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## NO. 12

- 21

- 00059

- CR

IN THE COUR T OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

JAY PAUL HARDY , APPELLANT

V.

THE STATE OF TEXAS , APPELLEE §

§

§ APPEAL FRO M THE

COUNTY COURT AT LAW

SMITH COUNTY, TEXAS

MEMORANDUM OP INION Jay Paul Hardy appeals his conviction for driving while intoxicated. In one issue, Appellant challenges the trial court’s denial of his motion to suppress. We affirm.

B ACKGROUND Dep uty Francisco Oviedo, a deputy with the Smith County Sherriff’s Office, was patrolling Farm to Market Road 756 (F M 756) in Smith County when he observed Appellant’s car traveling southbound. Oviedo saw Appell ant change lanes into the right turn only lane toward Toll 49 and turn right onto the Toll 49 ramp without activating his turn signal. Oviedo
then initiated a traffic stop. Following an investigation, Appellant was arrested for driving while
intoxicated. Appellant filed a pretrial motion to suppress the evidence obtained as a result of his detention, arguing that he was detained without reasonable suspicion of an offense in violation of the Fourth Amendment. At a hearing on the motion, the State argued that Deputy Oviedo had reasonable suspicion to detain Appellant for failure to signal a lane change and failure to signal before turning. 1 After the hearing, t he trial court denied the motion , finding that Appellant violated the Texas Transportation Code when he failed to signal when changing lanes an d failed

1 See T EX

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. C ODE A NN

. § 545.104 (West 2011 ).2 to signal when turning onto the Toll 49 ramp from FM 756. Appellant subsequently pleaded “guilty,” and the trial court assessed punishment at confinement for thirty days. This appeal
followed.

M OTI ON TO S UPPRESS In Appellant’s sole issue, he a rgues that the trial court erred by denying his motion to

suppress because Deputy Oviedo lacked reasonable suspic ion to justify his detention. Standard of Review and Applicable Law
A criminal defendant who all eges a Fourth Amendment violation bears the bur den of producing some evidence that rebuts the presumption of proper police conduct. Amador v.
State , 221 S.W.3d 666, 672 (Tex. Crim. App. 2007). A defendant meets his initial burden of proof by establishing t hat a search or seizure occurred without a wa rrant. Id

. The burden then shifts to the state to prove that the search or seizure was nonetheless reasonable u nder the totality
of the circumstances. Id

. at 672

- 73. Reasonable suspicion exists if a law enforcement officer has specific articulable facts that, when combined with rational inferences from these facts, would lead him to reasonably suspect that a parti cular person has engaged, is engaging, or soon will be engaging in criminal activity. Garcia v. State , 43 S.W.3d 527, 530 (Tex. Crim. App. 200 1). In determining whether reasonable suspicion existed, courts analyze the objective facts surrounding the dete ntion, not the
officer ’ s subjective reasons for it. Garcia v. State , 827 S.W.2d 937, 943

- 44 (Te x. Crim. App. 1992). The state need not show w ith absolute certainty that an offense occurred to show reasonable suspicion. Garcia , 43 S.W.3d at 530.
We revie w a trial court ’ s ruling on a motion to suppress under a bifurcated standard of
review. Hubert v. State , 312 S.W.3d 554, 559 (Tex. Crim. App. 2010); Carmouche v. State , 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). A trial court ’ s decision to grant or deny a motion to
suppress is generally reviewed under an abuse of discretion standard. Shepherd v. State , 273 S.W.3d 681, 684 (Tex. Crim. App. 2008)

. We give almost total deference to a trial court ’ s determination of historical facts, especially if those deter minations turn on witness credibility or demeanor, and review de novo the trial court ’ s application o f the law to facts not based on an
evaluat ion of credibility and demeanor. Neal v. State , 256 S.W.3d 264, 281 (Tex. Crim. App. 2008). When deciding a mot ion to suppress evidence, a trial court is the exclusive trier of fact3 and judge of the witnesses ’ cred ibility. Maxwell v. State , 73 S.W.3d 27 8, 281 (Tex. Crim. App. 2002). Accordingly, a trial court may choose to believe or disbelieve all or any part of a witness ’ s testimony. See State v. Ross , 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).
We review de novo w hether the totality of the circumstan ces is sufficient to support an
officer ’ s reasonable suspicion of criminal activity. State v. Cortez , 543 S.W.3d 198, 204 (Tex. Crim. App. 2018). We uphold a trial court ’ s ruling on a motion to suppress under any legal theory supported by the facts. Alf ord v. State , 400 S.W.3d 924, 929 (Tex. Crim. App. 2013). Analysis At the suppression hearing, Deputy Oviedo tes tified that he was on patrol on October 31,
2019 . He conducted a traffic stop on a silver Silverado b ecause he observed “it failed to signal
i ts turn from 756 to Toll 49.” He further testified that when he approached Appellant and told him why he conduct ed the stop, Appellant responded that he was aware he did not signal. A video recording taken from De puty Oviedo’s vehicle was admitted into e vidence at the hearing.
The video shows Oviedo’s vehicle traveling on a two

- lane road. Appellant’s vehicle is i n front of Oviedo’s. After Appellant crosses the bridge over Toll 49, his vehicle changes lanes into the right turn only lane without signalin g. Appellant’s vehicle then turns right onto the Toll 49 ramp without signaling. Appellant did not activate his turn signal until Oviedo conduct ed the traffic stop. On appeal, Appellant argues the trial court err ed by denying his motion to suppress
beca use the record does not support its conclusion that Appellan t violated Section 545.104 of the Transportation Code when he turned without activating his turn signal. He urges that the lane
ended and he could not hav e continued straight, which is akin to a merging of two lanes and does not require a signal. See Mahaffey v. State , 316 S.W.3d 633 , 638

- 39 (Tex. 2010). We disagree. Section 545.104 of the Texas Transportation Code provides in pertinent part:

( a) An operator shall use the signal authorized by Section 545.106 to indicate an intention to turn, change lanes, or start from a parked position.
(b) An operator i ntending to turn a vehicle right or left shall signal continuously for not les s than the last 100 feet of movement of the vehicle before the t urn.

T EX

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. § 545.104 (West 2011 ). The plain language of the statute requires the driver to sig nal for a turn. It does not include exceptions for those situations in which there is4 only one direction to turn. Wehring v. State , 276 S.W .3d 666, 670 (Tex. App.

— Texarkana 2008, no pet.)

. Furthermore, if a turn is made from one street ont o another, a s ignal is required.
Id. ; Williams v. State , No. 05

- 02

- 00314

- CR, 2002 WL 31521373, at *2 (Tex. App.

— Dallas Nov. 14, 2002 , pet. ref ’ d ) ( op., no t designated for publication). It is undisputed that FM 756 and Toll 49 are separate roadways. Therefore, Appel lant’s maneuve r wa s not tantamount to merging lanes, and Appellant was required to signal before turning. Based on the facts of this case, w e conclude t hat Deputy Oviedo had reasonable suspicion that Appellant violated Section 545.104, and, therefore, t he trial court did not err by denying Appellant’s motion to suppress. See T EX

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. C ODE A NN

. § 545.104(a); Garcia , 43 S.W.3d at 530; Garci a , 827 S.W.2 d at 943

- 44; Wehring , 276 S.W.3d at 671. Because we must sustain the trial court’s ruling if it is c orrect under a ny applicable theory of law, we need not address the other alleged traffic violation. See Sanchez v. State , No. 04

- 18

- 00302

- CR, 2019 WL 3229 192, at *5 (Tex. App.

— San Antonio April 17, 2019, no pet.) ( op., designated for publication). Accordingly, we overr ule Appellant’s sole issue.

D ISPOSITION Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.

G REG N EELEY Justic e Opinion delivered February 9 , 2022. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(DO NOT PUBLISH)5 

## COU RT OF APPEALS

TWELFT H COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

FEBRUA RY 9 , 2022

NO. 12

- 21

- 00059

- CR

JAY PAU L HARDY , Appellant V. THE STATE OF TEXAS , Appellee

Appeal fr om the County Court at Law
of Smith County, Texas (Tr.Ct.No. 001

- 80046

- 20 )

THIS CAUSE c ame to be heard on th e appellate record and brief s filed herein, and the same being considered, it is the o pinion of this court that there was no error in the judgment. It is therefore ORDERED, ADJUDGED and DECREED that the judgment of
the court below be in all things affirme d , and that this decision be certified to the court below
for observance. Greg Neeley , Justice

. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.