## I N T H E C O U R T O F C R I M I N A L A P P E A L S O F T E X A S

N O . P D
- 0 0 6 6
- 1 3

J O S E P H D E L A F U E N T E , A p p e l l a n t

v . T H E S T A T E O F T E X A S
O N S T A T E ’ S P E T I T I O N F O R D I S C R E T I O N A R Y R E V I E W F R O M T H E F O U R T E E N T H C O U R T O F A P P E A L S

W A L L E R C O U N T Y

J O H N S O N , J . , d e l i v e r e d t h e o p i n i o n o f t h e C o u r t i n w h i c h K E L L E R , P . J . , a n d M E Y E R S , P R IC E , K E A S L E R , H E R V E Y , a n d C O C H R A N , J J . , j o i n e d . A L C A L Á , J . , f i l e d a d i s s e n t i n g o p i n i o n . W O M A C K , J . , c o n c u r r e d . O P I N I O N Appellant was convicted of Class B misdemeanor possession of marijuana and sentenc ed to three day s’ confine ment and a fine. On appea l, he challeng ed the trial court’s denial of his motion 1

to suppress, arg uing that the arr esting office r lacke d rea so nable suspicion to stop the vehicle in which he was trave ling. The court of appea ls reve rsed, ruling that there wer e no specific , articula ble fac ts in the rec ord t o support rea sonable suspicion for the stop. We g rante d the state’s petition for

S e e T E X
. H E A L T H & S A F E T Y C O D E § 4 8 1

. 1 2 1

. 12

discretionar

y revie w, vaca

ted the court of appea ls’s judgme nt, and rema nded so that court co u ld deter mine the effec t, if any , of our then-re cent decision in State v. Mendoza

. The appellate court 2
ag ain reve rsed, and we g rante d the state revie w on tw o gro u nds. We now reve rse the court of
appea ls’s judgme nt and re instate the trial cour t’s denial of the motion to s uppress. I. F acts and P roce dural Hi story On J une 24, 2009, a police office r patrolling I nterstate 10 initiated a traff ic stop based on his observa tion of t ra ff

i c co n gest ion in the inside lane. At the hear ing on defe ndant’s motion to
suppress, neither the state no r ap p el l ant offe red live testimony , and the state stipulated that appellant’ s arr est was war rantless. The only evidenc e befor e the trial court was the office r’s offe nse
repor t. On 06/24/09, a t approxim ately 9:12 AM, I was on pa

trol on I nterstate 10 in Waller County , Texas. I observe d a traff ic cong estion in the inside westbound lane near the I g loo Road Over

pass. Traf

fic volume was modera te. I inspe ct ed further and observe d a g rey Chevrolet 4-door sedan

. . . trave ling below the prima fac ie limit of 65 miles per hour and I mpeding Traf fic. I pace d the vehicle, which was trave ling at approximately 52 miles per hour, the initia l speed utiliz ing the cer tified speed odometer on my marke d patrol unit and confirme d with the in-ca r Doppler rada

r unit. I initiated a traf

fic stop of the ve hicle.

. . . I nitiation of the traff

ic stop require d utiliz ing the rea r emer g ency lights on the patrol vehicle to allow a safe lane chang e of my patrol vehicle, from the cente r to the inside lane. The driver of the Chevrolet sedan immediately y ielded to the inside shoulder. I approa ched the driver’ s window, identified my self, stated the rea son for the traff ic stop and reque sted a driver’ s license fr o m t h e driver and the front passeng er. I immediately

noticed a strong and distinct odor of both fr esh and bur nt marijuana.

. . . The d ri v er , M el i ssa Ag ueros, said that she did not have a driver’ s license but produce d a valid Texas identification car d. The passeng er, appellant, produce d a valid Texas driver’ s license.

3 6 5 S

. W

. 3 d 6 6 6 ( T e x . C r i m . A p p . 2 0 1 2 )

. 23

The office r told Ag ueros that he was g oing to cite her for opera ting a motor vehicle without a license and appellant for permitting an unlicensed person to opera te a motor vehicle. A chec k throug h the Waller County Sheriff’ s Depa rtment reve aled that neither had a criminal history

. Two s ma ll children in the back se at wer e prope rly secur ed in child-saf

ety seats. B oth adults seemed ne rvous. The office r told both adults that he smelled marijuana in the vehicle. The driver beg an to cry , and appe llant stiffened. The office r aske d appellant to g et out of the car when it wa s safe to do so and join the office r on the n o n -t ra ff i c side of the car . “I asked Mr. Delaf uente, ‘Where is it’ and

rec eived a response of ‘it’s in the trunk.’” Appellant claimed sole responsibility for the marijuana and exculpated Ag ueros. Wit h Ag ueros’ s assistance , the office r sear ched the interior of the car . He

rec overe d a cloth bag that contained marijuana, paraphe rnalia, and a partially smoked ro ac h fr om the passeng er- side cup holder and two small pipes from the passeng er floorboar d. The trunk y ielded a tube that wa s stained with smoke residue . The off icer rele ased A g ueros a

nd arr ested a

ppellant. Wit h no evidenc e to contra dict the offe nse repor t, the trial court acc epted the office r’s
statement that the vehicle in which appellant was a passeng er was impeding traff ic as cre dible and
enter ed finding s of fa ct and c onclusions of law that “De fenda nt’s[ ] vehic le was impeding tr aff ic” 3
and that “[ t ]he office r had probable cause for the stop beca use the defe ndant[sic] [ ] was driving 4 slow[l y ] and impeding tra ffic.” The court of a

ppeals re verse d, ruling that the trial court found no specific , articula ble fac ts
to support rea sonable suspicion. Delafuente v. State , 367 S.W .3d 731, 734-35 (Tex. App.—Houston [14t h Dist.] 2012) (“The re was no evidenc e that the normal and rea sonable movement of traff ic was

T h e o f f e n s e r e p o r t d o e s n o t i n d i c a t e w h o o w n e d t h e c a r . 3

T h e o f f i c e r ’ s r e p o r t m a d e i t c l e a r t h a t A g u e r o s , n o t a p p e l l a n t , w a s d r i v i n g . 44

impeded by appellant’ s driving .”), pet. granted , 369 S.W .3d 224 (Tex. Crim. App. 2012). The state
prosec uting a ttorney

filed a pe tition for discretionar y revie w in this Court, which we g rante d. We

vacated the court of appea ls’s judgme nt and rema nded the cause to it so that it could deter mine the eff ect, if any , of our then-re cent ruling in State v. Mendoza on its decision. Delafuente v. State , 369 5
S.W .3d 224 (Te x . Crim. App. 2012). On remand from thi s Court, the court of appeals found that Mendoza did not aff

ect its holding and ag ain reve rsed the denial of appellant’ s suppression motion. Delafuente , 389 S.W .3d 616, 622-23 (Te x . App.—Houston [14th Dis t.] 2012). II. Analysi s We g rante d the s tat e’s petition on two g rounds for revie w: (1) “Did the C ourt of Appeals’ deter mination that the traf

fic stop was illeg al ig nore r eleva nt fac ts and rational infere nces, require the state to rebut innocent explanations, and misconstrue Ford v. State , 158 S.W .3d 488 (Tex. Crim. App. 2005)? ”; and (2) “Did the Court of Appea ls err by ref using to rema

nd to t h e t rial court for additional finding s of fac t and conclusions of law? ” We hold that the co u rt o f ap p eals did not commit e rror on the second issue, but it did err on the first by ignor ing rele vant fac ts a nd failing to make r easona

ble infer ence s. A. The Fourth Amendme nt
I n a hear ing on a motion to suppress for violation of Four th Amendment rig hts, a defe ndant must offer e vidence that rebuts the presumption of proper pol ice conduct, such a s by alleg ing tha t the sear ch or seizure was executed without a war rant. Once the defe ndant has made this thre shold

3 6 5 S

. W

. 3 d 6 6 6 ( T e x . C r i m . A p p . 2 0 1 2 ) ( “ [ B ] e c a u s e t h e w r i t t e n f i n d i n g s i n t h i s c a s e a r e a m b i g u o u s a n d 5 t h e r e i s n o c r e d i b i l i t y d e t e r m i n a t i o n , ” t h e c a s e i s r e m a n d e d f o r s u p p l e m e n t a l f

i n d i n g s . I

d

. a t 6 6 7

. )

.5

s h owing , the burden shifts to the s tate to prove either the exis tence of a war rant or that the s earch

or seizure was rea sonable. Ford v. State , 158 S.W .3d 488, 492 (Tex. Crim. Ap p . 2 0 0 5 ) (citing Bishop v. State , 85 S.W .3d 819, 822 (Tex. Crim. App. 2002)). I n this case , it is undisputed that the office r did not have a war

rant to stop the vehicle, so the state was require d to show that the stop was

rea sonable.
A police office r lawfully conducts a temporar y detention when he has rea sonable suspicion that an individual is involved in criminal activity

. Balentine v. State , 71 S.W .3d 763 , 768 (Tex. Crim. App. 2002). Reasonable suspicion require s more than a hunch; it exis ts only when an office r has specific , articula

ble fac ts that, taken toge ther with rea sonable infere nces from those fac ts, would lead the office r to rea sonab l y co n cl u de that the person detained is, has been, or soon will be,
eng ag ing in criminal activity

. Ford , 158 S.W .3d at 492 (citing Garcia v. State , 43 S.W .3d 527, 530 (Tex. Crim. App

. 2001)). The rea sonable-suspicion deter mination is an objective one made by considering the totality

of the c ircumstance s. Id. at 492-93.

B. On Appeal Appellate re v i ew o f a ru ling on a motion to suppress is a bifurcated analy sis. Appellate
courts mus t g ive almos t total defe renc e to a trial judge’ s fi n d i ng s of hi storical fact and cre dibilit y deter minations that are supported by the rec ord, but r eview questions of law de novo . Anderson v. Bessem er City , 470 U.S. 564, 575 (1985) (re viewing courts defe r to trial-cour t finding s of fac t unless clea rly err oneous); Guzman v. State , 955 S.W .2d 85, 89 (Tex. Crim. App. 1997) (“e specia lly when the trial court’s fac t finding s are based on an evalua tion of cre dibilit y and demea nor”)

. I n this case , the trial court issued expli cit fi n d i n gs of fac t decla ring cre dible the office r’s statement that the vehicle w as “impeding traff ic.”6 C. Application
We do not find any evidenc e supporting the appellate court’s ruling that the trial court abused its discretion in cre diting the offe nse report. Nothing indicates t hat t he officer was untrustw o rt h y

or that his repor

t was somehow cre ated outside the bounds of standard proce dure. I n fac t, during its analy sis, the appellate court’s opinion r elied on fac ts state d in the repor t. Delafuente , 389 S.W .3d
at 622. Disag ree ing with the t rial court’s application of law to fac t does not mean that, in fin ding those fac ts, the lower court committed an err or so eg reg ious that the cre dibilit y deter mination does
not survive our “almost total defe renc e.” Guzman , 955 S.W .2d at 89. The trial court did not abuse its discretion in crediting the offe nse re port, the only evidenc e bef

ore it. That said, the office r’s bare “finding ” that t h e v eh i cl e was impeding traff ic is a leg al conclusion, not a factual finding , beca use it asser

ts a viol ation of S ection 545.363(a) of the Tex as Transpor tation Code. I n all likelihood, the office r meant simply to say that he saw a line of vehicles stacke d up behind one slowly moving car, but the phrase “impeding traffic” is leg ally meaning ful when used in conjunction with Section 545.363(a) , so we cannot take this impediment at fac e value.
We do not, howeve r, need to rema nd to the trial court for additional finding s under Ford or Mendoza beca use the trial c ourt unambig uously found the off

ense r eport c redible. The fac ts in Ford did not support rea sonable suspicion beca use, in that case , the state offe red only the office r’s bare conclusory statement in s u p p o r t o f it s rea sonable-suspicion claim. Ford , supra
at 493. The trial co u rt i n F o rd was prese nted with only a conclusory statement that For d was violating a traff

ic law. I n this case , the court of appea ls analog izes to Ford by pointing out that the

6

“ T h e c o u r t o f a p p e a l s s t a t e d t h a t ‘ T r o o p e r P e a v y t e s t i f i e d t h a t h e s a w [ F o r d ] f o l l o w i n g a n o t h e r c a r a t a 6 d i s t a n c e t h a t P e a v y b e l i e v e d w a s i n s u f f i c i e n t a n d , t h u s , i n v i o l a t i o n o f t h e s t a t u t e . ’

. . . T h e r e c o r d r e v e a l s a n a b s e n c e o f a n y f a c t s a l l o w i n g a n a p p e l l a t e c o u r t t o d e t e r m i n e t h e c i r c u m s t a n c e s u p o n w h i c h P e a v y c o u l d r e a s o n a b l y c o n c l u d e t h a t F o r d a c t u a l l y w a s , h a d b e e n , o r s o o n w o u l d h a v e b e e n e n g a g e d i n c r i m i n a l a c t i v i t y . I n s t e a d , t h e t r i a l c o u r t w a s7

office r provided his conclusory opinion that th e v eh i cl e in question was “impeding traff ic.” Delafuente , 389 S.W .3d at 623. I t is true that, in this case , the office r used a l eg ally meaning ful phrase to descr ibe what he saw, but unlike Ford , he did more than provide an u n s u b s t an t iated subjective assert i o n

— h e p rovi ded other fac ts to support that statement. The lang uag e in the trial
court’s finding s specific ally ref err ed only to the repor

t’s conclusion that the vehicle was impeding traff ic, but that conclusion was nece ssarily based on the office r’s other o b s ervations of “tra ffic
cong estion” with “moder ate” traff ic volume, presumably cause d by the “the g ray Chevrolet 4-door sedan

. . . trave ling below the prima fac ie limit of 65 miles per hour” at an actua l speed of 52 miles per hour

. The trial court could not have c redited the repor t’s conclusion without cre diting the r est of its fac tual contents. The Mendoza trial court did make finding s, but they wer e ambig uous and did not addre ss a

cruc ial cre dibilit y deter

mination. Mendoza , supra at 672-73. W e re i t era ted that trial courts, as “Johnny [s] -on-the- Spot,” a re much better situated than appellate courts to make deter minations of

cre dibilit y and historical fac ts, a nd we there fore rema

nded to the trial court so it c ould c larify as to which part of the office r’s testimony it cre dited and what fac ts it found. Id. at 669, 673. The instant

case is also distinguishable from Mendoza beca use there was no evidenc e to contra dict the offe nse
repor t, which the trial court expli citly found cre dible. Be cause we must ther ef o re u s e the fac ts contained in the of

fense repor

t, we over rule the state ’s sec ond g round for revie w. D. Reasonable Suspic ion Determination The court of appea ls’s ruling was corr ect to the extent that rema nd to the t ri al co u rt for additional fac t-finding is unnece ssary in this case . The rea sonable suspicion test calls for

p r e s e n t e d o n l y w i t h a c o n c l u s o r y s t a t e m e n t t h a t F o r d w a s v i o l a t i n g a t r a f f i c l a w . ” F o r d , 1 5 8 S

. W

. 3 d a t 4 9 3

.8

consideration of specific , articula ble fac ts and reasonable inference s t h er ef r o m —a totality of the circ umstances, not the limit ed rea ding the cou rt o f ap p ea ls perf ormed. The fac ts stated in the 7
office r’s re port are sufficie nt to support a ruling of re asonable suspicion. The repor t indicates that there was “ a cong estion” in the inside lane. The use of the article
“a” allows at least an infere nce of one particula r backlog of v eh i cl es , as opposed to g ener al “cong estion.” See W E B S T E R ’ S I I N E W C O L L E G E D I C T I O N A R Y 1 (Mar g ery S. Be ru b e et al. eds., Houg hton Mifflin 1999) (def ining the indefinite article “a” as “used befor e nouns and noun phrase s that denote a single , but unspecifie d, person or thing” ). The statement in the offe nse repor t that the
cong estion was in a single lane, not sprea d over the fre ewa y as a whole, also supports this infere nce; if the cong estion was a r esult of hea vy traff ic, it would not have bee n limit ed to a sing le lane. 8 The report also asser

ts that t h e v eh i cle was movi ng slowly

. Driving at a speed that is less

t han the posted limit is not, by itself, sufficie nt for rea sonable suspicion; a violation occur s on l y when the normal and rea sonable movement of t ra ffic is impeded. Texas Dept. Pub. Safety v. Gonzales , 276 S.W .3d 88, 93 (Tex. App.—San Antonio 2008) (c i t i n g case s from multipl e intermediate appellate courts for the same proposition). Howeve r, the repor t asser ts that the vehicle

was moving thirteen miles per hour under the speed limit in the “inside lane,” as verifie d by pacing and rada r. I t is common knowledg e that the inside lane on a fre ewa y is the passing , or “fa st,” lane.
See T E X
. T R A N S P
. C O D E § 545.051(b) (“A n opera tor of a vehicle on a roadw ay moving more slowly than the normal speed of other vehicles

. . . shall drive in the rig ht-hand lane available for vehicles,

or as close as prac ticable to the rig ht-hand curb or edg e of the roadw ay , unless

. . . .”). Additionally ,

F o r d , s u p r a a t 4 9 2

- 9 3

. 7

T h e o f f e n s e r e p o r t i n d i c a t e s t h a t t r a f f i c v o l u m e w a s m o d e r a t e . 89

the fac ts indicate that the o ff i ce r h ad to move from the cente r lane to the inside lane to signa l the vehicle to pull over, and it promptly moved to the inside shoulder. There would be no rea son for the vehicle to pull onto the left shoulder unless it wa s alre ady in the inside lane. Driving slowly in the inside lane is more likely to eff ect a traff ic backup beca

use the normal flow of traff ic in that lane is usually moving more rapidly

than in the lanes to its rig ht. Take n in isolation , eac h of these fac ts might not support rea sonable suspicion, but, considere d toge ther, they support the rea sonable infere nce that the vehicle’ s slow pace in the inside lane cause d the traff

ic cong estion that the office r observe d. Take n toge ther, these fa ct s and infere nces are sufficie nt to lead a rea sonable office r to conclude t h at appellant was eng ag ed in criminal ac tivity , namely

a violation of Section 545.363(a ).
We there fore sustain the state’s first g round for revie w. The court of ap p ea l s disreg arde d rele vant facts and rational infere nces wh en i t ru l ed that the officer lacked reasona ble s uspicion to make the stop.
III. Conclusi on The trial court’s expli cit lang uag e made it clea r that the court found the office r’s offe nse
repor t cre dible. We there fore aff i rm t h e appellate court’s ruling that rema nd to the trial court for additional fac t-finding is unne cessa ry . Howeve r, the cour

t of appe als rea d the repor t too narr owly

an d d isreg arde d rea sonable infere nces from the included fac ts. Acc ording ly , we reve rs e t h e judgme nt of the court of ap p ea l s and reinstate the trial court’s denial of appellant’ s motion to
suppress.

Deliver ed: Novembe r 27, 2013 Publis h