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

NO. 03-16-00286- CR

The State of Texas, App ellant

v. Lin dsey Egbert, Appellee

F ROM TH E CO UNTY COURT AT LAW NO . 6 O F TRAVIS CO UNTY NO. C-1 -CR- 15- 2048 69, H ONO RAB LE B RANDY M UELLER, JUDGE P RESIDING

O R D E R A N D M E M O R A N D U M O P I N I O N

P ER CURIAM

The State a

ppeals the tria l court’s orde r g ranting appellee L indsey Eg bert’s motion to suppress evidenc e obtained in connection with her traffic stop, detention, and arr est for dr iving while intox icated (DWI ). The State contends that the trial court abused its discretion in suppressing the evidenc e beca

use the pre- trial evidenc e contained specific , articula ble fac ts to support the

arr esting office r’s initial stop of ap p el l ee for rea sonable suspicion of criminal activity or, alterna tively , that we must abate the appea l and rema nd for supplem en t al fa ct finding s. Be cause there are insufficient fac tual finding s for us to conduct our revie w, we abate this appea l and rema nd this cause to the tria l court for additional finding s.BACK GR OUND
At the hear ing on appellee ’s motion to supp re s s , t h e State called Deputy Ralph Cisneroz to testify and play ed for the court a video from the deputy ’s dashboar d came ra. After the close of evidenc e, the State arg ued that ap p el l ee’ s motion should be denied beca use the evidenc e supported the deputy ’s stop of appellee based on his rea sonable suspicion that she (1) committed two traff i c v i o l at i o ns, see Tex. Transp. Code §§ 545.062(a) (“A n opera tor shall, if following another vehicle, maintain an assure d clea r distance betwee n the two vehicles so that, considering the speed

o f t h e vehicles, traff

ic, and the conditions of the highw ay , the opera tor can safe ly stop wi t h o u t colliding with the prec eding vehicle or veer ing into another vehicle, object, or person on or near the highway .”), .152 (“To turn left at an intersec tion or into an alley or private road or drivewa y , an
opera tor shall y ield the rig ht-of-w ay to a vehicle that is approa ching from the opposite direc tion and that is in the intersec tion or in such proxi mity to the intersec tion as to be an immediate hazard.” ), and (2) wa s driving w hile intox icated.

After the hear ing and pursuant to the State’s reque st, the trial court made finding s of fac t and conc lusions of law. Among the finding s of fa ct wer e the f ollowing:

• Deputy C isneroz testified to specula ting befor e the stop or arr est, that in o b s e r v in g [D e f e n d a n t] ’ s v e h ic le h e th o u g h t th a t b e c a u s e th e D e f

e n d a n t s e e me d to be drivi n g t o o close to the vehicle ahea d of hers, that the Defenda nt was following s omeone, in an eff ort to help her (the Def

endant) on the road, beca use she (the Def

endant) had had too much to drink. Deputy Cisner o z testified with reg ard to his s p ec ulation, that the driver may have asked another person to “either follow or lead me to wher e I need t o go i n case something ha

ppens.”

• Deputy Cisneroz further testified that the Def endant was following the other car “extremely

closely ” and tha t it was “extremely dang erous.”

2• [C isneroz] stated that he observe d the Def endant cross the northbound lanes of L amar into a g as station on the o t h er s i d e of the road, hesitating as she made the left t urn. Offic er Cis neroz testified that this caused a northbound vehicle to ag g ressively brake and move into another lane to avoid a collision.

• The video evidenc e seems to con t rar ily show, that while there was a car approach i n g fr om the north, it was not close enoug h in proxi mity to Def endant’ s vehicle to c ause a traff ic hazard.

• The dash cam video evidenc e at the hear ing showed the Def endant’ s vehicle following the lead car at 27 miles per hour. T h e v i d eo further showed the ro ad wa y to be dry and well lit by streetlig hts with a speed limit of 35 mph

. The video did show the Def endant’ s vehicle behind another vehicle, but it did not appea r to the Court that the Offic er was close enoug h to observe whether the distance was too close or that the driving was ha zardous.

• Deputy

Cisneroz’s testimony

was not cor

robora ted by

the video evide nce.

Ba sed on its findings of

fac t, the court made the following conclusions of law :

T h e C o u rt did not find there to be sufficie nt probable cause of a violation o f t h e Transpor tation Code or a rea sonable basis, based on the totality of the circ umstances, for the stop. The Court considere d whether there was sufficie nt rea sonable suspicion for the stop.
* * *
I n this case , the Court conclude d that the basis for the stop was vague and insufficient and further , not supported or corr oborate d by the evidenc e. I n addition, the evidenc e conflicte d wi t h t h e State’s asser tion that defe ndant’s driving was “extremely dang erous” or otherw ise hazardous.

On appea l, the State contends that the trial court abused its discretion in suppressing the evidenc e bec au s e t h e court’s finding s and conclusions perta ining to whether appellee was maintaining a safe following distance are not entitled to any defe renc e. Specifica lly , the State takes issue with the trial court’s fi n d i n g t h at the deputy was not close enoug h to observe whether

3appellee ’s foll owing distance was uns afe in light of the vi deotape , which “c l ea rl y shows that [t he

deputy ] was clos e enoug h to observe .” I n an alterna te issue, the State reque sts that we abate the
appea l and rema

nd to the trial court for supplemental fac tual finding s on two “key components” of the deputy ’s testimony : (1) appellee ’s alleg ed failure to y ield to oncoming traff ic and (2) the deputy ’s

rea sonable suspicion that appe llee wa s driving w hile intox icated.

DISCUSSIO N
At a suppression hear ing, a t rial court examines the “totalit y of t he circumstance s”
to deter mine whether the State has shown sufficie nt historical fac ts that, viewed from the standpoint of an objectively rea sonable police office r, amount to rea sonable suspicion that a particula r person

was e ng ag ed in cr iminal activity and that, ther efor e, an inve stiga tory stop was j ustified. See State

v. Mendoza , 365 S.W .3d 666, 669–70 (Tex. Crim. App. 2012); Martinez v. State , 348 S.W .3d 919,
924 (Tex. Crim. App. 2011). Reasonable suspicion exis ts if the office r has specific , articula ble fac ts that, when combined with rational infere nces from those fac ts, would lead the office r to rea sonably conclude that a particula

r person actua lly is, has been, or soon will be eng ag ed in criminal activity

. Ford v. State , 158 S.W

. 3 d 488, 492 (Tex. Crim. App. 2005). The “totality of the circ umstances” require s considera

tion of the “whole picture,” not mere ly isolated components of it. United States

v. Sokolow , 490 U.S. 1, 8–10 (1989); W oods v. State , 956 S.W .2d 33, 37–8 (Tex. Crim. App. 1997) (“We rec og nize that there may be instances when a person’ s conduct viewed in a vacuum, appea rs purely innocent, y et when viewed in light of the totality of the circ umstances, those actions g ive rise
to rea sonable suspicion.”)

.

4When revie wing a trial court’s ruling on a motion to suppress, we revie w its fac tual

finding s for abu s e o f discretion and its leg al ruling s about the exis tence of rea sonable suspicion de novo. Mendoza , 365 S.W .3d at 669. The revie wing court g ives “almost total defe renc e” to the trial court’s finding s of historical fac ts that are supported by the rec ord, espec ially those finding s that

are based on an evalua tion of cre dibilit y and demea nor. Amador v. State , 221 S.W .3d 666, 673 (Tex. Crim. App. 2007). Wit h respe ct to mix ed questions of law and fac t (i.e., “application of law to fac t questions”), if the resolution of them turns on an evalua tion of cre dibilit y or demea nor, we apply the

s am e “a lmost total defe renc e,” but for mix ed questions that do not depend upon cre dibilit y an d demea nor, we apply a de novo standard of revie w. Id. When the trial court makes a finding of fac t that is derive d from video evidenc e admitted at a suppression hear ing, that finding is also g ener ally entitled to “almost total defe renc e” if supported by the rec ord, due to the trial court’s primary “fa ctfinding function.” See Carter v. State , 309 S.W .3d 31, 40 & n.47 (Tex. Crim. App. 2010); Montanez

v. State , 195 S.W .3d 101, 108–09 (Tex. Crim. App. 2006); cf. Carmouche v. State , 10 S.W .3d 323,
3 3 2 (T ex . C ri m. App. 2000) (dec lining to g ive “almost total defe renc e” to trial court’s implicit finding s about defe ndant’s consent to sear ch under “unique circ umstances” of case wher e videotape
prese nted “indisputable visual evide nce c ontradicting essential portions” of fac t findings)

. I f a trial court makes finding s of fac t but they are inadequa te to provide the appellate
court with a basis upon which to revie w the trial court’s ap plication of the law to the fac ts and to resolve the dispositi ve leg al question, we must rema nd to the trial court for it to make more specific finding s. See Mendoza , 365 S.W .3d at 670; State v. Elias , 339 S.W .3d 6 6 7 , 6 7 6

– 7 7 (T ex. Crim. App. 2011); see also State v. Cullen , 195 S.W .3d 696, 699 (Tex. Crim. App. 2006) (noting that

5“esse ntial finding s” mean “finding s of fac t and conclusions of law adequa te to provide an appellate court with a ba sis upon which to reviewthe t rial court’s application of the l aw to the facts”) . Our revie w of the tria l court’s fa ctual finding s here leads us to conclude that they are insufficient for

a de novo revie w of the dis positive leg al question of whether the deputy had rea sonable suspicion to stop appellee.

First, mos t of t he relevant “Fa ctual Findings” made by the t rial co u rt m erely rec ite what Deputy Cisneroz’s testimony was rathe r than make any historical finding s of fac t based on that testimony , including a

ny finding s about cre dibilit y . See M endoza , 365 S.W .3d at 672 (re manding for supplemental finding s wher e trial court’s fac tual finding s mer el y re cited testimony but did
not find many historical fac ts, including cre dibilit y assessments an d whether office r’s beliefs and fee lings wer e objectively rea sonable). For instance, Finding 3 states, “De puty Cisneroz testified that he obser

ved the De fenda

nt’s vehicle ‘ ag g ressively ’ following a vehicle in f ront of it . . . [and] that it was trave ling

. . . too close to the vehicle in front of it; at one point testifying the vehicle ahea d of t he Defenda

nt was less than half a car-le ng th awa y ” (first and t h i rd em p hases added). I n other finding s, the trial court “found” that the deputy (1) “ testified to specula ting

. . . [t hat] he thought that

. . . the Def

endant was following someone [] in an ef fo rt to help her (the Def

endant) on the road, beca use she (the Def

endant) had had too much to drink” (F inding 4, emphase s added) ; (2) “ testified that the Def

endant was fol l o wi n g t h e other car ‘extremely closely ’ and that it was ‘extremely dang erous’ ” (F inding 5, emphasis added) ; and (3) “ stated that he observe d the Def endant cross the northbound lanes of L amar into a g as station on the other side of the road, hesitating as she made the left turn

. . . [and] testified that this cause d a northbound vehicle to ag g ressively brake and move into another lane to avoid a collision” (F inding 6, emphase s added)

. “[A]ny revie wing court can rea d the
6rec ord and see [ Deputy C i s n er oz’s] testimony , but did the t rial court believe that testimony ? ” Id.

at 6 7 1

. We cannot tell from thi s rec ord, because the trial court’s “finding s” do not fulfill its fa ct

finding role but mere ly

summarize the testimony

. Secondly , in two of t he rem ai ning findings, the t rial court noted t hat (1) the vi deo 1
evidenc e “ seem s to contra rily [t o Deputy Cisneroz’s testimony ] show

. . . that the approa ching [car]

. . . was not close enoug h in proxi mity to Def endant’ s vehicle to cause a traff ic hazard” (F inding 7, emphase s added) and (2) “it did not appear to the Court [from the video evidenc e] that the Offic er

was close enoug h to observe whether the distance was too close or that the driving was hazardous” (F inding 8, emphasis added)

. These noncomittal “finding s” also do not aid our revie w—while the 2
vid eo m ay “s eem to show” particula r scena rios that “appe ar” to the trial court to be true, did the trial court f

ind those scena

rios to in fact

be true , acting in its fact-finding role?
Thi rd l y , while finding that “De puty Cisneroz’s testimony was not corr oborate d by the video evide nce” (F inding 9) , the trial cour t does not specify

which par

ts of his testimony

wer e
not “cor robora ted” by the video. The trial court’s mere observa tion that the video and live testimony conflict does not constitute a fac tual finding or fulfill the court’s fac t-finding role. When fac ed with

The trial court made a total of nine fac tual finding s. The first two are backg round finding s, 1 irrele vant t o the i ssues on appeal; Finding s Three throug h Six mere ly summarize some of Deputy Cisneroz’s testimony ; Finding s Seven and Eig ht provide the c ourt’s finding s about the vi deo; and Finding Nine states that “De puty Cisneroz’s testimony was not corr oborate d by the video evidenc e.” Fr om these “findings,” the t rial court conclude d that there was n o “re asonable basis, based on the totality of the c ircumstance s,” for the stop. Deputy Cisneroz testifi ed t h at ap p ellee maintained “a car leng th or less than half a car 2 leng th” from the lead car and was “having to brake behind the car in front of [her] in order to preve nt [her car ] from ge tting eve n closer.” He a lso testified that the vehicles wer e on the “thoroug hfar e” of South L amar , which has “a lot of businesses, a lot of g as stations, convenie nce stores, [and] wher e car s are g oing to be coming in and out.” 7c o n f

li c ti n g e v id e n c e , th e tr ia l c o u r t’ s d u ty is to r e s o lv e th o s e v e r

y c o n f li c ts

. S e e , e
. g
. , Cl a y to n v
. S ta te , 235 S.W .3d 772, 778 (Tex. Crim. App. 2007). Yet, the trial court did not make any express finding s discrediting Deputy Cisneroz’s testimony , e v e n r eciting in its fac tual finding s the deputy ’s testimony that (1) appellee ’s hesitation when making her left turn “ca used a northbound vehicle to ag g ressively brake and move into another lane to a void a collision” and (2) appellee ’s following of the lea d car

was “extremely dang erous.” Wit hout e x press finding s discrediting Deputy Cisneroz’s testimony , 3

we would have to imply that the trial court made such finding s, which we may not do. See Mendoza , 365 S.W .3d at 672–73.

Moreove r, with respe ct to the deputy ’s testimony about appellee ’s alleg ed unsafe left turn, the video could neither have corro b orate d nor contra dicted it: the deputy testified that he watche d appellee ’s car t hroug h his side-view mirror once his ve hicle passe d hers a nd saw that the

oncom i n g ca r h ad to brake “ag g ressively ” and “move into the middle lane in order to avoid [a] collision” and that he hear d the “scr eec hing noise” of brake s. The video does not—and logistica lly could not— d epict these alleg ed events (or their absenc e), as they alleg edly occur red behind the deputy ’s vehicle and o u t of the rang e of the dash-c am (and the video was not audio-e nabled)

. Nonethele ss, the trial court “found” that the video “see ms to contra rily show” that the oncoming vehicle was “not close enoug h in pr ox imity to D efe ndant’s vehicle to c ause a traff ic hazard.” The trial court’s implied finding that appellee ’s left turn was not unsafe is u n s u p p orted by the rec ord absent a n express determination that De puty Cisneroz’s testimony

on the issue was not c redible.

As corr ectly noted by the State, Deputy Cisneroz did n o t , i n fa ct, testify that appellee ’s 3 fo l l o wi ng distance was “extremely dang erous” but, rathe r, that her following of the lead ca r was “extremely close [] for the speed t h at was being trave led at” and that she was “ag g ressively following ” the lea d car

. 8Finally , the trial court made no fac tual finding s about the deputy ’s testimony rela ting

to why he suspected that appellee wa s d riving while intox icated, apar t from the issue of possible traff ic violations. The deputy testified that (1) “in [hi s] experience , there have been numerous times

4
wher e [he had] stopped car s doing such things [following another car extremely closely ] and come
to rea liz e that it was either the person in front or the person in back who thought they may have had

a litt l e b i t t o o m u ch to drink”; (2) he was assig ned at the rele vant time to the DWI unit, having

rec eived e x tra tra ining f

or DWI detec tion; (3) he pulled over appellee during the “peak hours” for
DWI ; and (4) South L amar is a thoroug hfar e north and south fro m the downtown “bar district.”
Fa ctual finding s on this rele vant testimony , including any applicable cre dibilit y deter minations, are essential to the “totality of circ umstances” to which the law of rea sonable suspicion must be applied.
See Cullen , 195 S.W .3d at 699 (def ining “esse ntial finding s” as those adequa te to provide appellate
court with basis upon which to revie w trial court’s application of law to fac ts); see also United States

v. Cortez , 449 U.S. 411, 418 (1981) (noting that “whole picture” assessment must be viewed and weig hed “not in terms of library analy sis by scholars, but as understood by those verse d in the field of l aw enforc ement); W

oods , 956 S.W .2d at 38 (same)

. I f a trial court e rrs in its deter mination of which finding s are leg ally dispositi ve of a motion to suppress, the appellate court must rema nd the

cause for entry of additional, specific finding s of fac t with respe ct t o the dispositi ve issue. Elias , 339 S.W .3d at 674, 676 (holding that court enter ing finding s of fac t and conclusio n s of law must

The trial court did make a “finding ” (F inding 4) about the deputy ’s experience with other 4 drivers following too closely in the context of persons helping one another on the road afte r having had too much to dr ink, but the “finding ” mere ly summarizes ( inacc urate ly ) the deputy ’s testimony and so, as a lrea dy

explained, is in effec t a non-finding

. 9ensure that finding s are “ade quate and complete, cover ing ever y potential l y d i s p o s itive issue that might rea sonably be said to have arisen in the cou rse of the suppression proce eding s.”). Rather than considering the totality of the circ umstances to dete rm i n e wh ether the deputy could have objectively and rea sonably suspected that appellee was violating traff ic laws or driv i n g wh ile intox icated, the trial court appea red to consider, piece meal, whether the video objectively depicted
actua l traff

ic violations. The recor d simply does not contain sufficient fac tual findings fr o m which we may conduct our revie w of the dispostive leg al question: whether the deputy had a rea sonable suspicion that appellee was eng ag ed in criminal activity

. Acc ording ly , we sustain the State’s alterna te issue, abate this appea l, and rema nd this cause for supplemental finding s. See Tex. R. App. P. 44.4 (stating that appellate court must direc t trial court to cor rec t remedia

ble err or if such er

ror pr events prope r
prese ntation of ca se to court of appea ls).

CONCLUSION
We abate this appea l and rema nd the cause to the trial court for supplemental finding s consistent with this opi nion.

I t is ordere d November

17, 2016.

Be fore J ustices Pury ear , Pemberton, and F ield Abated a nd Remanded Filed: Nove mber 17, 2016 Do Not Publish

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