## NO. 12

- 18

- 00331

- CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

THE STATE OF TEXAS, APPELLANT

V.

LEE CHRISTOPHER BARR S, APPELLEE §

§

§ APPEAL FROM THE

COUNTY COURT AT LAW

HOUSTON COUNTY, TEXA S

MEMORANDUM OPINION On January 11, 2018, the State charged Appellee Lee Christopher Barrs with committing
the offense of DWI

- subsequent offense. Barr s moved to suppress evidence alleging that Sergeant
Todd Little of the Crockett Police Department stopped and detained him without a lawful warrant and without reasonable suspicion that a crime had been or soon would be committed. The trial court granted Barr s ’ s motion. In one issue, the State appeals from the trial court’s granting of the motion to suppress. We affirm.

B ACKGROUND Goliad Avenue and Houston Avenue in Crockett run a parallel east

- west course o ne block apart. Houston Avenue marks the north side of the courthouse square. Goliad the south side. Fourth Street provides the square’s west boundary, 5 th Street the east boundary. Sergeant Little was patrolling East Houston Avenue heading west to the courthouse square two blocks away. While at the intersection of East Houston Avenue and 7 th Street
, he looked to
his left and saw Barr s ’s pickup leaving the intersection of East Goliad Avenue and 7 th Street at what he thought might be an excessive rate o f speed. From his vantage point, Sergeant Little could
not tell whether the pickup failed to stop for the stop sign at East Goliad and 7 th. But the speed of the truck leaving the intersection made him suspect that Barr s ran the stop sign.2 When Sergeant Little reached the square, Barr s ’s pickup was already on the square turning from Fifth Street onto Houston going around the square. Sergeant Little fell in behind the pickup and quickly observed that Barr s did not signal a lane change as he merged onto 4 th Street from
Houston Avenue

. Sergeant Little activated the overhead lights of his patrol car and stopped Barr s

. Field sobriety tests led Se rgeant Little to believe Barr s was driving while intoxicated. Sergeant
Little arrested Barr s and charged him with DWI.
Barr s filed a motion to suppress contending Sergeant Little lacked probable cause for the stop. Sergeant Little maintained he initiate d the stop for failure to signal a lane change. The trial judge found that Sergeant Little initiated the stop prior to observing the traffic offense alleged as
the basis for the stop. The trial court granted the motion to suppress. This appeal followed.

M OTION TO S UPPRESS In its sole issue, the State complains Sergeant Little witnessed Barr s ’s failure to signal a change of lanes going around the courthouse square in Crockett. Therefore, the State argues, Sergeant L ittle had probable cause for the stop.
Standard of Review
We review a trial court’s ruling on a motion to suppress for abuse of discretion. State v.
S tory , 445 S.W.3d 729, 732 (Tex. Crim. App. 2014). We give almost total deference to the trial court’s determination of historical facts if supported by the record. State v. Duran , 396 S.W.3d 563, 570 (Tex. Crim. App. 2013). We give the same level of deference to the court’s resolution of mixed questions of law and fact that rely on the credibility of the witnesses. State v. Martinez
, 570 S.W.3d 278, 281 (Tex. Cri m. App. 2019). We review de novo mixed questions that do not rely on credibility determinations. Martinez v. State , 348 S.W.3d 919, 923 (Tex. Crim. App. 2011). We review de novo pure questions of law. Id . We view the evidence in the light most
favorab le to the trial court’s ruling and uphold the ruling if it is reasonably supported by the record and correct on any theory of law applicable to the case. Duran , 3 96 S.W.3d at 571

. Applicable Law
The Fourth Amendment permits the warrantless detention of a person if the detention is justified by an Sergeant ’s reasonable suspicion that some crime was, or is, about to be committed.
See U.S. C ONST

. a mend. 4; Jaganathan v. State , 479 S.W.3d 24 4 , 247 (Tex. Crim. App. 2015). Reasonable suspicion of criminal activity sufficient to justify an investigatory stop exists if the3 police Sergeant has specific articulable facts that, when combined with the rational inferences from those facts, would lead him to reasonably suspect that a particular person has engaged in or is, or
soon will be
, engaging in criminal activity. Jaganathan , 479 S.W.3d at 247. This standard looks solely to determine whether an objective basis for the stop exists and disregards the subjective
intent of the Sergeant making the stop. Ford v. State , 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). When a traffic offense is committed in the presence of a peace Sergeant , the detention is
reasonable. Wehring v. State
, 276 S.W.3d 666 , 67 1 (Tex. App.

— Texarkana 2008, no pet. ). It is not necessary that the reasonable suspicion relate to a specific criminal offense. Der i chsweiler v.
State , 348 S.W.3d 906, 916 (Tex. Crim. App. 2011). “An Sergeant ’s suspicion is not unreasonable just because facts surrounding a suspected offense might ultimately show a defense to conduct.” Jaganathan , 479 S.W.3d at 248. The possibility that an act is justified does not negate reasonable suspicion. Id

. A poli ce officer’s reasonable mistake about the facts may legitimately justify his own conclusion that there is probable cause to arrest or reasonable suspicion to detain so long as his
actions are lawful under the fact s as he reasonably, albeit mistakenly, perc eived them to be. Robinson v. State , 377 S.W.3d 712, 720

- 21 (Tex. Crim. App. 2012). But “[a]n Sergeant ’s mistake
about the law
, or about the legal significance of undisputed facts, even if eminently reasonable
,

c annot serve to provide probable cause or r easonable suspicion.” Id

. at 722. A driver shall signal “to indicate an intention to turn, change lanes, or start from a parked position.” T EX

. T RANS P

. C ODE A NN

. § 545.104( a ) ( West 2011). “Laned roadway” means a roadway that is divided into at least tw o clearly marked lanes for vehicular travel. Id

. § 541.302(7) (West 2011).
Discussion The trial judge reviewed the patrol car’s dash cam video and found that Sergeant Little
activated t he overhead lights of his patrol car before Barr s changed lanes. Therefore, the trial judge determined that Sergeant Little initiated the stop before he could have observed the traffic
violation the State relies on to justify the stop

. Sergeant Little test ified as follows regarding Barr s ’s alleged failure to signal:

Q. Did you witness the truck commit any traffic violations? A. Yes, as the truck was going around the square, it failed to signal its right turn, as it merged onto South 4 th Street.

...4 THE COU RT: Turned onto which street? THE WITNESS: As it was going right

- - right here on this street, and it turned

- - it failed to signal as it turned right onto the

- - onto the South 4 th Street

- - or 4 th Street turning into South 4 th Street. THE COURT: O ff the square? THE WITNESS: Yes. Or it

- - from the inside lane to the outside lane

- - is where he failed to signal his right turn.

We have reviewed the patrol car’s dash cam video and it does not contradict the trial judge’s finding. However, on appeal, the State argues that Sergeant Little stopped Barr s for failing to signal his intention to merge into the right lane where 4 th Stree t becomes South 4 th Street. Sergeant Little testified that at the time he activated his patrol car’s lights, he could tell that Barr s

w as going to change lanes. There are no lines or dashes marking two lanes as one travels around the corners of the square. It is difficult to see how Sergeant Little could have d i vi n ed Barr s ’s intent to change lanes when at that point he was following Barr s around the square where there were no markings indicating separate lanes of travel. The trial judge observed that if a motorist was required to signal
as the Sergeant stated, he would have to activate his right turn signal while still turning left with
circulation of traffic aro und the square. The judge further commented that someone stopped at 4 th and Goliad preparing to enter the square might assume the signal indicated the dri v er’s intention to turn right onto Goliad rather than continuing south on 4 th Street. Such an assump tion might lead the stopped motorist to enter the square colliding with the vehicle continuing on 4 th Street. The photograph of the Houston County square in the record does not show that the roadway around the square is clearly marked into two separate la nes of travel. Absent clearly marked lanes of
travel
, Sergeant Little’s honest belief that Barr s committed an offense by failing to signal a lane change would not be a reasonable one. Sergeant Little thought that Barr s may have failed to stop for the sto p sign at 7 th Street and Goliad and may have exceeded the speed limit during the two blocks before he reached the square. However, before Sergeant Little reached the square, he had the opportunity to observe Barr s ’s vehicle for only that brief instant whe n he saw Barr s ’s truck leave the intersection of East Goliad
and 7 th Street, a street parallel to East Houston Avenue one block away. Sergeant Little’s speculations based on such a brief sighting do not rise to the level of reasonable suspicion.
The tria l judge found that at the moment Sergeant Little initiated the stop, he lacked reasonable suspicion for the stop . As an appellate court, we must give almost total deference to
the trial court’ s determination of historical facts if supported by the record. Duran , 396 S .W.3d5 at 570. We give the same level of deference to the trial court’s resolution of mixed questions of law and fact that rely on the cred i bility of the witnesses. Martinez , 570 S.W.3d at 281

. Having
reviewed the record
, including the patrol car’s dash

- cam video
, we conclude that it supports the
trial court’s determination that Sergeant Little lacked the requisite reasonable suspicion to de tain
Barr at the time he initiated the stop

. Accordingly, because t he trial court did not err in suppressing the ev idence developed during Barr s ’s detention , we overrule the State’s sole issue

.

D ISPOSITION
We affirm the trial court’s order granting Barr s ’s motion to suppress

.
B ILL B ASS

Justice
Opinion delivered September 18, 2019. Panel consisted of Hoyle, J., Neeley, J
, and

. Bass, Retired J., Twelfth Court of Appeals, sitting by assignment,

( DO NOT PUBLISH )

## COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

SEPTEMBER 18 , 2019

NO. 12

- 18

- 00331

- CR

THE STATE OF TEXAS, Appellant V. LEE CHRISTOPHER BARRS, Appellee

Appeal from the County Court at Law of Houston County, Texas (Tr.Ct.No. 18

- 01

- 00008

- CR)

THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being considered, it is the opinion of this cour t that there was no error in the judgment. It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed , and that this decision be certified to the court below
for observance. Bill Bass, Justice. Panel consisted of Hoyle, J., Neeley, J
, and. Bass, Retired J., Twelfth Court of Appeals, sitting by assignment

.