### IN THE TENTH COURT OF APPEALS No. 10
- 11 - 00108
- CR No. 10
- 11 - 00109
- CR No. 10
- 11 - 00110
- CR THE STATE OF TEXAS , Appellant v. JAVARI EDWARD POLICE , Appellee

From the County Court at Law No. 2 Ellis County, Texas Trial Court No s . 1010773CR ; 1010774C R ; and 1010775CR
O P I N I O N
The State is appealing from an order granting Javari Edward Police’s motions to suppress evidence in each of three causes based on a lack of reasonable suspicion to initiate a traffic stop by the arresting officer. The State c omplains that the trial court erred by finding that the traffic stop was unlawful because no actual criminal offense was observed by the officer and by finding that the other facts surrounding the traffic stop did not create reasonable suspicion. We affir m the orders of the trial court.S tate v. Police Page 2

Appellee’s Brief Initially, we must address Police’s failure to file a brief in this matter. The appellee’s brief was due on August 31, 2011. On September 6, 2011, aft er not receiving a brief, this C ourt sent a letter in structing Police to file a brief or a request for extension

w ithin 14 days or to notify the C ourt that no brief will be filed. Police filed a motion for extension on September 21, 2011, which was granted until September 30, 2011. A letter
was sent to Pol ice on October 13, 2011 advising him that we would proceed to disposition with or without the appellee’s brief. No brief has been filed, and Police has not requested any additional time to file a brief. There is no rule specifically addressing the effe ct of the appellee’s failure to file a brief in response to an appellant’s brief in a criminal appeal. We recently addressed this
issue in State v. Fielder , No. 10

- 11

- 00162, 2011 Tex. App. LEXIS 10101 (Tex. App.

— Waco Dec. 21, 2011, no pet. h.). In that d ecision, we determined that the appellee’s failure to
file a brief constitutes a confession of error. Id . (citing Siverand v. State , 89 S.W.3d 216, 220 (Tex. App.

— Corpus Christi 2002, no pet.); Hawkins v. State , 278 S.W.3d 396, 399 (Tex. App.

— Eastland 200 8, no pet.)). This confession of error is not conclusive. Saldano
v. State , 70 S.W.3d 873, 884 (Tex. Crim. App. 2002); Siverand v. State , 89 S.W.3d at 220. We must make an independent examination of the merits of the issues presented for
review. State v. Fielder , 2011 Tex. App. LEXIS 10101 at *3 (citing Siverand v. State , 89 S.W.3d at 220). In that review we are limited to the arguments advanced by theS tate v. Police Page 3

appellee in the trial court so that we do not advance new arguments on behalf of the appellee. Id . ( citing Saldano v. State , 70 S.W.3d at 884; Hawkins v. State , 278 S.W.3d at 399; Siverand v. State , 89 S.W.3d at 220). Motion to Suppress A hearing was conducted pursuant to a pre

- trial motion to suppress evidence where Police complained that the officer w ho initiated the traffic stop on Police’s vehicle did not have reasonable suspicion to stop him for any reason, either for a traffic violation or any potentially suspicious circumstances surrounding the traffic stop. The State argued that Police did indee d violate section 544.010 of the Transportation Code ; however, the State contended that even if the officer was incorrect in his understanding of that statute, there were other independent reasons for the stop which created reasonable suspicion to stop Po lice’s vehicle. The officer was the sole witness in the hearing, and the trial court granted the motion to suppress. The trial court entered findings of fact and conclusions of law. The State appealed the judgment. Standard of Review
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). 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). The trial judge is the sole trier of fact and judge of the credibility of the witnesses and the weight to beS tate v. Police Page 4

given to their testimony. Wiede v. State , 214 S.W.3d 17, 24

- 25 (Tex. Crim. App. 2007). Therefore, we gi ve 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). But when application

- of

- law

- to

- fact questions do not turn on the credibility and demeanor of the witnesses, we review the trial court’s ruling on those questions de novo. Amador , 221 S.W.3d at 673; Johnson , 68 S.W.3d at 652

- 53. 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. 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 vi ewed 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 findings that are supported by the record are also disposit ive of the legal ruling. Id. at
819. Burden of Proof In a hearing on a motion to suppress evidence based on an alleged Fourth Amendment violation, the initial burden of producing evidence that rebuts theS tate v. Police Page 5

presumption of proper police conduct is on the defe ndant. Ford v. State , 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). This burden may be met by establishing that a search or
seizure occurred without a warrant. Id . After this showing is made by the defendant, the burden of proof shifts to the State, at w hich time the State is required to establish that the search or seizure was conducted pursuant to a warrant or was reasonable. Id

. In this proceeding, the State stipulated that the stop was made without a warrant and assumed the burden of proof regarding whether reasonable suspicion for the stop
existed. Reasonable Suspicion An officer conducts a lawful temporary detention when he has reasonable suspicion to believe that an individual is violating the law. Ford v. State , 158 S.W.3d 488, 492 (Tex. Crim. A pp. 2005); Woods v. State , 956 S.W.2d 33, 35 (Tex. Crim. App. 1997) ( citing Terry v. Ohio , 392 U.S. 1, 29, 88 S. Ct. 1868, 20 L. Ed.2d 889 (1968)). Reasonable suspicion exists if the officer has specific, articulable facts that, when combined with
rationa l inferences from those facts, would lead him to reasonably conclude that a particular person actually is, has been, or soon will be engaged in criminal activity.
Castro v. State , 227 S.W.3d 737, 741 (Tex. Crim. App. 2007). Otherwise stated, those specif ic, articulable facts must show unusual activity, some evidence that connects the detained individual to the unusual activity, and some indication that the unusual activity is related to crime. Derichsweiler v. State , 348 S.W.3d 906, 916 (Tex. Crim. App.S tate v. Police Page 6

2011). This is an objective standard that disregards any subjective intent of the officer making the stop and looks solely to whether an objective basis for the stop exists. Ford , 158 S.W.3d at 492. A reasonable suspicion determination is made by consid ering the totality of the circumstances. Curtis v. State , 238 S.W.3d 376, 379 (Tex. Crim. App. 2007). A traffic stop is justified when the officer has reasonable suspicion to believe that
a traffic violation has occurred. See Goudeau v. State , 209 S.W.3d 713, 715

- 16 (Tex. App.

— Houston [14th Dist.] 2006, no pet. ). The State bears the burden of demonstrating the reasonableness of the stop. See id . at 716 . The State satisfies its burden upon a showing of an objective basis for the stop. See Garcia v. Sta te , 43 S.W.3d 527, 530 (Tex. Crim. App. 2001). We must ask whether a person of reasonable caution, looking at the facts available to the officer at the moment of the investigation, would believe that a
traffic violation occurred. Goudeau , 209 S.W.3d at 7 16

. The fact that the officer made the stop for a reason other than the occurrence of the traffic violation is irrelevant as long as a traffic violation that would have objectively justified the stop occurred. See Whren v. United States , 517 U.S. 806, 8 13, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996); Crittenden v. State , 899 S.W.2d 668, 674 (Tex. Crim. App. 1995). An officer’s mistaken, though honest, misunderstanding of the traffic law, however, will not justify a stop. United States v. Lopez

- Valdez , 178 F.3d 282, 288 (5th Cir. 1999); Goudeau , 209 S.W.3d at 716; see also Fowler v. State , 266 S.W.3d 498, 504

- 05 (Tex. App.

— Fort Worth 2008, pet. ref’d)

.S tate v. Police Page 7

The Facts The facts that led to the officer’s traffic stop of Police are as follows: at around midnight, a n officer observed a vehicle he did not recognize driving through his patrol area which he had patrolled for several years. He followed the vehicle and got directly
behind it so he could run a license check. Police was the driver of the vehicle. Police almost immediately turned right in front of the officer into a neighborhood known for burglaries and narcotics transactions. The officer did not observe any traffic violations
in this turn. The street onto which Police turned was in essence a horseshoe s hape. The officer did not follow Police onto that street, but waited for him to come out, which Police did in less than a minute and a half. Police approached the intersection which had a stop sign, but no crosswalk or stop line. Police’s vehicle came t o a complete stop at a point past the stop sign but did not enter the intersection. The officer believed that Police had committed a traffic violation by stopping at a point past the stop sign, citing section 544.010 of the Transportation Code. Because o f this, the officer initiated a traffic stop which ultimately resulted in the discovery of a weapon, marijuana, and some other controlled substance, and Police was arrested for those offenses. Additionally, in the suppression hearing the officer indicated that his reasons for the stop were also because he did not recognize the vehicle, the lateness of the hour, the fact that Police turned right almost immediately after the officer got behind him, the reputation of the neighborhood into which Police turned for burglariesS tate v. Police Page 8

and narcotics, and the short time that Police was in the neighborhood. However, the officer testified that he did not feel that he could initiate a traffic stop until the alleged
traffic violation occurred. Transportation Code Section 544.0 10 Section 544.010(c) of the Transportation Code provides three different stop sign requirements: (1) if a crosswalk exists, the driver shall stop before entering the crosswalk; (2) if no crosswalk exists, the driver shall stop at a clearly marked stop lin e; and (3) if no stop line exists, the driver shall stop “at the place nearest the intersecting roadway where the operator has a view of approaching traffic on the intersecting roadway.” T EX
. T RANSP
. C ODE A NN
. § 544.010(c) (Vernon 1999). The State conten ds that this statute requires that an individual stop behind the stop sign if that person has a view of approaching traffic. At the hearing, Police argued that the stop sign is not determinative of where the stop must occur and that since Police did not e nter the intersection, no traffic violation occurred. Statutory Construction Because statutory construction is a question of law, our review is de novo. Spence v. State , 325 S.W.3d 646, 650 (Tex. Crim. App. 2010). We focus on the literal text
to determi ne the objective meaning of that text when it was enacted. Id .; Mahaffey v.
State , 316 S.W.3d 633, 637 (Tex. Crim. App. 2010). We are guided by the text itself because “the text of the statute is the law,” “the text is the only definitive evidence ofS tate v. Police Page 9

wha t the legislators . . . had in mind when the statute was enacted into law,” and “the [ L]egislature is constitutionally entitled to expect that the judiciary will faithfully follow the specific text that was adopted.” Id . (quoting Boykin v. State , 818 S.W. 2d 782, 785 (Tex. Crim. App. 1991)). When the meaning of the statutory text should have been plain to the legislators who voted on it, we give effect to that plain meaning unless “application of a statute’s plain language would lead to absurd consequences ” or “the language is not plain but rather ambiguous.” Id . We presume that each word in the statute has a purpose and that the words not defined in the statute are used in their ordinary and common sense. Prudholm v. State , 333 S.W.3d 590, 594 (Tex. Cri m. App. 2011); see T EX
. C ODE C RIM
. P ROC
. A NN
. art. 3.01 (West 2005) (“All words, phrases and terms used in this Code are to be taken and understood in their usual acceptation in common language, except where specially defined.”); see also T EX
. G OV ’ T C ODE A NN . §§ 311.002 (addressing applicability of Code Construction Act), 311.011(a) (West 2005) (“ Words and phrases shall be read in context and construed according to the rules of grammar and common usage.”). The plain language of the statute does not refer t o a stop sign as an indicator of anything other than a signal that a stop is required prior to entering the intersection. Certainly, if a requirement to stop behind a stop sign was intended when the statute was enacted it could have been specifically arti culated in that section. However, the Legislature chose to require that the stop take place “at the place nearest the intersectingS tate v. Police Page 10

roadway where the operator has a view of approaching traffic on the intersecting roadway.” T EX
. T RANSP
. C ODE A NN . § 544.010 (c). We find that the plain language of the statute indicates that a stop must be made exactly where it states, which may or may not be behind a stop sign. The trial court determined that Police came to a complete stop at a point past the stop sign but not in the intersection, which the trial court
determined as a matter of law did not constitute a traffic violation of section 544.010. The State did not argue b efore the trial court or in its brief to this Court that any other
traffic violation occurred. The trial court’s finding of fact that Police stopped his vehicle at the place nearest the roadway where he had a view of approaching traffic is supported by the evidence. Therefore, there was no traffic violation. The officer’s honest, but mistaken bel ief about the law does not justify the stop. 1 See United States v. Lopez

- Valdez , 178 F.3d 282, 288 (5th Cir. 1999); Goudeau v. State , 209 S.W.3d 713, 716 (Tex. App.

— Houston [14th Dist.] 2006, no pet. ) ; see also Fowler v. State , 266 S.W.3d 498, 504

- 05 (Tex . App.

— Fort Worth 2008, pet. ref’d) . Because there was no traffic violation, we must determine whether reasonable suspicion otherwise existed to justify the traffic stop.
Other Factors The trial court’s findings of fact and conclusions of law state th at prior to Police’s

1 This holding may be in conflict with this Court’s holdi ng in Joubert v. State , and to the extent that there is a conflict, that holding is expressly overruled. See Joubert v. State , 129 S.W.3d 686 (Tex. App.

— Waco 2004, no pet.).S tate v. Police Page 11

alleged traffic violation, “the credible evidence indicates there were no articulable facts to justify the detention of the Defendant.” Further, those findings state that “*a+lthough the officer suggested there may have been other fac ts and factors that could be considered to support his stop of the Defendant’s vehicle the Court was not persuaded to believe that other facts were actually relied upon by the officer in initiating the stop. The Court was not presented with or persuaded b y credible evidence to believe that sufficient facts existed in this instance to justify the detention of the Defendant.” However, because the standard is objective rather than subjective, to the degree that the trial court’s conclusions are based on the officer’s actual intent, we disregard those
conclusions. See Ford v. State , 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). At the suppression hearing and in his supporting brief to the trial court, Police
relied on the recent decision of the Court of Crimin al Appeals in Crain v. State to establish that the additional factors relied upon by the officer were insufficient to constitute reasonable suspicion. Crain v. State , 315 S.W.3d 43 (Tex. Crim. App. 2010).
The facts in Crain leading up to the officer’s co ntact with Crain were that Crain was walking late at night in a residential area in which burglaries occurred mostly after midnight and when Crain saw the police officer’s vehicle drive past him, he “grabbed at his waist.” Crain , 315 S.W.3d at 53. The of ficer acknowledged that he did not have a reason to arrest Crain at that time. There was no evidence regarding a specific crime or burglary that had occurred or that Crain was engaged in illegal behavior. The Court ofS tate v. Police Page 12

Criminal Appeals stated that “*n+eit her time of day nor level of criminal activity in an area are suspicious in and of themselves; the two are merely factors to be considered in making a determination of reasonable suspicion.” Id . The court further held that those
factors did not constitut e reasonable suspicion. Id

. The State does not respond to this contention; rather, the State argues that the officer was not required to pinpoint a particular crime, citing Derichsweiler v. State , 348 S.W.3d 906, 916 (Tex. Crim. App. 2011). In Derichswe iler , the Court of Criminal Appeals determined that reasonable suspicion existed in an “admittedly close case” that
involved otherwise innocent behavior. See Derichsweiler , 348 S.W.3d at 917 (Tex. Crim. App. 2011). Derichsweiler , though, is distinguishab le from this case. In Derichsweiler , noncriminal behavior

— repeatedly stopping near, staring, and smiling in a strange manner at other people and vehicles in public parking lots

— was held sufficient to allow a reasonable person to conclude “that criminal act ivity is afoot.” Id . at 915. The court characterized Derichsweiler’s conduct as “bizarre to say the least.” Id . at 917. The court emphasized Derichsweiler’s conduct involved “the repetition of similar, apparently scrutinizing behavior” and was “persist ent, if admittedly noncriminal.” Id . In other words, the conduct in Derichsweiler involved a pattern of bizarre behavior.
This is not the situation the officer in this case faced. The facts before the officer were: (1) it was around midnight; (2) Poli ce’s car was unfamiliar to him; (3) when he pulled behind Police’s vehicle to run a license check, Police almost immediately turnedS tate v. Police Page 13

right onto a street that curved in a horseshoe shape; (4) rather than follow Police, the
officer waited for Police to exit t he neighborhood; (5) the officer did not believe that Police resided in that neighborhood, having patrolled that area for approximately four years; (6) the neighborhood had a reputation for burglaries and narcotics transactions; (7) Police emerged on the o ther end of the street in less than ninety seconds; (8) Police pulled up past the stop sign at that intersection but not in the intersecting roadway; (9) Police turned onto the original roadway and the officer initiated the traffic stop. The trial court’s findings of fact also included that “*t+he officer did not observe any traffic violations, irregularities, dangerous, hazardous or reckless behavior of the Defendant before, during or immediately after turning right” at the first turn. Further, the findi ngs stated that “*t+he officer did not observe any illegal, hazardous or reckless driving behaviors as the vehicle traveled on the roadway back to the original roadway.” These findings are supported by the record. With these facts, Police’s behavior was n ot bizarre and nothing suggests a pattern or repetition of unusual behavior as was found in Derichsweiler . The noncriminal, not terribly unusual, nonrepetitive behavior observed in this case was insufficient to objectively support a belief that criminal a ctivity was or soon would be afoot. The only behavior of Police’s that could be construed as suspicious was his making the first turn, although the trial court’s fact finding was that it was not irregular, dangerous, hazardous, or reckless is supported by the record. See State v. Kelly , 204S tate v. Police Page 14

S.W.3d 808, 818

- 19 (Tex. Crim. App. 2006). There was no evidence that Police made any furtive or otherwise suspicious gestures nor was he known to the officer as having any criminal background or association with know n criminals or drug users; he simply made a legal turn in front of an officer into a neighborhood where criminal activity occurred previously. Additionally, the facts present in Derichsweiler presented a “close call” but ultimately the stop was found to b e reasonable, in part “if only by *the police’s+ presence to avert an inchoate offense.” Derichsweiler , 348 S.W.3d at 917. This was also not the case here. The circumstances known to the officer at the time of the stop were
not sufficient to establish r easonable suspicion to justify the traffic stop. We overrule the State’s sole issue.
Conclusion Having overruled the State’s sole issue, we affirm the orders of the trial court.

TOM GRAY Chief Justice Before Chief Justice Gray, Justic e Davis, and Justice Scoggins (Justice Davis concurs with a note )* Affirmed Opinion delivered and filed January 4, 2012 Publish [CR25] *( “I don’t agree that Joubert v. State should be overruled.”)