                                  NO. 12-07-00269-CR

                         IN THE COURT OF APPEALS

             TWELFTH COURT OF APPEALS DISTRICT

                                      TYLER, TEXAS

ANTHONY DEWAYNE CULLUM,                             §           APPEAL FROM THE
APPELLANT

V.                                                  §           COUNTY COURT AT LAW #1

THE STATE OF TEXAS,
APPELLEE                                            §           GREGG COUNTY, TEXAS


                                    MEMORANDUM OPINION
        Appellant Anthony Dewayne Cullum was convicted of driving while intoxicated. In two
issues, Appellant asserts that the trial court abused its discretion by overruling his motion to suppress.
We affirm.


                                            BACKGROUND
        Appellant was charged by information with the offense of driving while intoxicated. The
information included an allegation that Appellant had previously been convicted of driving while
intoxicated, enhancing the current offense to a Class A misdemeanor. Appellant filed a motion to
suppress, alleging, among other things, that “[t]he law enforcement officer [who initially stopped
Appellant’s vehicle] lacked a reasonable, articulate suspicion to detain [Appellant.]” Following
extensive briefing and two hearings, the trial court denied the motion to suppress. Appellant
subsequently pleaded guilty to the offense and true to the enhancement. The trial court assessed
Appellant’s punishment at one year of confinement, probated for eighteen months, and an $800 fine.
This appeal followed.
                                        MOTION TO SUPPRESS
         In two issues, Appellant asserts that the trial court abused its discretion by overruling his
motion to suppress. More specifically, Appellant claims that the arresting officer did not have
reasonable suspicion to perform the initial stop of his vehicle.
Standard of Review
        In reviewing a trial court’s ruling on a motion to suppress, an appellate court should generally
afford almost total deference to a trial court’s determination of historical facts supported by the record,
especially when the trial court’s fact findings are based on an evaluation of credibility and demeanor.
Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). The same amount of deference should
be given to the trial court’s rulings on application of law to fact questions, if the resolution of those
ultimate questions turns on an evaluation of credibility and demeanor. Id. Appellate courts review
de novo mixed questions of law and fact not falling within this category. Id.
Discussion
        Law enforcement officers may stop and briefly detain persons suspected of criminal activity
on less information than is constitutionally required for probable cause to arrest. Terry v. Ohio, 392
U.S. 1, 22, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889 (1968). Such an investigative detention is
permissible when the detaining officer has specific articulable facts which, taken together with
rational inferences from those facts, create a reasonable suspicion that the person detained is, has
been, or soon will be engaged in criminal activity. See Brother v. State, 166 S.W.3d 255, 257 (Tex.
Crim. App. 2005). The existence of reasonable suspicion turns on an objective assessment of the
detaining officer’s actions in light of the facts and circumstances confronting him at the time, and not
on the officer’s state of mind. See United States v. Knights, 534 U.S. 112, 122, 122 S. Ct. 587, 593,
151 L. Ed. 2d 497 (2001); Griffin v. State, 215 S.W.3d 403, 409 (Tex. Crim. App. 2006).
        By the time of its ruling, the trial court had been presented with the live testimony of Officer
Harry Clark, the officer who initiated the stop of Appellant, a transcript of Officer Clark’s previous
testimony before an administrative law judge, and a video recording from the vehicle mounted camera
of Officer Clark’s patrol car. Officer Clark testified as a ten year veteran of the Longview Police
Department and a certified peace officer. Appellant presented no witnesses to contradict the
testimony of Officer Clark and did not contest the accuracy of the video recording.


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       Officer Clark testified that he was stopped at an intersection in Longview, Texas at 11:30 p.m.
when he heard “a loud screeching noise of approximately 3 seconds coming from [his] left.” He
identified Appellant’s vehicle, a Ford Mustang, as the vehicle making the noise. At the time,
Appellant’s vehicle had also been stopped at the intersection and was in the process of moving from
that stopped position. Officer Clark’s view of Appellant’s vehicle was obscured because Appellant
was in traffic and there were other vehicles in front of, behind, and beside Appellant’s vehicle.
Consequently, Officer Clark was unable to determine whether Appellant had moved his vehicle in a
safe manner. According to Officer Clark, “[i]t was clear, dry, there was no rain, no pavement wet,
congested traffic.” Because of the length of time Appellant spun his tires, Officer Clark did not
believe the spinning to be accidental. Based upon the facts, Officer Clark suspected that Appellant
had made an “improper start from a parked position.” More specifically, Officer Clark believed that
Appellant had committed a violation of section 545.402 of the Texas Transportation Code. Officer
Clark’s testimony was consistent with, although supplemental to, his testimony before the
administrative law judge and was not contradicted by the video recording.
       The trial court made findings of fact and conclusions of law, stating on the record as follows:


                 . . . I make the following findings of fact: That the officer, being on duty in a marked patrol
       unit and stopped in his vehicle at a red light, that he heard the defendant’s vehicle make a loud
       screeching noise; that this noise of spinning of tires lasted approximately 3 seconds; that there were cars
       in front of the defendant’s vehicle, beside the defendant’s vehicle, and behind the defendant’s vehicle;
       and that he issued a citation for improper start from a stopped position, 545.402.
                 My conclusion is that he had reasonable suspicion for a temporary detention to investigate the
       violation[] of 545.402 . . . , based on those facts that I put into the record. . . . Those are my rulings.



       Section 545.402 states that “[a]n operator may not begin movement of a stopped, standing,
or parked vehicle unless the movement can be made safely.” TEX . TRANSP . CODE ANN . § 545.402
(Vernon 1999). An extended period of tire spinning and screeching, such as Officer Clark described
here, combined with the fact that Officer’s Clark’s view of Appellant was obscured, constituted
specific articulable facts which, taken together with rational inferences from those facts, created a
reasonable suspicion that the Appellant was, had been, or would soon be engaged in criminal activity
– specifically, an unsafe start from a stopped position. See id. The trial court did not abuse its
discretion by denying Appellant’s motion to suppress. See Brother, 166 S.W.3d at 257. Because


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reasonable suspicion existed to support the stop of Appellant based upon a violation of section
545.402, we overrule Appellant’s first and second issues.


                                                      DISPOSITION
         We affirm the judgment of the trial court.




                                                                    BRIAN HOYLE
                                                                       Justice




Opinion delivered June 11, 2008.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                 (DO NOT PUBLISH)




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