COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 2-06-361-CR
ROBERT DAVID BRACKEN APPELLANT
V.
THE STATE OF TEXAS STATE
------------
FROM COUNTY CRIMINAL COURT NO. 3 OF TARRANT COUNTY
OPINION
A jury convicted Appellant Robert David Bracken of driving while
intoxicated (DWI) enhanced by a prior DWI conviction. The trial court
sentenced Appellant to sixty days’ incarceration in the Tarrant County Jail and
assessed a fine of $1,000. In three points, Appellant contends that the trial
court erred by denying his motions to suppress, by denying his motion to limit any direct or indirect references to any prior arrests or convictions for DWI, and
by allowing improper closing argument. We affirm.
Background
On September 3, 2004, Appellant was charged by information with
driving while intoxicated. The charging instrument contained an enhancement
paragraph relating to Appellant’s previous DWI conviction.
On October 16, 2006, at a pretrial hearing, the trial court orally granted
Appellant’s motion to prevent reference to any prior convictions and his motion
to limit the prosecutor from referencing any prior DWI arrest or conviction. The
trial court also considered Appellant’s motions to suppress, which sought to
suppress any evidence seized by the officers in connection with the detention
and arrest and any officer testimony concerning such evidence. After hearing
testimony from the arresting officer, Tarrant County Sheriff’s Deputy Howard
Johnson, and Appellant and reviewing the in-car video of Appellant’s driving
made by Deputy Johnson during part of the time that he was following
Appellant, the trial court orally denied Appellant’s motion to suppress.
The videotape also captured Appellant’s sobriety tests performed at the
police station. While the jury was deliberating, the jurors asked to see the
videotape of Appellant’s tests at the stop and at the station. By agreement, the
video was forwarded to the point of the test at the stop that would prevent the
jury from hearing the part of the tape referencing Appellant’s prior conviction
2 for DWI. But the judge noted that the “entire exhibit’s in evidence” and “if they
want to see it, I’m going to let them see it.” The jury was given the tape to
watch in the jury room.
1. Motion to Suppress
In his first point, Appellant argues the trial court erred by denying his
motion to suppress because the State failed to show that Deputy Johnson had
a reasonable suspicion for the initial traffic stop. 1
… 1 The dissent contends that we are imposing a double standard for defendants and the State by allowing this appeal when the trial court did not reduce its denial of the motion to suppress to writing. The dissent urges that we should follow our opinion in Cox v. State, 235 S.W.3d 283 (Tex. App.—Fort Worth 2007, no pet.). In Cox, we held that the State could not appeal from the grant of a motion to suppress evidenced by only a docket entry because the trial court had not “entered” its ruling by reducing it to a signed written order, which we held was required by article 44.01. Id. at 284; see Tex. Code Crim. Proc. Ann. art. 44.01(a)(5) (Vernon Supp. 2008) (providing State entitled to appeal from grant of motion to suppress); art. 44.01(d) (providing appeal may not be taken more than fifteen days after order “entered” by court); Tex. R. App. P. 26.2(b) (providing State’s time to appeal runs from date trial court “enters” order). Such an appeal is interlocutory and strictly governed by statute and is entirely different from the appeal in this case. We have never held that a written order denying a motion to suppress is a prerequisite to a defendant’s appeal from a final judgment of conviction, and nothing in the code of criminal procedure supports such a requirement. See Tex. Code Crim. Proc. Ann. art. 44.02 (Vernon 2006); Tex. R. App. P. 25.2(a)(2); Montanez v. State, 195 S.W.3d 101, 105 (Tex. Crim. App. 2006) (holding defendant appealing the denial of a motion to suppress was not required to request a ruling or object to trial court’s refusal to rule when record showed that trial court implicitly overruled motion to suppress); Flores v. State, 888 S.W.2d 193, 196 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d) (holding that signed docket entry evidences trial court’s ruling on motion to suppress evidence even when denial of motion to suppress appears nowhere
3 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, 195 S.W.3d at 108–09; 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
else in record).
4 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.
Reasonable Suspicion
The Fourth Amendment protects against unreasonable searches and
seizures. U.S. Const. amend. IV. 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. 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). A defendant satisfies this burden by establishing
that a search or seizure occurred without a warrant. Torres, 182 S.W.3d at
5 902; Ford, 158 S.W.3d at 492. Once the defendant has made this
showing, the burden of proof shifts to the State, which must then establish that
the government agent conducted the search or seizure pursuant to a warrant
or that the agent acted reasonably. Torres, 182 S.W.3d at 902; Ford, 158
S.W.3d at 492.
The Supreme Court has held that a detention is reasonable under the
Fourth Amendment if the government agent reasonably suspects a person of
engaging in criminal activity. Terry v. Ohio, 392 U.S. 1, 22, 88 S. Ct. 1868,
1880 (1968); Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App.
2000).2 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 the officer to reasonably
conclude that a particular person is, has been, or soon will be engaged in
criminal activity. Ford, 158 S.W.3d at 492–93. 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. at 492.
2 … Because a routine traffic stop typically involves only a short, investigative detention, as opposed to a custodial arrest, we analyze traffic stops under the principles developed for investigative detentions set forth in Terry v. Ohio, 392 U.S. at 22, 88 S. Ct. at 1880; see Berkemer v. McCarty, 468 U.S. 420, 104 S. Ct. 3138 (1984); Martinez v. State, 236 S.W.3d 361, 369 (Tex. App.—Fort Worth 2007, pet. dism’d, untimely filed).
6 Analysis
At the suppression hearing, Deputy Johnson testified that he began to
follow Appellant’s vehicle after he saw approximately half of the vehicle cross
the yellow center lane divider at approximately 1:30 a.m. on FM 1187, a two-
lane rural road that was undergoing construction work. He said that as he
followed Appellant, Appellant weaved from one side of the lane to the other
repeatedly, crossing or driving on the white and yellow lines and lane bumps
several times. He testified that Appellant’s driving indicated to him “that [he]
possibly had an intoxicated driver on hand.” When asked on cross-examination
whether Appellant’s failure to maintain a single lane was dangerous, he
answered that it was dangerous to Appellant himself because he was weaving
in a construction zone with no shoulder and with concrete barriers and traffic
barrels on the side of the road. He agreed that under the circumstances present
at the time, i.e., a construction zone with no shoulder, it could be safer to drive
closer to the center line if no oncoming traffic was present. After reviewing the
in-car video he made during the pursuit, Deputy Johnson admitted that at one
point his own vehicle drove on the lane bumps but said that in so doing he did
not create a danger to anyone else.
The trial court also reviewed the in-car video, as has this court. It shows
Appellant’s car drifting back and forth, repeatedly driving on or over the “Botts
7 Dots,” or lane bumps, and paint-marker flags at either edge of the lane as it
travels through a construction zone on a two-lane country road in the dark.
Appellant testified that he never crossed the center line. He said that his
tires touched the center-line lane bumps once or twice, but as soon as he felt
the bumps, he moved back into the center of the lane.
Deputy Johnson identified three aspects of Appellant’s driving as giving
rise to a reasonable suspicion for the traffic stop: Appellant’s crossing over the
center line by half a vehicle’s width; crossing or driving on the fog line; and
weaving back and forth within his lane over the course of several miles, which
led him to suspect that Appellant was intoxicated. Transportation code section
545.051 provides that an operator on a roadway of sufficient width shall drive
on the right half of the roadway unless the operator is passing another vehicle,
an obstruction necessitates moving the vehicle to the left of the center of the
roadway, the operator is on a roadway divided into three marked lanes for
traffic, or the operator is on a roadway restricted to one-way traffic. Tex.
Transp. Code Ann. § 545.051(a) (Vernon 1999). Deputy Johnson testified that
when he first saw Appellant’s vehicle, Appellant crossed the center line of the
two-lane, two-way roadway by half a vehicle’s width; in other words, Appellant
failed to drive on the right, and none of section 545.051(a)’s exceptions to this
requirement apply. This observation alone was enough to create a reasonable
8 suspicion that Appellant had violated the law. See Rubeck v. State, 61 S.W.3d
741, 745 (Tex. App.—Fort Worth 2001, no pet.) (op. on reh’g) (holding
officer’s observation of defendant’s vehicle crossing center line one time
provided reasonable suspicion for traffic stop).
Appellant cites Ehrhart v. State, 9 S.W.3d 929 (Tex. App.—Beaumont
2000, no pet.), for the proposition that a vehicle’s touching the fog line two or
three times does not justify a stop. In that case, one officer testified that the
defendant’s vehicle crossed the left white line (not the yellow center stripe)
once and the right white line twice. Id. at 930. Another officer testified that
the defendant’s vehicle only touched the right white line twice. Id. There was
no evidence that the defendant’s failure to maintain a single lane of travel was
unsafe. Id. Ehrhart is distinguishable from this case because it involved a
different section of the transportation code, section 545.060(a), which provides
that a driver must drive as nearly as practical within a single lane and may not
move from the lane unless that movement can be made safely. Tex. Transp.
Code Ann. § 545.060(a) (Vernon 1999).3 We need not decide whether the
3 … We recently analyzed section 545.060(a) and the circumstances under which it gives rise to a reasonable suspicion of a traffic violation in Fowler v. State, 266 S.W.3d 498 (Tex. App.—Fort Worth 2008) (en banc) (holding testimony that defendant’s vehicle crossed into an adjacent same-direction lane one time by a tire’s width and touched the white line two more times when it was not unsafe to do so did not show a reasonable suspicion for a traffic stop), pet. stricken, 2008 WL 5245352 (Tex. Crim. App. 2008).
9 suppression hearing evidence in this case supports a reasonable suspicion that
Appellant violated section 545.060(a) because we have already determined that
the evidence justified a stop based on Appellant’s violation of section
545.051(a), which does not contain an “unless the movement can be made
safely” exception to the prohibition against crossing the center line. See id.
§ 545.051(a). Thus, whether Appellant could safely cross the center line is
irrelevant to our reasonable suspicion analysis.
For these reasons, we hold that the trial court did not err by denying
Appellant’s motion to suppress, and we overrule his first point.
2. Evidence of Prior DWI Conviction
In his second point, Appellant complains that the trial court erred by
allowing the evidence concerning which it had granted a pretrial motion in
limine (evidence of Appellant’s prior arrests and conviction for DWI) to be
submitted to the jury during deliberations. During its case-in-chief, the State
offered the videotape that contained statements relating to Appellant’s prior
arrests and conviction for driving while intoxicated. Appellant affirmatively
stated that he had no objection to admission of the videotape, which was then
admitted in its entirety and without limitation. See Delgado v. State, 235
S.W.3d 244, 251 (Tex. Crim. App. 2007). The ruling on the motion in limine
did not preserve any complaint. See Wilkerson v. State, 881 S.W.2d 321, 326
10 (Tex. Crim. App.), cert. denied, 513 U.S. 1060 (1994); Gonzales v. State, 685
S.W .2d 47, 50 (Tex. Crim. App.), cert. denied, 472 U.S. 1009 (1985).
Additionally, the conscientious trial judge did all he could to limit the jury’s
viewing of the tape during deliberations to that portion which the jury had
requested, the sobriety tests. We overrule Appellant’s second point.
3. Improper Argument
In his third point, Appellant argues that the State was allowed to mislead
the jury in closing argument. The prosecutor stated, “Now if ya’ll can figure
that out, you’re smarter than me. That means that his last drink was at the
time that he got there, apparently. If you’re only there for an hour, your last
drink can’t be an hour before you leave the bar. Does this make sense?”
Appellant argues that “[t]his false information was extremely damaging
to [him] in several ways.” Appellant, however, did not object to the argument
below, nor does he provide legal authority to support his position on appeal.
He has therefore failed to preserve his complaint. See Tex. R. App. P. 33.1(a),
38.1(h); Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004); Tong
v. State, 25 S.W.3d 707, 710 (Tex. Crim. App. 2000), cert. denied, 532 U.S.
1053 (2001); Mosley v. State, 983 S.W.2d 249, 256, 265 (Tex. Crim. App.
1998) (op. on reh’g), cert. denied, 526 U.S. 1070 (1999). We overrule his
third point.
11 Conclusion
Having overruled Appellant’s three points, we affirm the trial court’s
judgment.
ANNE GARDNER JUSTICE
PANEL: CAYCE, C.J.; DAUPHINOT and GARDNER, JJ. DAUPHINOT, J. filed a dissenting opinion.
PUBLISH
DELIVERED: January 15, 2009
12 COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
DISSENTING OPINION
This case raises three significant issues, one of which the majority
addresses, albeit only in a footnote, and two of which the majority fails to
address:
1. Is this court correct to create a double standard for reviewing rulings
on motions to suppress, depending on whether the trial court rules for or
against the State?
2. Alternatively, if we reach the merits of the suppression issue, what
weight do we give the trial court’s implicit findings of fact when they are supported by a witness’s testimony but contradicted by a videotape of those
events?
3. Further, when a law enforcement officer testifies that his reasonable
suspicion to detain the defendant was established by a combination of three
events, and the videotape shows that one or more of those events did not
occur, has the State proved reasonable suspicion to justify the warrantless
detention?
Because the majority establishes a double standard for reviewing rulings
on motions to suppress, and, alternatively, in reaching the merits of the
suppression issue does not address the last two questions posed above, I
respectfully dissent.
I. Oral Ruling on Motion to Suppress
The trial court orally denied Appellant’s motions to suppress but did not
enter a written order. In his first point, Appellant argues that the trial court
erred by denying his motions to suppress. This court has held that there is no
appealable ruling on a motion to suppress unless the trial judge enters a written
order.4 As noted in Cox, “[W]e notified the State of our concern that we lacked
4 … State v. Cox, 235 S.W.3d 283, 283, 285 (Tex. App.—Fort Worth 2007, no pet.) (en banc).
2 jurisdiction over the appeal because there is no appealable written order.” 5 We
concluded in the opinion that we indeed lacked jurisdiction based on the
absence of a written order.6
Following the Rosenbaum court,7 we interpreted “entered by the court”
to mean the signing of a written order.8 We recognized that Rosenbaum dealt
with former appellate rule 41(b)(1), which required an appealable order signed
by the trial court, and which has been superseded by appellate rule 26.2(b),
which does not.9 And we did not address the fact that although article
44.01(d) of the code of criminal procedure and appellate rule 26.2(b) speak of
a sentence to be appealed,10 the appellate timetable runs not from the signing
of the written judgment and sentence but from the pronouncement of sentence
in open court. 11
5 … Id. at 284. 6 … Id. at 285. 7 … State v. Rosenbaum, 818 S.W.2d 398 (Tex. Crim. App. 1991). 8 … Cox, 235 S.W.3d at 284. 9 … Id. at 284 & n.9. 10 … Tex. Code Crim. Proc. Ann. art. 44.01(d) (Vernon Supp. 2008); Tex. R. App. P. 26.2(b). 11 … Tex. Code Crim. Proc. Ann. art. 42.03, § 1(a) (Vernon Supp. 2008); Tex. R. App. P. 26.2; Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim. App. 2004).
3 By holding in Cox that the trial court does not enter an order granting a
motion to suppress until formally signing a written order, even though the ruling
and findings of fact and conclusions of law have been pronounced on the
record in open court, we allowed the State more than six extra months to
perfect its appeal. Yet, in the case now before this court, the majority holds
that the trial court enters an order denying a motion to suppress when the trial
court pronounces its ruling orally.12 The majority states that the appeal lies
because after a trial is concluded, the appellant is appealing from “a final
judgment of conviction.” 13 But the majority confuses the criminal rules of
procedure with the civil rules of procedure. While the appellate timetable in a
civil case runs from the signing of the judgment, the appellate timetable in a
criminal case begins to run when the sentence is pronounced orally in open
court.14 The judgment may be signed days or even weeks later in a criminal
case and has no effect on the appellate timetable.
To remain consistent with the rule of Cox, we should hold that because
there is no written order denying Appellant’s motions to suppress, there is
nothing to appeal from the suppression ruling, and we should dismiss the
12 … See majority op. at 3 n.1. 13 … Id. 14 … See Tex. R. App. P. 26.1, 26.2.
4 issue.15 The majority, however, holds that when a defendant appeals from a
ruling on the motion to suppress, no written order is necessary.
II. The Officer’s Testimony vs. The Exhibits
Further, in reaching the merits of the suppression issue, the majority does
not address the significance of the conflicts between the officer’s testimony
and the objective evidence. In the trial court, Tarrant County Sheriff’s Deputy
Howard Johnson testified that while on patrol around 1:30 a.m. on September
1, 2004, he observed a green Lincoln driving eastbound on FM 1187.
Appellant was the driver of the vehicle. Johnson testified that he saw the
vehicle fail to maintain a single lane; specifically, he said that he saw about a
fourth to half of the vehicle cross over the yellow center lane divider and into
the westbound lane. Although he later turned on his video camera, he did not
record the driving he described at this point.
Johnson testified that he then began to follow the vehicle. He said he
saw the car drive over the center line at least once more and that he noticed
the vehicle weaving “rythmatically” within the traffic lane. At some point while
following the vehicle, Johnson turned on his in-car camera. He denied that
Appellant was speeding and testified that he would have stopped Appellant had
15 … See Cox, 235 S.W.3d at 285.
5 Appellant been speeding. Johnson did testify, however, that Appellant “fail[ed]
to maintain a single lane several additional times.”
The pertinent portion of the transportation code provides, “An operator
on a roadway of sufficient width shall drive on the right half of the
roadway. . . .” 16 The videotape, still photographs, and testimony reveal that
the roadway in the stretch in question is a narrow, winding road with no
shoulder and with concrete barriers and barrels along the far edge of the
roadway. A sign warns of the narrow road, and Johnson admitted that it could
be safer to “get a little bit further away from a no-shoulder if there’s no other
traffic coming.” As the majority concedes, Johnson himself was unable to
confine his vehicle to the right-hand lane, although he testified that there was
“adequate room on the roadway.” Appellant testified at the suppression
hearing that he never crossed the center line.
Johnson testified that he stopped Appellant’s vehicle because of two
instances of driving over the center line and ”rhythmatic weaving” that, to him,
was indicative of intoxication. The videotape does not support the officer’s
description of Appellant’s driving. Indeed, Appellant’s driving reveals no
evidence of impairment and nothing that would provide reasonable suspicion of
16 … Tex. Transp. Code Ann. § 545.051 (Vernon 1999).
6 impairment that would justify a detention.
The majority substitutes its determination of reasonable suspicion for
Johnson’s, although the majority relies on his testimony that he saw
Appellant’s vehicle cross the center line. Johnson testified that he stopped
Appellant because he had reasonable suspicion that Appellant was intoxicated
and constituted a danger to himself, based on seeing him cross the center line
twice and weave within his lane. The majority disagrees and says that Johnson
stopped Appellant because he had reasonable suspicion that Appellant had
violated section 545.051.
Although the standard for determining reasonable suspicion is an
objective one, in that there need only be an objective basis for the stop, and the
subjective intent of the officer conducting the stop is irrelevant,17 when the
officer states objective bases for the stop that are disproved by the physical
evidence, here, the videotape, how much deference do we give the trial court’s
implicit findings of fact? When the still photograph of the roadway shows a
lane so narrow that the vehicle depicted is riding the center stripe, how much
deference do we give the trial court’s implicit finding based on Johnson’s
testimony that the lane was not especially narrow? Again, it is a violation of
17 … Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001).
7 section 545.051 to cross the center stripe only when the roadway is “of
sufficient width.” 18 The majority does not discuss these important questions.
Johnson testified that reasonable suspicion to detain Appellant was
provided by the combination of Appellant’s crossing the center line twice, once
on videotape and once unrecorded, and weaving “rhythmatically” within his
lane. The videotape disproves Johnson’s testimony. How much weight do we
give the trial court’s implicit finding that Johnson made these observations
when the videotape contradicts his testimony? The majority does not discuss
this important issue.
III. Conclusion
Because the majority establishes a double standard for rulings on motions
to suppress, and, alternatively, does not address the deference we should
afford a trial court’s implicit findings when objective, physical evidence conflicts
with an officer’s testimony on which the findings are based, I respectfully
dissent.
LEE ANN DAUPHINOT JUSTICE
18 … Tex. Transp. Code Ann. § 545.051.