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 Nos. 1010773CR; 1010774CR; 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 complains 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 affirm the orders of the trial court.
State 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, after not receiving 

a brief, this Court sent a letter instructing Police to file a brief or a request for extension 

within 14 days or to notify the Court 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 Police 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 effect 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 decision, 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 2008, 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 the 
State 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 who 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 indeed 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 Police’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 be 
State v. Police Page 4

given to their testimony. Wiede v. State, 214 S.W.3d 17, 24-25 (Tex. Crim. App. 2007). 

Therefore, we give almost total deference to the trial court’s rulings on (1) questions of 

historical fact, even if the trial court’s determination of those facts was not based on an 

evaluation of credibility and demeanor; and (2) application-of-law-to-fact questions that

turn on an evaluation of credibility and demeanor. Amador, 221 S.W.3d at 673; Montanez 

v. State, 195 S.W.3d 101, 108-09 (Tex. Crim. App. 2006); Johnson v. State, 68 S.W.3d 644, 

652-53 (Tex. Crim. App. 2002). 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 viewed in the 

light most favorable to the trial court’s ruling, supports those fact findings. Kelly, 204 

S.W.3d at 818-19. We then review the trial court’s legal ruling de novo unless its explicit 

findings that are supported by the record are also dispositive 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 the 
State v. Police Page 5

presumption of proper police conduct is on the defendant. 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 which 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. App. 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 

rational 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 

specific, 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. 
State 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 considering 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. State, 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 716. 

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, 813, 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).
State v. Police Page 7

The Facts

The facts that led to the officer’s traffic stop of Police are as follows: at around 

midnight, an 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 shape. 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 to 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 of 

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 burglaries 
State 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 544.010

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 line; 

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.” TEX. TRANSP. CODE ANN. § 544.010(c) (Vernon 1999). The State contends 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 enter 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 determine 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 of 
State v. Police Page 9

what 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. Crim. App. 

2011); see TEX. CODE CRIM. PROC. ANN. 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 TEX. GOV’T CODE ANN. §§ 

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 to 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 articulated in that section. However, the 

Legislature chose to require that the stop take place “at the place nearest the intersecting 
State v. Police Page 10

roadway where the operator has a view of approaching traffic on the intersecting 

roadway.” TEX. TRANSP. CODE ANN. § 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 before 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 belief 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 that prior to Police’s 

 

1 This holding may be in conflict with this Court’s holding 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.).
State 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 facts 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 by 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 Criminal 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 contact 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 officer 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 of 
State v. Police Page 12

Criminal Appeals stated that “*n+either 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 constitute 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 Derichsweiler, 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 distinguishable 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 activity 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 “persistent, 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) Police’s car was unfamiliar to him; (3) when he 

pulled behind Police’s vehicle to run a license check, Police almost immediately turned 
State 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 the 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 other 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 findings 

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 not 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 activity 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, 204 
State 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 known 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 be 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 reasonable 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,

Justice 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.”)