                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-13-00552-CR


LISA D. WALL                                                        APPELLANT

                                       V.

THE STATE OF TEXAS                                                       STATE


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      FROM COUNTY CRIMINAL COURT NO. 4 OF DENTON COUNTY
               TRIAL COURT NO. CR-2012-01008-D

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                        MEMORANDUM OPINION1

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                               I. INTRODUCTION2


      1
       See Tex. R. App. P. 47.4.
      2
       This case was originally submitted without oral argument on Friday, May
30, 2014, before a panel consisting of Chief Justice Livingston, Justice Gardner,
and Justice Gabriel. The court, on its own motion on January 15, 2015, ordered
this case reset without oral argument on February 5, 2015; assigned this case to
a new panel, consisting of Chief Justice Livingston, Justice Walker, and Justice
Gabriel; and assigned the undersigned to author the opinion.
      Appellant Lisa D. Wall appeals her conviction for driving while intoxicated.

After the trial court denied her motion to suppress evidence, Wall pleaded no

contest.   The trial court assessed her punishment at 300 days’ confinement,

which the court suspended; the trial court placed Wall on community supervision

for fifteen months. Wall perfected this appeal.

      In her sole issue, Wall argues that the trial court erred by denying her

motion to suppress. The State raises a cross-point, asserting that although the

trial court correctly denied Wall’s motion to suppress, the denial was proper on

an alternative ground rejected by the trial court––that the stop of Wall’s vehicle

was justified based on the arresting officer’s reasonable suspicion that Wall was

driving while intoxicated. Because we sustain Wall’s issue but also sustain the

State’s cross-point, we will affirm the trial court’s judgment.

                   II. FACTUAL AND PROCEDURAL BACKGROUND3

      Officer Corey Padgett, driving his patrol unit, approached an intersection

where he observed Wall stopped at a flashing yellow light.         Wall remained

stopped for several seconds, and cross-traffic, which had a flashing red light,

drove warily through the intersection when Wall did not. After a few seconds,

Wall drove through the intersection, and Officer Padgett followed her.

      As Wall approached another intersection with a flashing yellow light, she

braked hard but late, coming to an almost complete stop in the middle of the

      3
        As set forth below, the events leading up to the stop were recorded by
Officer Padget’s dash cam video recorder; we have reviewed the video.


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intersection. Before her vehicle completely stopped, Wall accelerated through

the intersection, changed lanes, and made a U-turn. Based on Wall’s curious

driving behavior, Officer Padgett initiated a traffic stop.

      When Officer Padgett began talking with Wall, he observed that her eyes

were glassy and red, her speech was slurred, and that she had a slight smell of

alcohol.   Officer Padgett administered standard field sobriety tests, and Wall

displayed six clues of intoxication on the horizontal gaze nystagmus test. Officer

Padgett arrested Wall for driving while intoxicated, and a subsequent blood draw

revealed that Wall had a blood alcohol concentration of .16.

      Wall filed a motion to suppress evidence seized as a result of Officer

Padgett’s traffic stop, arguing that Officer Padgett lacked reasonable suspicion to

stop her vehicle. At the suppression hearing, Officer Padgett testified that Wall’s

reaction to the two lights had made him suspect that she was intoxicated. He

explained that stopping at a flashing yellow light is not normal, even if it is not a

traffic violation to do so. From his training, Officer Padgett knew that intoxicated

drivers often fail to follow traffic signals, and he considered a driver’s inability to

respond properly to a flashing yellow light to be a big indicator of intoxication. In

fact, Officer Padgett had made prior DWI stops at a flashing yellow light “at that

exact area” of the road that Wall was travelling. Given Wall’s driving behavior

and the fact that it was around 2:00 a.m. on a weekend day in a neighborhood

with many bars, Officer Padgett suspected that Wall was intoxicated.




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      The trial court admitted and reviewed a video recording of the traffic stop.

After the hearing, the trial court denied Wall’s suppression motion. In its findings

of fact and conclusions of law, the trial court determined that Wall’s driving did

not give rise to reasonable suspicion that she was driving while intoxicated. But

the trial court concluded that Officer Padgett could have stopped Wall for either

of the two traffic violations that Officer Padgett had observed: Wall’s disregard of

a traffic control device and Wall’s U-turn, which the trial court considered too

wide because Wall allegedly straddled the turning lane’s white line in the turn.

                                III. STANDARDS OF REVIEW

                                 A. MOTION TO SUPPRESS

      We review a trial court’s ruling on a motion to suppress evidence under a

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

Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

In reviewing the trial court’s decision, we do not engage in our own factual

review. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Best v.

State, 118 S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, no pet.). 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); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000),

modified on other grounds by State v. Cullen, 195 S.W.3d 696 (Tex. Crim. App.

2006).




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      Therefore, we give almost total deference to the trial court’s rulings on

(1) questions of historical fact, even if the trial court’s determination of those facts

was not based on an evaluation of credibility and demeanor, and (2) application-

of-law-to-fact questions that turn on an evaluation of credibility and demeanor.

Amador, 221 S.W.3d at 673; Montanez v. State, 195 S.W.3d 101, 108–09 (Tex.

Crim. App. 2006); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App.

2002). Concerning questions of historical fact, even when a video tape of the

stop exists, the trial court's factual determinations are entitled to almost total

deference so long as they are supported by the record. See Tucker v. State, 369

S.W.3d 179, 185 (Tex. Crim. App. 2012); Montanez v. State, 195 S.W.3d 101,

109 (Tex. Crim. App. 2006). Concerning application-of-law-to-fact questions that

do not turn on the credibility and demeanor of the witnesses, we review the trial

court’s rulings on those questions de novo. Amador, 221 S.W.3d at 673; Estrada

v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson, 68 S.W.3d at

652–53.

      Stated another way, when reviewing the trial court’s ruling on a motion to

suppress, we must view the evidence in the light most favorable to the trial

court’s ruling. Tucker, 369 S.W.3d at 185; Wiede, 214 S.W.3d at 24; State v.

Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). When the trial court makes

explicit fact findings, we determine whether the evidence, when viewed in the

light most favorable to the trial court’s ruling, supports those fact findings. Kelly,

204 S.W.3d at 818–19. We then review the trial court’s legal ruling de novo


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unless its explicit fact findings that are supported by the record are also

dispositive of the legal ruling. Id. at 818. We must uphold the trial court’s ruling if

it is supported by the record and correct under any theory of law applicable to the

case even if the trial court gave the wrong reason for its ruling. State v. Stevens,

235 S.W.3d 736, 740 (Tex. Crim. App. 2007); Armendariz v. State, 123 S.W.3d

401, 404 (Tex. Crim. App. 2003), cert. denied, 541 U.S. 974 (2004).

                           B. STATUTORY CONSTRUCTION

      Statutory construction is a question of law that we review de novo.

Yazdchi v. State, 428 S.W.3d 831, 837 (Tex. Crim. App. 2014). In construing a

statute, we seek to effectuate the collective intent or purpose of the legislators

who enacted the legislation. Id. We look first to the statute’s literal text, and we

read words and phrases in context and construe them according to the rules of

grammar and common usage unless they have acquired technical or particular

meaning. Id. When statutory language is clear and unambiguous, we give effect

to its plain meaning unless to do so would lead to absurd consequences that the

legislature could not have possibly intended. Id. at 837–38.

                IV. THE TRIAL COURT’S FINDINGS AND CONCLUSIONS

      The trial court’s findings of fact and conclusions of law included the

following:

             The Court finds the driving of the defendant is not reasonable
      suspicion of driving while intoxicated. Caution in entering an
      intersection is proper. The Defendant sat at the intersection for 26
      seconds that the [sic] Officer Padgett could observe and that is not
      obstructing a highway.


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            But the court finds the defendant could be stopped for
      disregarding the traffic control device and making a wide turn over
      the white line.

            ....

            The Court therefore denies the motion to suppress.

                        V. LAW ON WARRANTLESS DETENTIONS

      The Fourth Amendment protects against unreasonable searches and

seizures by government officials. U.S. Const. amend. IV; Wiede, 214 S.W.3d at

24. To suppress evidence because of an alleged Fourth Amendment violation,

the defendant bears the initial burden of producing evidence that rebuts the

presumption of proper police conduct. Amador, 221 S.W.3d at 672; see Young

v. State, 283 S.W.3d 854, 872 (Tex. Crim. App.), cert. denied, 558 U.S. 1093

(2009). A defendant satisfies this burden by establishing that a search or seizure

occurred without a warrant. Amador, 221 S.W.3d at 672. Once the defendant

has made this showing, the burden of proof shifts to the State, which is then

required to establish that the search or seizure was conducted pursuant to a

warrant or was reasonable. Id. at 672–73; Torres v. State, 182 S.W.3d 899, 902

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

2005).

      To justify a brief detention for investigative purposes, the officer must be

able to articulate something more than an “inchoate and unparticularized

suspicion or ‘hunch.’” Foster v. State, 326 S.W.3d 609, 613–14 (Tex. Crim. App.



                                        7
2010) (citing Terry v. Ohio, 392 U.S. 1, 27, 88 S. Ct. 1868, 1883 (1968)).

Specifically, the officer must have some minimal level of objective justification for

making the stop; when the officer can “point to specific and articulable facts

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

warrant [the] intrusion” on the freedom of the person being detained, an

investigative detention is reasonable. Id. (citing Terry, 392 U.S. at 21); see

Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011); Brother v.

State, 166 S.W.3d 255, 257 (Tex. Crim. App. 2005).             A brief intrusion is

warranted, for instance, where the officer reasonably suspects that the person

detained actually is, has been, or soon will be engaged in criminal activity.

Derischweiler, 348 S.W.3d at 914; Brother, 166 S.W.3d at 257. The

reasonableness of a given detention turns on the totality of the circumstances,

which considers the public and private interests that are at stake. Brother, 166

S.W.3d at 259 n.6.

      An officer has probable cause to stop and arrest a driver if he observes the

driver commit a traffic offense. State v. Gray, 158 S.W.3d 465, 469–70 (Tex.

Crim. App. 2005); see State v. Ballman, 157 S.W.3d 65, 70 (Tex. App.—Fort

Worth 2004, pet. ref’d). Relevant here, the transportation code provides: “The

operator of a vehicle facing a flashing yellow signal may proceed through an

intersection or past the signal only with caution.” Tex. Transp. Code Ann. §

544.008(b) (West 2011). Texas law governing U-turns on a divided highway and

not at an intersection, as in this case, requires that the turn be made at a location


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where the dividing physical barrier allows and be made safely and not at the

crest of a hill or in the middle of a curve.      See Tex. Transp. Code Ann. §§

545.063(b)(1), 545.102, 545.103 (West 2011). Regarding lane compliance, a

violation for failure to maintain a single lane requires that a driver’s deviation from

a lane be made in an unsafe manner. See Tex. Transp. Code Ann. § 545.060(a)

(West 2011); Fowler v. State, 266 S.W.3d 498, 503–04 (Tex. App.—Fort Worth

2008, pet. ref’d) (following cases that interpret the statute as proscribing, not just

a movement, but an unsafe movement).

            V. REASONABLE SUSPICION OF DRIVING WHILE INTOXICATED

      As detailed below, the evidence––viewed in the light most favorable to the

trial court’s finding that the evidence supported a traffic-offense stop of Wall for

disregarding a traffic control device or for making an overly wide U-turn and

viewed in the light most favorable to its finding that the evidence did not support

a reasonable suspicion that Wall was driving while intoxicated––does not support

these findings. See Kelly, 204 S.W.3d at 820–21 (holding evidence viewed in

light most favorable to trial court’s ruling did not support it).   In fact, the video

from Officer Padgett’s dash cam indisputably negates the trial court’s findings

that Wall committed the traffic offenses of disregarding a traffic control device

and making an overly wide turn over the white line. See Tucker, 369 S.W.3d at

185 (“If the video evidence does not support the trial court’s conclusion, then the

court of appeals should reverse.”); State v. Houghton, 384 S.W.3d 441, 446 (Tex.

App.—Fort Worth 2012, no pet.) (“We thus give almost total deference to the trial


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court’s factual determinations unless the video recording indisputably contradicts

the trial court’s findings.”).

       Looking first to whether Wall’s reaction to the flashing yellow light

constituted a traffic violation, the transportation code simply states that a driver

facing a flashing yellow light “may” proceed with caution. See Tex. Transp. Code

Ann. § 544.008(b). Nothing in the provision proscribes stopping or excessively

decelerating at a flashing yellow light.     See id.   Generally, the term “may”

indicates an element of discretion rather than compulsion, which is better

communicated with words like “shall.” See, e.g., Ford v. State, 305 S.W.3d 530,

539 (Tex. Crim. App. 2009) (discussing difference between “may” and “must” or

“shall”).   For example, in the preceding subsection of the same statute, the

transportation code states that a driver facing a flashing red signal “shall” stop.

See Tex. Transp. Code Ann. § 544.008(a) (West 2011); see also Yazdchi, 428

S.W.3d at 837 (holding that words are interpreted in context); Ford, 305 S.W.3d

at 539 (discussing consistent use of the term “may” throughout the article

relevant there).      Giving the may-proceed-with-caution language of section

544.008(b) its plain meaning, Wall’s overreaction to the flashing yellow light,

although unusual, did not violate that section. See Tex. Transp. Code Ann. §

544.008(b). The evidence, viewed in the light most favorable to the trial court’s

finding that Wall disregarded a traffic-device, does not support this finding. See

Yazdchi, 428 S.W.3d at 837 (holding that statutes are reviewed de novo);

Amador, 221 S.W.3d at 673 (de novo review of application-of-law-to-fact


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questions); Estrada, 154 S.W.3d at 607 (same); Johnson, 68 S.W.3d at 652–53

(same).

      Looking next to whether Wall’s U-turn constituted a traffic offense, the

video does not support the trial court’s finding that it did. Although Wall traversed

the turning lane’s white line while entering the turning lane, she did not re-cross it

prior to or during her U-turn. Wall made the U-turn at a proper opening in the

barrier and not at the crest of a hill or near a curve. See Tex. Transp. Code Ann.

§§ 545.063(b)(1); 545.102. No cars were near, and there is no evidence the turn

was done in an unsafe manner. See Tex. Transp. Code Ann. § 545.103. Thus,

even assuming Wall re-crossed the right line or prolonged her transition across it,

there is no evidence that the movement was unsafe, and thus it was not a

violation. See Tex. Transp. Code Ann. §§ 545.060(a); Fowler, 266 S.W.3d at

503–04; see also Tex. Transp. Code Ann. §545.103 (requiring all turns and

movements be done safely). Other than the video, there was no evidence of

Wall’s U-turn, and Officer Padgett did not mention, either in his affidavit or in his

testimony, that Wall's U-turn was improperly performed.          Thus, again, giving

these transportation code sections their plain meaning, no evidence exists in the

record that Wall violated them. The evidence, viewed in the light most favorable

to the trial court’s finding, does not support the trial court’s finding that Wall’s U-

turn constituted a traffic violation. See Yazdchi, 428 S.W.3d at 837 (statutes

reviewed de novo); Amador, 221 S.W.3d at 673 (de novo review of application-

of-law-to-fact questions); Estrada, 154 S.W.3d at 607 (same); Johnson, 68


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S.W.3d at 652–53 (same); see also Tucker, 369 S.W.3d at 185 (holding that

appellate courts cannot uphold a finding if the video record does not support it);

Houghton, 384 S.W.3d at 446 (same).

      Having determined that the traffic-offense findings and conclusions made

by the trial court in denying Wall’s motion to suppress are not supported by the

evidence, we sustain the portion of Wall’s issue challenging these findings.

      We next address Wall’s alternative argument and the State’s cross-point.

Wall alternatively argues that we cannot affirm the trial court’s denial of her

motion to suppress on the ground that Officer Padgett possessed reasonable

suspicion that Wall was engaged in the criminal activity of DWI because the trial

court correctly found and concluded that he did not. The State argues that this

finding by the trial court is not supported by the evidence.

      Wall’s prolonged stop at one flashing-yellow-light intersection and her

delayed application of her brakes and quick, almost complete stop in the middle

of the next flashing-yellow-light intersection were contextualized by Officer

Padgett’s testimony that he observed Wall driving at 2:00 a.m. on a weekend in a

neighborhood with bars. According to Officer Padgett, intoxicated drivers are

often confused by flashing traffic control signals, and he noted that he had made

prior DWI stops at a flashing yellow light in “that exact area” of the road that Wall

was travelling.    Officer Padgett thus articulated something more than an

“inchoate and unparticularized suspicion or ‘hunch.’” Foster, 326 S.W.3d at 613–

14. Considering the totality of the circumstances, Officer Padgett possessed


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“some minimal level of objective justification for making the stop” because he

pointed to specific and articulable facts––Wall’s peculiar driving through two

flashing-yellow-light intersections, the fact that intoxicated drivers are often

confused by flashing-light intersections, the fact that Officer Padgett had made

other DWI arrests in this very location at the flashing-light intersections, the fact

that Wall was driving at 2:00 a.m. on a weekend in a location near bars—which,

taken together with rational inferences from those facts, provided reasonable

suspicion that Wall was engaged in criminal activity, DWI. See Id. (citing Terry,

392 U.S. at 15); see also Derichsweiler, 348 S.W.3d at 914; Brother, 166 S.W.3d

at 257.   The evidence, viewed in the light most favorable to the trial court’s

finding that Officer Padgett did not possess reasonable suspicion to initiate a

temporary detention of Wall, does not support this finding. See State v. Kerwick,

393 S.W.3d 270, 273 (Tex. Crim. App. 2013) (“[R]easonable suspicion is a mixed

question of law that is reviewed de novo on appeal.”); Amador, 221 S.W.3d at

673 (noting de novo review of application-of-law-to-fact questions); Estrada, 154

S.W.3d at 607 (same); Johnson, 68 S.W.3d at 652–53 (same).

      We overrule the portion of Wall’s sole issue asserting that we should not

affirm the denial of her motion to suppress on the ground that Officer Padgett

possessed reasonable suspicion to stop her. We sustain the State’s cross-point

challenging the trial court’s finding and conclusion that Officer Padgett did not

possess reasonable suspicion to initiate a temporary detention of Wall.          We

affirm the trial court’s denial of Wall’s motion to suppress on this theory. See


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Stevens, 235 S.W.3d at 740 (holding that appellate courts may uphold a trial

court’s judgment under any applicable theory of law supported by the record);

Armendariz, 123 S.W.3d at 404 (same).

                                VI. CONCLUSION

      Having determined that the trial court’s denial of Wall’s motion to suppress

was proper based on the theory that Officer Padgett possessed reasonable

suspicion to initiate a temporary detention of Wall, we affirm the trial court’s

judgment.



                                                  /s/ Sue Walker
                                                  SUE WALKER
                                                  JUSTICE

PANEL: LIVINGSTON, C.J.; WALKER and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: May 7, 2015




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