Nicholas Ryan Nadeau v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: August 3, 2022
• Docket: 05-19-01137-CR
• Status: Published

Opinion

Affirm and Opinion Filed August 3, 2022

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-19-01137-CR

NICHOLAS RYAN NADEAU, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 296th Judicial District Court Collin County, Texas Trial Court Cause No. 296-83228-2018

MEMORANDUM OPINION Before Justices Myers, Carlyle, and Goldstein Opinion by Justice Myers A jury convicted appellant Nicholas Ryan Nadeau of possession of

methamphetamine and assessed punishment at twenty-five years in prison. In four

issue, appellant contends (1) the case should be abated because of a conflict between

a written order granting appellant’s motion to suppress and an oral denial of that

same motion; (2) the court erred when it denied appellant’s motion to suppress; (3)

the court erred in not allowing an investigator for the defense to testify as an expert;

and (4) the court erred in not charging the jury pursuant to article 38.23 of the Texas

Code of Criminal Procedure. We affirm. DISCUSSION

1. Abatement for Finding by Trial Court

In his first issue, appellant argues the trial court should be required to make

findings to clarify an apparent conflict in the record between a written order signed

by the court granting appellant’s pretrial motion to suppress and, later, following a

suppression hearing, an oral denial of that same motion. The State agreed with

appellant to the extent that the law required abatement due to the conflicting oral

denial of the motion to suppress.

On June 14, 2022, we abated this matter to the trial court pursuant to rule 44.4

of the Texas Rules of Appellate Procedure and Henery v. State, 364 S.W.3d 915,

919 (Tex. Crim. App. 2012), to determine whether the trial court intended the written

order granting the motion to suppress to control, or whether the court intended the

oral pronouncement to control. On June 30, in response to our order, the court held

a hearing and found it had inadvertently signed the order granting the motion to

suppress. The court clarified that its ruling was that the motion to suppress was

denied, and the court vacated the order granting the motion to suppress.

Because the trial court’s ruling granting the motion to suppress resulted from

clerical error, it did not warrant reversal. See id. We therefore overrule appellant’s

first issue.

2. Motion to Suppress

In his second issue, appellant contends the trial court erred in denying his

–2– motion to suppress the contraband found in his car because the police officer failed

to provide specific and articulable facts to support his initial stop of appellant’s car.

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

standard of review. State v. Staton, 599 S.W.3d 614, 616 (Tex. App.—Dallas 2020,

pet. ref’d) (citing State v. Ruiz, 577 S.W.3d 543, 545 (Tex. Crim. App. 2019)). We

give almost total deference to the trial court’s determination of historical facts and

review de novo the application of the law to the facts. Id. We view the record in the

light most favorable to the trial court’s ruling. Id. When, as in this case, the trial

court does not make explicit findings of fact, we view the evidence in the light most

favorable to the trial court’s ruling and assume the trial court made implicit findings

of fact supported by the record. Lerma v. State, 543 S.W.3d 184, 190 (Tex. Crim.

App. 2018). We will sustain the ruling of the trial court if it is correct under any

applicable theory of law. Id.

Before trial, defense counsel filed a motion to suppress claiming Officer

Colton Roelofs of the Frisco Police Department did not have reasonable suspicion

to conduct the traffic stop that led to appellant’s arrest for possession of

methamphetamine. Roelofs testified that on May 24, 2018, he was conducting

narcotics interdiction with his K9 in an area where he had made a lot of drug arrests.

He saw appellant leave a Valero gas station, get in his car, and drive off. Appellant

was wearing a “7-Eleven” shirt, which caught the officer’s eye.

Roelofs had a clear line of sight as appellant’s vehicle drove past the place

–3– where the officer’s Tahoe was parked, and appellant’s turn signal was off as he

crossed in front of the officer’s patrol car. The officer pulled out and started driving

behind appellant, who quickly activated his turn signal and made a right turn into a

Snap-E-Jack gas station. Appellant’s car was approximately a car length or a car

length and a-half away from the turn. The officer based this approximation on the

length of his Tahoe, which was 17.1 feet long, and stated that there was “no way”

the turn signal was activated “outside of 25 feet” from the turn. He later summarized

the distance as “maybe inside of 25 feet, but nowhere close to outside of a hundred

feet” from the turn. Roelofs testified that what he saw was a violation of the Texas

Transportation Code.

Roelofs testified that appellant passed the initial turn into the gas station and

appeared to make a split-second decision to turn at the next entrance once the officer

started driving behind him. Roelofs stated that it was not possible appellant’s turn

signal was on at the time, but if it was, he did not see it “whatsoever” and he “had

the angle to where I would have been able to see it.” The officer testified that he

“would have been able to see [appellant’s] violation clearly, or I would . . . not have

pulled him over.”

During the hearing, the State showed Officer Roelofs’s in-car video. Within

the first few seconds, the video depicts appellant’s car moving across the video

frame, the officer pulling out behind appellant’s vehicle, and appellant’s turn signal

blinking right just before the turn.

–4– The defense called a private investigator, Daryl Parker, who testified that he

used software programs such as Google Earth and Corel Draw and made

measurements at the scene. Based on his on-scene measurements and his review of

the officer’s in-car video, Parker’s conclusion was that the turn signal was on at

approximately 162 feet from the turn. Parker admitted on cross-examination that he

was not there on the night of the stop, and he was basing his conclusion on estimates

and could not say what the officer could or could not see.

At the end of the hearing, the trial court denied appellant’s motion to suppress,

stating:

Excellent investigation, I think, but we are not limited to what the video camera says. We are to take into consideration all of the evidence as a whole, including the officer’s testimony. Just think about the days when we didn’t have video cameras at all. And so the motion to suppress is denied.

The court did not issue any findings of fact or conclusions of law. The case

proceeded to trial on August 26, 2019, and the jury found appellant guilty.

For Fourth Amendment purposes, a traffic stop is a seizure and must be

reasonable to be lawful. Vasquez v. State, 324 S.W.3d 912, 919 (Tex. Crim. App.

2019). A police officer may make a warrantless traffic stop based on reasonable

suspicion of a traffic violation. See Jaganathan v. State, 479 S.W.3d 244, 247 (Tex.

Crim. App. 2015). An officer has reasonable suspicion if he or she has specific,

articulable facts that, when combined with rational inferences from those facts,

would lead him or her to reasonably suspect that a particular person has been or soon

–5– will be engaged in criminal activity. Id. This 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. Wade v. State, 422 S.W.3d 661, 668 (Tex. Crim.

App. 2013); Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). A

determination of reasonable suspicion is made by considering the totality of the

circumstances. Wade, 422 S.W.3d at 668; Ford, 158 S.W.3d 492–93. The burden

is on the State to demonstrate the reasonableness of the investigatory stop. Goudeau

v. State, 209 S.W.3d 713, 716 (Tex. App.—Houston [14th Dist.] 2006, no pet.); see

also Ford, 158 S.W.3d at 492.

The evidence in this case supports that Officer Roelofs had reasonable

suspicion to conduct a warrantless traffic stop of appellant based on appellant’s

traffic violation. The officer testified that he observed appellant activate his turn

signal at a distance of “maybe inside of 25 feet, but nowhere close to outside of a

hundred feet” from the right-hand turn. According to the Texas Transportation

Code, “[a]n operator intending to turn a vehicle right or left shall signal continuously

for not less than the last 100 feet of movement of the vehicle before the turn.” TEX.

TRANSP. CODE § 545.104(b). The officer’s personal observation of appellant failing

to signal his right turn continuously for at least 100 feet before turning, combined

with the evidence from the officer’s in-car video, provided objective, articulable

facts supporting a reasonable suspicion to stop appellant for a traffic violation. See

Castro v. State, 227 S.W.3d 737, 742 (Tex. Crim. App. 2007) (officer’s observation

–6– of illegal lane change provided sufficient objective, articulable facts to support

finding of reasonable suspicion that driver committed traffic violation by failing to

signal lane change). Therefore, based on our review of the record, we conclude the

trial court did not err in denying appellant’s motion to suppress.

We next consider appellant’s alternative request that we remand this case to

the trial court for entry of specific findings of fact. In support of his position,

appellant cites State v. Elias, 339 S.W.3d 667 (Tex. Crim. App. 2011), but this

reliance is misplaced. Elias states in part that “‘upon the request of the losing party

on a motion to suppress evidence, the trial court shall state its essential findings.’”

Id. at 674 (quoting State v. Cullen, 195 S.W.3d 696, 699 (Tex. Crim. App. 2006)).

“‘[E]ssential findings’” mean “‘findings of fact and conclusions of law adequate to

provide an appellate court with a basis upon which to review the trial court’s

application of the law to the facts.’” Id. (quoting Cullen, 195 S.W.3d at 699). The

findings may be written or stated on the record at the conclusion of the hearing.

Cullen, 195 S.W.3d at 699. “[A]n appellate court must abate for additional findings

of fact when a party has requested findings of fact and the findings that are made by

a trial court are so incomplete that an appellate court is unable to make a legal

determination.” State v. Saenz, 411 S.W.3d 488, 495 (Tex. Crim. App. 2013). In

this case, however, there is no indication either party requested findings.

Furthermore, because the trial court made oral findings at the conclusion of the

hearing that are adequate for our review, a remand for additional findings is

–7– unnecessary. We overrule appellant’s second issue.

3. Defense Investigator Testifying as Expert

In his third issue, appellant argues the trial court abused its discretion and

violated rule 702 by not allowing defense investigator Daryl Parker to testify as an

expert witness regarding his investigation and findings.

The admission of expert testimony is governed by Texas Rule of Evidence

702. Morales v. State, 32 S.W.3d 862, 865 (Tex. Crim. App. 2000). Pursuant to

rule 702, a witness may offer an expert opinion if the witness is qualified to do so

by knowledge, skill, experience, training, or education and the witness possesses

scientific, technical, or other specialized knowledge that will assist the trier of fact

to understand the evidence or to determine a fact in issue. TEX. R. EVID. 702. If the

trial court determines the underlying facts or data do not provide a sufficient basis

for the expert’s opinion, the opinion is inadmissible. See TEX. R. EVID. 705(c).

Before admitting expert testimony under rule 702, the trial court must be satisfied

that three conditions are met: (1) the witness qualifies as an expert by reason of his

knowledge, skill, experience, training, or education; (2) the subject matter of the

testimony is an appropriate one for expert testimony; and (3) admitting the expert

testimony will actually assist the factfinder in deciding the case. Vela v. State, 209

S.W.3d 128, 131 (Tex. Crim. App. 2006). These requirements are commonly

referred to as qualification, reliability, and relevance. Id. Each requirement raises

distinct questions and issues, and an objection based on one requirement does not

–8– preserve error as to another. Shaw v. State, 329 S.W.3d 645, 655–56 (Tex. App.—

Houston [14th Dist.] 2010, pet. ref’d).

We review a trial court’s decision on whether to allow expert opinion

testimony for an abuse of discretion. Gallo v. State, 239 S.W.3d 757, 765 (Tex.

Crim. App. 2007). We must uphold the trial court’s ruling if it was within the zone

of reasonable disagreement. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim.

App. 2000). We also review the trial court’s ruling in light of the evidence before

the trial court at the time the ruling was made. Id.

At the outset, we note that appellant’s brief does not identify what particular

testimony by Parker the trial court excluded. The record shows there were two

hearings on the admissibility of Parker’s testimony that were held out of the jury’s

presence, the first before he testified and the second part of the way through his

testimony. At the first hearing, defense counsel, when asked by the court under what

rule he was conducting the hearing, hesitated to clarify if was offering Parker as an

expert or a lay witness, saying both that Parker was being offered as an investigator

and “not necessarily as an expert witness,” and that he was going to offer Parker as

an expert regarding the results of his investigation.

After admitting Parker’s CV and listening to him explain his background and

education and the specific techniques he used in his analysis of the traffic stop (e.g.,

using Google Earth “to map out the scene,” and then using the officer’s in-car video

“to determine reference points throughout the video”), the trial court appeared to

–9– rule that Parker was not qualified to testify as an expert that, based on looking at the

lights on the video, appellant’s blinker was on at least 100 feet before the turn. The

court noted there was no indication Parker was “some lighting expert” or “what

expert would testify to that,” and the jury could “watch the same video” and reach

its own conclusion. The court indicated it had no concern about Parker testifying to

“where he thinks the hundred feet [mark] was or is because he measured it.” But the

court was concerned about Parker testifying “that based upon his analysis the blinker

was on outside of a hundred feet” because Parker was not qualified to provide such

testimony.

The second hearing held out of the jury’s presence occurred after Parker

started testifying, and it involved multiple rulings on redactions of Parker’s slide

presentation due to hearsay and speculation objections from the State. The trial court

also appeared to rule that Parker could not testify to where appellant activated his

blinker “because that’s complete speculation,” and, again, the jurors could watch

“the very same video” and come to their own conclusions.

Appellant contends the trial court’s refusal to allow Parker to testify to his

“findings and conclusion” was an abuse of discretion, yet appellant does not identity

what, specifically, Parker was prevented from offering. He provides only general

references to Parker’s testimony. Even so, to the extent the court limited Parker’s

testimony, appellant fails to show an abuse of discretion by the court in its rule 702

evaluation. Appellant claims Parker has experience in crime scene reconstruction;

–10– he is a crime scene investigator; and an accident reconstruction expert. There is,

however, nothing in the record to indicate Parker is an accident reconstruction

expert. Also, while Parker testified to his training and experience in investigations

and crime scene reconstruction, appellant fails to make the connection between those

fields of expertise and Parker’s testimony. The trial court asked defense counsel

what expertise Parker had regarding lighting and the way it reflected “off the road,”

to which counsel responded that Parker took measurements. The court observed that

measurements were “a different thing,” and the court said it did not know “what

expert testimony [Parker] is providing” regarding lighting. The trial court also

questioned whether such an opinion was verifiable and asked if there was a journal

on that subject, to which counsel responded that any conclusory statements on

Parker’s slide presentation could be edited out. Furthermore, the court could have

considered other factors that impacted Parker’s credibility, e.g., testifying that the

turn signal was on at 162 feet during the suppression hearing and at the 148-foot

mark at the rule 702 hearing; acknowledging that he could not say what Officer

Roelofs could or could not see on the night of the stop.

We additionally conclude that appellant was not harmed by any error in the

limitation of Parker’s testimony. See TEX. R. APP. P. 44.2(b). The record shows that

Parker testified at length before the jury regarding the results of his investigation.

He showed the jury a series of slides with satellite images, maps, and photos of the

officer’s in-car video. He showed an image “approximating the field of view” of the

–11– officer’s in-car camera, and it showed where, on the image, the 100-foot mark was

located from the turn into the gas station. Parker testified that he took physical

measurements at the scene; he calculated the speed of appellant’s car; and he testified

that he believed appellant’s brake lights were activated at the 148-foot mark. He

also showed nine frames depicting appellant’s car moving from the point at which

he believed “the brake lights were activated until it leaves the screen.” He described

what he believed was a “change in dimensions of the light . . . as the vehicle moves

through the frame,” stating that it appeared to grow and diminish as appellant’s car

moved across the video screen. He discussed what he believed was a “color change”

in the image from one frame to the next, and that the vehicle at that point was at the

148-foot mark. During closing arguments, defense counsel emphasized its theory

that appellant’s car was at the 148-foot mark when the turn signal was activated,

based on the change in lighting.

We overrule appellant’s third issue.

4. Jury Charge

In his fourth issue, appellant contends the trial court erred in not charging the

jury pursuant to article 38.23 of the Code of Criminal Procedure on the issue of

whether appellant was lawfully detained.

Under article 38.23(a), when the evidence raises a question on whether

evidence was illegally obtained, the jury shall be instructed that if it believes, or has

a reasonable doubt, that the evidence was obtained in violation of the law, the jury

–12– shall disregard any evidence so obtained. See TEX. CODE CRIM. PROC. 38.23(a);

Madden v. State, 242 S.W.3d 504, 510 (Tex. Crim. App. 2007).

The record shows such an instruction was included in the court’s charge to the

jury at guilt/innocence. It states as follows:

Any evidence obtained by an officer or other person in violation of any provision of the Constitution or laws of the State of Texas or of the Constitution or laws of the United States shall be disregarded by the jury. You are instructed that before an officer has the right to make a temporary investigative detention of a defendant. the officer must have a reasonable suspicion that the defendant is connected with some criminal activity that is or has occurred. “Reasonable suspicion” means a suspicion that would be held by an ordinary and prudent person in the same circumstances as the officer. Now, therefore, before you consider the testimony of Officer Colton Roelofs concerning his observation of the defendant at the time of his detention, you must first find beyond a reasonable doubt that the officer had such reasonable suspicion, and if you do not so find beyond a reasonable doubt you will disregard such testimony and evidence.

Indeed, defense counsel quoted and explained this language to the jury during

closing arguments.

Because the issue raised by appellant was given to the jury, appellant’s

complaint is without merit, and we therefore overrule his fourth issue.

–13– We affirm the trial court’s judgment.

191137f.u05 Do Not Publish /Lana Myers// TEX. R. APP. P. 47.2(b) LANA MYERS JUSTICE

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