      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-16-00286-CR



                                   The State of Texas, Appellant

                                                   v.

                                      Lindsey Egbert, Appellee


            FROM THE COUNTY COURT AT LAW NO. 6 OF TRAVIS COUNTY
       NO. C-1-CR-15-204869, HONORABLE BRANDY MUELLER, JUDGE PRESIDING



                  ORDER AND MEMORANDUM OPINION


PER CURIAM

                The State appeals the trial court’s order granting appellee Lindsey Egbert’s motion

to suppress evidence obtained in connection with her traffic stop, detention, and arrest for driving

while intoxicated (DWI). The State contends that the trial court abused its discretion in suppressing

the evidence because the pre-trial evidence contained specific, articulable facts to support the

arresting officer’s initial stop of appellee for reasonable suspicion of criminal activity or,

alternatively, that we must abate the appeal and remand for supplemental fact findings. Because

there are insufficient factual findings for us to conduct our review, we abate this appeal and remand

this cause to the trial court for additional findings.
                                          BACKGROUND

                At the hearing on appellee’s motion to suppress, the State called Deputy Ralph

Cisneroz to testify and played for the court a video from the deputy’s dashboard camera. After the

close of evidence, the State argued that appellee’s motion should be denied because the evidence

supported the deputy’s stop of appellee based on his reasonable suspicion that she (1) committed two

traffic violations, see Tex. Transp. Code §§ 545.062(a) (“An operator shall, if following another

vehicle, maintain an assured clear distance between the two vehicles so that, considering the speed

of the vehicles, traffic, and the conditions of the highway, the operator can safely stop without

colliding with the preceding vehicle or veering into another vehicle, object, or person on or near the

highway.”), .152 (“To turn left at an intersection or into an alley or private road or driveway, an

operator shall yield the right-of-way to a vehicle that is approaching from the opposite direction and

that is in the intersection or in such proximity to the intersection as to be an immediate hazard.”), and

(2) was driving while intoxicated.

                After the hearing and pursuant to the State’s request, the trial court made findings of

fact and conclusions of law. Among the findings of fact were the following:


        •       Deputy Cisneroz testified to speculating before the stop or arrest, that in
                observing [Defendant]’s vehicle he thought that because the Defendant seemed
                to be driving too close to the vehicle ahead of hers, that the Defendant was
                following someone, in an effort to help her (the Defendant) on the road,
                because she (the Defendant) had had too much to drink. Deputy Cisneroz
                testified with regard to his speculation, that the driver may have asked
                another person to “either follow or lead me to where I need to go in case
                something happens.”

        •       Deputy Cisneroz further testified that the Defendant was following the other
                car “extremely closely” and that it was “extremely dangerous.”

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       •       [Cisneroz] stated that he observed the Defendant cross the northbound lanes
               of Lamar into a gas station on the other side of the road, hesitating as she
               made the left turn. Officer Cisneroz testified that this caused a northbound
               vehicle to aggressively brake and move into another lane to avoid a collision.

       •       The video evidence seems to contrarily show, that while there was a car
               approaching from the north, it was not close enough in proximity to
               Defendant’s vehicle to cause a traffic hazard.

       •       The dash cam video evidence at the hearing showed the Defendant’s vehicle
               following the lead car at 27 miles per hour. The video further showed the
               roadway to be dry and well lit by streetlights with a speed limit of 35 mph.
               The video did show the Defendant’s vehicle behind another vehicle, but it did
               not appear to the Court that the Officer was close enough to observe whether
               the distance was too close or that the driving was hazardous.

       •       Deputy Cisneroz’s testimony was not corroborated by the video evidence.


Based on its findings of fact, the court made the following conclusions of law:


       The Court did not find there to be sufficient probable cause of a violation of the
       Transportation Code or a reasonable basis, based on the totality of the circumstances,
       for the stop. The Court considered whether there was sufficient reasonable suspicion
       for the stop.

       ***

       In this case, the Court concluded that the basis for the stop was vague and insufficient
       and further, not supported or corroborated by the evidence. In addition, the evidence
       conflicted with the State’s assertion that defendant’s driving was “extremely
       dangerous” or otherwise hazardous.


               On appeal, the State contends that the trial court abused its discretion in suppressing

the evidence because the court’s findings and conclusions pertaining to whether appellee was

maintaining a safe following distance are not entitled to any deference. Specifically, the State takes

issue with the trial court’s finding that the deputy was not close enough to observe whether

                                                  3
appellee’s following distance was unsafe in light of the videotape, which “clearly shows that [the

deputy] was close enough to observe.” In an alternate issue, the State requests that we abate the

appeal and remand to the trial court for supplemental factual findings on two “key components” of

the deputy’s testimony: (1) appellee’s alleged failure to yield to oncoming traffic and (2) the deputy’s

reasonable suspicion that appellee was driving while intoxicated.


                                           DISCUSSION

                At a suppression hearing, a trial court examines the “totality of the circumstances”

to determine whether the State has shown sufficient historical facts that, viewed from the standpoint

of an objectively reasonable police officer, amount to reasonable suspicion that a particular person

was engaged in criminal activity and that, therefore, an investigatory stop was justified. See State

v. Mendoza, 365 S.W.3d 666, 669–70 (Tex. Crim. App. 2012); Martinez v. State, 348 S.W.3d 919,

924 (Tex. Crim. App. 2011). Reasonable suspicion exists if the officer has specific, articulable facts

that, when combined with rational inferences from those facts, would lead the officer to reasonably

conclude that a particular person actually is, has been, or soon will be engaged in criminal activity.

Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). The “totality of the circumstances”

requires consideration of the “whole picture,” not merely isolated components of it. United States

v. Sokolow, 490 U.S. 1, 8–10 (1989); Woods v. State, 956 S.W.2d 33, 37–8 (Tex. Crim. App. 1997)

(“We recognize that there may be instances when a person’s conduct viewed in a vacuum, appears

purely innocent, yet when viewed in light of the totality of the circumstances, those actions give rise

to reasonable suspicion.”).




                                                   4
                When reviewing a trial court’s ruling on a motion to suppress, we review its factual

findings for abuse of discretion and its legal rulings about the existence of reasonable suspicion

de novo. Mendoza, 365 S.W.3d at 669. The reviewing court gives “almost total deference” to the

trial court’s findings of historical facts that are supported by the record, especially those findings that

are based on an evaluation of credibility and demeanor. Amador v. State, 221 S.W.3d 666, 673 (Tex.

Crim. App. 2007). With respect to mixed questions of law and fact (i.e., “application of law to fact

questions”), if the resolution of them turns on an evaluation of credibility or demeanor, we apply the

same “almost total deference,” but for mixed questions that do not depend upon credibility and

demeanor, we apply a de novo standard of review. Id. When the trial court makes a finding of fact

that is derived from video evidence admitted at a suppression hearing, that finding is also generally

entitled to “almost total deference” if supported by the record, due to the trial court’s primary “fact-

finding function.” See Carter v. State, 309 S.W.3d 31, 40 & n.47 (Tex. Crim. App. 2010); Montanez

v. State, 195 S.W.3d 101, 108–09 (Tex. Crim. App. 2006); cf. Carmouche v. State, 10 S.W.3d 323,

332 (Tex. Crim. App. 2000) (declining to give “almost total deference” to trial court’s implicit

findings about defendant’s consent to search under “unique circumstances” of case where videotape

presented “indisputable visual evidence contradicting essential portions” of fact findings).

                If a trial court makes findings of fact but they are inadequate to provide the appellate

court with a basis upon which to review the trial court’s application of the law to the facts and to

resolve the dispositive legal question, we must remand to the trial court for it to make more specific

findings. See Mendoza, 365 S.W.3d at 670; State v. Elias, 339 S.W.3d 667, 676–77 (Tex. Crim.

App. 2011); see also State v. Cullen, 195 S.W.3d 696, 699 (Tex. Crim. App. 2006) (noting that



                                                    5
“essential findings” mean “findings of fact and conclusions of law adequate to provide an appellate

court with a basis upon which to review the trial court’s application of the law to the facts”). Our

review of the trial court’s factual findings here leads us to conclude that they are insufficient for a

de novo review of the dispositive legal question of whether the deputy had reasonable suspicion

to stop appellee.

                First, most of the relevant “Factual Findings” made by the trial court merely recite

what Deputy Cisneroz’s testimony was rather than make any historical findings of fact based on that

testimony, including any findings about credibility. See Mendoza, 365 S.W.3d at 672 (remanding

for supplemental findings where trial court’s factual findings merely recited testimony but did

not find many historical facts, including credibility assessments and whether officer’s beliefs and

feelings were objectively reasonable). For instance, Finding 3 states, “Deputy Cisneroz testified

that he observed the Defendant’s vehicle ‘aggressively’ following a vehicle in front of it . . . [and]

that it was traveling . . . too close to the vehicle in front of it; at one point testifying the vehicle ahead

of the Defendant was less than half a car-length away” (first and third emphases added). In other

findings, the trial court “found” that the deputy (1) “testified to speculating . . . [that] he thought that

. . . the Defendant was following someone [] in an effort to help her (the Defendant) on the road,

because she (the Defendant) had had too much to drink” (Finding 4, emphases added); (2) “testified

that the Defendant was following the other car ‘extremely closely’ and that it was ‘extremely

dangerous’” (Finding 5, emphasis added); and (3) “stated that he observed the Defendant cross the

northbound lanes of Lamar into a gas station on the other side of the road, hesitating as she made the

left turn . . . [and] testified that this caused a northbound vehicle to aggressively brake and move into

another lane to avoid a collision” (Finding 6, emphases added). “[A]ny reviewing court can read the

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record and see [Deputy Cisneroz’s] testimony, but did the trial court believe that testimony?” Id.

at 671. We cannot tell from this record, because the trial court’s “findings” do not fulfill its fact-

finding role but merely summarize the testimony.

                Secondly, in two of the remaining findings,1 the trial court noted that (1) the video

evidence “seems to contrarily [to Deputy Cisneroz’s testimony] show . . . that the approaching [car]

. . . was not close enough in proximity to Defendant’s vehicle to cause a traffic hazard” (Finding 7,

emphases added) and (2) “it did not appear to the Court [from the video evidence] that the Officer

was close enough to observe whether the distance was too close or that the driving was hazardous”

(Finding 8, emphasis added).2 These noncomittal “findings” also do not aid our review—while the

video may “seem to show” particular scenarios that “appear” to the trial court to be true, did the

trial court find those scenarios to in fact be true, acting in its fact-finding role?

                Thirdly, while finding that “Deputy Cisneroz’s testimony was not corroborated by

the video evidence” (Finding 9), the trial court does not specify which parts of his testimony were

not “corroborated” by the video. The trial court’s mere observation that the video and live testimony

conflict does not constitute a factual finding or fulfill the court’s fact-finding role. When faced with


        1
          The trial court made a total of nine factual findings. The first two are background findings,
irrelevant to the issues on appeal; Findings Three through Six merely summarize some of Deputy
Cisneroz’s testimony; Findings Seven and Eight provide the court’s findings about the video; and
Finding Nine states that “Deputy Cisneroz’s testimony was not corroborated by the video evidence.”
From these “findings,” the trial court concluded that there was no “reasonable basis, based on the
totality of the circumstances,” for the stop.
        2
           Deputy Cisneroz testified that appellee maintained “a car length or less than half a car
length” from the lead car and was “having to brake behind the car in front of [her] in order to prevent
[her car] from getting even closer.” He also testified that the vehicles were on the “thoroughfare”
of South Lamar, which has “a lot of businesses, a lot of gas stations, convenience stores, [and] where
cars are going to be coming in and out.”

                                                    7
conflicting evidence, the trial court’s duty is to resolve those very conflicts. See, e.g., Clayton v. State,

235 S.W.3d 772, 778 (Tex. Crim. App. 2007). Yet, the trial court did not make any express findings

discrediting Deputy Cisneroz’s testimony, even reciting in its factual findings the deputy’s testimony

that (1) appellee’s hesitation when making her left turn “caused a northbound vehicle to aggressively

brake and move into another lane to avoid a collision” and (2) appellee’s following of the lead car

was “extremely dangerous.”3 Without express findings discrediting Deputy Cisneroz’s testimony,

we would have to imply that the trial court made such findings, which we may not do. See Mendoza,

365 S.W.3d at 672–73.

                Moreover, with respect to the deputy’s testimony about appellee’s alleged unsafe left

turn, the video could neither have corroborated nor contradicted it: the deputy testified that he

watched appellee’s car through his side-view mirror once his vehicle passed hers and saw that the

oncoming car had to brake “aggressively” and “move into the middle lane in order to avoid [a]

collision” and that he heard the “screeching noise” of brakes. The video does not—and logistically

could not—depict these alleged events (or their absence), as they allegedly occurred behind the

deputy’s vehicle and out of the range of the dash-cam (and the video was not audio-enabled).

Nonetheless, the trial court “found” that the video “seems to contrarily show” that the oncoming

vehicle was “not close enough in proximity to Defendant’s vehicle to cause a traffic hazard.” The

trial court’s implied finding that appellee’s left turn was not unsafe is unsupported by the record

absent an express determination that Deputy Cisneroz’s testimony on the issue was not credible.


        3
         As correctly noted by the State, Deputy Cisneroz did not, in fact, testify that appellee’s
following distance was “extremely dangerous” but, rather, that her following of the lead car
was “extremely close [] for the speed that was being traveled at” and that she was “aggressively
following” the lead car.

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                Finally, the trial court made no factual findings about the deputy’s testimony relating

to why he suspected that appellee was driving while intoxicated, apart from the issue of possible

traffic violations.4 The deputy testified that (1) “in [his] experience, there have been numerous times

where [he had] stopped cars doing such things [following another car extremely closely] and come

to realize that it was either the person in front or the person in back who thought they may have had

a little bit too much to drink”; (2) he was assigned at the relevant time to the DWI unit, having

received extra training for DWI detection; (3) he pulled over appellee during the “peak hours” for

DWI; and (4) South Lamar is a thoroughfare north and south from the downtown “bar district.”

Factual findings on this relevant testimony, including any applicable credibility determinations, are

essential to the “totality of circumstances” to which the law of reasonable suspicion must be applied.

See Cullen, 195 S.W.3d at 699 (defining “essential findings” as those adequate to provide appellate

court with basis upon which to review trial court’s application of law to facts); see also United States

v. Cortez, 449 U.S. 411, 418 (1981) (noting that “whole picture” assessment must be viewed and

weighed “not in terms of library analysis by scholars, but as understood by those versed in the field

of law enforcement); Woods, 956 S.W.2d at 38 (same). If a trial court errs in its determination of

which findings are legally dispositive of a motion to suppress, the appellate court must remand the

cause for entry of additional, specific findings of fact with respect to the dispositive issue. Elias,

339 S.W.3d at 674, 676 (holding that court entering findings of fact and conclusions of law must




       4
          The trial court did make a “finding” (Finding 4) about the deputy’s experience with other
drivers following too closely in the context of persons helping one another on the road after having
had too much to drink, but the “finding” merely summarizes (inaccurately) the deputy’s testimony
and so, as already explained, is in effect a non-finding.

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ensure that findings are “adequate and complete, covering every potentially dispositive issue that

might reasonably be said to have arisen in the course of the suppression proceedings.”). Rather

than considering the totality of the circumstances to determine whether the deputy could have

objectively and reasonably suspected that appellee was violating traffic laws or driving while

intoxicated, the trial court appeared to consider, piecemeal, whether the video objectively depicted

actual traffic violations.

                The record simply does not contain sufficient factual findings from which we may

conduct our review of the dispostive legal question: whether the deputy had a reasonable suspicion

that appellee was engaged in criminal activity. Accordingly, we sustain the State’s alternate issue,

abate this appeal, and remand this cause for supplemental findings. See Tex. R. App. P. 44.4 (stating

that appellate court must direct trial court to correct remediable error if such error prevents proper

presentation of case to court of appeals).


                                          CONCLUSION

                We abate this appeal and remand the cause to the trial court for supplemental findings

consistent with this opinion.

                It is ordered November 17, 2016.



Before Justices Puryear, Pemberton, and Field

Abated and Remanded

Filed: November 17, 2016

Do Not Publish

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