Reversed and Remanded and Majority and Dissenting Opinion s filed April 3 , 2012

.

In The 

## Fourteenth Court of Appeals

_________ _______ ___ NO. 11

- 00500

- CR

_____________ ______ JOSEPH DELAFUENTE , Appellant

V.

THE STATE OF TEXAS , Appellee

On Appeal from the County Court at Law

Waller County, Texas Trial Court No. CC09

- 704



### D I S S E N T I N G O P I N I O N

This court should affirm the trial court’s deni al of appellant’s motion to suppress
because the record contains evidence of specific, articulable facts that support a reasonable suspicion that the vehicle in which appellant was riding was impeding traffic. Because
this court fails to do so, I respectfully dissent.2

During a traffic stop , appellant, who was a passenger in the vehicle, was arrested and charged with the class B misdemeanor of possession of marijuana. He filed a motion to suppress evidence, challenging the officer’s reasonable suspicion fo r initiating the traffic stop. Foll owing a hearing, the trial court denied appellant’s motion to suppress. Appellant then pleaded “guilty” to the charged offense. The trial court assessed appellant’s sentence at three days’ confinement and levied a fine. Appellant now challenges the tria l court’s denial of his motion to suppress, asserting in a single is sue that
the trial court erred in refusing to suppress evidence because the State did not produce
evidence of specific, articulable facts demonstrating that a reasonable suspicion existed for the traffic stop. T he majority agrees. B ut t he record evidence supports the trial court’s ruling.

An officer may stop and detain a person if the officer has reasonable suspicion that a traffic violation was in progress or had been committed. Kelly v. State , 331 S.W.3d 541,
549 (Tex. App.

— Houston, 2011, pet. ref’d). 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 p articular person actually is, has been, or soon will be engaged in criminal activity. Ford v. State , 158 S.W.3d 488, 492 (Tex. Crim. App. 2005) ; Mount v. State , 217 S.W.3d 716, 727

- 28 (Tex. App.

— Houston [14th Dist.]
2007 , no pet. )

. This is an objective standard , which requires the court to disregard any subjective intent of the officer making the stop and look 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 t he totality of the circumstances. Id. at 492

– 93.

The record reflects that on June 24, 2009, at approximately 9:12 a.m., Officer Brian Davis was patroll ing Interstate 10 in Waller County when he observed traffic congestion in the inside, westbound lane and moderate traffic volume. Officer Davis saw a vehicle, in which appellant was a passenger, traveling be low the speed limit of 65 miles

- per

- hour ,3

leading h im to believe the vehicle was impeding traffic. Using his Doppler radar unit,
Officer Davis calculated the s peed of the vehicle at 52 miles

- per

- hour. Officer Davis then initiated a traffic stop by activating his rear emergency lights to move from the cen ter lane to the inside lane, where the vehicle was moving. According to the officer, the vehicle immediately yielded to the inside shoulder. Upon approaching the vehicle, Officer Davis instantly detected a strong odor of marijuana. Appellant admitted th e marijuana belonged
to him

.

As reflected in hi s report, Officer Davis had reason to believe the vehicle was impeding traffic. Under Texas law, “an operator may not drive so slowly as to impede the normal and reasonable movement of traffic except when re duced speed is necessary for safe operation or in compliance with law.” Tex. Transp. Code Ann. § 545.363(a) (West 2011)

. As the majority points out, in in terpreting section 545.363(a), Texas courts interpreting section 545.363(a) have held that slow driv ing, in and of itself, is not a violation of the statute; a violation only occurs when the normal and reasonable movement of traffic is impeded. Tex. Dep’t of Pub. Safety v. Gonzales , 276 S.W.3d 88, 93 (Tex. App.

— San Antonio 2008, no pet.). Courts have held that this statute is violated if there i s evidence that traffic was backed up due to the defendant ’ s slo w driving or that the defendant’ s vehicle was completely stopped in a lane of traffic. See i d

.
Although the majority concludes that Officer Davis’s offense report lacks any evidence that the normal and reasonable movement of traffic was impeded by the driving
of the vehicle , the record contains sufficient facts to support Officer Davis’s belief that the vehicle was impeding traffic. See
, e.g. , id. ( concluding no evidence existed to find normal and reasonable flow of traffic was impeded by appellant’s driving when officer could not recall traffic conditions at time of traffic stop) ; Davy v. State , 67 S.W.3d 382, 393 ( Tex. App.

— Waco 2001, no pet.) (holding evidence was factually insufficient to support traffic4

stop based on reasonable suspicion when no other cars were in area when officer stopped appellant).

The majority states that the “report perhaps implies, but does not state, t hat appellant’s vehicle was traveling in the inside westbound lane.” But Officer Davis stated in the offense report that he “ observed a traffic congestio n in the inside westbound lane.” In reaching its conclusion, the majority fails to mention an additio nal portion of the offense report, which shows that appellant was indeed traveling i n the inside westbound lane, in the

same area where Officer Davis observed traffic congestion. As reflected in the report,
O fficer Davis specifically stated:

Initiation of the traffic stop required utilizing the rear emergency lights on the patrol vehicle to allow a safe lane change of my patrol vehicle, from the center to the inside lane. The driver of the Chevrolet sedan immediately yielded to the inside shoulder.

Office r Davis expressly state d in his offense report that he saw traffic congestion in
the inside lane. This was the same lane in which Officer Davis observed the vehicle traveling 52 miles

- per

- hour and impeding traffic. The cases in which courts have refused
to find a violation of sec tion 545.36(a) have pointed to a lack of evidence concerning traffic conditions at the time of the traffic stop. See
, e.g. , Gonzales , 276 S.W.3d at 94 ( find ing no evidence existed to conclude normal and reasonable flow of traffic was impeded by appellant’s driving when officer could not recall traffic conditions at time of traffic stop) ; Davy , 67 S.W.3d 382 at 393 (holding evidence was factually insufficient to support traffic stop based on reasonable suspicion when no other cars were in area when officer stopped appellant). These cases are factually distinguishable because in th e case under review , Officer Davis expressly state d that he observed moderate traffic volume and traffic congestion in the inside , westbound lane when he s topped the vehicle for impeding traffic by driving 52 miles per hour in the inside lane.5

The majority cites to Ford v. State , a case in which the Texas Court of Criminal Appeals reversed a trial court’s finding of reasonable suspicion because there was a lack of specific, articulable facts. See 158 S.W.3d at 488. But , the facts of Ford differ in notable

wa ys from the facts before this court

. In Ford , the officer’s only testimony was that the appellant was “following too close” behind another v ehicle

. Id. at 491. Without more specific, articulable facts, the Ford court reasoned, the officer’s testimony was conclusory
and insufficient to objectively determine that appellant was violating a traffic law. Id. at 493. I n today’s case
, Officer Davis state d not only that he observed traffic congestion in
the inside , westbound lane, but also that the vehicle was impeding traffic by driving too slowly, specifically, 13 miles per hour below the speed limit. Further, Officer Davis
stated that traffic volume wa s moderate and he initiated the traffic stop after moving from the center to the inside lane, where the vehicle proceeded to move to the inside shoulder.
Unlike the scenario in Ford , the record in today’s case contains numerous , specific facts allowing th e trial court to determine the circumstances upon which Officer Davis reasonably could conclude that the driver of the vehicle was violating a traffic law.

In sum, the evidence in the record supports the trial court’s conclusion that Officer
Davis had rea sonable suspicion to initiate a traffic stop. Because the traffic stop was
based on Officer Davis ’s observ ation that the vehicle in which appellant was riding was moving slowly and impeding traffic , there was no basis for suppressing evidence obtained
dur ing the search of the vehicle

. See Moreno v. State 124 S.W.3d 339, 346

- 47 ( Tex. App.

— Corpus Christi 2003, no pet.) (upholding trial court’s implicit den ial of motion to
suppress after finding probable cause exis ted for impeding

- traffic violation based on arresting officer’s observatio n that appellant was driving 25

- miles

- per

- hour in a
45

- mile

- per

- hour zone in an area with medium to heavy traffic.) The trial court did not err in overruling appellant’s motion to suppress and its ruling should be upheld

. See Armendariz v. State , 123 S.W.3d 401, 404 (Tex. Crim. App. 2003) (“The court of appeals was oblig ated to uphold the trial court’s ruling on appellant's motion to suppress if that6

ruling was supported by the record and was correct under any theory of law applicable to the case.”)

. This court should overrule appellant’s sole issue and affirm the trial court’s judgment.

/s/ Kem Thompson Frost Justice
Panel consists of Justices Frost, Seymore, and Jamison

. (Jamison, J., majority)

. Publish

— T EX

. R. A PP

. P. 47.2( b).