Joseph Michael Nevedomsky v. State

• Court: Court of Appeals of Texas
• Decided: February 21, 2013
• Docket: 01-12-00105-CR
• Status: Published

Opinion

Opinion issued February 21, 2013.

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-12-00105-CR ——————————— JOSEPH MICHAEL NEVEDOMSKY, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court of Law No. 10 Harris County, Texas Trial Court Case No. 1747280

MEMORANDUM OPINION

Appellant Joseph Michael Nevedomsky was charged with misdemeanor

driving while intoxicated (DWI), second offender. Following the trial court’s

denial of his motion to suppress, Nevedomsky pleaded nolo contendere and was sentenced to one year confinement in county jail, which was suspended, placed on

two years community supervision, and fined $500. In his sole point of error,

Nevedomsky contends that the trial court abused its discretion in denying his

motion to suppress because the arresting officer lacked reasonable suspicion for the

stop. We affirm.

Background

At approximately 9:30 p.m. on the evening of December 11, 2010, Trooper

Martin Gens, a twenty-seven year officer with the Texas Department of Public

Safety, Highway Patrol Service, was on patrol and traveling northbound on FM

2100 in northeast Harris County. Gens observed Joseph Nevedomsky’s vehicle,

which was also traveling northbound on FM 2100, drift onto the right improved

shoulder several times. Gens, who had been involved in approximately 2000 DWI

investigations, testified that he became suspicious because drifting from the main

road to the shoulder several times could mean that the driver was intoxicated,

talking or texting on a cell phone, or falling asleep. Gens followed Nevedomsky’s

vehicle to a traffic light at a nearby intersection. As Nevedomsky and Gens pulled

up to the intersection, the traffic light was red. When the traffic light turned green,

Nevedomsky hesitated at the intersection, for somewhere between five and thirty

seconds, and then made a right-hand turn without signaling. Gens stopped his

vehicle.

2 Nevedomsky was charged with misdemeanor DWI as a second offender. He

filed a motion to suppress alleging that Gens lacked reasonable suspicion to stop

him. The trial court held a hearing on Nevedomsky’s motion, at which Gens

testified that he stopped Nevedomsky because he drifted onto the shoulder,

hesitated for thirty seconds at the green light, which he described as “not normal,”

and failed to signal. During cross-examination, Nevedomsky attempted to

impeach Gens with his purportedly inconsistent prior testimony at the

administrative license revocation (ALR) hearing. Nevedomsky asked Gens

whether it was true that at the ALR hearing, he testified that Nevedomsky hesitated

at the green light for five or six seconds, not thirty. Gens responded that he did not

recall his testimony at the ALR hearing. Although Nevedomsky’s counsel

appeared to be reading from a transcript of the ALR hearing during his cross-

examination of Gens, Nevedomsky did not offer any transcript of the ALR hearing

into evidence. Nevedomsky also questioned Gens about the fact that Gens

purportedly omitted mentioning Nevedomsky’s failure to signal during the ALR

hearing and failed to include Nevedomsky’s failure to signal in the sworn officer’s

report he submitted at the ALR hearing. Gens first explained that he did not

remember his testimony at the ALR hearing. He also said he did not have his

offense report, which he prepared the night of the incident, in front of him during

the ALR hearing. However, he explained that he had reviewed that offense report

3 before testifying at the suppression hearing and the report was consistent with his

testimony at the suppression hearing.

The trial court found that Nevedomsky’s hesitation at the green light,

whether for five or thirty seconds, combined with his driving onto the shoulder

several times and failure to signal before turning, gave Gens reasonable suspicion

to stop Nevedomsky. The court further found that there was reasonable suspicion,

even if Gens might have given inconsistent testimony at the ALR hearing, about

Nevedomsky’s failure to signal. Nevedomsky pleaded nolo contendere to the

misdemeanor DWI charge, reserving his right to appeal the trial court’s denial of

his motion to suppress.

Discussion

Nevedomsky argues the trial court should have granted his motion to

suppress and asserts three reasons this court should reverse the judgment of the

trial court. First, Nevedomsky urges this court to disregard the trial court’s factual

findings because the differences between Gens’s testimony at the ALR hearing and

his testimony at the suppression hearing demonstrate Gens was not credible.

Second, he asserts that the stop was not based on anything other than Gens’s

“personal irritation” at Nevedomsky’s lack of attention at the traffic light. Finally,

Nevedomsky contends that there was no reasonable suspicion for the stop because

the evidence merely showed that he drifted over onto the improved shoulder

4 slightly, and because he committed no traffic code violation. In response, the State

contends that the stop was proper because the totality of the circumstances gave

rise to an objectively reasonable belief that Nevedomsky was driving while

intoxicated.

A. Standard of Review

We evaluate a trial court’s ruling on a motion to suppress under a bifurcated

standard of review. Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005).

The trial judge is the sole trier of fact and judge of the weight and credibility of the

evidence and testimony. Weide v. State, 214 S.W.3d 17, 24–25 (Tex. Crim. App.

2007). Accordingly, we give almost total deference to the trial court’s

determination of historical facts if supported by the record. Ford, 158 S.W.3d at

493. But we review de novo the trial court’s application of the law to those facts.

Id. “[T]he prevailing party is entitled to ‘the strongest legitimate view of the

evidence and all reasonable inferences that may be drawn from that evidence.’”

State v. Castleberry, 332 S.W.3d 460, 465 (Tex. Crim. App. 2011) (quoting State

v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008)). A trial court’s

ruling will be sustained if it is “reasonably supported by the record and correct on

any theory of law applicable to the case.” Laney v. State, 117 S.W.3d 854, 857

(Tex. Crim. App. 2003) (citing Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim.

App. 2002)).

5 B. Applicable Law

A police officer is permitted to stop and temporarily detain a person in order

to conduct an investigation if the officer, based on his experience, has a reasonable

suspicion that an individual is violating the law. Terry v. Ohio, 392 U.S. 1, 30, 88

S. Ct. 1868, 1884 (1968); Ford, 158 S.W.3d at 492 (citing Balentine v. State, 71

S.W.3d 763, 768 (Tex. Crim. App. 2002)). An officer has reasonable suspicion if

he can point to “specific, articulable facts that, when combined with rational

inferences from those facts, would lead him to reasonably conclude that a

particular person actually is, has been, or soon will be engaged in criminal

activity.” Ford, 158 S.W.3d at 492 (citing Garcia v. State, 43 S.W.3d 527, 530

(Tex. Crim. App. 2001)). The officer “must be able to articulate something more

than an ‘inchoate and unparticularized suspicion or hunch.’” Foster v. State, 326

S.W.3d 609, 613 (Tex. Crim. App. 2010) (quoting Terry, 392 U.S. at 21, 88 S. Ct.

at 1880). Reasonable suspicion is determined by considering whether the officer

had “some minimal level of objective justification for making the stop.” Id.

Because reasonable suspicion is an objective standard, we disregard any subjective

intent of the officer in making the stop. Ford, 158 S.W.3d at 492. We consider the

totality of the circumstances when making a reasonable suspicion determination.

Id. at 492–93.

6 C. Analysis

Nevedomsky first urges this court to disregard the trial court’s findings

because Gens’s testimony was not credible. Citing Mendoza v. State, 365 S.W.3d

666 (Tex. Crim. App. 2012), Nevedomsky asserts we need not slavishly defer to

the trial court’s factual findings. In that case, the Texas Court of Criminal Appeals

explained that, rather than presuming or guessing what historical facts were found

by the trial court, appellate courts should abate cases for the trial court to clarify

ambiguous, contradictory, or incomplete findings. Mendoza, 365 S.W.3d at 671.

We find Mendoza inapplicable because the trial court’s findings are dispositive of

the issues presented and are neither ambiguous nor contradictory.

As noted, the trial court is the sole judge of the weight and credibility of the

evidence and we must give almost total deference to the trial court’s findings of

fact based on credibility if they are supported by the record. See Weide, 214

S.W.3d at 24–25. The trial court’s factual findings in this case are supported by

the record. Gens testified that he observed Nevedomsky’s vehicle drift onto the

shoulder at least three times. He also testified that Nevedomsky hesitated for

approximately thirty seconds at a traffic light after it turned green before turning

right without signaling. Although Gens acknowledged that his testimony at the

ALR hearing may have been that Nevedomsky’s hesitation at the green light lasted

only “five or six seconds,” he explained that he had no independent recollection of

7 his testimony at the ALR hearing. Gens also admitted that he did not mention

Nevedomsky’s failure to signal in the sworn officer’s report he prepared for the

ALR hearing. However, he explained that his preparation for and testimony at the

ALR hearing was from memory and he did not have his offense report, which was

prepared the night of Nevedomsky’s arrest, available at the ALR hearing. Gens

testified that his offense report detailed the reasons for the stop and was consistent

with his testimony during the suppression hearing. The strongest legitimate view

of the evidence supports the trial court’s factual findings; therefore we afford them

almost total deference and are left to consider whether the trial court properly

applied the law to these facts. See Castleberry, 332 S.W.3d at 465; State v.

Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999) (citing Romero v. State, 800

S.W.2d 539, 543 (Tex. Crim. App. 1990)).

Nevedomsky asserts there was no reasonable suspicion for the stop because

Gens was merely irritated at Nevedomsky’s hesitation at the light and there was no

evidence that Nevedomsky violated any traffic law. However, Nevedomsky’s

contention that the stop was based on Gens’s “personal irritation” at Nevedomsky

is not determinative of whether there was reasonable suspicion because reasonable

suspicion is an objective standard, and we disregard any subjective intent of the

officer in making the stop. See Ford, 158 S.W.3d at 492.

8 As to Nevedomsky’s claim that no traffic law was violated, we note that

Nevedomsky need not have violated a traffic ordinance in order for Gens to have

reasonable suspicion to justify a stop. See State v. Alderete, 314 S.W.3d 469, 473

(Tex. App.—El Paso 2010, pet. ref’d) (“[T]here is no requirement that a traffic

regulation must be violated in order for an officer to have sufficient reasonable

suspicion to justify a stop of a vehicle.”); James v. State, 102 S.W.3d 162, 172

(Tex. App.—Fort Worth 2003, pet. ref’d) (“Erratic or unsafe driving may furnish a

sufficient basis for a reasonable suspicion that the driver is intoxicated even absent

evidence of violation of a specific traffic law.”). Instead, an officer may be

justified in stopping a driver based on a reasonable suspicion that the driver is

driving while intoxicated. See Curtis v. State, 238 S.W.3d 376, 381 (Tex. Crim.

App. 2007); Alderete, 314 S.W.3d at 473; James, 102 S.W.3d at 172.

Here, at approximately 9:30 p.m., Gens observed Nevedomsky’s vehicle

drift onto the improved shoulder several times. After following Nevedomsky’s

vehicle to an intersection, Gens observed Nevedomsky hesitate for several seconds

at the intersection once the traffic light turned green. According to Gens,

Nevedomsky then proceeded to make a right-hand turn without signaling. Gens,

whose experience included approximately 2000 DWI investigations, testified that

he was suspicious of Nevedomsky’s driving and that these behaviors could be

evidence of a number of things, including intoxication.

9 Considering the totality of the circumstances, we hold the trial court did not

abuse its discretion when it concluded Gens had reasonable suspicion to stop

Nevedomsky. In light of Gens’s extensive experience with DWI investigations,

Nevedomsky’s drifting onto the shoulder, his hesitation at a green light for several

seconds, and his failure to signal, it was rational for Gens to have inferred that

Nevedomsky may have been intoxicated, thus justifying a temporary detention for

further investigation. See Curtis, 238 S.W.3d at 280–81 (holding there was

rational inference of intoxication where officers had training in detecting

intoxicated drivers and defendant was observed weaving in and out of his lane

several times, over a short distance, late at night, and officers therefore had

reasonable suspicion of DWI); Alderete, 314 S.W.3d at 474 (holding that officers

had reasonable suspicion that defendant was driving while intoxicated where

officers had training and experience in investigating DWI offenses and defendant

was observed continuously weaving within her lane for half mile in early morning

hours); James, 102 S.W.3d at 172 (holding that officer, who stopped defendant

because he believed her “driving faculties” were impaired, had reasonable

suspicion that defendant was driving while intoxicated after he observed that she

failed to signal as she entered highway, crossed center line, and then veered onto

shoulder); Cook v. State, 63 S.W.3d 924, 929 (Tex. App.—Houston [14th Dist.]

2002, pet. ref’d) (finding that defendant’s driving behavior, which consisted of

10 leaving bar at considerable rate of speed, pulling into gas station and leaving

within matter of seconds, driving all over the roadway, and weaving between lanes,

was sufficient to raise reasonable suspicion that defendant was driving while

intoxicated). Gens articulated “something more than an inchoate and

unparticularized suspicion or hunch” that gave rise to an objective justification for

Nevedomsky’s detention. See Foster, 326 S.W.3d at 614. Therefore, the trial

court did not err by concluding that Gens had reasonable suspicion to stop

Nevedomsky. We overrule Nevedomsky’s sole point of error.

Conclusion

We affirm the trial court’s judgment.

Rebeca Huddle Justice

Panel consists of Justices Keyes, Sharp, and Huddle.

Do not publish. TEX. R. APP. P. 47.2(b).