## NO. 12

- 20

- 00083

- CR

IN THE COUR T OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

KUNAL KIRIT PATEL , APPELLANT

V.

THE STATE OF TEXAS , APPELLEE §

§

§ APPEAL FROM THE

COUNTY COURT AT LAW NO

. 2

SMITH COUNTY, TEXAS

MEMOR ANDUM OPINION
Kunal Kirit Patel appeals his co nviction for driving while intoxicated . In one issue, Appellant challenges the trial court’s denial of his motion to suppress

. We affirm.

B ACK GROUND Texas Department of Public Safety Trooper Joshua Hollars was patrolling F arm to
M arket R oad 756 in Smit h C ounty when he observed Appellant’s car traveling north in the right
lane of traffic . Hollars saw Appellant’s right turn signal activate at a lo cation where there was nowhere to turn. The turn signal remained on for approximately twenty seconds be fore Appel lant attempted to turn into an apartment complex entrance. It is disputed whether while making the

turn Appellant’s right tires went over the c urb and adjoining sidewalk or his right rear tire merely
struck the curb. Hollars detained Appellant, administere d sta ndardized field sobriety tests, and arrested Appellant for driving while intoxicated

. Appellant filed a pretrial motion to suppress the e vidence obtained as a result of his detention, arguing that he was detained without reasonable suspicion of an of fense in violation of
the Fourth Amendment

. At a hearing on the motion, the State argued that Trooper Hollars had reasonable suspicion to detai n Appellant for failure to maintain a single lane of traffic 1 and

1 See T EX

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. § 545.060( a ) (West 2011).2 driving while intoxicated. After a hearing, the trial court denied the motion , finding that during the turn, Appellant drove over the sidewalk with both ri ght tires , and, in doing so, violat ed the Texas Transportation Code ’s pr oscription against unsafe turns

. 2 Appellant subsequently pleaded “guilty,” a nd the trial court assessed his punishment at confinement for 180 days, suspended for a term of fifteen months. This appeal followed.

M OTION TO S UPPRESS In Appellant’s sole issue, he argues t hat t he trial court erred by denying his motion to suppress be cause Trooper Hollars lacked reasonable suspicion to justify his detention

. Standard of Review and Applicable Law
A criminal defendant who all eges a Fourth Amendment violation bears the burden of producing some evidence that rebuts the presumption of prop er police conduct. Amador v. State , 221 S.W.3d 666 , 672 (Tex. Crim. App. 2007). A def endant meets his initial burden of proof by
establish i ng t hat a search or seizure occurred without a warrant. Id

. The burden then shifts to the state to prove that the sea rch or seizure was nonetheless reasonable under the totality of the
circumstances. Id. at 672

- 73. Reasonable suspicion exists if a law enforce ment officer has specific articula ble facts that, when combined with rational inferences from th e se facts, would lead him to reasonably suspect that a particular person has e ngaged, is engaging, or soon will be engaging in criminal activity. Garcia v. Stat e , 43 S.W.3d 527, 530 (Tex. Crim. App. 2001). In determining whether reasonable suspicion existed, courts analyze the objective facts surrounding the detention, not the officer’s subjective reasons for it

. Garcia v. State , 827 S.W.2d 937, 943

- 44 (Tex. Crim . App.
1992 ). The state need not show with absolute certainty that a n offense occurred to show reasonable suspici on. Garcia , 43 S.W.3d at 530. We review a trial court’s ruling on a motion to suppress under a bifurcated standard of
review. Hubert v. State , 3 12 S.W.3d 554 , 559 (Tex. Crim. App. 20 1 0) ; Carmouche v. State , 10 S.W.3d 323, 327 (Tex. Crim. App. 20 0 0). A tri al court’s decision to grant or deny a motion to suppress is generally reviewed under an abuse of discretion standard. Shepherd v. State , 273

2 In the trial court’s conclusions of law, it cites Section 545.104(a) as the section violated but recites the conten t of Section 545.103, entitled “Safely Turning.” See T EX

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. § 545.103 (West 2011). On appeal, we presume

— and both parties agr ee

— that the trial court intended to state Appellant violated Section 545.10 3.3 S .W.3d 681, 684 (Tex. Crim. App. 2008). We g ive almost total deference to a trial court’s
determination of histori cal facts, especially if th o se determinations t ur n on witness credibility or demeanor, and review de novo the trial court’s app lication of the law to facts not based on an evaluation of credibility and demeanor. Neal v. State , 256 S .W.3d 264, 281 (Tex. Cri m. App. 2008). When deciding a motion to suppress eviden ce , a trial court is the exclusive trier of fact and judge of the witnesses’ credibilit y. Maxwell v. St a te , 73 S.W.3d 278, 281 (Tex. Crim. App. 2002). Accor di ngly, 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 whethe r the totality of the circumstances is sufficient to support an
officer ’s reasonable suspicion of criminal activi ty. 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
theor y support e d b y the facts. Alford v. State , 400 S.W.3d 924, 929 (Tex. Crim. App. 2013). Analysis At the suppressio n hearing, Trooper Hollars testified that the incident occurred shortly after midnight on a Saturday morning, which is a prime time to encounte r intoxicated drivers . He
further stated that the incident occurred on a road wh ere two popular bars are located and that is
well known for driving while intoxicated offenses. H ollars’s attention was first drawn to Appellant’s vehicle by Appellant’s activa tion of a turn signal in a place where there was nowhere

to turn. Hollars stated that the turn signal was on far longer than the one hundred feet required by
law before turning , 3 and a greed that it was on for about one thousand feet. This action raised
Hol lars’s suspicion. Hollars testified that when Appellant turned, both of his right tires went onto the curb and ac ross the sidewalk in a “pretty violent” and unsafe manner. Hollars further testified
that the sidewalk was designated for foot traffic, and tha t driving on a sidewalk is never safe. He then detained Appellant for multiple reasons, including the time of nig ht, the long turn signal, and Appellant’s hitting the curb and driving across the sidewalk. A video recording taken from Trooper Hollars’s vehi cle was admitted into evidence at the suppression hearing. The video shows Hollar s driving in the left lane of a four

- lane road and
then slowing down and pulling into the center turn lane. Appellant’s vehicle is then seen traveling in the right lane next t o another vehicle in the left lane. Appellant’s turn signal is activated almost immediately af ter passing Hollars . Appellant’s vehicle slows, and, almost

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. § 545.10 4( b ) (West 2011).4 twenty seconds later, begins to turn right near an apartment complex entrance. Appellant’s left
tires go through the entrance, but his right tires appear to cut the corner , travel across the curb and sidewalk, and t hen fall from the curb as Appellant continues into the entrance. Pictures of the

area were obtained from Google Maps and admitted into evidence . They show that a sidewalk runs along the road immediately next to the curb and continue s into the entrance

. On appeal, Appellant argues that the trial court erred by denying his motion to suppress
because the record does not support its conclusion that Appellant made an unsafe turn in
violation of Section 545.103 and Trooper Hollars had no reasonable suspicion of any other
offense. In support of his argument, Appellant first contends that the video does not show him driving over the curb and sidewalk but merely striking the cur b with his rear right tire

. Appellant
further contends that the State failed to show reas onable suspicion of a Section 545.103 violation
because it produce d no evidence that the turn was unsafe, “ such as the pre sence of other vehicl es, a collision or evasive maneuvering, [or] property damage

. ” We cannot grant Appellant relief
based on either o f these contentions. First, we disagree with Appellant ’s assertion tha t t he video indisputably shows his rear tire merely clipped the curb. We afford great deference to the trial court’s findings of historical facts as long as the record supports those fi ndings. Tucker v. State , 369 S.W.3d 179, 184 (Tex. Crim. App. 2012). The same deferential standard applies when the finding is based on a
vid eo tape recording admitted into evidence at a suppression hearing. Mo ntanez v. State , 1 9 5 S.W.3d 101, 109 (Tex. Crim . App. 2006). Because of the poor lighting and bad camera angle, the
video is not ideal for viewing the turn. However, the video shows the righ t side of Appellant’s
vehicle rise and fall as it turns into the entrance , and it appear s to drive over the curb and
sidewalk. B ased on our review of the video, we conclude that it supports the trial court’s finding that Appellant drove across the curb and sidewalk.

Next, we disagree with Appellant’s contention that the State failed to show Trooper
Hollars had reaso nable suspicion of a Section 545.103 violation b ecause it produced no evidence
that the turn was unsafe. Under Section 545.103, “[a]n operator may not turn the vehicle to enter a private ro ad or driveway, otherwise turn the vehicle from a direct course, or move right or left on a roadway unless movement can be made safely.” T EX

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. § 545.103. I n support of his argument, Appellant c ites three cases t hat address the safety element of another5 transportation code statute , Section 545.060 , entitle d “Driving on Roadway Laned for Traffic.”
Id. § 545.060

. Section 545.060 states the following:

(a) An operator on a roadway divided into two o r more clearly marked lanes for traffic:
(1) shall drive as nearly as practical entirely within a single lane; a nd
(2 ) may not move from the lane unless that movement can be made safely.

Id. § 545.060( a). In each case cited by Appellant, the respective court of appeals held that the
State failed to prove the defendant’s movement was unsafe where the evidence showe d only that
the defendant either changed multiple lanes at once or left his lane of travel momentarily. See Hernandez v. State
, 983 S.W. 2 d 867, 87 2 ( T ex. Ap p.

— A ustin 1998, pet. r ef'd); Aviles v. State , 23 S.W. 3d 74, 79 (Tex. Ap p.

— H ouston [ 14 th Dist.] 2000, p et. r ef'd); Bass v. State , 6 4 S.W. 3d
646 , 6 51 (Tex. Ap p.

— T ex a rkana 2001, pet. ref'd ). We find this case distinguishable from those. Here, App ellant drove over a curb and a sidewalk designated for foot traffic. Based on the facts of this case, we conclud e that Trooper Hollars had reasonable suspicion that Appellant violated Section 545.103, and, therefore, the trial court did not err by denying Appellant’s motion to suppress. See T EX

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. § 545.103; Garcia , 43 S.W.3d at 530; Garcia , 827 S.W. 2d at 943

- 44 ; see also Singleton v. State , 91 S.W.3d 342, 347

- 48 (Tex. App.

— Texarkana 2002, no pet.) ( reasonable suspicion existed where office r testified defendant’s turn was so fast and sharp that tires squealed, indicating turn was unsafe)

. Accordingly, we overrule Appellant’s sole issue.

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

J AMES T. W OR THEN Chief Justice

Opinion delivered Jan u ary 6 , 2021. Panel consisted of W orthen, C.J., Hoyle, J., and Neeley, J.

( DO NOT PUBLISH )

## COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

JANUARY 6 , 202 1

NO. 12

- 20

- 00083

- CR

KUNAL KIRIT PATEL , Appellant V. THE STA TE OF TEX AS , Appellee

Appeal from the County Court at Law No

. 2
of Smith County, Texas (Tr.Ct.No. 002

- 82440

- 18 ) THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being considered, i t is the opinion of this court that there was no error in the judgment. It is therefore ORDERED, ADJUDGED and DECREED that the judgment of
the cou rt below be in all things affirmed , and that this decision be certified to the court below
for observance.
Ja mes T. Worthen , Chief Justice

. Panel consi sted of Worthen, C.J., Hoyle, J., and Neeley, J.