IN THE 

COURT OF CRIMINAL APPEALS

LISA D. WALL, §

APPELLANT §

V. § NO. PD-0693-15

§

THE STATE OF TEXAS, §

APPELLEE §

APPELLANT’S PETITION FOR DISCRETIONARY REVIEW OF THE DECISION 

OF THE COURT OF APPEALS FOR THE SECOND COURT DISTRICT 

OF TEXAS IN CAUSE NUMBER 02-13-00552-CR, AFFIRMING THE 

JUDGMENT OF THE TRIAL COURT IN CAUSE NUMBER CR-2012-

01008-D IN COUNTY CRIMINAL COURT NO. 4 OF DENTON COUNTY, 

TEXAS; THE HONORABLE JOE BRIDGES, PRESIDING.

§§§

APPELLANT’S PETITION FOR REVIEW

§§§

JASON ZENDEH DEL

Lead Counsel for Appellant

The Zendeh Del Law Firm

7600 San Jacinto Place, Suite 200

Plano, Texas 75024

Telephone (214) 919-3600

Facsimile (214) 919-3599

Jason@zenlawfirm.com

State Bar Number 24044988

PD-0693-15

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 7/8/2015 11:25:08 AM

Accepted 7/9/2015 4:14:04 PM

ABEL ACOSTA

CLERK
ii

IDENTITY OF PARTIES AND COUNSEL

The trial judge was the Honorable Joe Bridges, the presiding judge of 

County Criminal Court No. 4 of Denton County, Texas. 

Appellant is Lisa D. Wall, who was the Defendant in the below trial court 

case. Appellant was represented at trial and on appeal by Jason Zendeh Del of the 

Zendeh Del Law Firm. This attorney’s address is 7600 San Jacinto Place, Suite 

200, Plano, Texas 75024. 

The State of Texas, which is represented by Denton County District 

Attorney Paul Johnson, is also a party to this litigation. At trial, the State was 

represented by Sarah Wood. On appeal, the State was represented by Catherine 

Luft. The address of these attorneys is Denton County District Attorney’s Office, 

1450 E. McKinney Street, Denton, Texas 76209. 
iii

TABLE OF CONTENTS

TABLE OF AUTHORITIES.................................................................................... v

STATEMENT REGARDING ORAL ARGUMENT .............................................. 1

STATEMENT OF THE CASE ................................................................................ 2

PROCEDURAL HISTORY AND COURT OF APPEALS’ OPINION.................. 3

QUESTION FOR REVIEW..................................................................................... 4

STATEMENT OF FACTS ...................................................................................... 5

DISCUSSION........................................................................................................... 6

I. The Court of Appeals opinion.....................................................6

II. Reasonable suspicion in a motion to suppress................................6

Fourth Amendment............................................................8

III. The court of appeals upheld the conviction, and reversed the trial 

court’s judgment, when the evidence did not support the determination that 

Officer Padgett possessed reasonable suspicion to initiate the traffic stop.10

CONCLUSION....................................................................................................... 14

PRAYER................................................................................................................. 15

CERTIFICATE OF COMPLIANCE...................................................................... 16
iv

CERTIFICATE OF SERVICE............................................................................... 16

COURT OF APPEALS’ OPINION........................................................................ 17
v

TABLE OF AUTHORITIES

CASES

Abney v. State, 394S.W.3d 542 (Tex. Crim. App. 2013).......................................... 7

Amador v. State, 275 S.W.3d 872 (Tex. Crim. App. 2009)...................................... 7

Armendariz v. State, 123 S.W.3d 401 (Tex. Crim. App. 2003), cert. denied, 541 

U.S. 974 (2004).................................................................................................... 8

Brown v. Texas, 443 U.S. 47 (1979)......................................................................... 9

Cady v. Dombrowski, 413 U.S.433 (1973)............................................................. 10

Corbin v. State, 85 S.W.3d 272 (Tex. Crim. App. 2002......................................... 10

Ford v. State, 158 S.W.3d 488 (Tex. Crim. App. 2005)....................................... 6, 7

Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997) ....................................... 7

State v. Kerwick, 393 S.W.3d 270 (Tex. Crim. App. 2013) ............................. 11, 13

State v. Stevens, 235 S.W.3d 736 (Tex. Crim. App. 2007)....................................... 8

Terry v. Ohio, 392 U.S. 1 (1968)................................................................... 8, ,9, 13

United States v. Brigmont-Ponce, 422 U.S. 873 (1975)........................................... 8

Wall v. State, No. 02-13-00552-CR, 2015 WL 2169307 (Tex. App.—Fort Worth 

May 7, 2015 ) (memo op.) (not for publication)................................. 3, 6, 10, 11, 14
vi

Whren v. United States, 517 U.S. 806 (1996)....................................................... 8, 9

Wright v. State, 7 S.W.3d 148 (Tex. Crim. App. 1999) ........................................... 9

STATUTES

U.S. Cons. Amend. IV.............................................................................................. 8

Tex. Cons. Art. 1,§10................................................................................................ 8
1

IN THE

COURT OF CRIMINAL APPEALS

LISA D. WALL, §

APPELLANT §

V. § NO. PD-0693-15

§

THE STATE OF TEXAS, §

APPELLEE §

APPELLANT’S PETITION FOR DISCRETIONARY REVIEW OF THE DECISION 

OF THE COURT OF APPEALS FOR THE SECOND DISTRICT OF TEXAS 

IN CAUSE NUMBER 02-13-00552-CR, AFFIRMING THE JUDGMENT OF 

THE TRIAL COURT IN CAUSE NUMBER CR-2012-01008-D IN COUNTY 

CRIMINAL COURT NO. 4 OF DENTON COUNTY, TEXAS; THE 

HONORABLE JOE BRIDGES, PRESIDING.

STATEMENT REGARDING ORAL ARGUMENT

Oral argument is not necessary to resolve the issues raised by this case.
2

STATEMENT OF THE CASE

Appellant was convicted of the misdemeanor offense of Driving While 

Intoxicated (“DWI”). [CR 111] The trial court sentenced Appellant to 300 days 

confinement in the Denton County Jail and a $500 fine. [CR 111] However, the 

trial court suspended the imposition of the jail sentence and placed Appellant on 

fifteen months of community supervision. [CR 111] 
3

PROCEDURAL HISTORY AND COURT OF APPEALS’ OPINION

On appeal, Appellant argued that the trial court abused its discretion by 

denying Appellant’s motion to suppress the evidence obtained during the unlawful 

stop of Appellant’s vehicle. [App. brief at 3] 

A panel of judges from the Second District Court of Appeals affirmed the 

trial court’s judgment. Wall v. State, No. 02-13-00552-CR, 2015 WL 2169307, at 

*1 (Tex. App.—Fort Worth, May 7, 2015) (memo op.) (not for publication). In its 

opinion, however, the appellate court sustained Appellant’s issue that the trial court 

erred when it found in its findings of fact that the officer had reasonable suspicion 

to stop Appellant on the basis of disregarding a control device or making an overly 

wide U-turn. Id. at *4. The court of appeals went on to determine that the trial 

court did err when it ruled to deny Appellant’s motion to suppress on the basis that 

the officer had reasonable suspicion that Appellant was engaged in criminal 

activity. Id. at *5. The trial court had made findings of fact, after hearing evidence 

at the suppression hearing, that Appellant’s driving was not reasonable suspicion 

of DWI. [CR 104] The court of appeals upheld the trial court’s judgment under 

this theory. 
4

QUESTION FOR REVIEW

Did the court of appeals erroneously review and affirm the trial court’s 

ruling on the motion to suppress? Specifically, did the appellate court improperly 

uphold the motion to suppress on a theory that the trial court had found did not 

exist (i.e., that the officer had reasonable suspicion to stop Appellant’s vehicle and 

initiate a temporary detention) in its findings of fact and conclusions of law?
5

STATEMENT OF FACTS

On December 18, 2011, Appellant was driving her pickup truck1 in Denton 

County, Texas. [2 RR 7-9] At approximately 2:00 a.m., Corey Padgett, a police 

officer with the Denton Police Department, pulled his patrol car behind 

Appellant’s vehicle at the intersection of Fulton and University. [2 RR 7-9] He 

stated that Appellant was travelling eastbound. [2 RR 10] Officer Padgett testified 

that the light at the intersection was flashing yellow, which indicated that cars were 

to proceed with caution through the light. [2 RR 9] He stated that Appellant, 

however, was completely stopped at the light for a longer than normal period. [2 

RR 9, 12] 

Officer Padgett then testified that Appellant proceeded through the light and 

approached a second flashing yellow light at Alice and University. [2 RR 13] 

There, Appellant slowed down significantly in the middle of the intersection, but 

she did not completely stop her vehicle. [2 RR 13] He then stated that after 

proceeding through the intersection, Appellant changed lanes, got into the lefthand lane, and made a U-turn. [2 RR 14] At that point, Officer Padgett turned on 

his overhead patrol lights and Appellant pulled her vehicle into a Kroger parking 

lot. [2 RR 25-26]

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 1 Appellant will refer to her truck as a “vehicle” throughout the brief. 
6

DISCUSSION

I. The Court of Appeals’ opinion.

The Fort Worth court of appeals determined that the trial court’s finding that 

the officer did not have reasonable suspicion to stop Appellant’s vehicle on the 

basis of DWI was not supported by the evidence. Id. at 5. The appellate court 

upheld Appellant’s conviction under this theory. Id. However, the court of 

appeals agreed with Appellant and went on to state in its opinion that the trial 

court’s findings that Appellant committed traffic offenses (i.e., making an 

improper U-turn and disregarding a traffic control device) were not supported by 

evidence. Wall, 2015 WL 2169307, at *4.2 

II. Reasonable suspicion in a motion to suppress.

“To suppress evidence on an alleged Fourth Amendment violation, the 

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

presumption of proper police conduct.” Ford v. State, 158 S.W.3d 488, 492 (Tex. 

Crim. App. 2005). When a defendant meets the burden by establishing that the 

search or seizure occurred without a warrant, the burden shifts to the State to prove 

that the search or seizure was prompted by reasonable suspicion that an individual 

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 2 Appellant’s brief will not focus on this theory because the court of appeals held that the officer did not 

have reasonable suspicion to stop Appellant’s vehicle on the basis of committing a traffic offense. 

However, Appellant will brief this issue if this Court so requests. 
7

was violating the law. Abney v. State, 394 S.W.3d 542, 547 (Tex. Crim. App. 

2013); see also Amador v. State, 275 S.W.3d 872, 878 (Tex. Crim. App. 2009).

Here, at the beginning of the suppression hearing, the State stipulated that

this case involves a warrantless arrest. [2 RR 7] Therefore, this stipulation shifted 

the burden to the State to establish the reasonableness of the warrantless detention. 

See Ford, 158 S.W.3d at 492. 

A court of appeals reviews a trial court’s denial of a motion to suppress 

under a bifurcated standard of review to evaluate the totality of the circumstances 

and determine whether reasonable suspicion exists. See Abney, 394 S.W.3d at 547; 

Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). The court of appeals 

will give “almost total deference to the trial court’s determination of historical 

facts, especially when the trial court’s findings are based on an evaluation of 

credibility and demeanor.” Abney, 394 S.W.3d at 547; see also Guzman, 955 

S.W.2d at 89. 

The court of appeals will then review the trial court’s legal ruling de novo 

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

of the legal ruling. Ford, 158 S.W.3d at 493. The appellate court 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 
8

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). 

Fourth Amendment

The United States Constitution protects persons against “unreasonable 

searches and seizures.” U.S. Cons. amend. IV. The United States and Texas 

Constitutions proclaim that law enforcement personnel may not search an 

individual absent a warrant based on probable cause. Id.; Tex. Cons. art. 1,§10. It 

has long been the rule, however, that a temporary investigative detention and pat 

down search for possible weapons or contraband without a warrant is permissible 

provided the officer has a reasonable belief the individual has been engaged in 

criminal activity or is armed. See generally Terry v. Ohio, 392 U.S. 1 (1968). 

A seizure under the Fourth Amendment must be objectively reasonable in 

light of the particular circumstances of the case. See id. at 21-22. Whether a 

traffic stop is reasonable depends on “a balance between the public interest and the 

individual’s right to personal security free from arbitrary interference by law 

enforcement.” United States v. Brigmont-Ponce, 422 U.S. 873, 878 (1975). A 

seizure based on reasonable suspicion or probable cause will generally be 
9

reasonable. Whren v. United States, 517 U.S. 806, 818 (1996); Terry, 392 U.S. at 

21-23. 

For an officer to initiate a traffic stop, the officer must have more than a 

mere hunch. Whren, 517 U.S. at 818. The officer must be able to articulate 

objective facts and circumstances that demonstrate he or she reasonably believed 

the Defendant was engaged in criminal activity. See, eg., Brown v. Texas, 443 

U.S. 47, 51 (1979) (to detain, officers must “have a reasonable suspicion, based on 

objective facts, that the individual is involved in criminal activity”); Terry, 392 

U.S. at 30 (reasonable suspicion exists only where policeman reasonably 

concludes, inter alia, “that criminal activity may be afoot”). 

The law does provide, however, that if a police officer objectively has

reasonable suspicion or probable cause that an offense has been committed then he 

or she may reasonably seize an individual through the exercise of his community 

caretaking function. Wright v. State, 7 S.W.3d 148, 151-52 (Tex. Crim. App. 

1999). This is the so-called community caretaking function and is the exception to 

the warrant requirement. Id. at 151. 

An integral part of a police officer’s duty is to “serve and protect.” Id. As 

part of this duty, a police officer can approach and assist an individual whom he or 

she believes is in need of help. Id. An officer will act reasonable “when he 
10

stopped the vehicle out of concern for the welfare of the [Defendant]” and not to 

investigate the Defendant. Id.

This doctrine necessarily examines the intent of the officer when he or she 

invokes the doctrine. Importantly, both the United States Supreme Court and the 

Court of Criminal Appeals of Texas have held that the “community caretaking 

function, however, is ‘totally divorced from the detention, investigation, or 

acquisition of evidence relating to the violation of a criminal statute.” Cady v. 

Dombrowski, 413 U.S. 433, 441 (1973); Corbin v. State, 85 S.W.3d 272, 276-77 

(Tex. Crim. App. 2002). That is, a police officer cannot cloak his intent to conduct 

a criminal investigation, by invoking the community caretaking function. Corbin, 

85 S.W.3d at 276-77. Thus, an officer’s subjective intent is paramount in those 

cases. Id. 

III. The court of appeals upheld the conviction, and reversed the trial court’s 

judgment, when the evidence did not support the determination that Officer 

Padgett possessed reasonable suspicion to initiate the traffic stop. 

As stated above, the appellate court affirmed Appellant’s conviction on the 

theory that Officer Padgett had reasonable suspicion to stop Appellant’s vehicle on 

the basis of DWI. Wall, 2015 WL 2169307, at *5-6. In doing so, the court of 

appeals reversed the trial court’s finding and conclusion that Officer Padgett did 

not have reasonable suspicion to temporarily detain Appellant on this theory. Id. 

The trial court made the following relevant findings of fact:
11

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. 

But the court finds the defendant could be stopped for disregarding 

the traffic control device and making a wide turn over the white line. 

Holt v. State, 724 S.W.2d 914 (Tex. App.-San Antonio 1987). The 

Court is finding that the Video showing the action is sufficient 

without the officer testifying that he saw this or was relying on it. 

[CR 104-05]

The appellate court, however, citing State v. Kerwick on the basis that 

“reasonable suspicion is a mixed question of law that is reviewed de novo on 

appeal,” determined that the trial court’s findings were not supported by the record

and that Officer Padgett did possess reasonable suspicion to stop Appellant’s 

vehicle on the basis of suspected DWI. 393 S.W.3d 270, 273 (Tex. Crim. App. 

2013); Wall, 2015 WL 2169307, at *5. The appellate court based its determination 

on (1) Appellant’s “prolonged stop” at one flashing yellow light, (2) delayed 

response to brake and subsequently almost complete stop in the middle of the 

another flashing yellow light intersection, (3) Officer Padgett’s testimony that he 

had made previous DWI stops at a flashing yellow light at the exact location that 

Appellant’s vehicle was travelling, and (4) Officer Padgett’s testimony that 
12

Appellant was driving her vehicle at approximately 2:00 a.m. on a weekend in an 

area that bars are located. Id.

At the suppression hearing, Officer Padgett testified as follows:

[State]: And at what point did you suspect the driver to be 

intoxicated?

[Officer]: Upon contact with them and after speaking with them.

[State]: And what about their driving habits led you to suspect 

them for DWI?

[Officer]: I’ve had DWIs before where somebody stops at a 

flashing yellow light on University; at that exact area, 

actually. So stopping at flashing yellow lights is not 

normal. The time of the day. It’s 2:00 a.m. Bars close. 

It’s when most of our DWIs happen.

. . . .

[Appellant]: And on that occasion, and also in your report, you listed 

two very specific reasons as to why you pulled over Ms. Wall, why 

you indicated that traffic stop; is that correct?

[Officer]: Yes.

[Appellant]: And those two very specific reasons are she, one, 

disregarded a traffic control device; and, two, you wanted to do a 

welfare check. Is that correct?

[Officer]: I believe that’s in the reason part of the LEADRS, but it 

also – in the PC narrative, it also states the possible intoxication.

. . . .
13

[Appellant]: And at a prior hearing, when you testified under oath, we 

talked about this case and you gave two reasons that you stopped Ms. 

Wall; disregarding a traffic control device and checking on her 

welfare. Is that correct?

[Officer]: Yes.

[Appellant]: And as a matter of fact, I specifically asked you, “Were 

there any other reasons to stop her?” And you stated, “No.” Do you 

recall that?

[Officer]: I believe so.

[Appellant]: Okay. I also asked you precisely when did this incident 

turn into a DWI investigation. And your response then was only after 

you made contact with her and you went into your – your clues of 

intoxication, odor, that type of thing. Do you recall that?

[Officer]: Yes.

[2 RR 15, 17-18]

Here, the record clearly supports the trial court’s finding that Appellant’s 

driving was not reasonable suspicion of DWI. [CR 104-05] During his testimony 

at the suppression hearing, Officer Padgett testified that he did not have reasonable 

suspicion that Appellant was driving while intoxicated. 2 RR 15, 17-18] 

Therefore, when the appellate court viewed the evidence in the light most 

favorable to the trial court’s ruling, the court should have affirmed the trial court’s 

finding. See Kerwick, 393 S.W.3d at 273. 

As stated in Terry v. Ohio, reasonable suspicion only exists when a police 

officer reasonably concludes that “criminal activity may be afoot.” 392 U.S. at 30. 
14

Officer Padgett stated under examination from both the State and Appellant that he 

did not suspect DWI until he stopped Appellant’s vehicle and made contact with 

her. [2 RR 15, 17-18] The officer testified that the only reasons he listed for 

stopping Appellant’s vehicle were (1) disregarding a traffic control device and (2) 

welfare check. [2 RR 17-18] Only after further examination from the prosecutor 

did Officer Padgett state Appellant’s driving habits led him to suspect DWI. [2 RR 

15] Clearly, based on his own testimony, Officer Padgett did not have reasonable 

suspicion to stop Appellant’s vehicle on the basis of DWI. Although the court of 

appeals pointed out that Officer Padgett testified to the factors that he considered 

justified his stop of Appellant’s vehicle on suspicion of DWI, this testimony came 

after Officer Padgett stated that he did not suspect DWI until after he approached 

her vehicle. [2 RR 15] 

As such, the appellate court erroneously determined that when viewing the 

evidence in the light most favorable to the trial court’s ruling that the trial court’s 

determination that Officer Padgett did not possess reasonable suspicion to stop 

Appellant’s vehicle was not supported by the record. Wall, 2015 WL 2169307, at 

*5. 

CONCLUSION

The Second District Court of Appeals erroneously determined that Officer 

Padgett had reasonable suspicion to stop Appellant’s vehicle on the basis of DWI. 
15

First, after reviewing the evidence, the trial court found that the evidence did not 

support the reasonable suspicion argument. Second, the evidence presented at the 

trial court does not support a determination by the appellate court that the officer 

had reasonable suspicion to temporarily detain Appellant. The trial court’s 

findings of fact are supported by the record and therefore, should be dispositive of 

the ruling. See Ford, 158 S.W. 3rd at 493. This Court should reverse the Fort 

Worth Court of Appeal’s opinion and hold that the trial court’s finding that the 

officer did not have reasonable suspicion to stop Appellant’s vehicle on the basis 

of DWI was correct and supported by the record. 

PRAYER

Appellant prays that her petition be granted and that the Court of Appeals’ 

judgment be reversed in part as it applies to the officer having reasonable suspicion 

of DWI to stop Appellant’s vehicle and render the judgment that the lower court 

should have rendered (i.e., reversing Appellant’s conviction). Alternatively, 

Appellant prays that the court of appeals’ judgment affirming the trial court’s 

judgment be reversed. 
16

Respectfully submitted,

___________________________

Jason A. Zendeh Del

Lead Counsel for Appellant

The Zendeh Del Law Firm

7600 San Jacinto Place, Suite 200

Plano, Texas 75024

Telephone (214) 919-3600

Facsimile (214) 919-3599

Jason@zenlawfirm.com

State Bar Number 24044988

CERTIFICATE OF COMPLIANCE

I certify that this document contains 3,494 words.

___________________________

Jason A. Zendeh Del

CERTIFICATE OF SERVICE

A copy of Appellant’s petition for discretionary review has been sent to

Denton County District Attorney’s Office, Attn: Appellate Division, via fax (940) 

349-2601, on the dame date as filing.

___________________________

Jason A. Zendeh Del
17

APPENDIX- COURT OF APPEALS’ OPINION
18

2015 WL 2169307

Only the Westlaw citation is currently available.

SEE TX R RAP RULE 47.2 FOR DESIGNATION 

AND SIGNING OF OPINIONS.

DO NOT PUBLISH TEX. R. APP. P. 47.2(B)

Court of Appeals of Texas,

Fort Worth.

Lisa D. Wall, Appellant

v.

The State of Texas, State

NO. 02–13–00552–CR | DELIVERED: May 7, 2015

FROM COUNTY CRIMINAL COURT NO. 4 OF 

DENTON COUNTY, TRIAL COURT NO. CR–2012–

01008–D

Attorneys and Law Firms

Jason Zendeh Del, Plano, TX, for Appellant.

Paul Johnson, Dist Atty., Catherine Luft, Asst. Dist. Atty., 

Denton, TX, for State.

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

JJ.

MEMORANDUM OPINION1

SUE WALKER, JUSTICE

I. INTRODUCTION2

*1 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 crosspoint, 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 intersection. 

Before her vehicle completely stopped, Wall accelerated 

through the intersection, changed lanes, and made a Uturn. 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.

*2 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 
19

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 byState 

v. Cullen, 195 S.W.3d 696 (Tex.Crim.App.2006).

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. SeeTucker 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 applicationof-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 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

*3 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.

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. 
20

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; seeYoung 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. 

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); seeDerichsweiler 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); 

seeState 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 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. SeeTex. 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. SeeTex. 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

*4 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. SeeKelly,

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. SeeTucker, 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 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. 

SeeTex. 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 alsoYazdchi, 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. SeeTex. 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. SeeYazdchi, 428 S.W.3d at 
21

837 (holding that statutes are reviewed de novo); Amador,

221 S.W.3d at 673 (de novo review of application-of-lawto-fact 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. SeeTex. 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. 

SeeTex. 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 alsoTex. 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. 

SeeYazdchi, 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 S.W.3d at 652–53

(same); see alsoTucker, 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).

*5 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 

“some minimal level of objective justification for making 

the stop” because he pointed to specific and articulable 

facts—Wall’s peculiar driving through two flashingyellow-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 

alsoDerichsweiler, 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. SeeState 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. 

SeeStevens, 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

*6 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.
22

All Citations

Not Reported in S.W.3d, 2015 WL 2169307

Footnotes

1 SeeTex.!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.

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.

End$of$Document ©!2015!Thomson!Reuters.!No!claim!to!original!U.S.!Government!Works.