NO. 13-15-00041-CR

IN THE COURT OF APPEALS

FOR THE THIRTEENTH DISTRICT OF 

TEXAS

AT CORPUS CHRISTI

THE STATE OF TEXAS, 

Appellant,

v. 

UYLESS TROY BLAND, 

Appellee. 

On Appeal from the 

377th Judicial District Court

Of Victoria County, Texas

Cause No. 14-10-28227-D 

BRIEF FOR THE STATE OF TEXAS

STEPHEN B. TYLER

Criminal District Attorney

Victoria County, Texas

BRENDAN WYATT GUY

Assistant Criminal District Attorney

Victoria County, Texas

205 N. Bridge St. Ste. 301,

Victoria, Texas 77901-6576

bguy@vctx.org

(361) 575-0468

(361) 570-1041 (fax)

State Bar No. 24034895

Attorneys for the State of Texas

ORAL ARGUMENT NOT REQUESTED 

ACCEPTED

13-15-00041-CR

THIRTEENTH COURT OF APPEAL

CORPUS CHRISTI, TEXAS

4/17/2015 9:01:12 AM

DORIAN RAMIREZ

CLERK

 FILED IN 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS 4/17/2015 9:01:12 AM DORIAN E. RAMIREZ Clerk
Brief of Appellant

Victoria County Criminal District Attorney

No. 13-15-00041-CR

i

IDENTITY OF PARTIES AND COUNSEL

Pursuant to TEX. R. APP. P. 38.1(a) (2003), the parties to the suit are as 

follows: 

APPELLANT The State of Texas

APPELLEE Uyless Troy Bland

TRIAL JUDGE The Honorable Eli Elmo Garza

377th Judicial District Court

Victoria, Texas

TRIAL PROSECUTOR Brendan Wyatt Guy 

State Bar No. 24034895

Assistant Criminal District Attorney

205 N. Bridge St. Ste 301

Victoria, Texas 77901-6576

TRIAL DEFENSE ATTORNEY Terri Lynn Dornburg

Law Offices of Brent Dornburg

State Bar No. 90001553

120 N. Main Street 

Victoria, Texas 77901

APPELLATE STATE’S Brendan Wyatt Guy

ATTORNEY State Bar No. 24034895

Assistant Criminal District Attorney

205 N. Bridge St. Ste 301

Victoria, Texas 77901-6576

APPELLATE DEFENSE William Allen White

ATTORNEY State Bar No. 00788659

P.O. Box 7422

Victoria, Texas 77903
Brief of Appellant

Victoria County Criminal District Attorney

No. 13-15-00041-CR

ii

TABLE OF CONTENTS

 PAGE (S)

IDENTITY OF PARTIES AND COUNSEL........................................... i

TABLE OF CONTENTS .................................................................... ii-iii

INDEX OF AUTHORITIES..............................................................iv-vii

STATEMENT OF THE CASE.............................................................1-2

ISSUES PRESENTED...........................................................................2-3

STATEMENT OF THE FACTS ........................................................3-12

SUMMARY OF ARGUMENT.........................................................12-16

ARGUMENT......................................................................................16-45

 I. The appropriate standard of review in this case is

 de novo............................................................................................. 16

 II. A trial court is not entitled to implicit findings of 

 fact when it submitted explicit findings of fact......................17-21

 III. The trial court committed reversible error when it 

 concluded that Section 544.010(c) of the Texas 

 Transportation Code does not mandate stopping 

 prior to entering an intersection when approaching 

 a stop sign on a street that does not have a crosswalk 

 or designated stop line ...............................................................22-25

IV. In the alternative, the trial court committed reversible 

 error by concluding that a mistake of law could not 

 justify a traffic stop....................................................................25-30
Brief of Appellant

Victoria County Criminal District Attorney

No. 13-15-00041-CR

iii

 V. The trial court committed reversible error by 

 concluding there was not reasonable suspicion for the 

 traffic stop in this case...............................................................30-37

VI. The free air sniff of and search of Appellee’s vehicle 

 were lawful.................................................................................38-45

PRAYER.................................................................................................. 45

SIGNATURE........................................................................................... 45

CERTIFICATE OF COMPLIANCE................................................... 46

CERTIFICATE OF SERVICE ............................................................. 47
Brief of Appellant

Victoria County Criminal District Attorney

No. 13-15-00041-CR

iv

INDEX OF AUTHORITIES

United States Supreme Court Cases

Heien v. North Carolina, 135 S. Ct. 530 (2014)..........................14, 26-29

Illinois v. Caballes, 543 U.S. 405 (2005)................................................. 38

United States v. Sokolow, 490 U.S. 1 (1989)........................................... 31 

United States Court of Appeals Cases

United States v. Alvarado-Zarza, 

13-50745, 2015 WL 1529102 (5th Cir. 2015).......................................... 27

United States v. Granado, 302 F. 3d 421 (5th Cir. 2002) ....................... 26

United States v. Lopez-Valdez, 178 F.3d 282 (5th Cir. 1999)................. 26

United States v. Miller, 146 F. 3d 274 (5th Cir. 1998)............................ 26

Texas Cases

Amador v. State, 221 S.W. 3d 666 (Tex. Crim. App. 2007).................. 16

Aviles v. State, 23 S.W. 3d 74 

(Tex. App.-Houston [14th Dist] 2000, pet. ref’d) .................................. 31

Branch v. State, 335 S.W. 3d 893

(Tex. App.-Austin 2011, pet. ref’d) ................................................. 38, 44

Byron v. State, 07-05-0131, 2006 WL 1490677 

(Tex. App.-Amarillo 2006, pet. ref’d)

(mem. op)(not designated for publication)........................................... 43
Brief of Appellant

Victoria County Criminal District Attorney

No. 13-15-00041-CR

v

Cullen v. State, 195 S.W. 3d 696 (Tex. Crim. App. 2006).........13, 17-20

............................................................................................................. 35, 38

Derichsweiler v. State, 348 S.W. 3d 906 (Tex. Crim. App. 2011).. 31, 42

Duff v. State, 546 S.W. 2d 283 (Tex. Crim. App. 1977) ....................... 40

Estrada v. State, 30 S.W. 3d 599

(Tex. App.-Austin 2000, pet. ref’d) ....................................................... 43

Evans v. State, 14-13-00642-CR, 2015 WL 545702 

(Tex. App.-Houston [14th Dist]. 2015)(mem. op).................................. 27

Ford v. State, 158 S.W. 3d 488 (Tex. Crim. App. 2005)............30-31, 33

Goudeau v. State, 209 S.W. 3d 713 

(Tex. App.-Houson [14th Dist.] 2006, no pet)...................................25-26

Haas v. State, 172 S.W. 3d 42

(Tex. App.-Waco 2005, pet. ref’d)......................................................... 44 

Hamal v. State, 390 S.W. 3d 302 (Tex. Crim. App. 2012)........ 16, 31, 43

Harrison v. State, 7 S.W. 3d 309 

(Tex. App.-Houston [1st Dist] 1999, pet. ref’d)..................................... 44

Lambeth v. State, 221 S.W. 3d 831 

(Tex. App.-Ft. Worth 2007, pet. ref’d).................................................. 41

Kothe v. State, 152 S.W. 3d 54 (Tex. Crim. App. 2004) ....................... 39

Parker v. State, 297 S.W. 3d 803 

(Tex. App.-Eastland 2009, pet. ref’d).................................................... 40

Powell v. State, 5 S.W. 3d 369 

(Tex. App.-Texarkana 1999, pet. ref’d)................................................ 43 

Powell v. State, 898 S.W. 2d 821 (Tex. Crim. App. 1994).................... 44
Brief of Appellant

Victoria County Criminal District Attorney

No. 13-15-00041-CR

vi

State v. Krall, 13-12-00469-CR 

(Tex. App.-Corpus Christi 2013, pet. ref’d)

(mem. op.)(not designated for publication)...............................13, 19-21

State v. Police, 377 S.W. 3d 33

(Tex. App.-Waco 2012, no pet) ........................................................ 24, 29

State v. Ross, 32 S.W. 3d 853 (Tex. Crim. App. 2000) ......................... 17

State v. Tercero, 01-14-00120-CR, 2015 WL 1544519 

(Tex. App.-Houston [1st Dist.] 2015)

(opinion subject to withdrawal)............................................................. 28

State v. Weaver, 349 S.W. 3d 521 (Tex. Crim. App. 2011)................... 16

York v. State, 342 S.W. 3d 528 (Tex. Crim. App. 2011)....................... 31

United States Constitution

U.S. CONST. amend. IV................................................................... 26, 38

Texas Statutes

TEX. CODE CRIM. PROC. art 38.23 (West 2005) .......................28-29

TEX. GOV’T CODE §311.021 (West 2013)......................................... 23

TEX. PENAL CODE ANN §12.42 (West 2014)..................................... 2

TEX. TRANSP. CODE §544.010 (West 2011)........................ii, 2, 12-13

...................................................................................................22-25, 29-30
Brief of Appellant

Victoria County Criminal District Attorney

No. 13-15-00041-CR

vii

Texas Rules

TEX. R. APP. 9.4..................................................................................... 46

TEX. R. APP. 38.1...................................................................................... i
Brief of Appellant

Victoria County Criminal District Attorney

No. 13-15-00041-CR

1

NO. 13-15-00041-CR

IN THE COURT OF APPEALS

FOR THE THIRTEEN DISTRICT OF TEXAS

AT CORPUS CHRISTI

THE STATE OF TEXAS,...................................................Appelant

v.

UYLESS TROY BLAND,...................................................Appellee

* * * * *

STATE’S BRIEF ON THE MERITS

* * * * *

TO THE HONORABLE COURT OF APPEALS:

COMES NOW, THE STATE OF TEXAS, by and through her Criminal 

District Attorney, Stephen B. Tyler, and as Appellant in the above numbered 

and entitled cause, and files this the Appellant’s brief showing: 

STATEMENT OF THE CASE

Appellee was charged by indictment with one count of Possession of 

Substance in Penalty Group 1 in an amount of less than one gram and one 

count of Possession of a Substance in Penalty Group 3 in an amount of less 

than 28 grams. [CR-I-5-6]. Both offenses were alleged to have been 

committed within a drug free zone. [CR-I-5]. The Possession of Substance 

in Penalty Group 1 allegation (Count 1) was further enhanced pursuant to 
Brief of Appellant

Victoria County Criminal District Attorney

No. 13-15-00041-CR

2

Section 12.42(a) of the Texas Penal Code due to Appellee having a prior 

felony conviction. [CR-I-6]. On January 16, 2015, Appellee filed a motion 

to suppress. [CR-I-13-15]. A hearing was held on that motion on January 

23, 2015. [RR-I-1]. That same day, the Honorable Eli Garza presiding, 

granted Appellee’s motion to suppress with a written order. [CR-I-18-19]. 

The State timely filed its notice of appeal on January 26, 2015. [CR-I-20-

23]. On that same day the State also requested written findings of fact and 

conclusions of law. [CR-I-25-26]. On January 28, 2015, the trial court 

issued its written findings of fact and conclusions of law. [CR-I-36-38]. 

ISSUES PRESENTED

1) Is the legal standard for review in this case de novo?

2) Is a trial court entitled to implicit findings of fact on matters it did not 

address in its written findings of fact? 

3) Did the trial court err by concluding that Section 544.010(c) of the 

Texas Transportation Code does not require vehicles to stop prior to 

entering an intersection when that intersection has a stop sign and 

there is no crosswalk or designated stop line on the street?

4) Did the trial court err by concluding that a mistake of law could not 

justify a traffic stop?

5) Did the trial court commit reversible error by finding that the police 

did not have reasonable suspicion to conduct a traffic stop on the 

Appellee?

6) Was the free air sniff conducted on Appellee’s vehicle lawful?
Brief of Appellant

Victoria County Criminal District Attorney

No. 13-15-00041-CR

3

7) Was the search of Appellee’s vehicle lawful?

STATEMENT OF THE FACTS

Appellee was indicted on October 2, 2014 with one count of 

Possession of a Substance in Penalty Group 1 in an amount of less than one 

gram, and one count of Possession of a Substance in Penalty Group 3 in an 

amount of less than 28 grams. [CR-I-5]. Both offenses were enhanced due 

to taking place within a drug free zone. Id. On January 16, 2015, Appellee 

filed a motion to suppress. [CR-I-13-15]. The trial court conducted a 

hearing on this motion to suppress on January 23, 2015. [RR-I-1].

The State first called Detective Dennis Paine of the Victoria Police 

Department. [RR-I-7]. Detective Paine initially established that he was a 

certified peace officer who had been a peace officer for 6.5 years. [RR-I-8]. 

He also established that he had received specialized training on traffic 

enforcement and had served as a patrol officer for 4.5 years. Id.

Detective Paine then testified that on July 28, 2014, he was 

conducting undercover surveillance of the 2500 block of Rendon Street in 

Victoria, Texas. [RR-I-8-9]. Detective Paine then explained the police were 

monitoring that area because the Victoria Police Department had received 

numerous Crime Stopper tips about criminal activity in that location and had 

stopped numerous people leaving that location who were then discovered to 
Brief of Appellant

Victoria County Criminal District Attorney

No. 13-15-00041-CR

4

have crack cocaine on them. [RR-I-9]. Detective Paine also established that 

the location they were monitoring was on a dead end street, that there were 

about five houses on that street, and that the police were monitoring it from 

within a couple of hundred yards. [RR-I-10-11].

Detective Paine then described how, on July 28, 2014, he observed a 

vehicle leaving the monitored area and described how his unmarked vehicle 

followed that vehicle. [RR-I-11]. He further stated they had only been 

monitoring the area for from five to ten minutes when they saw this vehicle 

leave the area and followed it. [RR-I-11]. Detective Paine also confirmed 

that he did not actually see this vehicle at the suspect location. Id.

Detective Paine then described following the vehicle for 

approximately two miles before he observed a traffic violation. [RR-I-12]. 

Detective Paine then stated that the traffic offense occurred when the vehicle 

turned from Stayton Street onto Brownson Street. Id. He also described the 

vehicle driving around in circles prior to the traffic stop occurring and 

theorized that the vehicle’s odd movement could be due to it trying to throw 

off police surveillance. [RR-I-13]. 

 Detective Paine then stated that his vehicle was approximately two 

car lengths behind the suspect vehicle. Id. He also described how there 

were two other officers in the vehicle with him, with him being in the front 
Brief of Appellant

Victoria County Criminal District Attorney

No. 13-15-00041-CR

5

passenger seat, Sergeant Fetters driving, and Detective McDonald in the 

backseat. [RR-I-13-14].

Detective Paine then described seeing the vehicle they were following 

approach a stop sign and stop with the front of the vehicle protruding into

the intersection. [RR-I-14]. Detective Paine then explained that the suspect

vehicle was far enough into the intersection that its front tires were in the 

intersection. Id.

Detective Paine then confirmed that the intersection where this traffic 

offense occurred did not have a designated stop line on the street. [RR-I16]. Detective Paine then testified that he did not initiate the actual traffic 

stop on the Appellee but rather relayed the information about the traffic 

violation to Detective Kelly Gibbs, who initiated the actual traffic stop. 

[RR-I-16-17]. Detective Paine also established that Detective Gibbs knew 

from the information he provided which vehicle to stop, where that vehicle 

had come from, and why the police were monitoring that area. [RR-I-17-

18].

On cross-examination Detective Paine indicated he did not know if 

Detective McDonald and Sergeant Fetters also observed the traffic violation. 

[RR-I-21].
Brief of Appellant

Victoria County Criminal District Attorney

No. 13-15-00041-CR

6

On re-direct, Detective Paine testified that he had not observed 

Appellee’s vehicle enter Rendon Street but rather only saw it depart from 

that area. [RR-I-31]. Detective Paine also confirmed that in the time he was 

following the Appellee’s vehicle, it never stopped at a McDonalds or 

anywhere else. Id.

Detective Paine then testified that as to the location of the traffic 

offense (the Stayton-Brownson intersection), he did not observe any 

obstructions on Brownson Street. [RR-I-31-32].

The State then called Detective Kelly Gibbs. [RR-I-34]. Detective 

Gibbs established she was a certified peace officer with over eight years 

experience, and that she was a police canine handler. [RR-I-34-35]. 

Detective Gibbs then testified that she was on duty the night of July 28, 2014 

in a marked police vehicle, and that she was at that time aware of the police 

surveillance of the 2500 Rendon Street area and was familiar with the 

history of criminal activity in that area. [RR-I-36].

Detective Gibbs then testified to being called over to assist with a 

vehicle that the undercover surveillance team was following, to observing 

the undercover vehicle, and to being informed about a traffic violation that 

had been committed by the vehicle the undercover team was following. 
Brief of Appellant

Victoria County Criminal District Attorney

No. 13-15-00041-CR

7

[RR-I-36-37]. Detective Gibbs also described being informed of which 

vehicle had committed the traffic offense. [RR-I-37]. 

Detective Gibbs then described conducting a traffic stop on the 

suspect vehicle. [RR-I-38]. She also confirmed she had been informed that 

the vehicle had stopped in the intersection. Id. Detective Gibbs then

testified that the stopped vehicle contained both a driver and a passenger. 

[RR-I-39]. She then identified the Appellee as the driver of the vehicle. Id.

Detective Gibbs then described observing nervous behavior from both 

the driver and passenger. [RR-I-40]. Detective Gibbs also testified to 

recognizing the Appellee from a narcotics investigation with which she had 

been involved with in the last three years. [RR-I-41]. 

Detective Gibbs then described how she questioned the Appellee and 

how he was evasive with her and would not answer her questions about from 

where he had come. [RR-I-42]. She also indicated that the Appellee 

indicated he had prior drug charges from around 1996. Id. Detective Gibbs 

then indicated she requested permission to search the vehicle, which 

Appellee denied. [RR-I-43].

Detective Gibbs then described questioning the passenger, who also 

indicated prior arrests for drug charges. Id. Detective Gibbs also indicated 

that the passenger stated that the two of them had come from McDonalds. 
Brief of Appellant

Victoria County Criminal District Attorney

No. 13-15-00041-CR

8

[RR-I-43-44]. This was different testimony from the Appellee who never 

mentioned anything about stopping at a McDonalds. [RR-I-44]. The 

entirety of Detective Gibbs’s conversations with both the Appellee and his 

passenger was recorded and admitted into evidence as State’s Exhibit 1. 

[State’s Exhibit 1; RR-I-15].

Detective Gibbs then indicated that approximately seven minutes into 

the traffic stop she made the decision to run her canine over the Appellee’s 

vehicle. [RR-I-44]. Detective Gibbs confirmed the canine free air sniff was 

conducted before the traffic stop was complete as she had not yet run the 

Appellee and his passenger’s names and still needed to check on the paper 

plates on their vehicle. [RR-I-45].

Detective Gibbs then established that both herself and her canine 

partner, Robby, were certified to conduct free air sniffs for narcotics and 

described her history with using Robby. [RR-I-46-48]. She also confirmed 

that Robby was with her on the scene that night, so there was no delay to 

bring him to the location of Appellee’s vehicle. [RR-I-46]. Detective Gibbs 

then described how she conducts a free air sniff and established that Robby 

alerted for the odor of narcotics when conducting the free air sniff on 

Appellee’s vehicle. [RR-I-48-49]. 
Brief of Appellant

Victoria County Criminal District Attorney

No. 13-15-00041-CR

9

Detective Gibbs then described searching the vehicle after Robby 

alerted on it and locating drug paraphernalia, cocaine, and Ambien pills 

within the vehicle. [RR-I-49-50]. Detective Gibbs then sponsored the 

admission of her and Robby’s certification documents into evidence. [RR-I51-52; State’s Exhibit 3].

After the completion of Detective Gibbs’ testimony, the State rested. 

[RR-I-52]. The Appellee then called Detective Jimmy McDonald to testify. 

[RR-I-55].

Detective McDonald established that he had been a peace officer for 

over seven years and had approximately three years experience as a patrol 

officer. [RR-I-55]. Detective McDonald then described how he 

encountered the Appellee on July 28, 2014 as part of his role in a 

surveillance operation off of Rendon Street. [RR-I-56]. Detective 

McDonald was unsure how long he was involved in surveying the Rendon 

area but said it could have been just a few minutes or as much as a hour. 

[RR-I-57]. 

Detective McDonald then describe following Appellee’s vehicle as it 

drove in a circular pattern. [RR-I-58]. Detective McDonald also confirmed 

that Appellee’s traffic violation occurred at the Brownson and Stayton 

intersection. [RR-I-60]. 
Brief of Appellant

Victoria County Criminal District Attorney

No. 13-15-00041-CR

10

Detective McDonald then testified that he observed Appellee’s 

vehicle stopped on the inside point, which is past the curb and the stop sign. 

[RR-I-66]. Detective McDonald was unable to state how much of the 

vehicle was past the stop sign. [RR-I-68]. He also did not recall if there was 

anything along the curb of Brownson Street at the time that the officer’s 

observed the traffic violation. Id.

The Appellee then called Sergeant Clay Fetters of the Victoria Police 

Department. [RR-I-69]. Sergeant Fetters established he had been with the 

Victoria Police Department for five years and had specialized training in 

regards to traffic code enforcement. [RR-I-69-70]. Sergeant Fetters then 

advised he came into contact with the Appellee on July 28 after conducting 

surveillance of a known narcotics location at 2500 block of Rendon Street. 

[RR-I-70].

Sergeant Fetters then described following Appellee’s vehicle through 

several streets and established that the Appellee was driving in a circular 

pattern through the neighborhood. [RR-I-72-73]. Sergeant Fetters also 

stated they were about three car lengths behind Appellee’s vehicle. [RR-I74]. Sergeant Fetters also explained how he was driving the vehicle, and 

that it was the primary responsibility of the passengers to make observations, 

so he could focus on driving safely. Id.
Brief of Appellant

Victoria County Criminal District Attorney

No. 13-15-00041-CR

11

When asked by Appellee’s counsel if he observed the Appellee 

commit a traffic violation, Sergeant Fetters answered that it appeared to him 

that the Appellee went into the intersection, past the stop sign. [RR-I-75].

On cross-examination Sergeant Fetters testified that while they were 

following the Appellee he never stopped at a McDonalds. [RR-I-77].

The trial court granted the Appellee’s motion to suppress. [RR-I-91]. 

Nothing in the trial court’s pronouncement from the bench indicated the trial 

court found any of the testifying officers to not be credible or reliable. [RRI-90-91]. Rather the trial court analysis seemed to be based on a conclusion 

that a mistake of law would not justify an erroneous traffic stop. [RR-I-91].

On January 26, 2015, the State requested written findings of fact and 

conclusions of law. [CR-I-25-26]. On January 28, 2015, the trial court 

issued its findings of fact and conclusions of law. [CR-I-36-38]. The trial 

court did not issue any findings of fact that any of the officers had testified 

untruthfully or that the officers were not credible. Id. The trial court did 

conclude that neither Sergeant Fetters nor Detective McDonald observed the 

alleged traffic violation. [CR-I-37]. The trial court did not make a similar 

finding that Detective Paine did not observe the alleged traffic violation. 

[CR-I-36-38].
Brief of Appellant

Victoria County Criminal District Attorney

No. 13-15-00041-CR

12

The trial court held that the officers did, “not understand or are 

mistaken as to a driver’s responsibility under Transportation Code §544.010 

(2014).” [CR-I-37]. The trial court also concluded that “an officer’s 

mistaken understanding of the law will not justify a stop.” Id. The trial 

court’s findings concluded that Appellee’s vehicle did not enter the 

intersection and concluded that the police did not have reasonable suspicion 

to initiate a traffic stop. [CR-I-38]. The trial court’s findings did not state 

that it was unreasonable for Detective Paine to conclude that Appellee had 

stopped with his vehicle in the intersection. [CR-I-36-38]. The trial court’s 

findings did not address the legality of the free air sniff conducted on 

Appellee’s vehicle or the legality of the subsequent search of Appellee’s 

vehicle other than to note that a canine free air sniff was conducted on 

Appellee’s vehicle and the canine that performed the free air sniff detected 

the presence of contraband in the Appellee’s vehicle. [CR-I-36-38]. 

SUMMARY OF THE ARGUMENT

This appeal turns on questions of law and mixed questions of law and 

fact that relate to whether an investigating officer had reasonable suspicion. 

As such the correct standard of review for this appeal is de novo.

A trial court is not entitled to have implicit findings of fact made on 

its behalf on matters that were not addressed in the trial court’s explicit 
Brief of Appellant

Victoria County Criminal District Attorney

No. 13-15-00041-CR

13

findings of fact. Allowing a trial court to be given the benefit of implicit 

findings when it made explicit findings undercuts the entire purpose of the 

Cullen rule in requiring trial courts on request to prepare findings of fact. To 

the extent that the Krall case held otherwise and established a precedent that 

trial courts would still be given the benefit of implicit findings even when 

the trial court prepared explicit findings, Krall should be overruled. In the 

alternative, this case is distinguishable from Krall as here unlike in Krall, the 

State actually requested findings of fact which places a greater obligation on 

the trial court to prepare findings of fact that fully address the basis of the 

trial court’s ruling.

Section 554.010(c) of the Texas Transportation Code requires when 

approaching an intersection with a stop sign on a road that does not have a 

crosswalk or designated stop line, that the motorist stop their vehicle prior to 

entering the intersection. That is the most logical interpretation of the 

statute, and it is the interpretation that is consistent with that of the other 

Texas appellate court which has examined this statute. As such, the trial 

court committed reversible error when it concluded that under such 

circumstances the statute did not necessarily require motorists to stop before 

entering the intersection.
Brief of Appellant

Victoria County Criminal District Attorney

No. 13-15-00041-CR

14

In the alternative even if Detective Paine did misinterpret the statute, 

his observations of Appellee stopping his vehicle in the intersection still 

established reasonable suspicion to stop the Appellee because reasonable 

suspicion can be based on a mistake of law, so long as that mistake of law is 

reasonable. The Supreme Court established that principle in the recent 

Heien case, and that same principle should be applied in Texas courts. As 

such, the trial court committed reversible error by concluding that a mistake 

of law could not provide reasonable suspicion to justify a traffic stop.

The investigating officers had reasonable suspicion to initiate a traffic 

stop on Appellee’s vehicle. Detective Paine observed conduct that he 

believed constituted a traffic stop. It does not matter if Appellee actually did 

in fact commit a traffic offense as reasonable suspicion does not require that 

the suspect actually be guilty of an offense. The trial court did not issue any 

findings stating that it found Detective Paine’s testimony to be lacking in 

credibility or in reliability which, because the trial court was obligated to 

issue findings of fact stating its essential findings, the trial court would have 

been obligated to do if it felt that Detective Paine’s testimony was not 

credible or reliable. As such, since the trial court did not make any findings 

concluding that Detective Paine lacked credibility or reliability, his 
Brief of Appellant

Victoria County Criminal District Attorney

No. 13-15-00041-CR

15

observations of a possible traffic offense were sufficient to establish 

reasonable suspicion.

The free air sniff and search of Appellee’s vehicle were both legal. 

The trial court did not issue any findings addressing the legality of either the 

free air sniff or the search of Appellee’s vehicle and thus since the trial court 

was obligated to issue findings concerning the essential findings behind its 

ruling, the trial court clearly accepted the testimony concerning these 

operations and agreed that they were legal. 

Furthermore, the free air sniff was legal both because Detective Gibbs 

did not unduly prolong the traffic stop by conducting the free air sniff, and 

also because from the totality of information the investigating officers had 

obtained prior to conducting the free air sniff, they had reasonable suspicion 

that Appellee’s vehicle contained narcotics which would justify them

extending the traffic stop to conduct a free air sniff.

The free air sniff performed on Appellee’s vehicle was conducted by a 

trained and certified narcotics detection dog. The dog alerted for the odor of 

narcotics on the vehicle and that gave the investigating officers probable 

cause that there were narcotics within the vehicle. When officers have 

probable cause that a vehicle contains narcotics, they may search the vehicle 
Brief of Appellant

Victoria County Criminal District Attorney

No. 13-15-00041-CR

16

without a warrant. As such the search of the vehicle was lawful, and the 

evidence obtained as a result of that search should not have been suppressed.

ARGUMENT

 I. The appropriate standard of review in this case is de novo.

A trial court’s ruling on a motion to suppress is reviewed under a 

bifurcated standard of review. Amador v. State, 221 S.W. 3d 666, 673 (Tex. 

Crim. App. 2007). The trial court’s determination of facts is entitled to 

almost total deference, so long as it is supported by the record. State v. 

Weaver, 349 S.W. 3d 521, 525 (Tex. Crim. App. 2011). However, the 

application law to fact questions that do not turn on the credibility and 

demeanor of witnesses is reviewed de novo. Amador, 221 S.W. 3d at 673. 

Moreover, whether the facts known to an officer amounted to reasonable 

suspicion is a mixed question of law and fact and is thus subject to de novo

review. See Hamal v. State, 390 S.W. 3d 302, 306 (Tex. Crim. App. 2012). 

All the matters at issue in this appeal are legal questions or mixed questions 

of fact and law concerning whether the investigating officer’s had 

reasonable suspicion. Therefore this case is subject to de novo review.
Brief of Appellant

Victoria County Criminal District Attorney

No. 13-15-00041-CR

17

 II. A trial court is not entitled to implicit findings of fact when it 

 submitted explicit findings of fact.

When a trial court fails to file findings of fact it is entitled to have the 

evidence considered in the light most favorable to its ruling and is further 

entitled to whatever implicit findings of fact support its ruling as long as 

those findings are supported by the record. See State v. Ross, 32 S.W. 3d 

853, 855 (Tex. Crim. App. 2000)(emphasis added.) However, there is no 

logical reason to extend the same deference to the trial court’s rulings when 

the trial court has filed findings of fact. When the trial court has actually 

submitted findings of fact the responsibility should fall on the trial court to 

submit complete findings of fact that fully address the rationale behind the 

court’s rulings. As such the trial court should not be deemed to have made

implicit findings of fact on matters that the court did not address in its

explicit written findings.

It is well established that the losing party to a suppression hearing has 

an absolute right upon timely request to receive written findings of fact and 

conclusions of law from the trial court that express the “essential findings” 

of the trial court. See Cullen v. State, 195 S.W. 3d 696, 699 (Tex. Crim. 

App. 2006). The “essential findings” are the findings of fact and 

conclusions of law “adequate to provide an appellate court with a basis upon 
Brief of Appellant

Victoria County Criminal District Attorney

No. 13-15-00041-CR

18

which to review the trial court’s application of the law to the facts.” Cullen, 

195 S.W. 3d at 699. The purpose of requiring these findings is to inform 

the appellate courts of the findings of fact for which the trial court’s rulings 

are based. Id. Not having such findings effectively forces appellate courts 

to guess about a trial court’s ruling on a motion to suppress. Id. at 698. That 

is unfair to both the parties and the appellate courts and will ultimately serve 

to reduce professionalism and accountability within the criminal justice 

system itself. Thus the requirement set down by the Court of Criminal 

Appeals in Cullen that trial courts, upon request of the losing party at a 

suppression hearing, submit their essential findings, is a sensible 

requirement that helps to promote the efficient administration of justice.

The potential benefits of the Cullen rule are greatly undercut if 

implicit findings are still written into the explicit findings of trial court’s on 

matters the trial court did not address in their explicit written findings. Such 

a practice effectively eviscerates Cullen as it removes all obligation from the 

trial court to draft thorough findings of fact that fully explain all of the 

essential findings of the trial court. Indeed if the trial court is still to be 

given the benefit of implicit findings over matters it did not address in its 

explicit findings then the smarter practice for trial judges is obviously to say 

as little as possible in their explicit findings, so as to maximize the 
Brief of Appellant

Victoria County Criminal District Attorney

No. 13-15-00041-CR

19

advantage they receive from having comprehensive implicit findings 

imparted to their findings on any matter they did not directly address in their 

explicit findings. The natural consequence of such behavior is that it once 

again leaves appellate courts having to guess at the reasoning behind the trial 

court’s rulings; the very wrong that Cullen aimed to eliminate. 

Accordingly, in cases where trial courts submit explicit findings of 

fact they should not be given credit for implicit findings on any matter they 

did not specifically address in their explicit findings. Now such a rule would

mean overturning the precedent established by this Honorable Court in the 

Krall case where implicit findings were read into the explicit findings 

submitted by the trial court in that case. See State v. Krall, 13-12-00469-CR 

at 4, 8 (Tex. App.-Corpus Christi 2013, pet. ref’d)(mem. op.)(not designated 

for publication.) However, since required trial judges to be bound by their 

explicit written findings of fact helps to better insure the effecient

administration of justice and is the approach that is most consistent with the 

policy goals set down by the Court of Criminal Appeals in Cullen, the State 

respectfully requests this Honorable Court overrule Krall on this point and 

refuse to impart implicit findings of fact into the explicit findings of fact 

submitted by trial courts. 
Brief of Appellant

Victoria County Criminal District Attorney

No. 13-15-00041-CR

20

In the alternative even if this Honorable Court is unwilling to disturb 

the precedent established in Krall, the current case is readily distinguishable 

from Krall. In the present case the State, as the losing party at the 

suppression hearing, actively requested findings of fact and conclusions of 

law from the trial court. [CR-I-25-26]. That is different from the situation 

in Krall where the trial court issued its findings of fact and conclusions of 

law not in response to a request from the losing party at the suppression 

hearing, but rather on its own initiative as part of the order it issued granting 

the motion to suppress. See Krall, 13-12-00469-CR at 2. 

Per Cullen, it is the losing party requesting findings of fact that 

triggers the trial court’s obligation to submit its essential findings. See 

Cullen, 195 S.W. 3d at 699. Such a requirement is quite reasonable. It puts 

the burden on the losing party to seek elucidation for the trial court’s ruling 

which is only proper. And it is likewise only logical that when a party takes 

active steps to request findings of fact, that party is much more entitled to 

receive comprehensive findings than a party who did not actively request 

findings. Likewise it is only logical that a trial court has a far greater 

obligation to prepare thorough findings when such findings have been 

requested by a party than when the trial court is simply submitting findings 

on its own initiative. A party that did not bother to request findings of fact 
Brief of Appellant

Victoria County Criminal District Attorney

No. 13-15-00041-CR

21

and conclusions of law has assumed the risk of an incomplete appellate 

record and therefore has no one to blame but itself when implicit findings 

are read into the record, but a party that has actively sought findings has 

made a genuine effort to establish an accurate understanding of the 

reasoning for the trial court’s ruling, and therefore it should be entitled to 

have a complete explanation of the reasoning behind the trial court’s rulings 

included within the record. 

With such an understanding in mind, it is clear that this case is readily

distinguishable from Krall because here, unlike in Krall, the State actively 

sought out findings of fact and conclusions of law. As such since the State 

made the effort to obtain an accurate record from the trial court, the trial 

court had a much greater obligation here than in Krall to prepare findings of 

fact and conclusions of law that fully covered its essential findings in the 

case. As such even if it was appropriate in Krall to read implicit findings 

into the trial court’s explicit findings, here the trial court should be held to a 

higher standard, and thus the trial court should be bound by what it released 

as its essential findings in this case and should not have implicit findings 

added to those explicit findings. 

 
Brief of Appellant

Victoria County Criminal District Attorney

No. 13-15-00041-CR

22

III. The trial court committed reversible error when it concluded that 

 Section 544.010(c) of the Texas Transportation Code does not 

 mandate stopping prior to entering an intersection when 

 approaching a stop sign on a street that does not have a crosswalk 

 or designated stop line. 

 The first question at issue in this case concerning the legality of the 

traffic stop itself is whether Section 554.010(c) of the Texas Transportation 

Code requires vehicles, when approaching an intersection with a stop sign 

on a street that does not have a crosswalk or designated stop line on it, to 

stop prior to entering the intersection or whether under certain circumstances 

the statute allows motorists to stop with some portion (or even all) of their 

vehicle actually in the intersection. The investigating officer, Detective 

Paine, believed that under such circumstances the statute required motorists 

to stop their vehicle before entering the intersection. [RR-I-22]. The trial 

court disagreed with that interpretation and concluded that, “the officer’s do 

not understand or are mistaken as to a driver’s responsibility under 

Transportation Code §544.010 (2014).” [CR-I-37]. The trial court’s 

interpretation of the statute is in error.

Now admittedly Section 544.010(c) of the Texas Transportation Code 

does not expressly state that in the absence of a crosswalk or clearly marked 

stop line, a vehicle operator must, when approaching a stop sign, stop before 

entering the intersection. However, that requirement is certainly implied by 
Brief of Appellant

Victoria County Criminal District Attorney

No. 13-15-00041-CR

23

the statute because it is the only logical interpretation of that statute. The 

obvious purpose of Section 554.010(c) of the Texas Transportation Code is 

to prevent traffic accidents. Therefore it is clearly necessary to have people 

stop before entering dangerous intersections. (The law would not ameliorate 

the risk of traffic accidents at dangerous intersections if it permitted people 

to take any portion of their vehicles into the intersection before stopping to 

make sure that it was safe to do so because as soon as any portion of their 

vehicle enters the intersection they would be at risk of being hit by 

oncoming vehicles.)

Texas law presumes in interpreting statutes that the legislature 

intended a “just and reasonable result.” See TEX. GOV’T CODE 

§311.021(3). For Section 554.010(c) to achieve a just and reasonable result, 

it requires that in the absence of a crosswalk or designated stop line, people 

stop their vehicles before entering the intersection. That is the only 

interpretation that makes the statute workable and therefore that is the only 

interpretation that can achieve a just and reasonable result. 

It is also notable that the only appellate court to give an in-depth look 

at this statute came to the same conclusion: that in the absence of a 

crosswalk or designated stop line, the statute requires stopping before 

entering the intersection. The Waco Court of Appeals evaluated Section 
Brief of Appellant

Victoria County Criminal District Attorney

No. 13-15-00041-CR

24

554.010(c) during their consideration of the Police case and concluded that 

“the plain language of the statute does not refer to a stop sign as an indicator 

of anything other than a signal that a stop is required prior to entering the 

intersection.” State v. Police, 377 S.W. 3d 33, 38 (Tex. App.-Waco 2012, 

no pet)(emphasis added.) That is the most logical interpretation of the 

statute and therefore should be adopted within this jurisdiction as well. 

Accordingly, it is clear that Detective Paine did not misinterpret 

Section 554.010(c). His interpretation that the statute requires that when a 

driver approaches a stop sign on a street that does not have a crosswalk or 

designated stop line, that driver must stop his vehicle before entering the 

intersection, is the correct interpretation of the statute, and therefore it is the 

interpretation that should have been applied in this case. To the extent the 

trial court held otherwise, the trial court committed plain error.

This error caused great harm to the State’s case. The State’s sole 

justification for the traffic stop was the violation of this statute. Therefore it 

was essential for the trial court to correctly interpret the application of the 

statute to get a proper ruling in this case. Obviously the trial court’s 

conclusion that there was not reasonable suspicion to support that a traffic 

offense occurred in this case is untenable if the trial court misapplied the 

statute at issue. Additionally, an improper interpretation of the statute would 
Brief of Appellant

Victoria County Criminal District Attorney

No. 13-15-00041-CR

25

likely unfairly impact how the trial court interpreted the weight and

credibility of the testimony of the investigating officers. (Obviously a fact 

finder is going to give less weight to the testimony of a police officer when 

the fact finder erroneously believes that police officer does not understand 

the law he is charged with enforcing.) Therefore the trial court’s error on 

this matter would have colored every aspect of its deliberations in this case. 

Accordingly, since this error caused great harm to the State’s case, the trial 

court’s decision should be reversed.

 IV. In the alternative, the trial court committed reversible error 

 by concluding that a mistake of law could not justify a traffic

 stop.

 In the alternative, even if this Honorable Court concludes that the trial 

court correctly interpreted Section 554.010(c) of the Texas Transportation 

Code, the trial court still committed reversible error by concluding that “an 

officer’s mistaken understanding of the law will not justify a stop.” [CR-I37].

 The trial court relied upon the Goudeau case for its determination that a 

mistaken belief in the law could not justify a traffic stop. See [CR-I-37]; 

Goudeau v. State, 209 S.W. 3d 713, 716 (Tex. App.-Houson [14th Dist.] 

2006, no pet). Goudeau itself primarily relied upon a series of 5th Circuit

cases for its determination that a traffic stop could not be based upon an 
Brief of Appellant

Victoria County Criminal District Attorney

No. 13-15-00041-CR

26

officer’s mistaken understanding of the traffic law. See Goudeau, 209 S.W. 

3d at 716; United States v. Granado, 302 F. 3d 421, 423 (5th Cir. 2002); 

United States v. Lopez-Valdez, 178 F.3d 282, 289 (5th Cir. 1999); United 

States v. Miller, 146 F. 3d 274, 279 (5th Cir. 1998). That legal principal was

certainly valid at the time Goudeau was decided, but it has now been 

superseded by the United States Supreme Court’s recent Heien decision

which established that a traffic stop could be based on a mistake of law, so 

long as the mistake of law was reasonable. See Heien v. North Carolina, 

135 S. Ct. 530 (2014).

In Heien, the Supreme Court specifically noted that “the ultimate 

touchstone of the Fourth Amendment is ‘reasonableness.’” Id. at 536. The 

Supreme Court then explained that “to be reasonable is not to be perfect” 

and confirmed that “the Fourth Amendment allows for some mistakes on the 

part of government officials.” Id. The Supreme Court then further advised 

that “the limit is that the mistakes must be those of reasonable men.” Id. 

The Supreme Court then established that “reasonable men make mistakes of 

law, too, and such mistakes are no less compatible with the concept of 

reasonable suspicion. Reasonable suspicion arises from the combination of 

an officer’s understanding of the facts and his understanding of the relevant 

law. The officer may be reasonable mistaken on either ground.” Heien, 135 
Brief of Appellant

Victoria County Criminal District Attorney

No. 13-15-00041-CR

27

S. Ct. at 536. Thus Heien clearly overturns the rationale of Goudeau and its 

forebears on this particular legal issue, and as such the trial court erred when 

it concluded that a mistake of law would not justify a traffic stop. Heien 

makes clear that a traffic stop can be based on a mistake of law, so long as 

that mistake was reasonable.

Now it remains an open question of if Heien applies in Texas courts. 

The 5th Circuit in its recent Alvarado-Zarza case certainly seemed to believe 

that Heien applies to Texas cases as in that case the 5th Circuit, rejected a 

Heien based argument, not because it concluded that Heien did not apply in 

Texas courts but rather because it concluded that the investigating officer’s 

mistake of law in that case was not reasonable. See United States v. 

Alvarado-Zarza, 13-50745, 2015 WL 1529102 at 2-3 (5th Cir. 2015). By 

addressing the Heien issue on the merits of the claim, the 5th Circuit 

implicitly recognized that Heien applies in Texas cases. Likewise at least 

one Texas appellate court has done likewise, rejecting a Heien based mistake 

of law argument on the merits of the claim rather than on a categorical 

determination that Heien does not apply in Texas courts. See Evans v. State, 

14-13-00642-CR, 2015 WL 545702 at 4 n. 5 (Tex. App.-Houston [14th Dist]. 

2015)(mem. op). (Though at least one Texas appellate court seems opposed 

to applying Heien in Texas cases or at least opposed to applying Heien when 
Brief of Appellant

Victoria County Criminal District Attorney

No. 13-15-00041-CR

28

the issue is a nonconsensual search of a person. See State v. Tercero, 01-14-

00120-CR, 2015 WL 1544519 at 7 (Tex. App.-Houston [1st Dist.]

2015)(opinion subject to withdraw).)

 At any rate, while the issue of whether Heien applies in Texas cases

has not been definitively settled yet, the State contends that Heien should 

apply in Texas cases. The reasoning of Heien as to why reasonable mistakes 

of law do not void reasonable suspicion is logical and thus there is no good

reason for Texas courts not to apply the same sensible standard in judging an 

officer’s reasonable mistake of law. Furthermore, as already discussed the 

prior Texas law holding that a mistake of law could not justify a traffic stop 

was itself based primarily on federal cases. Since the federal foundational 

cases for that principle are no longer applicable, there is little reason for 

Texas courts to continue to apply that doctrine. Instead Texas courts should 

apply the standard set down by the Supreme Court which recognizes that 

reasonable suspicion can still be had from a mistake of law, so long as the 

mistake of law was reasonable. Nor does Article 38.23 of the Texas Code of 

Criminal Procedure bar the application of Heien; that statute only forbids the 

introduction of evidence obtained in violation of the law or the Constitution 

of the State of Texas or the United States. Heien though makes a convincing 

case that evidence obtained from a reasonable mistake of law is not obtained 
Brief of Appellant

Victoria County Criminal District Attorney

No. 13-15-00041-CR

29

in violation of the Constitution or of the law, and it is difficult to see how 

evidence obtained from a reasonable mistake of law could be considered to 

have been obtained in violation of the laws or Constitution of either Texas or 

the United States. As such evidence obtained from a reasonable mistake of

the law should not be deemed as to trigger Article 38.23, and therefore there 

is no reason such evidence should be inadmissible in Texas courts. 

If Heien is deemed to apply in Texas courts, then the question 

becomes whether Detective Paine’s interpretation of the Section 554.010(c) 

of the Texas Transportation Code was reasonable, and clearly his 

interpretation of the statute was objectively reasonable. Detective Paine’s 

interpretation of the statute is certainly a plausible reading of the statute. 

After all, his interpretation of the statute is consistent with the obvious 

purpose of the statute (to help avoid traffic accidents.) And, as already 

discussed, Detective Paine’s conclusion that the statute requires stopping 

before entering the intersection is the same conclusion the Waco Court of 

Appeals reached in the Police case. An officer can hardly be said to have 

unreasonably interpreted a statute if his interpretation of the statute tracks 

with the interpretation of the only Texas appellate court that has seriously 

evaluated that statute. 
Brief of Appellant

Victoria County Criminal District Attorney

No. 13-15-00041-CR

30

As such even if it is concluded that Detective Paine’s interpretation of 

Section 554.010(c) was incorrect, his mistake of law was clearly a 

reasonable mistake. Accordingly, that mistake of law can still form the basis 

for reasonable suspicion that he observed an offense, and it was plain error 

for the trial court to hold otherwise. 

The trial court’s error on this point clearly caused harm to the State, as 

the trial court’s determination on if there was reasonable suspicion for the 

traffic stop would likely have been very different if the court had accepted 

that a reasonable mistake of law could still furnish reasonable suspicion to 

justify a traffic stop. As such since the trial court’s error caused clear harm 

to the State’s case, the trial court’s ruling should be reversed. 

 V. The trial court committed reversible error by concluding there 

 was not reasonable suspicion for the traffic stop in this case.

 Regardless of which interpretation of Section 554.010(c) is applied, it 

is clear that the investigating officers had reasonable suspicion to initiate a 

traffic stop of Appellee’s vehicle. An officer conducts a lawful detention 

when he has reasonable suspicion to believe that an individual is violating 

the law. See Ford v. State, 158 S.W. 3d 488, 492 (Tex. Crim. App. 2005). 

Reasonable suspicion exists if the officer has specific, articulable facts that 

when combined with rational inferences from those facts would lead the 
Brief of Appellant

Victoria County Criminal District Attorney

No. 13-15-00041-CR

31

officer to reasonably conclude that a particular person is, has been, or soon 

will be engaged in criminal activity. Ford, 158 S.W. 3d at 492. Reasonable 

suspicion is an objective standard that disregards any subjective intent of the 

officer in making the stop and focuses instead on whether there was an 

objectively justifiable basis for the detention. See Derichsweiler v. State, 

348 S.W. 3d 906, 914 (Tex. Crim. App. 2011). It is therefore necessary to 

look at the totality of the circumstances to see if reasonable suspicion has 

been met. Id. The test is whether the facts available to the officer at the 

moment of detention would warrant a person of reasonable caution to 

believe the action taken was appropriate. See Aviles v. State, 23 S.W. 3d 74, 

77 (Tex. App.-Houston [14th Dist] 2000, pet. ref’d). 

 Furthermore, reasonable suspicion is a very low standard. Reasonable 

suspicion requires considerably less proof than proof of wrong-doing by the 

preponderance of the evidence. See United States v. Sokolow, 490 U.S. 1, 7 

(1989). Indeed reasonable suspicion requires less proof than probable cause 

which itself is “far short of preponderance of the evidence.” See York v. 

State, 342 S.W. 3d 528, 543 n. 86 (Tex. Crim. App. 2011). Reasonable 

suspicion requires only “some minimal level of objective justification” to 

justify a traffic stop. See Hamal, 390 S.W. 3d at 306. 

In this case the testimony of Detective Paine established that he 
Brief of Appellant

Victoria County Criminal District Attorney

No. 13-15-00041-CR

32

saw the Appellee commit a traffic offense. [RR-I-14]. Sergeant Fetters

likewise testified that it appeared to him that Appellee’s vehicle “was into 

the intersection” though Sergeant Fetters did caution that his vantage point 

was not as good as Detective Paine’s. [RR-I-75]. Detective McDonald 

similarly noted that he observed Appellee’s vehicle stopped “past the curb” 

at the intersection of Stayton and Brownson Street, though Detective 

McDonald did state that he did not observe the vehicle fail to stop prior to 

that. [RR-I-66]. 

The suspect conduct Detective Paine and Sergeant Fetters observed 

(Appellee, when approaching an intersection with a stop sign, allegedly 

stopping his vehicle in the intersection) is conduct that if true either 

constituted a traffic offense or is conduct that it was reasonable for the 

officers to believe constituted a traffic offense. Therefore as long as it was 

reasonable for the officers to believe they had observed a traffic violation 

then the officers had reasonable suspicion to initiate a traffic stop on 

Appellee’s vehicle.

Now in the present case the trial court made the specific factual 

determination that Appellee’s vehicle did not actually enter the intersection. 

[CR-I-38]. As such the trial court made a factual determination that a traffic 

offense did not actually occur in this case. The trial court also made a 
Brief of Appellant

Victoria County Criminal District Attorney

No. 13-15-00041-CR

33

specific factual determination that Sergeant Fetters and Detective McDonald

did not observe the Appellee’s commit the alleged traffic offense. [CR-I37]. Those factual determinations must be respected since it is the trial 

court’s prerogative as the fact finder to decide such factual questions. 

However, those determinations are not dispositive of the question of whether 

the officers had reasonable suspicion that a traffic offense occurred because 

the State is not required to prove a traffic offense actually happened in order 

to establish reasonable suspicion of the traffic offense. 

 The trial court’s legal analysis was therefore flawed because after 

concluding that the Appellant did not enter the intersection, it concluded 

there was no traffic violation and from that concluded that there was not 

reasonable suspicion to justify the traffic stop. [CR-I-38]. The trial court’s 

ruling thus effectively required the State to prove the traffic offense actually 

happened in order to establish reasonable suspicion to justify the traffic stop. 

This is improper because that is not what Texas law requires in order to 

justify a traffic stop. The State does not have to prove a traffic violation

actually occurred; it just has to show that the investigating officers had 

reasonable suspicion that a traffic violation occurred. See Ford, 158 S.W. 

3d at 492. If reasonable suspicion is established then the traffic stop is valid 
Brief of Appellant

Victoria County Criminal District Attorney

No. 13-15-00041-CR

34

even if the suspect ultimately turns out to be completely innocent of the 

suspected offense which provided the initial reasonable suspicion. 

 In this case even with the trial court discounting the testimony of 

Sergeant Fetters and Detective McDonald as to what they observed about 

Appellee’s vehicle at the Stayton-Brownson intersection, the testimony of 

Detective Paine is sufficient by itself to establish reasonable suspicion that a 

traffic offense occurred. Detective Paine was unambiguous that he observed 

Appellee’s vehicle stop “well past the curb” with the car “from the front tires 

forward” being in the intersection. [RR-I-14]. Detective Paine’s testimony 

also established that there was sufficient light and he had an adequate 

vantage point and close position to observe Appellee’s vehicle. [RR-I-13-

14]. And unlike with Sergeant Fetters, the trial court did not issue any 

findings stating that Detective Paine did not actually observe what he 

testified to observing. [CR-I-36-38]. Thus Detective Paine’s testimony 

established specific, articulable facts that made it reasonable for him to 

believe Appellee had committed a traffic offense. 

Now the trial court could have chosen to disbelieve Detective Paine’s 

testimony about what he testified to observing on July 28, 2014, or the trial 

court could have concluded Detective Paine’s testimony was insufficiently 

reliable to provide a basis for reasonable suspicion, but the trial court did not 
Brief of Appellant

Victoria County Criminal District Attorney

No. 13-15-00041-CR

35

do so. The trial court issued explicit findings of fact for this case, and 

nowhere in those findings of fact did the trial court ever dispute the honesty 

or reliability of Detective Paine’s testimony. [CR-I-36-38]. The trial court 

also did not make any verbal pronouncement that it found Detective Paine’s 

testimony to be lacking in credibility or reliability. [RR-I-90-91]. And at no 

point in this case did the trial court ever conclude that Detective Paine lied

about what he testified to observing. [RR-I-90-91; CR-I-36-38]. Nor did 

the trial court make any findings that Detective Paine’s testimony that he 

observed Appellee commit a traffic violation was unreasonable. [RR-I-90-

91; CR-I-36-38]. 

A trial court is required to issue its “essential findings” that explain 

the reasoning behind its decision on a motion to suppress upon the request of 

the losing party to said motion. See Cullen, 195 S.W. 3d at 699. As such 

since the trial court did not issue any findings stating that it found Detective 

Paine’s testimony to not be credible or reliable, such a determination was 

clearly not part of the trial court’s essential findings for this case. And 

indeed the State contends that since Cullen requires the trial court to include 

the essential findings behind its ruling in its findings of fact, the fact that the 

trial court did not make any findings stating that it found Detective Paine’s 

testimony to be lacking in credibility or reliability, necessarily requires a 
Brief of Appellant

Victoria County Criminal District Attorney

No. 13-15-00041-CR

36

conclusion that the trial court did find Detective Paine to be a credible and 

reliable witness, since the court would have been obligated to state otherwise 

in its findings if it did not find Detective Paine to be credible and reliable. 

(The same obligation would obviously not apply in reverse since the trial 

court finding Detective Paine to be credible and reliable is obviously not an 

essential finding that has to be included in the trial court’s findings if the 

trial court’s determination that Detective Paine was credible and reliable did 

not ultimately impact its determination in this case.) Nor is there anything 

inconsistent with the trial court seemingly accepting Detective Paine as a 

credible and reliable witness and still concluding that he was wrong that 

Appellee committed a traffic offense. It is entirely possible to believe that 

someone reasonably and honestly believes something and still believe that 

person is wrong about what they saw. And Detective Paine can be wrong 

about what he saw and still have reasonable suspicion to justify a traffic 

stop. 

Since the trial court did not find that Detective Paine was being 

untruthful or that his testimony was unreliable, it is clear that Detective 

Paine’s testimony was sufficient to establish reasonable suspicion that 

Appellee committed a traffic offense (or at least had engaged in conduct that 

it was reasonable for Detective Paine to believe constituted a traffic offense.) 
Brief of Appellant

Victoria County Criminal District Attorney

No. 13-15-00041-CR

37

Detective Paine’s testimony may not have been enough to prove that 

Appellee actually committed the suspected traffic offense, but it did not have 

to be since proving the traffic offense actually happened is not required to 

establish reasonable suspicion for a traffic stop. Detective Paine’s 

observations that he believed he observed what he reasonably believed was a 

traffic offense are sufficient under the totality of the circumstances present in 

this case to establish the minimal level of objective justification needed to 

establish reasonable suspicion to justify a traffic stop. Therefore the trial 

court’s legal determination to the contrary (which seemingly required the 

State to prove an actual traffic offense occurred rather than just prove that 

Detective Paine had reasonable suspicion that a traffic offense occurred) was 

reversible error and must be overturned.

 VI. The free air sniff on and search of Appellee’s vehicle were lawful.

 The trial court based its entire ruling on the question of whether there 

was reasonable suspicion for the stop of Appellee’s vehicle and did not 

really address the legality of the free air sniff of Appellee’s vehicle or the 

subsequent search of the vehicle which found the contraband narcotics. 

[CR-I-36-38]. Since the trial court did not submit written findings on these

matters, it is clear that consideration of these matters was not part of the trial 

court’s “essential findings” as to why it granted the motion to suppress. The 
Brief of Appellant

Victoria County Criminal District Attorney

No. 13-15-00041-CR

38

trial court would have been obligated to address these issues in its written 

findings of fact if these issues had formed any part of the trial court’s 

decision to grant the motion to suppress. See Cullen, 195 S.W. 3d at 399. 

Therefore from the fact that the trial court did not address these issues in its 

findings of fact, it is clear that the trial court found Detective Gibbs 

testimony to be credible and reliable and did not find anything legally 

objectionable about either the free air sniff or the search of Appellee’s 

vehicle. With that in mind the State shall still address the legality of the free 

air sniff of Appellee’s vehicle and the search of Appellee’s vehicle, so as to 

avoid any question of procedural default on these matters. 

The evidence presented at the suppression hearing established that 

Detective Gibbs could legally conduct a free air dog sniff on Appellee’s 

vehicle. A sniff of the exterior of a car be a trained canine during a lawful 

traffic stop is not a search within the meaning of the Fourth Amendment. 

See Illinois v. Caballes, 543 U.S. 405, 409 (2005); Branch v. State, 335 

S.W. 3d 893, 900 (Tex. App.-Austin 2011, pet. ref’d). However, the officer 

may not unduly prolong the traffic stop to conduct the free air sniff, unless 

the officer first develops reasonable suspicion that the car contains 

contraband. See Caballes, 543 U.S. at 407; Branch, 335 S.W. 3d at 900. In 

the present case both of those factors justified the free air sniff as Detective 
Brief of Appellant

Victoria County Criminal District Attorney

No. 13-15-00041-CR

39

Gibbs did not unduly prolong the traffic stop by conducting the free air sniff, 

and she already had reasonable suspicion that the car contained contraband 

narcotics prior to conducting the free air sniff.

In terms of prolonging the traffic stop, Texas courts have rejected 

consideration of a rigid time limitation for investigative detentions and 

instead look to “whether the police officer diligently pursued a means of 

investigation that was likely to confirm or dispel their suspicions quickly, 

during which time it was necessary to detain the defendant.” See Kothe v. 

State, 152 S.W. 3d 54, 64 (Tex. Crim. App. 2004). It is only if the officer’s 

actions “unduly prolong” the detention that they are unreasonable, and the 

Court of Criminal Appeals has explicitly rejected a requirement of a “least 

intrusive means” of investigation standard. Id. at 65-66.

Detective Gibbs testimony established that she conducted the free air 

sniff approximately seven minutes after initiating the traffic stop. [RR-I-44]. 

This time line is confirmed by the video of the traffic stop. [State’s Exhibit 

1]. Detective Gibbs also established that she did not have to send away for 

her canine partner, Robby, since he was already with her at the time of the

initial stop on Appellee’s vehicle. [RR-I-46]. Detective Gibbs further 

established that the traffic stop was not complete at the time she conducted 

the free air sniff because she still needed to run the Appellee and his 
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Victoria County Criminal District Attorney

No. 13-15-00041-CR

40

passenger’s name for possible warrants and run the paper plates on 

Appellee’s vehicle. [RR-I-45]. A review of State’s Exhibit 1 likewise

shows that Detective Gibbs conducted the traffic stop in a diligent manner, 

moving quickly from questioning the Appellee, to questioning his passenger, 

to conducting the free air sniff. [State’s Exhibit 1]. The questions Detective 

Gibbs asked of the Appellee were appropriate questions for an investigating 

officer to ask a detained motorist. See State’s Exhibit 1; Parker v. State, 297 

S.W. 3d 803, 809 (Tex. App.-Eastland 2009, pet. ref’d)(holding that an 

officer may ask the driver for their identification, driver’s license, 

information about the ownership of the vehicle, proof of insurance, and 

information concerning the destination and purpose of the trip.) It was 

likewise appropriate for Detective Gibbs to ask similar questions to the 

passenger. See Duff v. State, 546 S.W. 2d 283, 286 (Tex. Crim. App. 1977); 

Parker, 297 S.W. 3d at 809. Therefore it is clear that Detective Gibbs did 

not unduly prolong the traffic stop by conducting the free air sniff on 

Appellee’s vehicle which in turn means that the free air sniff was lawful.

In the alternative, even if it was deemed that Detective Gibbs did 

unduly extend the traffic stop by conducting the free air sniff on Appellee’s 

vehicle, that free air sniff was still lawful as Detective Gibbs already had 

obtained reasonable suspicion that Appellee’s vehicle contained contraband
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No. 13-15-00041-CR

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prior to initiating the free air sniff. See Lambeth v. State, 221 S.W. 3d 831, 

836 (Tex. App.-Ft. Worth 2007, pet. ref’d).

The investigating officers already had good cause to believe that 

Appellee was traveling from a known drug location. [RR-I-9]. Admittedly, 

the surveillance team could not definitively place Appellee at the drug house

[RR-I-11], but they could place him on the portion of street that contained 

only five houses included that suspected drug house. [RR-I-10-11; 31]. The 

surveillance team also observed Appellee driving in a manner that was

consistent with someone trying to shake off police surveillance. [RR-I-13, 

58, 73]. 

Furthermore, when Detective Gibbs made contact with the Appellee 

and his passenger, both Appellee and the passenger were acting nervously. 

[RR-I-40]. Detective Gibbs also indicated she recognized Appellee from a 

previous narcotics investigation she had worked within the last three years. 

[RR-I-41]. She further established that Appellee was evasive with her about 

where he had come from [RR-I-42] and admitted to prior drug history. [RRI-42]. She also noted that the passenger likewise admitted to prior drug 

history [RR-I-43] and claimed that they had come from McDonalds. Id. 

And perhaps most significantly, the passenger made a statement, insisting

that they had come from McDonalds, which was wholly inconsistent with 
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Victoria County Criminal District Attorney

No. 13-15-00041-CR

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what the surveillance team had observed as they had not seen the Appellee’s 

vehicle stop at any McDonalds. [RR-I-31, 77].

All of this information together gave the officers reasonable suspicion 

that there was contraband in Appellee’s vehicle. Nor does it matter that 

Detective Gibbs (the detaining officer) may not have been aware of 

everything observed by the surveillance team. The detaining officer is not 

required to be personally aware of every fact that objectively establishes 

reasonable suspicion to detain; rather the question is does the cumulative 

information known to all the officers involved in the case establish 

reasonable suspicion. See Derichsweiler, 348 S.W. 3d at 914. It likewise 

does not matter that some of the circumstances used to establish reasonable 

suspicion might look innocent in isolation; so long as those circumstances 

when considered together reasonably suggest the imminence of criminal 

conduct than reasonable suspicion is established. Id.

The investigating officers had information that the Appellee, who had 

a known history of drug involvement, left an area with a known drug house, 

drove in a manner that was consistent with someone trying to shake police 

surveillance, was nervous when confronted by the police, was traveling with 

a passenger who also had drug history, was evasive about where he had 

come from, and had the passenger make a false statement about where they 
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Victoria County Criminal District Attorney

No. 13-15-00041-CR

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had been prior to being stopped by the police. Those specific and articulable 

facts, and the rational inferences that can be made from those facts, would 

certainly give a reasonable officer reasonable suspicion to believe the 

Appellee and his passenger had narcotics in their vehicle. 

 Now admittedly nervousness by itself and prior criminal history by 

itself do not establish reasonable suspicion. See Hamal, 390 S.W. 3d 302 at 

308. However, both of those factors can be considered in conjunction with 

other factors to establish reasonable suspicion. Id. And nervousness 

coupled with evasive or deceptive behavior has frequently been held as 

sufficient to establish reasonable suspicion. See Byron v. State, 07-05-0131, 

2006 WL 1490677 at 1 (Tex. App.-Amarillo 2006, pet. ref’d)(mem. op)(not 

designated for publication); Estrada v. State, 30 S.W. 3d 599, 603 (Tex. 

App.-Austin 2000, pet. ref’d); Powell v. State, 5 S.W. 3d 369, 377 (Tex. 

App.-Texarkana 1999, pet. ref’d). Thus all of the factors known to the 

police prior to the initiation of the free air sniff when taken together are 

sufficient to support a finding of reasonable suspicion that there was 

contraband within Appellee’s vehicle. And that in turn means that Detective 

Gibbs had sufficient legal basis to extend the traffic stop long enough to 

conduct a free air sniff of Appellee’s vehicle.
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Victoria County Criminal District Attorney

No. 13-15-00041-CR

44

 The free air sniff itself was likewise properly conducted. Detective 

Gibbs’ testimony and the certification documents offered into evidence, 

established that Detective Gibbs was a certified canine operator and that her 

canine partner, Robby, was certified to conduct free air sniffs on July 28, 

2014, had extensive history performing free air sniffs, and had proven 

reliable at locating narcotics during those free air sniffs. [RR-I-46-48; 

State’s Exhibit 3]. Detective Gibbs then confirmed that Robby did alert for 

the odor of narcotics on Appellee’s vehicle. [RR-I-48-49].

 It is well settled Texas law that when a trained drug detection dog 

alerts on a vehicle the officer’s then have probable cause to search the 

vehicle. See Branch, 335 S.W. 3d at 901; Haas v. State, 172 S.W. 3d 42, 54 

(Tex. App.-Waco 2005, pet. ref’d); Harrison v. State, 7 S.W. 3d 309, 311 

(Tex. App.-Houston [1st Dist] 1999, pet. ref’d). And under the “Automobile 

Exception” when there is probable cause that a vehicle contains evidence of 

a crime, a warrantless search of the vehicle is permissible. See Powell v. 

State, 898 S.W. 2d 821, 827 (Tex. Crim. App. 1994). As such the probable 

cause that Appellee’s vehicle contained narcotics that was established by the 

trained and certified narcotics detection dog Robby alerting on the vehicle, 

made it legal for the investigating officers to search Appellee’s vehicle 

without a warrant, and since the search of the vehicle was legal, the evidence 
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No. 13-15-00041-CR

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obtained from that search was lawfully obtained. Accordingly, the trial 

court erred by granting Appellee’s motion to suppress. 

PRAYER

WHEREFORE, PREMISES CONSIDERED, the State prays that this 

Honorable Court reverse the judgment of the trial court.

.

Respectfully submitted,

STEPHEN B. TYLER

CRIMINAL DISTRICT ATTORNEY

/s/ Brendan W. Guy

Brendan W. Guy 

Assistant Criminal District Attorney

SBN 24034895

205 North Bridge Street, Suite 301

Victoria, Texas 77902

E-mail: bguy@vctx.org

Telephone: (361) 575-0468 

 Facsimile: (361) 576-4139

 

 ATTORNEYS FOR THE APPELLANT,

THE STATE OF TEXAS
Brief of Appellant

Victoria County Criminal District Attorney

No. 13-15-00041-CR

46

CERTIFICATE OF COMPLIANCE

In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), I, 

Brendan Wyatt Guy, Assistant Criminal District Attorney, Victoria County, 

Texas, certify that the number of words in Appellant’s Brief submitted on 

April 17, 2015, excluding those matters listed in Rule 9.4(i)(1) is 9,455.

/s/ Brendan W. Guy

Brendan W. Guy

Assistant Criminal District Attorney

SBN 24034895

205 North Bridge Street, Suite 301

Victoria, Texas 77902

E-mail: bguy@vctx.org

Telephone: (361) 575-0468 

 Facsimile: (361) 576-4139
Brief of Appellant

Victoria County Criminal District Attorney

No. 13-15-00041-CR

47

CERTIFICATE OF SERVICE

I, Brendan Wyatt Guy, Assistant Criminal District Attorney, Victoria 

County, Texas, certify that a copy of the foregoing brief has been served on 

William White, P.O. Box 7422, Victoria, Texas, Attorney for the Appellee,

Uyless Troy Bland, by depositing same in the United States Mail, postage 

prepaid on the day of April 17, 2015.

/s/ Brendan W. Guy 

Brendan W. Guy

Assistant Criminal District Attorney

SBN 24034895

205 North Bridge Street, Suite 301

Victoria, Texas 77902

E-mail: bguy@vctx.org

Telephone: (361) 575-0468 

 Facsimile: (361) 576-4139