COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 2-08-325-CR
RAYANNE TRIMBLE APPELLANT
V.
THE STATE OF TEXAS STATE
------------
FROM COUNTY CRIMINAL COURT NO. 3 OF DENTON COUNTY
MEMORANDUM OPINION 1
Introduction
Appellant Rayanne Trimble appeals her conviction and two-year sentence
of community supervision for driving while intoxicated. She contends in one
issue that the trial court erred by denying her motion to suppress because the
1 … See Tex. R. App. P. 47.4. information received by the detaining officer was not sufficient to justify the
stop. We affirm.
Background Facts
At about 10:30 p.m. on December 14, 2007, off-duty Flower Mound
Police Officer Jason Toth was driving home from a social function with his
wife. He saw the driver of a white Ford pickup truck drive straight in a right-
turn-only lane and then drive on the shoulder. He was suspicious, so he
followed the truck and contacted dispatch. He identified himself to the
dispatcher, who recognized his voice. He told dispatch the make, model, and
color of the truck. While he was talking to dispatch and still following the
truck, Officer Toth saw the driver of the truck continue on the shoulder for
about a mile and a half 2 and then turn left. Officer Toth then gave dispatch the
2 … A person may drive on an improved shoulder, if necessary and if such driving can be done safely, but only for the following reasons:
(1) to stop, stand, or park; (2) to accelerate before entering the main traveled lane of traffic; (3) to decelerate before making a right turn; (4) to pass another vehicle that is slowing or stopped on the main traveled portion of the highway, disabled, or preparing to make a left turn; (5) to allow another vehicle traveling faster to pass; (6) as permitted or required by an official traffic-control device; or (7) to avoid a collision.
Tex. Transp. Code Ann. § 545.058(a) (Vernon 1999).
2 truck’s license plate number. He had decided that the driver needed to be
pulled over for erratic driving.
At that point, the driver of the truck made a U–turn, going off the road
and into the muddy, unfinished shoulder. Officer Toth could not make the turn
because of the mud and told dispatch that he could no longer follow the truck.
He told dispatch what direction the muddy truck tracks were headed and
continued on his way home.
Flower Mound Police Officer Suzanne Reed was on her regular patrol that
night when she heard that several officers in the area were looking for a white
pickup truck that had possibly wrecked in a field. The radio report stated that
the truck had been driving on the shoulder and gave the license plate number.
The radio report also asked officers to locate a possibly intoxicated driver.
Officer Reed found the truck and stopped it based on the report of suspicion of
an intoxicated driver. She did not personally observe the driver of the truck
commit any traffic violations.
Officer Toth got a call from dispatch stating that another officer had
stopped the truck and asking him to come to the scene, which he did. He
identified the truck as the same one that he had followed earlier that night by
its make, model, color, and license plate number. Appellant had been driving
3 the car. She failed field sobriety tests, refused to give a breath sample, and
was arrested for driving while intoxicated.
Appellant filed a motion to suppress the results of the stop, arguing that
it was made without reasonable suspicion or probable cause. The trial court
denied the motion. Under appellant’s plea bargain with the State, the trial court
sentenced appellant to two years’ community supervision. This appeal
followed.
Issue on Appeal
In a single issue, appellant challenges the trial court’s denial of her motion
to suppress. Specifically, she contends that the stop was invalid and without
reasonable suspicion or probable cause because Officer Reed, the arresting
officer, stopped her on suspicion of driving while intoxicated, an observation
that Officer Toth did not remember relaying to dispatch. Officer Reed herself
did not see the driver of the truck violate any traffic laws and did not observe
any facts giving rise to reasonable suspicion or probable cause that the driver
was intoxicated. The State contends that Officer Toth saw appellant commit
a traffic violation and communicated that fact to dispatch, which gave rise to
Officer Reed’s authority to stop appellant. In addition, the State argues that
under an objective standard, a reasonable officer could have developed
reasonable suspicion that appellant was intoxicated based on either the facts
4 Officer Toth observed or the facts Officer Reed received from the radio
dispatches.
Standard of Review
We review a trial court’s ruling on a motion to suppress evidence under
a bifurcated standard. 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,
698–99 (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
5 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.
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COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 2-08-325-CR
RAYANNE TRIMBLE APPELLANT
V.
THE STATE OF TEXAS STATE
------------
FROM COUNTY CRIMINAL COURT NO. 3 OF DENTON COUNTY
MEMORANDUM OPINION 1
Introduction
Appellant Rayanne Trimble appeals her conviction and two-year sentence
of community supervision for driving while intoxicated. She contends in one
issue that the trial court erred by denying her motion to suppress because the
1 … See Tex. R. App. P. 47.4. information received by the detaining officer was not sufficient to justify the
stop. We affirm.
Background Facts
At about 10:30 p.m. on December 14, 2007, off-duty Flower Mound
Police Officer Jason Toth was driving home from a social function with his
wife. He saw the driver of a white Ford pickup truck drive straight in a right-
turn-only lane and then drive on the shoulder. He was suspicious, so he
followed the truck and contacted dispatch. He identified himself to the
dispatcher, who recognized his voice. He told dispatch the make, model, and
color of the truck. While he was talking to dispatch and still following the
truck, Officer Toth saw the driver of the truck continue on the shoulder for
about a mile and a half 2 and then turn left. Officer Toth then gave dispatch the
2 … A person may drive on an improved shoulder, if necessary and if such driving can be done safely, but only for the following reasons:
(1) to stop, stand, or park; (2) to accelerate before entering the main traveled lane of traffic; (3) to decelerate before making a right turn; (4) to pass another vehicle that is slowing or stopped on the main traveled portion of the highway, disabled, or preparing to make a left turn; (5) to allow another vehicle traveling faster to pass; (6) as permitted or required by an official traffic-control device; or (7) to avoid a collision.
Tex. Transp. Code Ann. § 545.058(a) (Vernon 1999).
2 truck’s license plate number. He had decided that the driver needed to be
pulled over for erratic driving.
At that point, the driver of the truck made a U–turn, going off the road
and into the muddy, unfinished shoulder. Officer Toth could not make the turn
because of the mud and told dispatch that he could no longer follow the truck.
He told dispatch what direction the muddy truck tracks were headed and
continued on his way home.
Flower Mound Police Officer Suzanne Reed was on her regular patrol that
night when she heard that several officers in the area were looking for a white
pickup truck that had possibly wrecked in a field. The radio report stated that
the truck had been driving on the shoulder and gave the license plate number.
The radio report also asked officers to locate a possibly intoxicated driver.
Officer Reed found the truck and stopped it based on the report of suspicion of
an intoxicated driver. She did not personally observe the driver of the truck
commit any traffic violations.
Officer Toth got a call from dispatch stating that another officer had
stopped the truck and asking him to come to the scene, which he did. He
identified the truck as the same one that he had followed earlier that night by
its make, model, color, and license plate number. Appellant had been driving
3 the car. She failed field sobriety tests, refused to give a breath sample, and
was arrested for driving while intoxicated.
Appellant filed a motion to suppress the results of the stop, arguing that
it was made without reasonable suspicion or probable cause. The trial court
denied the motion. Under appellant’s plea bargain with the State, the trial court
sentenced appellant to two years’ community supervision. This appeal
followed.
Issue on Appeal
In a single issue, appellant challenges the trial court’s denial of her motion
to suppress. Specifically, she contends that the stop was invalid and without
reasonable suspicion or probable cause because Officer Reed, the arresting
officer, stopped her on suspicion of driving while intoxicated, an observation
that Officer Toth did not remember relaying to dispatch. Officer Reed herself
did not see the driver of the truck violate any traffic laws and did not observe
any facts giving rise to reasonable suspicion or probable cause that the driver
was intoxicated. The State contends that Officer Toth saw appellant commit
a traffic violation and communicated that fact to dispatch, which gave rise to
Officer Reed’s authority to stop appellant. In addition, the State argues that
under an objective standard, a reasonable officer could have developed
reasonable suspicion that appellant was intoxicated based on either the facts
4 Officer Toth observed or the facts Officer Reed received from the radio
dispatches.
Standard of Review
We review a trial court’s ruling on a motion to suppress evidence under
a bifurcated standard. 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,
698–99 (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
5 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 818.
When the record is silent on the reasons for the trial court’s ruling, or
when there are no explicit fact findings and neither party timely requested
findings and conclusions from the trial court, we imply the necessary fact
findings that would support the trial court’s ruling if the evidence, viewed in the
light most favorable to the trial court’s ruling, supports those findings. State
v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008); see Wiede,
214 S.W.3d at 25. We then review the trial court’s legal ruling de novo unless
6 the implied fact findings supported by the record are also dispositive of the legal
ruling. Kelly, 204 S.W.3d 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 (2004).
Applicable Law
The Fourth Amendment protects against unreasonable searches and
seizures by government officials. U.S. Const. amend. IV; Wiede, 214 S.W.3d
at 24. To suppress evidence because of an alleged Fourth Amendment
violation, the defendant bears the initial burden of producing evidence that
rebuts the presumption of proper police conduct. Amador, 221 S.W.3d at 672.
A defendant satisfies this burden by establishing that a search or seizure
occurred without a warrant. Id. Once the defendant has made this showing,
the burden of proof shifts to the State, which is then required to establish that
the search or seizure was conducted pursuant to a warrant or was reasonable.
Id. at 672–73; Torres v. State, 182 S.W.3d 899, 902 (Tex. Crim. App. 2005);
Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005).
7 An officer has probable cause to stop and arrest a driver if he observes
the driver commit a traffic offense. State v. Gray, 158 S.W.3d 465, 469–70
(Tex. Crim. App. 2005); see State v. Ballman, 157 S.W.3d 65, 70 (Tex.
App.—Fort Worth 2004, pet. ref’d). A detention, as opposed to an arrest, may
be justified on less than probable cause if a person is reasonably suspected of
criminal activity based on specific, articulable facts. Terry v. Ohio, 392 U.S.
1, 21, 88 S. Ct. 1868, 1880 (1968); Carmouche v. State, 10 S.W.3d 323,
328 (Tex. Crim. App. 2000). An officer conducts a lawful temporary detention
when he or she has reasonable suspicion to believe that an individual is
violating the law. Ford, 158 S.W.3d at 492. 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. 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. Id.
Analysis
Here, Officer Toth could have legitimately stopped appellant for the traffic
violation he observed, regardless of his off-duty status. See Tex. Code Crim.
Proc. Ann. art. 2.13 (Vernon 2005); Moore v. State, 562 S.W.2d 484, 486
8 (Tex. Crim. App. [Panel Op.] 1978); Wood v. State, 486 S.W.2d 771, 774
(Tex. Crim. App. 1972); DeMoss v. State, 12 S.W.3d 553, 556–57 (Tex.
App.—San Antonio 1999, pet. ref’d). The question then becomes whether
Officer Reed, relying on information from dispatch that may not have been
exactly the same as the information Officer Toth provided to dispatch, could
have legitimately stopped the vehicle.3 Probable cause is evaluated based on
the collective information known to the police, not just the stopping or arresting
officer. United States v. Hensley, 469 U.S. 221, 229–33, 105 S. Ct. 675,
681–82 (1985); Woodward v. State, 668 S.W.2d 337, 344–46 (Tex. Crim.
App. 1982) (op. on reh’g), cert. denied, 469 U.S. 1181 (1985); see also
Armendariz, 123 S.W.3d at 403–04; Jackson v. State, 745 S.W.2d 4, 8–9
(Tex. Crim. App.), cert. denied, 487 U.S. 1241 (1988).4 Therefore, Officer
Reed need not have personally seen appellant commit a traffic violation, nor
3 … Officer Toth testified that he could not remember exactly what he told dispatch but also said that he had not formed a reasonable suspicion that appellant was driving while intoxicated. He did, however, have a “personal belief” that the appellant was intoxicated. 4 … That the detaining officer made the stop based on information relayed to dispatch by a fellow law enforcement officer distinguishes this case from those in which the initial information given to dispatch comes from a citizen informant. See, e.g., Amores v. State, 816 S.W.2d 407, 414–16 & n.10 (Tex. Crim. App. 1991) (holding that a police broadcast of a burglary in progress called in by a citizen informant, standing alone, did not give an officer probable cause to arrest, but also noting that even in such a case, the focus is usually on the information known to the dispatcher in considering probable cause).
9 was it necessary for dispatch to have communicated all of the information
known by Officer Toth to Officer Reed, to justify Officer Reed’s stopping
appellant. Accordingly, because Officer Toth witnessed appellant commit at
least one traffic violation, giving the police probable cause to stop appellant
based on the collective information known to them at the time, we conclude
that the trial court did not err by denying the motion to suppress. We therefore
overrule appellant’s sole issue.
Conclusion
Having overruled appellant’s sole issue, we affirm the trial court’s
judgment.
TERRIE LIVINGSTON JUSTICE
PANEL: LIVINGSTON, WALKER, and MEIER, JJ.
DO NOT PUBLISH Tex. R. App. P. 47.2(b)
DELIVERED: July 16, 2009