Opinion issued February 5, 2015
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-13-01028-CR ——————————— LESLE MARKLE, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court at Law No. 12 Harris County, Texas Trial Court Case No. 1865367
MEMORANDUM OPINION
After the trial court denied her motion to suppress evidence, appellant, Lesle
Markle, with an agreed punishment recommendation from the State, pleaded guilty to the offense of driving while intoxicated. 1 In accordance with the plea
agreement, the trial court sentenced appellant to 180 days in jail, suspended the
sentence, placed her on community supervision for fifteen months, and assessed a
fine of $500. In her sole issue, appellant contends that the trial court erred in
denying her motion to suppress evidence.
We affirm.
Background
At a pretrial hearing on appellant’s motion to suppress, Harris County
Sheriff’s Office Deputy E. Goodney testified that, while on patrol on December 1,
2012, at approximately 2:15 or 2:20 a.m., he saw appellant “[e]xcessive[ly]
speed[ing]” and driving a car at 107 miles per hour (“mph”) in a sixty-five mph
zone on Beltway 8. She subsequently slowed down to ninety-five mph, which
Goodney determined by using his patrol car’s radar device, along with a separate,
independent GPS device. Although Goodney also saw appellant “fail[ing] to
maintain a single lane of travel” at least three times, he was not able to stop her
immediately because there was not a safe place to do so.
Deputy Goodney subsequently pursued appellant to a toll booth, where she
stopped her car for approximately two minutes. Thereafter, appellant exited the
Beltway, and Goodney activated the emergency lights on his patrol car in order to
1 See TEX. PENAL CODE ANN. § 49.04 (Vernon Supp. 2014).
2 make a traffic stop. Although appellant did not stop initially, even though
Goodney instructed her to “place [her] vehicle in park,” she eventually stopped her
car in a private driveway. According to Goodney, he initiated the stop of
appellant’s car at the “[e]arliest” time when he “could conduct the traffic stop
safely.”
Deputy Goodney explained that he “pulled [appellant] over” because she
was speeding, failed to maintain a single lane of travel, obstructed the roadway
while at the toll booth, disregarded a traffic-control device, and failed to yield to an
emergency vehicle.
Standard of Review
We review a trial court’s denial of a motion to suppress evidence under a
bifurcated standard of review. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex.
Crim. App. 2013). We review the trial court’s factual findings for an abuse of
discretion and the trial court’s application of the law to the facts de novo. Id. At a
suppression hearing, the trial court is the sole and exclusive trier of fact and judge
of the witnesses’ credibility and may choose to believe or disbelieve all or any part
of the witnesses’ testimony. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim.
App. 2002); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). When, as
here, a trial judge does not make explicit findings of fact, we review the evidence
in a light most favorable to the trial court’s ruling. Walter v. State, 28 S.W.3d 538,
3 540 (Tex. Crim. App. 2000). Almost total deference should be given to a trial
court’s implied findings, especially those based on an evaluation of witness
credibility or demeanor. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App.
2010). We will sustain the trial court’s ruling if it is reasonably supported by the
record and is correct on any theory of law applicable to the case. Id. at 447–48.
Motion to Suppress Evidence
In her sole issue, appellant argues that the trial court erred in denying her
motion to suppress evidence because Deputy Goodney had no “legal justification”
to stop her car. She first asserts that the State “failed to make any showing that the
radar device used to gauge [appellant’s] speed was reliable or accurate, as
necessary to justify a stop on th[e] basis [of speeding].”
A “stop” by a law enforcement officer “amounts to a sufficient intrusion on
an individual’s privacy to implicate the Fourth Amendment’s protections.”
Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000). However, a law
enforcement officer may stop and briefly detain a person suspected of criminal
activity on less information than is constitutionally required for probable cause to
arrest. Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968); Carmouche, 10
S.W.3d at 328. In order to stop or briefly detain an individual, an officer must be
able to articulate something more than an “inchoate and unparticularized suspicion
or ‘hunch.’” Terry, 392 U.S. at 27, 88 S. Ct. at 1883. Instead, an officer must have
4 “reasonable suspicion” that an individual is violating the law. Ford v. State, 158
S.W.3d 488, 492 (Tex. Crim. App. 2005); see also Doyle v. State, 265 S.W.3d 28,
31 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d) (“An officer may stop a driver
if he has reasonable suspicion that a traffic violation was in progress or had been
committed.”). Reasonable suspicion exists when the officer has some minimal
level of objective justification for making the stop; in other words, when the officer
can “point to specific and articulable facts which, taken together with rational
inferences from those facts, reasonably warrant th[e] intrusion.” Terry, 392 U.S. at
21, 88 S. Ct. at 1880; see also Alabama v. White, 496 U.S. 325, 329–30, 110 S. Ct.
2412, 2416 (1990). We disregard the subjective belief of the officer in our
reasonable suspicion analysis and consider the totality of the circumstances
objectively. Ford, 158 S.W.3d at 492–93.
It is well-established that an officer may lawfully stop an individual for a
traffic violation. Walter v. State, 28 S.W.3d 538, 542 (Tex. Crim. App. 2000).
And driving a motor vehicle at a speed in excess of a posted speed limit constitutes
prima facie evidence that the driving speed is not reasonable and prudent and is
unlawful. TEX. TRANSP. CODE ANN. § 545.352(a) (Vernon Supp. 2014); see also
id. § 545.351(a) (Vernon 2011) (speeding constitutes violation of Texas
Transportation Code).
5 Here, Deputy Goodney testified that he initiated the traffic stop of appellant
after he saw her driving her car at an “[e]xcessive speed,” 107 mph in a sixty-five
mph zone. After his initial encounter with appellant, she slowed down to ninety-
five mph, which Goodney confirmed by using his patrol car’s radar device and a
separate, independent GPS device.
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Opinion issued February 5, 2015
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-13-01028-CR ——————————— LESLE MARKLE, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court at Law No. 12 Harris County, Texas Trial Court Case No. 1865367
MEMORANDUM OPINION
After the trial court denied her motion to suppress evidence, appellant, Lesle
Markle, with an agreed punishment recommendation from the State, pleaded guilty to the offense of driving while intoxicated. 1 In accordance with the plea
agreement, the trial court sentenced appellant to 180 days in jail, suspended the
sentence, placed her on community supervision for fifteen months, and assessed a
fine of $500. In her sole issue, appellant contends that the trial court erred in
denying her motion to suppress evidence.
We affirm.
Background
At a pretrial hearing on appellant’s motion to suppress, Harris County
Sheriff’s Office Deputy E. Goodney testified that, while on patrol on December 1,
2012, at approximately 2:15 or 2:20 a.m., he saw appellant “[e]xcessive[ly]
speed[ing]” and driving a car at 107 miles per hour (“mph”) in a sixty-five mph
zone on Beltway 8. She subsequently slowed down to ninety-five mph, which
Goodney determined by using his patrol car’s radar device, along with a separate,
independent GPS device. Although Goodney also saw appellant “fail[ing] to
maintain a single lane of travel” at least three times, he was not able to stop her
immediately because there was not a safe place to do so.
Deputy Goodney subsequently pursued appellant to a toll booth, where she
stopped her car for approximately two minutes. Thereafter, appellant exited the
Beltway, and Goodney activated the emergency lights on his patrol car in order to
1 See TEX. PENAL CODE ANN. § 49.04 (Vernon Supp. 2014).
2 make a traffic stop. Although appellant did not stop initially, even though
Goodney instructed her to “place [her] vehicle in park,” she eventually stopped her
car in a private driveway. According to Goodney, he initiated the stop of
appellant’s car at the “[e]arliest” time when he “could conduct the traffic stop
safely.”
Deputy Goodney explained that he “pulled [appellant] over” because she
was speeding, failed to maintain a single lane of travel, obstructed the roadway
while at the toll booth, disregarded a traffic-control device, and failed to yield to an
emergency vehicle.
Standard of Review
We review a trial court’s denial of a motion to suppress evidence under a
bifurcated standard of review. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex.
Crim. App. 2013). We review the trial court’s factual findings for an abuse of
discretion and the trial court’s application of the law to the facts de novo. Id. At a
suppression hearing, the trial court is the sole and exclusive trier of fact and judge
of the witnesses’ credibility and may choose to believe or disbelieve all or any part
of the witnesses’ testimony. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim.
App. 2002); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). When, as
here, a trial judge does not make explicit findings of fact, we review the evidence
in a light most favorable to the trial court’s ruling. Walter v. State, 28 S.W.3d 538,
3 540 (Tex. Crim. App. 2000). Almost total deference should be given to a trial
court’s implied findings, especially those based on an evaluation of witness
credibility or demeanor. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App.
2010). We will sustain the trial court’s ruling if it is reasonably supported by the
record and is correct on any theory of law applicable to the case. Id. at 447–48.
Motion to Suppress Evidence
In her sole issue, appellant argues that the trial court erred in denying her
motion to suppress evidence because Deputy Goodney had no “legal justification”
to stop her car. She first asserts that the State “failed to make any showing that the
radar device used to gauge [appellant’s] speed was reliable or accurate, as
necessary to justify a stop on th[e] basis [of speeding].”
A “stop” by a law enforcement officer “amounts to a sufficient intrusion on
an individual’s privacy to implicate the Fourth Amendment’s protections.”
Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000). However, a law
enforcement officer may stop and briefly detain a person suspected of criminal
activity on less information than is constitutionally required for probable cause to
arrest. Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968); Carmouche, 10
S.W.3d at 328. In order to stop or briefly detain an individual, an officer must be
able to articulate something more than an “inchoate and unparticularized suspicion
or ‘hunch.’” Terry, 392 U.S. at 27, 88 S. Ct. at 1883. Instead, an officer must have
4 “reasonable suspicion” that an individual is violating the law. Ford v. State, 158
S.W.3d 488, 492 (Tex. Crim. App. 2005); see also Doyle v. State, 265 S.W.3d 28,
31 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d) (“An officer may stop a driver
if he has reasonable suspicion that a traffic violation was in progress or had been
committed.”). Reasonable suspicion exists when the officer has some minimal
level of objective justification for making the stop; in other words, when the officer
can “point to specific and articulable facts which, taken together with rational
inferences from those facts, reasonably warrant th[e] intrusion.” Terry, 392 U.S. at
21, 88 S. Ct. at 1880; see also Alabama v. White, 496 U.S. 325, 329–30, 110 S. Ct.
2412, 2416 (1990). We disregard the subjective belief of the officer in our
reasonable suspicion analysis and consider the totality of the circumstances
objectively. Ford, 158 S.W.3d at 492–93.
It is well-established that an officer may lawfully stop an individual for a
traffic violation. Walter v. State, 28 S.W.3d 538, 542 (Tex. Crim. App. 2000).
And driving a motor vehicle at a speed in excess of a posted speed limit constitutes
prima facie evidence that the driving speed is not reasonable and prudent and is
unlawful. TEX. TRANSP. CODE ANN. § 545.352(a) (Vernon Supp. 2014); see also
id. § 545.351(a) (Vernon 2011) (speeding constitutes violation of Texas
Transportation Code).
5 Here, Deputy Goodney testified that he initiated the traffic stop of appellant
after he saw her driving her car at an “[e]xcessive speed,” 107 mph in a sixty-five
mph zone. After his initial encounter with appellant, she slowed down to ninety-
five mph, which Goodney confirmed by using his patrol car’s radar device and a
separate, independent GPS device.
In support of her argument that the speeding violation may not be used to
justify Deputy Goodney’s traffic stop because the State did not make “any showing
that the radar device used to gauge [appellant’s] speed was reliable or accurate,”
appellant relies on Hall v. State, 297 S.W.3d 294 (Tex. Crim. App. 2009). In Hall,
the defendant argued that “the arresting officer lacked probable cause because the
State failed to prove the reliability of the LIDAR device which the officer used to
determine [the defendant] was speeding.” Hall v. State, 264 S.W.3d 346, 348
(Tex. App.—Waco 2008), aff’d but criticized, 297 S.W.3d 294 (Tex. Crim. App.
2009). The Texas Court of Criminal Appeals agreed and concluded that the trial
court erred in denying the defendant’s suppression motion, holding that “the State
failed to establish that [the law enforcement officer], who relied solely on LIDAR
technology to conclude that [the defendant] was speeding, had probable cause to
stop [the defendant].” Hall, 297 S.W.3d at 298.
Appellant’s reliance on Hall misplaced. We note that the court of criminal
appeals limited its holding to the facts of that particular case, and the LIDAR
6 technology at issue in Hall is markedly different from the radar technology utilized
by Deputy Goodney in the present case. See id. (“Our holding today is limited to
the facts of this case.”); Hall, 264 S.W.3d at 349–50 & n.1 (differentiating between
technologies). Further, the court repeatedly emphasized in reaching its decision in
Hall that the law enforcement officer “relied solely on LIDAR technology” in
making his determination that the defendant was speeding. Hall, 297 S.W.3d at
298.
In contrast, here, Deputy Goodney testified that he personally saw appellant
traveling at an “[e]xcessive speed,” 107 mph in a sixty-five mph zone. He then
“paced” appellant driving ninety-five mph, using his patrol car’s radar device and a
separate, independent GPS device. In other words, Goodney did not develop his
reasonable suspicion that appellant had committed a traffic violation based solely
on his patrol car’s radar device.
Deputy Goodney’s observation of appellant’s speeding was alone sufficient
to justify the traffic stop. See Icke v. State, 36 S.W.3d 913, 915–16 (Tex. App.—
Houston [1st Dist.] 2001, pet. ref’d); see also Dillard v. State, 550 S.W.2d 45, 53
(Tex. Crim. App. 1977) (holding officer had reasonable suspicion defendant
speeding based on his testimony defendant “seemed to be travelling at an
exceptionally high rate of speed” (internal quotations omitted)); McAfee v. State,
204 S.W.3d 868, 870 (Tex. App.—Corpus Christi 2006, pet. ref’d) (holding
7 officer’s visual observation provided reasonable suspicion defendant speeding);
Hesskew v. Tex. Dep’t of Pub. Safety, 144 S.W.3d 189, 191 (Tex. App.—Tyler
2004, no pet.) (“When a law enforcement officer observes a vehicle traveling what
he believes to be fifteen miles over the posted speed limit, a traffic stop is
justified.”). And the evidence supports the trial court’s implied finding that
Goodney had reasonable suspicion to stop appellant for violating the law. 2
Accordingly, we hold that the trial court did not err in denying appellant’s
motion to suppress evidence.
We overrule appellant’s sole issue.
Conclusion
We affirm the judgment of the trial court.
Terry Jennings Justice
Panel consists of Justices Jennings, Massengale, and Lloyd.
Do not publish. TEX. R. APP. P. 47.2(b).
2 Having concluded that Deputy Goodney had reasonable suspicion that appellant was speeding, it is not necessary for us to address the evidence concerning the other traffic violations challenged by appellant. See Hesskew v. Tex. Dep’t of Pub. Safety, 144 S.W.3d 189, 192 (Tex. App.—Tyler 2004, no pet.).