Fourth Court of Appeals San Antonio, Texas OPINION No. 04-24-00196-CR
Roscell HINES, Appellant
v.
The STATE of Texas, Appellee
From the 274th Judicial District Court, Guadalupe County, Texas Trial Court No. 22-0495-CR-B Honorable Daniel H. Mills, Judge Presiding
Opinion by: H. Todd McCray, Justice
Sitting: Irene Rios, Justice H. Todd McCray, Justice Velia J. Meza, Justice
Delivered and Filed: August 27, 2025
AFFIRMED
Pro se appellant, Roscell Hines, was convicted by a jury of driving while intoxicated. On
appeal, he contends (1) the trial court erred in denying his motion to suppress because the arresting
officer lacked reasonable suspicion to initiate a traffic stop; (2) the trial court erred in denying his
motion to suppress blood evidence because the supporting affidavit for the search warrant was
defective; and (3) the trial court made improper comments on the weight of the evidence. We
affirm the judgment of the trial court. 04-24-00196-CR
BACKGROUND
On July 30, 2021, at approximately 11:30 p.m., Officer Isak Moebius was patrolling when
he encountered a sedan parked just to the right of the white fog line on the shoulder of the road.
The road was frequently travelled, but in a rural and unlit area. Officer Moebius testified that this
was an unusual place for a vehicle to be stopped at such a late hour in the evening. The vehicle did
not have its hazard lights on, but the headlights were on and the car was running. Concerned for
the safety of the occupant, Officer Moebius pulled onto the shoulder of the road and parked behind
the vehicle. He activated his rear strobe lights to alert oncoming traffic, and he activated his front
spotlight to illuminate the vehicle and the area in front of him. As the officer exited his patrol car
and approached, the vehicle’s brake lights lit up and, without signaling, it sped forward into the
lane of travel.
Officer Moebius returned to his patrol car, activated his lights and siren and followed the
vehicle. The vehicle was travelling at a high rate of speed and then crossed the center line and
drifted into the opposite lane of travel. The vehicle continued along the center line and then came
to an abrupt halt in front of the patrol car, causing Officer Moebius to have to take evasive action
to avoid a collision. Officer Moebius exited his patrol car with his gun drawn and ordered the
occupants to exit the vehicle. After several such commands, Appellant Roscell Hines exited the
vehicle alone. The officer instructed Hines to put his hands in the air and walk backwards toward
him. As Hines did so, the officer noticed that he stumbled and swayed. The officer began speaking
with Hines and noticed continued swaying, slurred and confused speech, and the odor of alcohol
on his breath. Officer Moebius conducted standard field sobriety tests and determined that Hines
was not in control of his mental or physical faculties. He placed Hines under arrest for driving
while intoxicated.
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Hines was transported to the Guadalupe County Jail where he agreed to give a breath
sample to determine his blood-alcohol level. When Hines could not give a conclusive breath
sample, he was transported to the Guadalupe Regional Medical Center for a blood test, which
revealed a blood alcohol level of .250.
Hines was indicted for felony driving while intoxicated and unlawful possession of a
firearm by a felon. Hines chose to represent himself at trial. He filed numerous pre-trial motions,
including a motion to suppress and a motion for a Frank’s hearing. The trial court denied his
motions and the case proceeded to trial. A jury found Hines not guilty of the gun charge and guilty
of driving while intoxicated. He was sentenced to 36 years in prison. Raising three points of error,
Hines appeals the conviction.
DISCUSSION
A. Motion to Suppress
We review a trial court’s denial of a motion to suppress evidence under a bifurcated standard.
State v. Espinoza, 666 S.W.3d 659, 667 (Tex. Crim. App. 2023); State v. Kerwick, 393 S.W.3d
270, 273 (Tex. Crim. App. 2013). When the trial court does not file findings of fact, we assume
that the trial court made implicit findings that support its ruling, so long as those implied findings
are supported by the record. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). We give
almost total deference to the trial court’s factual determinations and review de novo the trial court’s
application of the law to the facts. State v. Cortez, 543 S.W.3d 198, 203 (Tex. Crim. App. 2018).
“The evidence and all reasonable inferences are viewed in the light most favorable to the trial
court's ruling, and the trial court's ruling must be upheld if it is reasonably supported by the record
and is correct under a theory of law applicable to the case.” Espinoza, 666 S.W.3d at 667 (citing
Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996)).
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1. Reasonable Suspicion
In his first point of error, Hines argues that the trial court erred in denying his motion to
suppress evidence obtained after the traffic stop because the officer lacked probable cause to make
the arrest. However, Hines’s arguments, both in the trial court and on appeal, focus on the
reasonableness of the initial traffic stop and not the arrest. We will therefore construe Hines’s
contentions as a complaint regarding the stop.
The Fourth Amendment of the United States Constitution and Article 1, Section 9 of the
Texas Constitution permit a warrantless detention, such as a traffic stop, if the detention is justified
by reasonable suspicion. Terry v. Ohio, 392 U.S. 1, 28, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968);
Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011). A law enforcement officer's
reasonable suspicion must be based on specific, articulable facts that, in the light of his experience
and the totality of the circumstances, would lead him to reasonably suspect criminal activity. Terry,
392 U.S. at 28 (1969); Crain v. State, 315 S.W.3d 43, 52 (Tex. Crim. App. 2010). The totality of
the circumstances may raise reasonable suspicion even if those circumstances standing alone may
be consistent with innocent activity. Kerwick, 393 S.W.3d at 273–74 (citing York v. State, 342
S.W.3d 528, 536 (Tex. Crim. App. 2011).
In this case, Officer Moebius testified that it was unusual for him to discover a vehicle,
with its headlights on, parked on an unlit rural highway late in the evening. Because of this, he
stopped to investigate. Officer Moebius testified that he pulled behind the car to see if the
occupants needed assistance. Hines argues that Officer Moebius’ stop was unreasonable because
he was legally parked and exhibited no signs of distress. Hines relies on Gonzales v. State, 369
S.W.3d 851 (Tex. Crim. App. 2012), to support his argument that the officer’s actions did not
meet community caretaking standards. We find Gonzales inapplicable.
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As discussed in Gonzales, the community caretaking function operates as an exception to
the Fourth Amendment, allowing an officer to conduct a seizure in an effort to assist an individual
in need of help. Gonzales, 369 S.W.3d at 854; see Wright v. State, 7 S.W.3d 148, 152 (Tex. Crim.
App. 1999) (recognizing community caretaking function in Texas as exception to search and
seizure rules). It is therefore not applicable where no detention or seizure has taken place. See State
v. Velasquez, 994 S.W.2d 676, 678 (Tex. Crim. App. 1999 (noting a law enforcement officer’s
mere approach to ask a question or even request a search does not require justification).
When Officer Moebius stopped to investigate Hines’s vehicle, he illuminated the vehicle
and exited his patrol car before Hines drove away. Officer Moebius’ use of a spotlight to illuminate
the area did not constitute a detention. See Crain, 315 S.W.3d at 51 (use of spotlight alone is not
sufficient to transform an encounter to a detention); Hernandez v. State, 376 S.W.3d 863, 872
(Tex. App.—Fort Worth 2012, no pet.) (use of spotlight alone is not enough to lead a reasonable
person to think he is not free to leave). Officer Moebius did not block Hines’s vehicle, did not
issue a command, and did not activate his front strobe lights. See Johnson v. State, 414 S.W.3d
184, 193-94 (Tex. Crim. App. 2013) (finding detention where officer shined spotlight, blocked
appellant’s car, used a loud authoritative voice and demanded identification); State v. Garcia-
Cantu, 253 S.W.3d 236, 244-49 (Tex. Crim. App. 2008) (finding detention where officer boxed in
appellant’s vehicle, shined flashlight in appellant’s eyes, questioned appellant and asked for
identification). Accordingly, we find the interaction between Officer Moebius and Hines on the
side of the road was not a detention but a consensual encounter raising no Fourth Amendment
concerns. See Johnson, 414 S.W.3d at 191.
Once Officer Moebius exited his patrol car, however, Hines put his vehicle into gear and
sped away. Hines’s immediate departure upon the officer’s approach is a pertinent factor to be
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considered in evaluating reasonable suspicion. While flight alone is insufficient to justify an
investigatory detention, it is a recognized factor to be considered in a reasonable suspicion
analysis. See Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000)
(noting “flight is not necessarily indicative of wrongdoing, but it is certainly suggestive of such”);
Salazar v. State, 893 S.W.2d 138, 141 (Tex. App.—Houston [1st Dist.] 1995, pet. ref'd) (finding
that flight from show of authority is factor in support of finding of reasonable suspicion); Davis v.
State, 905 S.W.2d 655, 661 (Tex. App.—Texarkana 1995, pet. ref’d) (stating flight is factor to
consider when determining reasonable suspicion).
Moreover, Officer Moebius testified that Hines did not signal as he reentered the roadway,
violating Texas Transportation Code section 545.104(a) and justifying a traffic stop. See TEX
TRANSP. CODE § 545.104(a) (requiring drivers to signal when starting from parked position). Hines
makes much of the fact that Officer Moebius could not have seen whether Hines signaled when he
reentered the roadway because the officer’s back was turned as he got back into his patrol car. He
also argues that Officer Moebius did not include the failure to signal in his report. 1 First, the dash
cam video offered into evidence supports Officer Moebius’ testimony. Further, we note that we
are to give almost total deference to the court's implied determination of the historical facts when
supported by the record, especially when those facts are based on an evaluation of the witnesses’
credibility and demeanor. Gonzales, 369 S.W.3d at 854; Guzman v. State, 955 S.W.2d 85, 89 (Tex.
Crim. App. 1997). At a suppression hearing, the trial court is the sole finder of fact and is free to
believe or disbelieve any or all evidence presented. Wiede v. State, 214 S.W.3d 17, 24–25 (Tex.
Crim. App. 2007). Therefore, Officer Moebius’ testimony alone was enough to justify the
inclusion of Hines’s failure to signal in the reasonable suspicion analysis.
1 The report to which Hines refers is a probable cause affidavit completed by Officer Moebius to support an arrest warrant. It is irrelevant here as Hines was arrested pursuant to a warrantless arrest.
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The facts of this record—the car idling on a rural roadside at a late hour, the sudden
departure upon police approach, and the failure to signal in violation of state traffic law— when
considered collectively in a light most favorable to the trial court’s ruling, gave Officer Moebius
a justification for an investigatory detention under Terry. Further, once the stop occurred and the
officer observed signs of intoxication, including the odor of alcohol, unsteady gait, confused
speech and failed field sobriety tests, the arrest was supported by probable cause. We therefore
conclude that the trial court did not err in denying Hines’s motion to suppress. Hines’s first point
of error is overruled.
2. Search Warrant
In his second point of error, Hines challenges the trial court’s denial of his motion to
suppress evidence obtained pursuant to a search warrant for a blood draw, and the denial of his
request for a hearing under Franks v. Delaware, 428 U.S. 154 (1978). Hines contends that the
affidavit supporting the search warrant is invalid. In making his argument, Hines appears to have
conflated the search warrant, which authorized the taking of his blood, with an unrelated arrest
warrant. Separate from the blood search warrant at issue, an arrest warrant was also prepared in
this case. This warrant was never presented to nor signed by the magistrate as Hines was arrested
via a warrantless arrest at the scene. Because it did not serve as the basis for arrest or any other
action in this case, the arrest warrant is immaterial. It is particularly inconsequential to the validity
of the blood search warrant as the blood evidence in question was obtained through the search
warrant and not through the arrest warrant.
We now address the sufficiency of the affidavit that did support the blood search warrant.
The record reflects that when officers determined that Hines could not provide an adequate breath
sample, they transferred Hines to the medical center for a blood test. Officer Moebius prepared
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and submitted a written affidavit detailing the facts supporting probable cause for a search warrant
and submitted it to the magistrate. The affidavit was signed and sworn to by Officer Moebius.
Based upon this affidavit, the magistrate signed and issued the search warrant for Hines’s blood.
Hines contends that the search warrant was invalid because the affidavit supporting it was not
signed by a magistrate.
Despite Hine’s assertions, there is no legal requirement that a magistrate sign the affidavit
supporting a search warrant. What the law does require is that the affidavit be sworn to by the
affiant and that the magistrate make a judicial determination of probable cause, which is
demonstrated by the magistrate’s signature on the warrant itself. TEX. CODE CRIM. PROC. art.
18.01(b) (requiring a sworn affidavit setting forth substantial facts establishing probable cause to
be filed in every instance in which a search warrant is requested.”); TEX. CODE CRIM. PROC. art.
18.04(4) (stating a search warrant shall be sufficient if dated and signed by the magistrate). Here,
the affidavit was signed and sworn to by the arresting officer, and the magistrate reviewed it and
signed the warrant, reflecting a proper judicial finding of probable cause. Because there is no
requirement that a magistrate sign an affidavit supporting a search warrant, the lack of a
magistrate’s signature on the affidavit is not a defect. We therefore reject Hines’s assertion that
the search warrant was invalid because it did not contain a magistrate’s signature.
Prior to trial, Hines also requested a hearing to challenge the validity of the search warrant.
See Franks v. Delaware, 432 U.S. 154, 171, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). To obtain a
Franks hearing, a defendant must make a substantial preliminary showing that the supporting
affidavit (1) contained a false statement or material omission; (2) was made knowingly,
intentionally, or with reckless disregard for the truth; and (3) that the falsehood or omission was
necessary to the finding of probable cause. Id.; Cates. v. State, 120 S.W.3d 352, 356 (Tex. Crim.
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App. 2003). Hines failed to meet this burden. He argues that the unsigned arrest warrant entitled
him to a hearing under Franks. However, he has pointed to no false statement or material omission
in the search warrant affidavit. The affidavit accurately set forth the officer’s observations and
basis for probable cause.
Hines’s argument regarding the unsigned arrest warrant is, again, misplaced—he was not
arrested under that warrant and its sufficiency has no bearing on the search warrant at issue. The
search warrant was supported by the assertions in a completely different probable cause affidavit.
Furthermore, even if the lack of a signature did invalidate the affidavit at issue, a Franks hearing
would not be the appropriate means of addressing such a defect. Franks does not contemplate
technical defects in an affidavit. It is limited to cases in which substantive misrepresentation or
falsehood is alleged. See Franks, 438 U.S. at 171; Cates, 120 S.W.3d at 355. We therefore
conclude that Hines failed to make the requisite showing under Franks and the trial court properly
denied the requested hearing. Hines’s second point of error is overruled.
B. JUDICIAL COMMENTS
In his third point of error, Hines contends that the trial court erred by making improper
comments during the course of the criminal proceedings. In the heading of this section of his brief,
Hines claims that this alleged error violated his rights under the Fifth and Fourteenth amendments.
However, Hines offers no Constitutional argument or authority, and the substance of his
contentions focus on Article 38.05 of the Texas Code of Criminal Procedure. We will therefore
address this as an Article 38.05 complaint.
Article 38.05 prohibits a trial judge from commenting on the weight of the evidence or
making any remark calculated to influence the jury’s determination. TEX. CODE CRIM. P. art. 38.05.
A trial judge violates Article 38.05 where it makes a statement that “implies approval of the State’s
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argument, indicates disbelief in the defense’s position, or diminishes the credibility of the
defense’s approach to the case.” Simon v. State, 203 S.W.3d 581, 590 (Tex. App.—Houston [14th]
2006, no pet.). However, to constitute reversible error, a judicial comment must be reasonably
calculated to benefit the State or prejudice a defendant's substantial rights. Proenza v. State, 541
S.W.3d 786, 801 (Tex. Crim. App. 2017); see also TEX .R. APP. P. 44.2(b). We review a challenge
to a trial court’s comments de novo. Costilla v. State, 650 S.W.3d 201, 218 (Tex. App.—Houston
[1st Dist.] 2021, no pet.).
Hines complains of seven instances in which he claims the trial judge violated Article
38.05. Six of those were outside the jury's hearing or presence, either during pre-trial hearings or
trial recess. Commentary that occurs outside the hearing or presence of the jury can neither benefit
the State nor prejudice the defendant. Becknell v. State, 720 S.W.2d 526, 532 (Tex. Crim. App.
1986). Accordingly, such comments cannot constitute reversible error. See Costilla, 650 S.W.3d
at 219 (concluding “comments made outside of the jury's presence or hearing cannot constitute
reversible error”); Baca v. State, 223 S.W.3d 478, 482 (Tex. App.—Amarillo 2006, no pet.)
(finding statements made outside jury's presence did not taint presumption of innocence);
Murchison v. State, 93 S.W.3d 239, 262 n.4 (Tex. App.—Houston [14th Dist.] 2002, pet. ref'd)
(holding comments made outside jury's presence did not vitiate right to impartial jury trial).
The seventh comment that Hines complains of was made during trial, in the jury’s
presence. On his cross-examination of Officer Moebius, Hines attempted to demonstrate that
Officer Moebius’ testimony regarding the reason he stopped Hines was different from the reason
he had stated in his original report. The trial court interjected:
Mr. Hines, since you're going down this road about legal issues, let me tell you what I think the law is regarding when the police officer does something as I understand the law. As long as the officer observes something that might be illegal, even if the officer doesn't record it properly and it's later found that the officer had a reason to
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act the way he did, that's sufficient for the stop. He doesn't even have to know the legitimate reason he's stopping somebody if the law suggests that there's a reason for him to initiate a stop or make an arrest even.
Hines characterizes this as a “mistaken statement of law to the jury.” We disagree.
Read in full context, this comment was made in response to Hines’s suggestion that a stop
is only valid if the officer subjectively knows and states a specific violation. The trial
court’s comment reflects an objective test for reasonable suspicion or probable cause,
which is consistent with the law. See Whren v. United States, 517 U.S. 806, 813, 116 S.Ct.
1769, 135 L.Ed.2d 89 (1996); Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005).
While the court’s phrasing was arguably imprecise, it does not reflect judicial bias or a
comment on the weight of the evidence. Nor does it express a belief in the guilt of the
accused, approval of the State’s theory, or disbelief in the defense’s position. It was an
explanation of a legal principle that applied neutrally to the facts being presented. See
Rosales v. State, 932 S.W.2d 530, 538 (Tex. App.—Tyler 1995, pet. ref’d) (finding no
comment on weight of evidence where judge explained law regarding admission of
evidence); Williams v. State, 834 S.W.2d 502, 505 (Tex. App.—Fort Worth 1992, pet.
ref’d) (concluding judge was not stating his opinion, but “explaining applicable rules of
criminal law” where he explained burden of proof).
Hines further complains that the trial court improperly interjected its opinions and
misdirected the jury when it participated in the preparation of the jury charge. Specifically,
Hines complains of the following exchanges between the trial court and counsel:
THE COURT: We want to put any --violating any law? THE STATE: Instead, I think it's more appropriate to say, "A police officer who reasonably believes that he has observed a traffic infraction in violation of the Texas Transportation Code has reasonable suspicion that the motorist has committed a criminal offense," period.
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THE COURT: A motorist failing to -- to --let's see. A motorist violating the Texas – any portion of the Texas Transportation Code? THE STATE: So I think -- I propose that it reads "A police officer who reasonably believes he has observed a motorist driving in violation of the Texas Transportation Code or committing a driving infraction in violation of the Texas Transportation Code has reasonable suspicion that the motorist has committed a criminal offense," period. THE COURT: "Has committed a criminal offense," and then take out the last. THE STATE: And then I think the next paragraph should continue in the same vein. "Before you may consider the evidence obtained as a result of Sergeant Moebius's stop and detention of Roscell Hines, you must all agree that the State has proven beyond a reasonable doubt that Sergeant Moebius reasonably believed that he observed the defendant committing a traffic infraction in violation of the Texas Transportation Code immediately before Sergeant Moebius stopped him." THE COURT: No, I think that's fine. That covers it, basically. That says what the law is.
Hines contends that the trial court’s involvement in drafting the charge suggested an
improper alignment with the State’s theory and thereby tainted the jury’s impartial
consideration of the evidence. We disagree.
A trial judge has an obligation to prepare and submit a jury charge pursuant to Texas
Code of Criminal Procedure. See TEX. CODE CRIM. P. arts. 36.14, 36.15, 36.16. A charge
improperly comments on the weight of the evidence only when it implies that a particular
fact has been established or suggests how evidence should be interpreted. Brown v. State,
122 S.W.3d 794, 798 (Tex. Crim. App. 2003). The record reflects that the trial court in this
case actively participated in the charge conference, proposing certain instruction and
accepting edits offered by the State. Nothing in the record suggests that the trial court made
any statements in the presence of the jury indicating how it viewed the evidence or
implying that any fact had been conclusively established. Moreover, there is no language
in the charge itself that misleads the jury. On the contrary, the charge tracked the legal
standard the jury was to use in determining reasonable suspicion under the facts of this case
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and included appropriate instructions on the burden of proof and the jury’s duty as a
factfinder.
Participation in crafting the jury charge, standing alone does not constitute an
impermissible comment on the weight of the evidence. See TEX. CODE CRIM. P. art. 36.14.
The trial court’s conduct here was consistent with its obligation to ensure that the charge
was complete and legally correct. Absent any language in the charge that reflects a judicial
opinion on the evidence, we find no error. See, e.g., Easdon v. State, 552 S.W.2d 153, 155
(Tex. Crim. App. 1977) (holding instruction on presumption created by statute is not a
comment on weight of evidence but is statement of the law applicable to the case); Parks
v. State, 400 S.W.2d 769, 771 (Tex. Crim. App. 1966) (holding trial court's oral charge
concerning reasonable doubt and burden of proof were not comments on weight of
evidence); Lacaze v. State, 346 S.W.3d 113, 119 (Tex. App.—Houston [14th Dist.] 2011,
pet. ref’d) (holding instruction that extraneous offenses could be used as corroboration not
a comment on weight of evidence). Hines’s third point of error is overruled.
The judgment of the trial court is AFFIRMED.
H. Todd McCray, Justice DO NOT PUBLISH
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