Fernandez v. State

306 S.W.3d 354, 2010 Tex. App. LEXIS 1039, 2010 WL 520810

• Court: Court of Appeals of Texas
• Decided: February 11, 2010
• Docket: 2-08-388-CR
• Status: Published

Opinions

OPINION

TERRIE LIVINGSTON, Justice.

In two related issues, appellant Samuel Cendejas Fernandez appeals his conviction for driving while intoxicated (DWI),¹ contending that the police did not have reasonable suspicion to stop his pickup. We affirm.

Background Facts

A few minutes after two o’clock on the morning of September 14, 2007, on Camp Bowie Boulevard, Fort Worth Police Officer Kenneth Simmons heard Fernandez’s black pickup loudly squeal its tires and saw light smoke coming from the tires as the pickup fishtailed about two feet outside of its lane of traffic. Because he concluded that Fernandez was traveling without control and unsafely, Officer Simmons immediately went to his own car, drove behind Fernandez’s pickup, and initiated a traffic stop. The traffic stop led to the State’s charging Fernandez with DWI.

Fernandez filed several pretrial motions, including a motion to suppress all evidence obtained following the police’s stop of his pickup because the police allegedly made the stop without a search warrant or any reasonable suspicion of criminal activity. The trial court denied Fernandez’s motion to suppress, and then Fernandez entered an open plea of nolo contendere, received a sentence of thirty days’ confinement and a $750 fine, and filed his notice of appeal. The State asked the trial court to enter findings of fact and conclusions of law related to the suppression issue, and the trial court did so by adopting the State’s suggested findings and conclusions.

The Legality of Fernandez’s Detention

In his first issue, Fernandez argues that the trial court erred by denying his motion to suppress and finding that Officer Simmons had reasonable suspicion to pull him over and detain him for, among other offenses, reckless driving.

Standard of review

We review a trial court’s ruling on a motion to suppress evidence under a bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex.Crim.App.2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). In reviewing the trial court’s decision, we do not engage in our own factual review. Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990); Best v. State, 118 S.W.3d 857, 861 (Tex.App.-Fort Worth 2003, no pet.). The trial judge is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. Wiede v. State, 214 S.W.3d 17, 24-25 (Tex.Crim.App.2007); State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App.2000), modified on other grounds by State v. Cullen, 195 S.W.3d 696 (Tex.Crim.App.2006). Therefore, we give almost total deference to the trial court’s rulings on (1) questions of historical fact, even if the trial court’s determination of those facts was not based on an evaluation of credibility and demeanor, and (2) application-of-law-to-fact questions that turn on an evaluation of credibility and demeanor. Amador, 221 S.W.3d at 673; Montanez v. State, 195 S.W.3d 101, 108-09 (Tex.Crim.App.2006); Johnson v. State, 68 S.W.3d 644, 652-53 (Tex.Crim.App.2002). But when application-of-law-to-fact questions do not turn on the credibility and demeanor of the witnesses, we review the trial court’s rulings on those questions de novo. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607 (Tex.Crim.App.2005); Johnson, 68 S.W.3d at 652-53.

Stated another way, when reviewing the trial court’s ruling on a motion to suppress, we must view the evidence in the light most favorable to the trial court’s ruling. Wiede, 214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808, 818 (Tex.Crim.App.2006). When the trial court makes explicit fact findings, we determine whether the evidence, when viewed in the light most favorable to the trial court’s ruling, supports those fact findings. Kelly, 204 S.W.3d at 818-19. We then review the trial court’s legal ruling de novo unless its explicit fact findings that are supported by the record are also dispositive of the legal ruling. Id. at 819. We must uphold the trial court’s ruling if it is supported by the record and correct under any theory of law applicable to the case even if the trial court gave the wrong reason for its ruling. State v. Stevens, 235 S.W.3d 736, 740 (Tex.Crim.App.2007); Armendariz v. State, 123 S.W.3d 401, 404 (Tex.Crim.App.2003), cert. denied, 541 U.S. 974, 124 S.Ct. 1883, 158 L.Ed.2d 469 (2004).

Applicable law and analysis

“An officer must have probable cause to stop a vehicle and arrest the driver for a traffic violation without a warrant.” State v. Ballman, 157 S.W.3d 65, 70 (Tex.App.-Fort Worth 2004, pet. ref'd); see State v. Ballard, 987 S.W.2d 889, 892 (Tex.Crim.App.1999). Alternatively, an officer may stop and detain a driver, rather than arrest the driver, on reasonable suspicion of criminal activity. Tex. Dep’t of Public Safety v. Gilfeather, 293 S.W.3d 875, 879-80 (Tex.App.-Fort Worth 2009, no pet.) (en banc op. on reh’g) (holding that an officer’s stop of a car was justified because the officer reasonably suspected the offense of speeding); Fowler v. State, 266 S.W.3d 498, 502 (Tex.App.-Fort Worth 2008, pet. ref'd) (en banc); see Terry v. Ohio, 392 U.S. 1, 20-22, 88 S.Ct. 1868, 1879-80, 20 L.Ed.2d 889 (1968); Ford v. State, 158 S.W.3d 488, 492 (Tex.Crim.App.2005); Carmouche v. State, 10 S.W.3d 323, 328-29 (Tex.Crim.App.2000); Bracken v. State, 282 S.W.3d 94, 97-99 (Tex.App.-Fort Worth 2009, pet. ref'd). Reasonable suspicion exists when, based on the totality of the circumstances, the officer has specific, articulable facts that when combined with rational inferences from those facts, would lead him to reasonably conclude that a particular person is, has been, or soon will be engaged in criminal activity. Ford, 158 S.W.3d at 492.

Reasonable suspicion is an objective standard that disregards any subjective intent of the officer making the stop and looks solely to whether an objective basis for the stop exists. Id. In other words, “the fact that the officer does not have the state of mind which is hypothe-cated by the reasons which provide the legal justification for the officer’s action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action.” Garcia v. State, 827 S.W.2d 937, 942 n. 5 (Tex.Crim.App.1992) (quoting Scott v. United States, 436 U.S. 128, 138, 98 S.Ct. 1717, 1723, 56 L.Ed.2d 168 (1978)); see also State v. Patterson, 291 S.W.3d 121, 123 (Tex.App.-Amarillo 2009, no pet.) (explaining that the “subjective reasons uttered by the officer to legitimize the stop have no bearing on the outcome if the totality of the circumstances nonetheless would lead a police officer to reasonably suspect that crime is afoot”).

“It is well settled that a traffic violation committed in an officer’s presence authorizes an initial stop.” Armitage v. State, 637 S.W.2d 936, 939 (Tex.Crim.App. [Panel Op.] 1982); see Walter v. State, 28 S.W.3d 538, 542 (Tex.Crim.App.2000). The State “is not required to show a traffic offense was actually committed, but only that the officer reasonably believed a violation was in progress.” Tex. Dep’t of Pub. Safety v. Fisher, 56 S.W.3d 159, 163 (Tex.App.-Dallas 2001, no pet.); see Tex. Dep’t of Pub. Safety v. Axt, 292 S.W.3d 736, 739 (Tex.App.-Fort Worth 2009, no pet.).

One of the trial court’s conclusions of law states that Officer Simmons had reasonable suspicion that Fernandez had committed the traffic offense of reckless driving. A person commits that offense when the person drives a vehicle in willful or wanton disregard for the safety of persons or property. Tex. Transp. Code Ann. § 545.401(a) (Vernon 1999). “In the context of reckless driving, ‘willful and wanton disregard’ means the ‘deliberate and conscious indifference to the safety of others.’ ” Brown v. State, 183 S.W.3d 728, 733 (Tex.App.-Houston [1st Dist.] 2005, pet. ref'd). Obviously, “[p]roof of an evil or malicious intent is not an element of reckless driving.” White v. State, 647 S.W.2d 751, 753 (Tex.App.-Fort Worth 1983, pet. ref'd). The trial court adopted the following findings of fact that support its reckless driving conclusion:

• “Officer Simmons saw [Fernandez’s] vehicle rapidly accelerate in speed, causing the vehicle to fishtail and the tires to cross over the divider lane approximately two feet”;

• “Officer Simmons heard [Fernandez’s] vehicle make a loud screech and observed smoke coming from the tires as a result of the tires squealing”;

• “At the time of the offense, there was other traffic traveling on Camp Bowie ...[,] and [Fernandez] could have possibly wrecked into somebody when his car crossed over into other lanes of traffic”; and

• “Officer Simmons described the driving behavior as unsafe and typical of someone who is not in control of their vehicle.”

The record, when viewed in the light most favorable to the court’s ruling, supports these findings. See Wiede, 214 S.W.3d at 24; Kelly, 204 S.W.3d at 818-19. Fernandez argues (and the dissenting opinion asserts), however, that the testimony does not identify vehicles alongside, nor in proximity to him when he fishtailed and that the facts therefore still do not amount to reasonable suspicion of reckless driving. But Officer Simmons testified that there was other traffic on the same street as Fernandez when he went into more than one lane of traffic, that Fernandez put other drivers in “danger” because he “could have possibly wrecked,” and, most importantly, that there were “maybe three” cars immediately in the vicinity of Fernandez’s pickup.² Fort Worth Police Officer Steven Pelton, who was patrolling Camp Bowie Boulevard on the morning of Fernandez’s arrest, also saw Fernandez’s pickup peeling out and heard its tires squealing, and he also believed that Fernandez was operating the pickup unsafely.

While part of the record indicates that there were no cars in the specific lane of traffic that Fernandez fishtailed into at the precise time that he did so,³ we agree with the State that the language of the reckless driving statute does not require actions that caused a wreck or nearly caused a wreck. See, e.g., Jiron v. State, No. 05-08-00056-CR, 2009 WL 866213, at *3 (Tex.App.-Dallas Apr. 2, 2009, no pet.) (not designated for publication) (holding that an officer had reasonable suspicion for a traffic stop when the defendant’s car spun its tires while accelerating through an intersection, moved side to side through the intersection, and “could have damaged other vehicles or property or injured a person in the area”); Moore v. State, No. 14-02-00388-CR, 2003 WL 1087997, at *1-2 (Tex.App.-Houston [14th Dist.] Mar. 13, 2003, no pet.) (mem. op., not designated for publication) (upholding the denial of a motion to suppress and concluding that law enforcement had reasonable suspicion of reckless driving when a car drove at a high rate of speed into a parking lot where people were standing, causing bystanders to step up onto the sidewalk, and then quickly left the parking lot while squealing its tires). Thus, Officer Simmons could have reasonably suspected that Fernandez drove his pickup with willful or wanton disregard for others’ safety. See Tex. Transp. Code Ann. § 545.401(a).

The dissenting opinion’s expression that an officer cannot stop a car based on reasonable suspicion of a moving traffic violation⁴ contravenes recent binding precedent. See Gilfeather, 293 S.W.3d at 879; Bracken, 282 S.W.3d at 97-99; see also Strauss v. State, 121 S.W.3d 486, 490 (Tex.App.-Amarillo 2003, pet. ref'd) (“It is clear that an officer who witnesses a traffic violation has sufficient authority to stop the vehicle.”); McQuarters v. State, 58 S.W.3d 250, 255 (Tex.App.-Fort Worth 2001, pet. ref'd). Also, the dissenting opinion’s implication that Officer Simmons needed an investigatory reason to stop Fernandez is incorrect; an officer is justified to stop a driver and arrest him or issue a ticket to him when the officer actually sees a traffic violation because that may be sufficient probable cause. See Tex. Transp. Code Ann. § 543.001 (Vernon 1999); Tex.Code Crim. Proc. Ann. art. 14.01(b) (Vernon 2005); Azeez v. State, 248 S.W.3d 182, 189-90 (Tex.Crim.App.2008); State v. Gray, 158 S.W.3d 465, 469 (Tex.Crim.App.2005). And even if a purely investigative reason for Officer. Simmons’s stop had been required and Officer Simmons could not have stopped Fernandez simply with the goal of issuing a citation or making an arrest, the dissent’s broad statement that reckless driving is “not a circumstance that can be clarified by ... further investigation”⁵ is not true; an officer may have questions stemming from what he just witnessed, such as whether something was wrong with the driver, the driver’s car, or the car’s tires that caused the apparent reckless driving. Such questions could assist the officer in investigating reckless driving — and not merely describe “a eommunity caretaking function”⁶ — since as even the dissenting opinion recognizes, reckless driving requires “deliberate ” or “conscious ” indifference to others’ safety. See Dissenting Op. at 369; Brown, 183 S.W.3d at 733. Thus, there could be as many reasons to investigate reckless driving, and to ensure that an officer had seen an actual offense, as there are for any other crime.

Fernandez principally relies on the Austin Court of Appeals’s opinion in State v. Guzman to support his argument that Officer Simmons did not have reasonable suspicion for stopping his pickup. 240 S.W.3d 362 (Tex.App.-Austin 2007, pet. ref'd). In Guzman, the defendant had spun his tires, and after the police officer saw smoke coming from the tires, he immediately pulled Guzman over for “exhibition of acceleration.” Id. at 365. The Austin court held that at the time of Guzman’s conduct, there was no exhibition of acceleration offense, and it also held that Guzman’s conduct could not have created reasonable suspicion of speeding or DWI. Id. at 366-368. The court did not address whether Guzman’s conduct could have qualified as reckless driving, and even if it had, the circumstances in Guzman are factually distinct from the facts here because Guzman did not fishtail into another lane of traffic with cars in his immediate vicinity-

For all of these reasons, we hold that the trial court did not err by concluding that Officer Simmons had reasonable suspicion that Fernandez committed reckless driving, and we overrule a portion of Fernandez’s first issue on that basis.⁷ Because we hold that the trial court did not err by concluding that the stop of Fernandez’s pickup was justified on the reckless driving basis, we will not address whether Officer Simmons also had reasonable suspicion of his racing, DWI, or violating a city noise ordinance.⁸ See Tex.R.App. P. 47.1; Rotenberry v. State, 245 S.W.3d 583, 589 (Tex.App.-Fort Worth 2007, pet. ref'd). Thus, we also overrule the remainder of Fernandez’s first issue and his second issue.

Conclusion

Having overruled Fernandez’s issues, we affirm the trial court’s judgment.

DAUPHINOT, J., filed a dissenting opinion.

1 . See Tex. Penal Code Ann. § 49.04(a) (Vernon 2003).

2 . Any relevance of the dissenting opinion’s inclusion of beyond-the-record details concerning the length of Camp Bowie Boulevard is negated by Officer Simmons’s testimony that three vehicles were in Fernandez’s immediate vicinity when he peeled out. See Dissenting Op. at 364-65. Officer Simmons's testimony in that regard also belies the dissenting opinion’s statements that there is "no evidence of another vehicle ... near Appellant's vehicle during the three seconds of acceleration.” Id. at 368. The dissenting opinion's attempt to guess that Fernandez's car might have been traveling the opposite direction and across a broad grassy median on Camp Bowie Boulevard from the other cars on the boulevard reconstructs the phrase "immediate vicinity” and is unsupported by the record. And contrary to the dissenting opinion’s statement, we are not speculating at all about the positioning of cars in relation to Fernandez's car; we are simply viewing the "immediate vicinity” testimony in the light most favorable to the trial court’s ruling, as we are constrained by binding precedent to do. See id. at 359; Wiede, 214 S.W.3d at 24.

3 . The State’s prosecutor asked Officer Simmons:

Q. Okay. So he did go into other lanes of traffic?

A. Yes, ma’am.

Q. And if there had been cars there, he could have possibly hit them?

A. Yes ma’am.

4 . See Dissenting Op. at 365-68.

5 . Dissenting Op. at 367.

6 . See Dissenting Op. at 367-68.

7 .We clearly do not hold, as the dissenting opinion says that we do, that "it is not necessary for property or persons to be near enough for their safety to be at risk for a driver to violate the reckless driving statute” or that "merely allowing your tires to cross a lane line when no other car is near enough to be placed in danger is a violation of the law.” Dissenting Op. at 369. We hold only that, viewing the testimony in the light most favorable to the trial court's ruling, Fernandez's fishtailing into another lane of traffic with cars in the immediate vicinity meets the requirements for a detention for reckless driving under the transportation code.

8 . We should avoid issuing advisory opinions on issues that do not affect the disposition of a case. See Ferrell v. State, 968 S.W.2d 471, 474 (Tex.App.-Fort Worth 1998, pet. ref'd). Thus, we will not address the dissenting opinion’s lengthy analysis of whether the facts could justify reasonable suspicion of racing under the transportation code. See Dissenting Op. at 362-64.