criminal District Attorney
No. 13-15-00041-CR
                                             38
Gibbs did not unduly prolong the traffic stop by conducting the free air sniff,

and she already had reasonable suspicion that the car contained contraband

narcotics prior to conducting the free air sniff.

            In terms of prolonging the traffic stop, Texas courts have rejected

consideration of a rigid time limitation for investigative detentions and

instead look to “whether the police officer diligently pursued a means of

investigation that was likely to confirm or dispel their suspicions quickly,

during which time it was necessary to detain the defendant.” See Kothe v.

State, 152 S.W. 3d 54, 64 (Tex. Crim. App. 2004). It is only if the officer’s

actions “unduly prolong” the detention that they are unreasonable, and the

Court of Criminal Appeals has explicitly rejected a requirement of a “least

intrusive means” of investigation standard. Id. at 65-66.

            Detective Gibbs testimony established that she conducted the free air

sniff approximately seven minutes after initiating the traffic stop. [RR-I-44].

This time line is confirmed by the video of the traffic stop. [State’s Exhibit

1]. Detective Gibbs also established that she did not have to send away for

her canine partner, Robby, since he was already with her at the time of the

initial stop on Appellee’s vehicle.           [RR-I-46].   Detective Gibbs further

established that the traffic stop was not complete at the time she conducted

the free air sniff because she still needed to run the Appellee and his
Brief of Appellant
Victoria County Criminal District Attorney
No. 13-15-00041-CR
                                             39
passenger’s name for possible warrants and run the paper plates on

Appellee’s vehicle. [RR-I-45]. A review of State’s Exhibit 1 likewise

shows that Detective Gibbs conducted the traffic stop in a diligent manner,

moving quickly from questioning the Appellee, to questioning his passenger,

to conducting the free air sniff. [State’s Exhibit 1]. The questions Detective

Gibbs asked of the Appellee were appropriate questions for an investigating

officer to ask a detained motorist. See State’s Exhibit 1; Parker v. State, 297

S.W. 3d 803, 809 (Tex. App.-Eastland 2009, pet. ref’d)(holding that an

officer may ask the driver for their identification, driver’s license,

information about the ownership of the vehicle, proof of insurance, and

information concerning the destination and purpose of the trip.) It was

likewise appropriate for Detective Gibbs to ask similar questions to the

passenger. See Duff v. State, 546 S.W. 2d 283, 286 (Tex. Crim. App. 1977);

Parker, 297 S.W. 3d at 809. Therefore it is clear that Detective Gibbs did

not unduly prolong the traffic stop by conducting the free air sniff on

Appellee’s vehicle which in turn means that the free air sniff was lawful.

            In the alternative, even if it was deemed that Detective Gibbs did

unduly extend the traffic stop by conducting the free air sniff on Appellee’s

vehicle, that free air sniff was still lawful as Detective Gibbs already had

obtained reasonable suspicion that Appellee’s vehicle contained contraband
Brief of Appellant
Victoria County Criminal District Attorney
No. 13-15-00041-CR
                                             40
prior to initiating the free air sniff. See Lambeth v. State, 221 S.W. 3d 831,

836 (Tex. App.-Ft. Worth 2007, pet. ref’d).

            The investigating officers already had good cause to believe that

Appellee was traveling from a known drug location. [RR-I-9]. Admittedly,

the surveillance team could not definitively place Appellee at the drug house

[RR-I-11], but they could place him on the portion of street that contained

only five houses included that suspected drug house. [RR-I-10-11; 31]. The

surveillance team also observed Appellee driving in a manner that was

consistent with someone trying to shake off police surveillance. [RR-I-13,

58, 73].

            Furthermore, when Detective Gibbs made contact with the Appellee

and his passenger, both Appellee and the passenger were acting nervously.

[RR-I-40]. Detective Gibbs also indicated she recognized Appellee from a

previous narcotics investigation she had worked within the last three years.

[RR-I-41]. She further established that Appellee was evasive with her about

where he had come from [RR-I-42] and admitted to prior drug history. [RR-

I-42]. She also noted that the passenger likewise admitted to prior drug

history [RR-I-43] and claimed that they had come from McDonalds. Id.

And perhaps most significantly, the passenger made a statement, insisting

that they had come from McDonalds, which was wholly inconsistent with
Brief of Appellant
Victoria County Criminal District Attorney
No. 13-15-00041-CR
                                             41
what the surveillance team had observed as they had not seen the Appellee’s

vehicle stop at any McDonalds. [RR-I-31, 77].

            All of this information together gave the officers reasonable suspicion

that there was contraband in Appellee’s vehicle. Nor does it matter that

Detective Gibbs (the detaining officer) may not have been aware of

everything observed by the surveillance team. The detaining officer is not

required to be personally aware of every fact that objectively establishes

reasonable suspicion to detain; rather the question is does the cumulative

information known to all the officers involved in the case establish

reasonable suspicion. See Derichsweiler, 348 S.W. 3d at 914. It likewise

does not matter that some of the circumstances used to establish reasonable

suspicion might look innocent in isolation; so long as those circumstances

when considered together reasonably suggest the imminence of criminal

conduct than reasonable suspicion is established. Id.

            The investigating officers had information that the Appellee, who had

a known history of drug involvement, left an area with a known drug house,

drove in a manner that was consistent with someone trying to shake police

surveillance, was nervous when confronted by the police, was traveling with

a passenger who also had drug history, was evasive about where he had

come from, and had the passenger make a false statement about where they
Brief of Appellant
Victoria County Criminal District Attorney
No. 13-15-00041-CR
                                             42
had been prior to being stopped by the police. Those specific and articulable

facts, and the rational inferences that can be made from those facts, would

certainly give a reasonable officer reasonable suspicion to believe the

Appellee and his passenger had narcotics in their vehicle.

            Now admittedly nervousness by itself and prior criminal history by

itself do not establish reasonable suspicion. See Hamal, 390 S.W. 3d 302 at

308. However, both of those factors can be considered in conjunction with

other factors to establish reasonable suspicion.        Id.   And nervousness

coupled with evasive or deceptive behavior has frequently been held as

sufficient to establish reasonable suspicion. See Byron v. State, 07-05-0131,

2006 WL 1490677 at 1 (Tex. App.-Amarillo 2006, pet. ref’d)(mem. op)(not

designated for publication); Estrada v. State, 30 S.W. 3d 599, 603 (Tex.

App.-Austin 2000, pet. ref’d); Powell v. State, 5 S.W. 3d 369, 377 (Tex.

App.-Texarkana 1999, pet. ref’d). Thus all of the factors known to the

police prior to the initiation of the free air sniff when taken together are

sufficient to support a finding of reasonable suspicion that there was

contraband within Appellee’s vehicle. And that in turn means that Detective

Gibbs had sufficient legal basis to extend the traffic stop long enough to

conduct a free air sniff of Appellee’s vehicle.



Brief of Appellant
Victoria County Criminal District Attorney
No. 13-15-00041-CR
                                             43
                The free air sniff itself was likewise properly conducted. Detective

Gibbs’ testimony and the certification documents offered into evidence,

established that Detective Gibbs was a certified canine operator and that her

canine partner, Robby, was certified to conduct free air sniffs on July 28,

2014, had extensive history performing free air sniffs, and had proven

reliable at locating narcotics during those free air sniffs.           [RR-I-46-48;

State’s Exhibit 3]. Detective Gibbs then confirmed that Robby did alert for

the odor of narcotics on Appellee’s vehicle. [RR-I-48-49].

                It is well settled Texas law that when a trained drug detection dog

alerts on a vehicle the officer’s then have probable cause to search the

vehicle. See Branch, 335 S.W. 3d at 901; Haas v. State, 172 S.W. 3d 42, 54

(Tex. App.-Waco 2005, pet. ref’d); Harrison v. State, 7 S.W. 3d 309, 311

(Tex. App.-Houston [1st Dist] 1999, pet. ref’d). And under the “Automobile

Exception” when there is probable cause that a vehicle contains evidence of

a crime, a warrantless search of the vehicle is permissible. See Powell v.

State, 898 S.W. 2d 821, 827 (Tex. Crim. App. 1994). As such the probable

cause that Appellee’s vehicle contained narcotics that was established by the

trained and certified narcotics detection dog Robby alerting on the vehicle,

made it legal for the investigating officers to search Appellee’s vehicle

without a warrant, and since the search of the vehicle was legal, the evidence
Brief of Appellant
Victoria County Criminal District Attorney
No. 13-15-00041-CR
                                             44
obtained from that search was lawfully obtained. Accordingly, the trial

court erred by granting Appellee’s motion to suppress.

                                              PRAYER

            WHEREFORE, PREMISES CONSIDERED, the State prays that this

Honorable Court reverse the judgment of the trial court.

.

                                             Respectfully submitted,


                                             STEPHEN B. TYLER
                                             CRIMINAL DISTRICT ATTORNEY

                                             /s/ Brendan W. Guy
                                             Brendan W. Guy
                                             Assistant Criminal District Attorney
                                             SBN 24034895
                                             205 North Bridge Street, Suite 301
                                             Victoria, Texas 77902
                                             E-mail: bguy@vctx.org
                                             Telephone: (361) 575-0468
                                             Facsimile: (361) 576-4139


                                             ATTORNEYS FOR THE APPELLANT,
                                             THE STATE OF TEXAS




Brief of Appellant
Victoria County Criminal District Attorney
No. 13-15-00041-CR
                                                  45
                                     CERTIFICATE OF COMPLIANCE

            In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), I,

Brendan Wyatt Guy, Assistant Criminal District Attorney, Victoria County,

Texas, certify that the number of words in Appellant’s Brief submitted on

April 17, 2015, excluding those matters listed in Rule 9.4(i)(1) is 9,455.



                                             /s/ Brendan W. Guy
                                             Brendan W. Guy
                                             Assistant Criminal District Attorney
                                             SBN 24034895
                                             205 North Bridge Street, Suite 301
                                             Victoria, Texas 77902
                                             E-mail: bguy@vctx.org
                                             Telephone: (361) 575-0468
                                             Facsimile: (361) 576-4139




Brief of Appellant
Victoria County Criminal District Attorney
No. 13-15-00041-CR
                                                  46
                                             CERTIFICATE OF SERVICE

            I, Brendan Wyatt Guy, Assistant Criminal District Attorney, Victoria

County, Texas, certify that a copy of the foregoing brief has been served on

William White, P.O. Box 7422, Victoria, Texas, Attorney for the Appellee,

Uyless Troy Bland, by depositing same in the United States Mail, postage

prepaid on the day of April 17, 2015.



                                                   /s/ Brendan W. Guy
                                                   Brendan W. Guy
                                                   Assistant Criminal District Attorney
                                                   SBN 24034895
                                                   205 North Bridge Street, Suite 301
                                                   Victoria, Texas 77902
                                                   E-mail: bguy@vctx.org
                                                   Telephone: (361) 575-0468
                                                   Facsimile: (361) 576-4139




Brief of Appellant
Victoria County Criminal District Attorney
No. 13-15-00041-CR
                                                        47
