## In the Court of Appeals Second Appel late District of Texas

at Fort Worth

___________________________ No. 02

- 20

- 00031

- C R

___________________________

On Appeal from County Criminal Court No. 3

Denton County, Texas Tria l Court No. CR

- 2018

- 07419

- C

Before Kerr and Bi rdwell, JJ

. ; and Lee Ann Dauphinot (Senior Justice, Retired, Sitting by Assignment) M emorandum Opinion by Justice Dauphinot 

### M ADISON 

### C HANDLER 

### S CHROEDER 

### , Appellant

V



### . T HE 

### S TATE OF 

### T EXAS2 MEMORANDUM OPINION Upon her open plea of guilty during trial , the trial court convi cted Appellant
Madison Chandler Schroeder of dri ving while int oxicated and assessed her punishment at six- months ’ confinement and a $500 fine. Imposition of the confinement portion of the sentence was probated for twelve months. Appellant brings three i s sues on appeal, arguing
1. The trial court err ed when it ref used to suppress the stop and seizure of Appell ant because the traffic stop was improp e r ; 2. The trial court erred in determining that the de taining officer was

una vaila ble during trial; and
3. The trial court erred in not suppressing the t esti mony given during trial about the DWI investigation t hat occurred afte r the original stop for failure to follow
a traffic

- control device because no evidence supported conducting a DWI
inve stigation

. Becau s e the trial court committed no reversible error , we af firm the trial court ’ s judgment.
Brief Facts At a little after midnight, Officer Urbano Rodriguez saw a black Jeep Wrangler
pass a “ no through traffic ” sign at the edge of a two

- block

- long construction zone. Officer Rodriguez followed th e J eep through the co nstruction zone and pulled it over after it had driven through the zone without stopping at one of the houses within the3

zone. He explained to the driver the reason he had pulled her over

. As he s p oke with her, he smelled a strong odor of alc ohol and other wise suspected that she might be
intoxicated. He asked her to get out of the Jeep and then spoke with her. She became very emotional and exhibited what Officer Rodriguez considered indic ations

o f intoxication.
Officers Rac hel Val arezo and Blak e Jackson were called to the scene. Officer Valarezo had Appellant perform various field sobriety tests. She concluded that Appellant was intoxicated and placed her under arrest. Appella nt refused a blo o d test.
Officer Jackson found an empty wine bottle in the front seat of Appe llant ’ s car and two empty wine bottles in the backseat. All three were cold to the touch. Appellant ’ s blood was drawn pursuant to a search warrant. Her blood alcohol content w a s .14. Denial of Appellant ’ s Pre

- trial Motion to Suppress In her first issue on appeal, Appellant argues that the trial court erred when it refused to suppress the evidence obtained after the stop and seizure of Appellant for
the traffic offens e of disre g ard ing a traffic

- control device. She contends that Officer Rodriguez had no reas onable suspicion that a criminal offense had or was about to occur because he had no information whether Appellant was a resident of the portion
of the stree t withi n the no

- t h rou gh

- traffic prohibition. She argues that residents of
this construction area we re not subject to the prohibition against through traffic and were free to use the street for through traffic.4

A t the suppression hearin g, Offi cer Rodriguez testified he s a w a black Jeep Wrangler pass a “ No Through Traffic ” sign on West Hickory Street in Denton. The sign protected a two

- block

- long construction zone. Only residents of the area who were going to their homes were all owed be yond the sign. He followed the Jee p through the zone and stopped it after it had driven through the zone. Officer Rodriguez identified Appellant as the driver of the Jeep. The trial court admitted
Officer Rodri guez ’ s dash camera ’ s and body camera ’ s recorded video footage of the stop into evidence and watched it before ruling on the mo tion to suppress. The trial court denied Appellant ’ s motion and entered findings of fact and conclusions of law.
The court fou nd Officer Rodriguez had “ both reasonable suspicion and probable

cause ” to detai n Appellant for a violati on of Section 544.004 of the Transportation
Code. As Appellant correctly states, “ In reviewing a trial court ’ s ruling on a motion t o suppress evidence and its determination of the reasonableness of either a temporary investigativ e detention or an arrest , appellate courts use a bifurcated standard of
review. ” 1 An appellate court must give almost total deference to the trial court ’ s determ ination of historical facts supported by the record, especially when the trial

court ’ s finding s of fact are base d on an evaluation of credibility and demeanor. 2 We

1 Amado r v. St

ate , 221 S. W.3d 666, 67 3 (Tex. Crim. App. 2007).

2 Id. ( quoting Guzm an v. State , 9 5 5 S.W.2d 85, 89 (Tex. Crim. App. 1997) )

.5

must also defer to a trial court ’ s ruling on application of law to fact questi ons or mixed q uestions of law and fact if the resolution of those questions turns on an
evaluation of credi b ilit y and demeanor. But appellate courts review mixed questions of law and fact that do not depend upon credibility and demeanor by a de novo standa rd. 3 Appellant filed a pre

- trial motion to suppress, arguing that Officer Rodriguez
had no reasonable su s pici on that Appellant had committed a traffic offense when he stopped her because he had no prior knowledge of whether Appellant wa s a resident
of the street control led by the No Through Traffic sign. On appeal, she argues that because Officer Rodriguez d id n ot determine whether Appellant was a resident of the street controlled by the sign, his stop of Appellant was based on “ a mere h unch or suspi cion th at she was not a resident of the street. ” Appellant argues that the sign did not prohibit a resident ’ s usin g the street as a through street. As we understand Appellant’s argument, because the sign provided, “ No Thru Traffic, Residents Only, ” it crea ted a p rivate road fo r residents of the blocked

- off portion of the public road. That is, she argues that it p rovi des unrestricted use of the
blocked

- off portion of the road to all residents and does not limit their use of the
road to that ne cessary to reac h their homes. Otherwise, she argues, the sign would say only, “ No Thru Traffic. ” There would be no need t o inc lude the phrase,

3 Id.6

“ Residents Only. ” That is, the sign appears to instruct drivers that through traffic is prohibited e xcept to reside nts , wh o may use the road for through traffic. We fi nd no case discussing this concept, and neither Appellant nor the Stat e directs us to such a

case. We, therefore, treat this as a case of first impression. Appellant is correct in stating that the sign wo uld be clearer if it provided only

“ No Thru Traffic. ” The addition of “ Residents Only ” confuses matters. Nor would
it be reasonable to expect a sign to cover every possible exception to the prohibition of general traffic on the road. But the es sence of the traffi c control is t o prohibit through traffic. Officer Rodriguez did not detain Appellant within the restricted area but waited until she had cleared the restricted area. That is, she had clearly violated
the “ No Thru Traffic ” provision of t he sign. A co mmon

- se nse reading of the sign suggests that, since only through traffic was prohibited, residents traveling on the road to reach their homes were not in violation of the through traffic prohibition. We do not agree with Appellant ’ s attempted inter pretatio n of th e sign as crea ting a private
road for residents. But even if she were correct, in the absence of some indic ation on the vehicle that it belonged to a resident, the fact that the person is a resident is more properly a defense to violating th e prohib ition o f through traf fic. 4

4 S ee Jagan athan v. State , 479 S.W.3d 244, 248 (Tex. Crim. App. 2015) ( “ [A] defen se would m atter only if the facts establi shing i t were so obvious that an objective officer viewing the situation would be unreasonable in failing to realize that the person ’ s conduct was allowed by law. ” ).7

We hold, therefore, that the trial court did not err in holding that Officer
Rod rigue z ’ s detention of Appellant was properly based on, at a minimum, reasonable suspicion that she had violated a traffic law. “ A police officer has reason able suspicion to detain if he has specific, articulable facts that, combined with rational
inferenc es fr om those facts, would lead him reasonably to conclude that the person detained is, has been, or soon wi ll be engaged in criminal activity

. ” 5 A police officer
has th e authority to stop and temporarily detain a driver who has violated a traffic
law. 6
W e agr ee with the trial court ’ s conclusion of law and hold, “ Officer Rodriguez [had] both reasonable suspi cion and probable cause to stop the Defendan t for a
traffic viola tion pursuant to Texas Transportation Code Section 544.004. ” Consequently, we overrule Appe llant ’ s first issue on appea l. Propriety of Determining Officer Rodriguez Was Unavailable and Allowing His Prior Testimony to Be Read into the R ecord b efore the Jury , and Propriety of Admission of DWI Inves tigation Evidence
In her second issue on app eal, Appellant argues the trial court reversibly erred in holding Officer Ro driguez was unavailable to testify during her trial and in allowing
his t estimon y from the pre

- trial motion to suppress hearing to be presented to the jury. She contends in her th ird i ssue that because the parts of his testimony read to

5 Derichsweiler v. State , 348 S.W.3d 906, 914 (Tex . Crim. A p p. 2011).

6 Lemmons v. State , 13 3 S.W.3 d 751, 756 (Tex. App.

–– Fort Worth 2004 , pet
. ref ’ d ).8

the jury did not establi sh reaso nable suspicion for Officer Valarezo ’ s con tinued
detention , the trial judge should have granted her trial objection to suppress the
evidence of Officer Val arezo ’ s con tinue d detention and investigation. Appellant filed a pre

- trial motion to suppress “ any and all evidence seized or
obt ained as a res ult of the government ’ s acts. ” Before trial, the court heard and denied the motion. On July 22 , 2019, at the pre

- trial hea r ing o n the motion, Officer Rodriguez testified to the original detention. The video recordings of the detention
were admitte d into evidence an d wa t ched by the trial judge

. We also have closely watched these video recordings. One shows Officer Rodriguez speak ing to Appella nt through a lowered window, ret ur ning to his car, and then commenting to another officer, “ It just reeks in there . . . . ” Later, Appellant admitted that s he might have
had a shot. During the pre

- trial hearing, the State attempted t o ask Officer Rodriguez questions about ev

idence of intoxication he might have observed. A ppellant objected that such inquiry was beyond the scope of the hearing on the propriety of the origi nal
stop. That is, Appellant orally informed the trial court th a t her motion to suppress
was limited to the propriety of the original stop of her Jeep. The trial court sustained the objection and limited the testimony to the grounds for Officer Rodriguez ’ s traffic stop of Appellant.
In October

–– after he had testifi e d at the pretrial hearing in Jul y, but before the
trial th e following January

–– O fficer Rodriguez was shot in the leg and in the head9

during an unrelated traffic stop. At t rial, the State offered the transcription of Officer Rodriguez ’ s pre

- trial testimon y rega rding the tr affic stop. Appellant objected that the testimony was hearsay and that she was being denied the right to cross

- examination. She argues on appeal that Officer Rodri guez ’ s testimony does not satisfy the requirements of Rule 804 of t he Tex a s Rul es of E vidence , which provides in pe rtinent
part: (a) Criteria for B eing U navailable
. A declarant is considered to be

unavailable as a witness if the declarant:

. . . . (4) cannot be p resent or testify at trial or hearing because of death or a th e n

- exi sting infirmit

y, physical illness, or mental illness

. . . . (b) The Exceptions. The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness: (1) For mer Testimony. Testimony that:

. . . . (B) when of

f ered in a criminal case: ( i) was given as a witness at a trial or hearing of the current or different proceeding; and (ii) is now offered against a party who had an opportunity and similar motive to develop it by di rect, cross

- , or redirect examination

. . . . 7

7 Tex. R. Evid. 80 4 (a)(4), (b)(1)(B)(i)

– ( ii)

.10

Appellant also challenges the testim ony under Crawford v. Washington , which provides that “ the Sixth Amendment demands what common law required: unavailability and a prior opportunity for cross

- exa mination

. ” 8 She points out that this opportunit

y must b e a complete and adequate oppo rtunity to cross examine the witness regarding that witness ’ s testimony as explained by the United States Supreme
Court in Pointer v. Texas

. 9 She argues that the evidence of Officer Rodriguez ’ s unavailability is insuf

f icient and that she was not giv en a fu ll, comple te, and adequate opportunity to cross

- examine Officer Rodriguez.
We must again note that, in the pre

- trial hearing on the motion to suppress, the State attempted to introduce evidence of Ap pellant ’ s suspec t ed into xication. Appellant object ed that any evide nce of intoxication or other criminal misconduct was beyond the scope of the hearing, which was limited to the sufficiency of the grounds
for the original detention. The trial court correctly sus tained A p pellant ’ s objections t o the S tate ’ s att empts to ask questions beyond the limited scope of the hearing. On appeal, both Appellant and the State appear to suggest the trial court erred in limiting the hearing on the motion to suppress to the announc ed sco p e of th e hearing: the tr affic s top. Appel lant argues that the trial court ’ s sustaining her obje ctions to questions beyond the limited scope of the hearing denied her the right

8 541 U

. S

. 36 , 68, 124 S. Ct. 1354, 1374 (2004).

9 380 U

. S

. 400 , 407 , 85 S. Ct. 1065, 1069

– 70 ( 196 5).11

to fully question Officer Rodriguez. The State argues the trial court ’ s s usta i ning Ap pellant ’ s trial obj ections to the qu estions that exceeded the scope of the hearing on
the motion to suppress was error, but it was invited error. Specifically, relying on Vennus v. S t ate , 10 the State contends on appeal,
Since Schroeder invited er r or by m aking meritless objec tions t hat preven ted the State from showing why her traffic stop became a D WI investigation, she may not make this complaint on appeal. Schroeder cannot repeatedly prevent the State from admitting evidence to show why her tr af f ic stop became a DWI investi gation and then c omplain on appeal that the State failed to prove a constit utional basis for its DWI investigation. The invited error doctrine stands in her way. The law is well est a blished that a search cannot be justified by what it

uncove rs. 11 No r is a tri al court required to allow every motion hearing to become a general fishing expedition or a practice trial of the entire case. The record reflects that the pre

- trial hearing was understood by the State, Appel lant, and t h e trial court to be
limi te d to a det ermination of the propriety of the initial stop of Appellant. The issue before the trial court was Appellant ’ s contention that the traffic

- control sign limited only non- resident motorists ’ ability to travel f reely thro u gh the construction area
go verned by the traffic

- control sign. The record is also clear that Appellant was not challenging evidence of intoxication in the pre

- trial hearing. The trial court ,

10 282 S

. W.3d 70, 71 (Tex. Crim. App. 2009).

11 State v. Garcia , 569 S.W.3d 142, 154 (Tex. Crim. App. 2018); Brown v. State , 481 S.W.2d 106, 112 (Tex. Crim. App. 1972).12

consequently, did not allow the S t ate to offer evidence of gro u nds for the into xication investigation during t he p re

- t rial hearing. No one could have anticipated Officer Rodriguez ’ s injuries that prevented his testifying on that issue at trial.
The fact that at trial, Officer Rodriguez was seriously injured and stil l requir ed
in- pat ient rehabilitation tre atment i n an ou t

- of

- state facility was uncontested. Officer Rodriguez ’ s pre

- trial testimony that was read into evidence before the jury at trial was limited to his testimony regarding the grounds for the stop of the J eep an d h is detention of Appella nt. Offi cer Rod riguez ’ s interaction with Appellant was before the court in the pre

- trial hearing on Appellant ’ s motion to suppress, and Appellant had the opportunity for full cross- exam ination of the officer at t hat time

. T he vi deo

a nd audio recording of t he stop and the interac tion between Appellant and Officer Rodriguez was offered , admitted , and viewed during the pre

- trial hearing. At trial, Appellant contended for the first tim e that the original detention was
undul y extend ed beyond the pur pose of t he stop. She co ntends she was denied the opportunity to question Of ficer Rodriguez about the length and the purpose of the detention after the original stop. But all of Officer Rodriguez ’ s actions, the arrival of
the oth e r two o ffice rs, and the co nduct of Appellan t are a ll captured on the video recordings that are part of th e record and that have been viewed by the trial court, the
attorneys, a n d this court

. The recordings clearly show the length of time Appellant
was de t ained b oth before and aft e r evidenc e of her intoxication arose , why O f ficer Rodriguez th ought Appellant was dri ving w hile intoxicated and his communication of13

that reason to Officer Valarezo , and the length of time between Appellant ’ s original
detention a n d whe n Officer Valarezo pe rformed t he field sobr iety tests

. At trial, t he evidence of intoxication was offered through the testimony of
Officer Rache l Valarezo, who performed the f ield s o briety tests. She was present at trial and available for cross

- ex a minatio n. T he recordin gs of her interaction with Appellant were admitted into evidence before the jury and were played for the jury , with portions muted by agreement between Appellant and the S tate
. The trial court pro perly ove rruled Appellant ’ s trial o bj ectio ns to the admission of Officer Rodriguez ’ s pre

- trial testimony regarding the original detention of Appellant. Th at testimony was limited to the grounds for the traffic stop of Appellant. B ecause the evidence sh owed that Off icer Rodriguez was unav a i lable,
because the testimony of Officer Rodriguez admitted at trial was limited to his testimony offered in opposition to Appellant ’ s pre

- trial motion to suppress the original detenti on, and because Appellant had full oppo rtunity t o confront and cro ss

ex a m ine Of

ficer Rodriguez regarding that testimony and full opportunity to challenge the admission of that testimony at th e pretrial suppression hearin g , we hold that the
trial court committed no error in allowing Officer Rodr ig uez ’ s p re

- trial testimony to b e read i nto evidence before the jury. Additionally, because the record s hows the re ason for and length of Appellant ’ s

cont i nued detention o f Appella nt, the trial cou rt did not commit error by overruling Appella n t ’ s trial obj ections t o admission of the DWI e vidence

.14

We ov e rrule Appellant ’ s second and third issues on appeal.
Conclusion Because we have overruled Appellant ’ s three issues on appeal, we affirm Appellant ’ s conviction. /s/ Lee Ann Dauphinot Lee Ann Daup hinot Justice
Do Not Publish Tex . R. App. P. 47.2(b)
Delivered : May 12 , 2022