Reversed and Remanded, and Majority and Dissenting Opinions filed April 3, 2012.

In The

Fourteenth Court of Appeals 

___________________

NO. 14-11-00500-CR

___________________

JOSEPH DELAFUENTE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Court at Law

Waller County, Texas

Trial Court Cause No. CC09-704

M A J O R I T Y O P I N I O N

Appellant Joseph Delafuente was charged with Class B misdemeanor possession of

marijuana. See Tex. Health & Safety Code § 481.121. Appellant filed a motion to 

suppress, alleging that the evidence against him was obtained during a traffic stop initiated 

without probable cause or reasonable suspicion. The trial court denied appellant’s 

motion. Having found no specific, articulable facts in the record that would support 

reasonable suspicion for the traffic stop, we reverse and remand for proceedings consistent 

with this opinion. 
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BACKGROUND

On June 24, 2009, at approximately 9:12 a.m., Officer Davis observed the vehicle in 

which appellant was a passenger traveling at approximately 52 miles per hour in a 65 

mile-per-hour zone. Davis stopped appellant’s vehicle for “impeding traffic.” Upon 

approaching the vehicle, Davis immediately noticed a strong odor of marijuana. Davis 

notified the occupants of the vehicle that he smelled marijuana, and asked appellant, 

“Where is it?” Appellant replied, “It’s in the trunk.” Appellant informed Davis that the 

marijuana belonged solely to appellant. 

Davis secured appellant in his patrol vehicle and notified the driver regarding 

appellant’s admissions. The driver then produced a partially smoked marijuana “roach,” a 

bag that contained marijuana, and other items used for smoking marijuana. Davis 

informed the driver regarding his intent to conduct a search and instructed her to remain in 

the vehicle with her two children. The search produced two marijuana pipes and other 

marijuana paraphernalia. 

The driver and two children were released. Appellant was arrested and charged 

with possession of marijuana. Appellant filed a motion to suppress evidence challenging 

the reasonable suspicion required for the traffic stop. At the hearing on the motion, the 

only evidence presented was the three-page offense report of Officer Davis. The relevant

portion of the offense report states that:

I observed a traffic congestion in the inside westbound lane [on Interstate 10 

in Waller County]. Traffic volume was moderate. I inspected further and 

observed a grey Chevrolet 4 door sedan . . . traveling below the prima facie 

limit of 65 miles per hour and Impeding Traffic. I paced the vehicle, which 

was traveling at approximately 52 miles per hour . . . . I initiated a traffic 

stop of the vehicle.

On November 30, 2010, the trial judge denied appellant’s motion to suppress and 

made findings of fact and conclusions of law. The relevant portion of the judge’s findings 

of fact states:
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In the offense report the officer states that [appellant] was impeding traffic. 

Since there was no contraverting [sic] testimony presented and no 

cross-examination, the Court accepted that statement as fact. Therefore the 

Court finds that Defendant’s vehicle was impeding traffic.

The trial judge’s conclusion of law states: “The officer had probable cause for the stop 

because the defendant was driving slow[ly] and impeding traffic.” Appellant timely 

appealed the denial of his motion to suppress.

ANALYSIS

In his only issue, appellant argues that the trial court erred by denying his motion to 

suppress evidence because the State did not present specific, articulable facts

demonstrating that reasonable suspicion existed for the stop. 

I. Burden of Proof

In order to suppress evidence allegedly obtained in violation of the Fourth 

Amendment, the defendant must produce evidence rebutting the presumption of proper 

police conduct. Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). The 

defendant meets his initial burden by establishing that a warrantless search or seizure 

occurred. Id. The burden then shifts to the State to prove the reasonableness of the 

search or seizure. Id. 

The offense report prepared by Officer Davis was admitted by agreement of both 

parties. The report demonstrates that a warrantless search and seizure was made, and the 

State does not challenge that here. Therefore, the burden is on the State to establish the 

reasonableness of the search and seizure. See id.

II. Standard of Review

We review a trial court’s ruling on a motion to suppress evidence for an abuse of 

discretion. Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002). We give 

almost total deference to the court’s determination of historical facts, especially when the 

trial court’s findings are based on an evaluation of credibility and demeanor. Guzman v. 
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State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). However, as to a mixed issue of law 

and fact, the trial judge may not be in an appreciably better position than the reviewing 

court to make the determination, and we may review that issue de novo. Id. at 87–89. 

(“The amount of deference a reviewing court affords to a trial court’s ruling on a ‘mixed 

question of law and fact’ (such as the issue of probable cause) often is determined by which 

judicial actor is in a better position to decide the issue. . . . The appellate courts may 

review de novo ‘mixed questions of law and fact’ not [turning on an evaluation of 

credibility and demeanor].”). 

Whether or not reasonable suspicion existed during the traffic stop is a mixed 

question of law and fact. See id.; State v. Tarvin, 972 S.W.2d 910, 911 (Tex. App.—Waco 

1998, pet. ref’d). Here, the only evidence admitted during the hearing on the motion to 

suppress was Officer Davis’s offense report. Because no witnesses testified, the trial 

court’s findings were not based on an evaluation of credibility or demeanor. Therefore, 

we review the issue de novo. 

III. Reasonable Suspicion and Impeding Traffic

An officer conducts a lawful stop when he has reasonable suspicion to believe that 

an individual is violating the law. Ford, 158 S.W.3d at 492. Reasonable suspicion exists 

if the officer has specific, articulable facts that, when combined with rational inferences 

from those facts, would lead him to reasonably conclude that an individual is, has been, or 

is about to be engaged in criminal activity. Id. There is a difference between specific, 

articulable facts on the one hand and conclusory statements or opinions on the other. 

Castro v. State, 227 S.W.3d 737, 742 (Tex. Crim. App. 2007). Mere conclusory 

statements are not an effective substitute for specific, articulable facts when the nature of 

the offense requires an officer to make a subjective determination. Id. (noting that 

whether driver changed lanes without signaling was an objective determination, unlike 

following too closely, speeding, or being intoxicated, which are subjective 

determinations).
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Under Texas law, a vehicle “may not drive so slowly as to impede the normal and 

reasonable movement of traffic, except when reduced speed is necessary for safe operation 

or in compliance with law.” Tex. Transp. Code § 545.363(a). “Slow driving, in and of 

itself, is not a violation of the statute; a violation only occurs when the normal and 

reasonable movement of traffic is impeded.” Tex. Dep’t of Pub. Safety v. Gonzales, 276 

S.W.3d 88, 93 (Tex. App.—San Antonio 2008, no pet.). 

IV. Application

The only facts stated in Officer Davis’s report relevant to the existence of 

reasonable suspicion are that (1) he observed traffic congestion in the inside westbound 

lane of I-10, (2) traffic volume was moderate, and (3) he paced appellant’s car traveling 52 

miles per hour in a 65 mile-per-hour zone. The report perhaps implies, but does not state, 

that appellant’s vehicle was traveling in the inside westbound lane. The report also 

includes the conclusory statement that appellant’s vehicle was impeding traffic. We must 

determine whether the evidence is sufficient to raise a reasonable suspicion that appellant’s 

vehicle was an impediment to the normal and reasonable movement of traffic. 

In Ford, the police officer who made the traffic stop testified at the hearing on the 

motion to suppress. 158 S.W.3d at 491. The officer testified that he saw a vehicle 

“following too close behind” another vehicle. Id. That was the only testimony given by 

the officer describing the circumstances leading up to the traffic stop in that case. Id. 

The Court of Criminal Appeals stated that “[the officer] only stated that Ford was 

‘following too close.’ The record reveals an absence of any facts allowing an appellate 

court to determine the circumstances upon which [the officer] could reasonably conclude 

that Ford actually was, had been, or soon would have been engaged in criminal activity.” 

Id. at 493. The court held that the evidence before the trial court “indicated only that in 

[the officer’s] judgment, Ford was following another car too closely . . . . The State failed 

to elicit any testimony pertinent to what facts would allow [the officer] to objectively 

determine Ford was violating a traffic law . . . .” Id. at 494. 
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Other Texas courts have found the evidence insufficient to support reasonable 

suspicion under this statute. See, e.g., Gonzales, 276 S.W.3d at 93–95 (no reasonable 

suspicion existed where defendant was traveling 45 miles per hour in a 65 mile-per-hour 

zone—which the officer “considered impeding traffic”—and the officer could not recall 

the amount of traffic on the highway. The court stated, “[a]n officer’s conclusory 

statement that the law has been violated is not sufficient to prove reasonable suspicion.”);

Richardson v. State, 39 S.W.3d 634, 636–39 (Tex. App.—Amarillo 2000, no pet.) (no 

reasonable suspicion existed where defendant was traveling 45 miles per hour in the 

right-hand lane, only one vehicle passed defendant, there was little or no traffic for 

defendant to impede, and defendant slowly increased his speed to 57 miles per hour); U.S. 

v. Coronado, 480 F. Supp. 2d 923, 927–29 (W.D. Tex. 2007) (government failed to show 

that reasonable suspicion existed where defendant was traveling 53 miles per hour in the 

left lane where the speed limit was 65 miles per hour, and officer testified that there were 

ten to fifteen cars behind defendant’s car but did not testify as to how long he observed the 

backup of vehicles). 

Here, Officer Davis’s offense report merely stated that the traffic volume was 

moderate, that there was congestion in the left lane, and that appellant’s vehicle was 

traveling 13 miles per hour below the speed limit while the officer was following it. There 

was no evidence that the normal and reasonable movement of traffic was impeded by 

appellant’s driving. Specifically, there was no evidence presented that appellant’s car was 

the cause of the congestion, that the moderate traffic volume was unusual for the time of 

day, whether cars were forced to pass appellant, how long the officer observed the traffic 

congestion behind appellant, or that traveling 13 miles below the speed limit was 

unreasonable given the traffic and weather conditions at the time. The officer’s opinion 

that appellant was “impeding traffic,” without specific, articulable facts to substantiate it, is 

insufficient to support the existence of reasonable suspicion. See Castro, 227 S.W.3d at 

742; Ford, 158 S.W.3d at 493. The State failed to elicit sufficient testimony as to facts 

that would “allow [Officer Davis] to objectively determine [appellant] was violating a 
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traffic law . . . .” Ford, 158 S.W.3d at 494. We conclude that the record does not justify 

a reasonable suspicion that appellant was impeding traffic, and therefore the trial court 

erred in denying appellant’s motion to suppress evidence.

CONCLUSION

We reverse the judgment of the trial court and remand the cause to that court for 

proceedings consistent with this opinion.

/s/ Martha Hill Jamison

Justice

Panel consists of Justices Frost, Seymore, and Jamison. (Frost, J., Dissenting).

Publish — TEX. R. APP. P. 47.2(b).