NO. 07-08-0485-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
JUNE 23, 2009 ______________________________
THE STATE OF TEXAS,
Appellant
v.
JOE ELLIS PATTERSON,
Appellee _________________________________
FROM THE COUNTY COURT AT LAW NO. 2 OF POTTER COUNTY;
NO. 122447-2; HON. PAMELA SIRMON, PRESIDING _______________________________
Opinion _______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
The State of Texas appeals from the trial court’s order granting Joe Ellis Patterson’s
motion to suppress evidence. Patterson was indicted for possessing a controlled
substance (marijuana) in a drug free zone. The State argues that the trial court erred in
granting the motion because Patterson’s detention was based on either a reasonable belief
or probable cause to conclude that he had committed a traffic violation. We reverse the
trial court’s order. Background
On July 29, 2008, police officer Mike Sanchez observed Patterson walking
westbound on Southwest Fourth Avenue on the road’s surface. There were no sidewalks
adjacent to that part of the street. Rather than walk on the left side of the surface to face
oncoming traffic, Patterson walked on the right side with the traffic to his back. Believing
this to be a violation of an Amarillo municipal ordinance, Sanchez stopped Patterson and
asked for identification. Patterson had none on his person. The officer decided to place
Patterson in his squad car while he attempted to determine his identity and subjected him
to a pat-down search before doing so. Additionally, Patterson consented to the search of
his pockets.1 The latter revealed the presence of marijuana.
Patterson moved to suppress discovery of the contraband by contending that his
initial detention was unlawful. That is, he believed that the officer lacked both reasonable
suspicion and probable cause to stop him as he walked on the street. This allegedly was
so because the ordinance the officer relied upon to initiate the stop was inapplicable. The
trial court agreed.
Standard of Review
The standard by which we review the trial court’s ruling on a motion to suppress is
set forth in Ford v. State, 158 S.W.3d 488 (Tex. Crim. App. 2005). Although we afford
deference to the trial court’s interpretation of historical facts, we do not give the same
deference to its application or interpretation of the law. Id. at 493.
1 W e do not address whether Patterson’s consent to search, which no one attacked on appeal, rendered m oot the validity of the stop.
2 Analysis
Sanchez testified that he stopped Patterson for violating an Amarillo municipal
ordinance prohibiting one from walking in the street with his back to traffic. The ordinance
in dispute stated that: “Where sidewalks are not provided any pedestrian walking along
and upon a highway shall when possible walk only on the left side of the roadway or its
shoulder facing approaching traffic.” AMARILLO , TEX ., MUN . CODE ch. 16-3 , art. VII, §16-3-
313(b) (2006). Additionally, the term “highway” was defined in the ordinance as: “A
highway divided into two (2) roadways by leaving an intervening space, or by a physical
barrier, or by a clearly indicated dividing section between the two (2) roadways.” Id. art.
VII, §16-3-2 (1988). Because Southwest Fourth Avenue did not have any such intervening
space, physical barrier, or clearly indicated divider, the trial court determined that the traffic
law relied on by the officer was inapplicable and, therefore, he had no legitimate basis for
stopping Patterson.2
In ruling as it did, the trial court implicitly rejected the State’s contention that, while
the local ordinance may not apply, a Texas statute regulating the same matter did. The
Texas statute not only made it illegal to walk atop a highway’s surface with one’s back to
traffic when no sidewalk is available, TEX . TRANSP . CODE ANN . §§552.006(a)-(b) (Vernon
Supp. 2009), but also defined “highway” differently. Under the state code, “highway” meant
“the width between the boundary lines of a publicly maintained way any part of which is
open to the public for vehicular travel.” Id. §541.302(5) (Vernon 1999). Unlike the local
2 See generally Goudeau v. State, 209 S.W .3d 713, 716 (Tex.App.–Houston [14th Dist.] 2006, no pet.); United States v. Delfin-Colina, 464 F.3d 392, 399 (3rd Cir. 2006); United States v. Miller, 146 F.3d 274, 279 (5th Cir. 1998) (addressing effect of m istake of law on officer’s reasonable suspicion).
3 ordinance, the state definition says nothing about a need for the presence of an intervening
space, physical barrier, or clearly indicated divider. So, while it may be that Patterson did
not violate the ordinance, the officer purportedly had reasonable suspicion or probable
cause to believe that the Transportation Code provision was violated, and, therefore, he
had basis to undertake the detention. We agree with the prosecution.
It has long been true that a traffic violation can constitute a reasonable basis for a
detention. Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 1772, 135 L.Ed.2d
89 (1996). Indeed, reasonable suspicion that such a violation occurred permits an officer
to stop the suspect. Bynes v. State, No. 07-08-0207-CR, 2009 WL 1107987, at *2 (Tex.
App.–Amarillo April 24, 2009, no pet.) (mem. op., not designated for publication); see
Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001) (holding that reasonable
suspicion does not require absolute certainty that an offense was committed). And,
because the presence of reasonable suspicion is an objective standard, the subjective
intent of the police officer undertaking the stop is irrelevant. Garcia v. State, 43 S.W.3d
at 530. In other words, the subjective reasons uttered by the officer to legitimize the stop
have no bearing on the outcome if the totality of the circumstances nonetheless would lead
a police officer to reasonably suspect that crime is afoot. Id. at 530; accord, Singleton v.
State, 91 S.W.3d 342, 347 (Tex. App.–Texarkana 2002, no pet.) (noting that an objectively
valid stop can be upheld even though it was made for the wrong reason); Russ v. State,
No. 02-05-270-CR, 2006 WL 668729, at *3 n.4 (Tex. App.–Fort Worth March 16, 2006, pet.
ref’d) (mem. op., not designated for publication) (noting that the trial court need not limit
its review to the violations the officer cited in executing the stop); Arriaga v. State, No. 03-
4 03-00097-CR, 2003 WL 22023577, at *2 (Tex. App.–Austin August 29, 2003, no pet.)
(mem. op., not designated for publication) (stating the same).
Here, the trial court expressly found that 1) Patterson was “walking on the right side
of the roadway facing away from approaching traffic” and 2) there were “no sidewalks, lane
markings, or curbs on [the] portion” of the street. Given that §§552.006(a)-(b) of the Texas
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NO. 07-08-0485-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
JUNE 23, 2009 ______________________________
THE STATE OF TEXAS,
Appellant
v.
JOE ELLIS PATTERSON,
Appellee _________________________________
FROM THE COUNTY COURT AT LAW NO. 2 OF POTTER COUNTY;
NO. 122447-2; HON. PAMELA SIRMON, PRESIDING _______________________________
Opinion _______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
The State of Texas appeals from the trial court’s order granting Joe Ellis Patterson’s
motion to suppress evidence. Patterson was indicted for possessing a controlled
substance (marijuana) in a drug free zone. The State argues that the trial court erred in
granting the motion because Patterson’s detention was based on either a reasonable belief
or probable cause to conclude that he had committed a traffic violation. We reverse the
trial court’s order. Background
On July 29, 2008, police officer Mike Sanchez observed Patterson walking
westbound on Southwest Fourth Avenue on the road’s surface. There were no sidewalks
adjacent to that part of the street. Rather than walk on the left side of the surface to face
oncoming traffic, Patterson walked on the right side with the traffic to his back. Believing
this to be a violation of an Amarillo municipal ordinance, Sanchez stopped Patterson and
asked for identification. Patterson had none on his person. The officer decided to place
Patterson in his squad car while he attempted to determine his identity and subjected him
to a pat-down search before doing so. Additionally, Patterson consented to the search of
his pockets.1 The latter revealed the presence of marijuana.
Patterson moved to suppress discovery of the contraband by contending that his
initial detention was unlawful. That is, he believed that the officer lacked both reasonable
suspicion and probable cause to stop him as he walked on the street. This allegedly was
so because the ordinance the officer relied upon to initiate the stop was inapplicable. The
trial court agreed.
Standard of Review
The standard by which we review the trial court’s ruling on a motion to suppress is
set forth in Ford v. State, 158 S.W.3d 488 (Tex. Crim. App. 2005). Although we afford
deference to the trial court’s interpretation of historical facts, we do not give the same
deference to its application or interpretation of the law. Id. at 493.
1 W e do not address whether Patterson’s consent to search, which no one attacked on appeal, rendered m oot the validity of the stop.
2 Analysis
Sanchez testified that he stopped Patterson for violating an Amarillo municipal
ordinance prohibiting one from walking in the street with his back to traffic. The ordinance
in dispute stated that: “Where sidewalks are not provided any pedestrian walking along
and upon a highway shall when possible walk only on the left side of the roadway or its
shoulder facing approaching traffic.” AMARILLO , TEX ., MUN . CODE ch. 16-3 , art. VII, §16-3-
313(b) (2006). Additionally, the term “highway” was defined in the ordinance as: “A
highway divided into two (2) roadways by leaving an intervening space, or by a physical
barrier, or by a clearly indicated dividing section between the two (2) roadways.” Id. art.
VII, §16-3-2 (1988). Because Southwest Fourth Avenue did not have any such intervening
space, physical barrier, or clearly indicated divider, the trial court determined that the traffic
law relied on by the officer was inapplicable and, therefore, he had no legitimate basis for
stopping Patterson.2
In ruling as it did, the trial court implicitly rejected the State’s contention that, while
the local ordinance may not apply, a Texas statute regulating the same matter did. The
Texas statute not only made it illegal to walk atop a highway’s surface with one’s back to
traffic when no sidewalk is available, TEX . TRANSP . CODE ANN . §§552.006(a)-(b) (Vernon
Supp. 2009), but also defined “highway” differently. Under the state code, “highway” meant
“the width between the boundary lines of a publicly maintained way any part of which is
open to the public for vehicular travel.” Id. §541.302(5) (Vernon 1999). Unlike the local
2 See generally Goudeau v. State, 209 S.W .3d 713, 716 (Tex.App.–Houston [14th Dist.] 2006, no pet.); United States v. Delfin-Colina, 464 F.3d 392, 399 (3rd Cir. 2006); United States v. Miller, 146 F.3d 274, 279 (5th Cir. 1998) (addressing effect of m istake of law on officer’s reasonable suspicion).
3 ordinance, the state definition says nothing about a need for the presence of an intervening
space, physical barrier, or clearly indicated divider. So, while it may be that Patterson did
not violate the ordinance, the officer purportedly had reasonable suspicion or probable
cause to believe that the Transportation Code provision was violated, and, therefore, he
had basis to undertake the detention. We agree with the prosecution.
It has long been true that a traffic violation can constitute a reasonable basis for a
detention. Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 1772, 135 L.Ed.2d
89 (1996). Indeed, reasonable suspicion that such a violation occurred permits an officer
to stop the suspect. Bynes v. State, No. 07-08-0207-CR, 2009 WL 1107987, at *2 (Tex.
App.–Amarillo April 24, 2009, no pet.) (mem. op., not designated for publication); see
Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001) (holding that reasonable
suspicion does not require absolute certainty that an offense was committed). And,
because the presence of reasonable suspicion is an objective standard, the subjective
intent of the police officer undertaking the stop is irrelevant. Garcia v. State, 43 S.W.3d
at 530. In other words, the subjective reasons uttered by the officer to legitimize the stop
have no bearing on the outcome if the totality of the circumstances nonetheless would lead
a police officer to reasonably suspect that crime is afoot. Id. at 530; accord, Singleton v.
State, 91 S.W.3d 342, 347 (Tex. App.–Texarkana 2002, no pet.) (noting that an objectively
valid stop can be upheld even though it was made for the wrong reason); Russ v. State,
No. 02-05-270-CR, 2006 WL 668729, at *3 n.4 (Tex. App.–Fort Worth March 16, 2006, pet.
ref’d) (mem. op., not designated for publication) (noting that the trial court need not limit
its review to the violations the officer cited in executing the stop); Arriaga v. State, No. 03-
4 03-00097-CR, 2003 WL 22023577, at *2 (Tex. App.–Austin August 29, 2003, no pet.)
(mem. op., not designated for publication) (stating the same).
Here, the trial court expressly found that 1) Patterson was “walking on the right side
of the roadway facing away from approaching traffic” and 2) there were “no sidewalks, lane
markings, or curbs on [the] portion” of the street. Given that §§552.006(a)-(b) of the Texas
Transportation Code mandated that where there was no sidewalk, “a pedestrian walking
along and on a highway shall if possible walk on . . . the left side of the roadway” or on “the
shoulder . . . facing oncoming traffic” and Patterson did neither, circumstances existed
which allowed an officer to reasonably conclude that Patterson had committed a traffic
offense. It did not matter that the officer at bar initially indicated that he based the stop
upon what ultimately appeared to be an inapplicable municipal ordinance. Again, this is
so because the totality of the circumstances was enough to create both probable cause
and reasonable suspicion to believe that §552.006 of the Transportation Code had been
violated.
To the extent Patterson suggests that Amarillo’s ordinance superceded §552.006,
he is mistaken. Our legislature declared that a “local authority may not enact or enforce
an ordinance or rule that conflicts with” subtitle C of title 7 of the Transportation Code
“unless expressly authorized by” that same subtitle. TEX . TRANSP . CODE ANN . §542.201
(Vernon 1999). A municipality, such as the City of Amarillo, falls within the umbrella of a
“local authority.” Id. §541.002(3)(A). Furthermore, §552.006 appears under subtitle C of
title 7 of the Transportation Code. So, §542.201 controls at bar.
Also, Amarillo’s definition of “highway” can be read as conflicting with the definition
of the same term mentioned in §541.302(5) of the Transportation Code. That is, while the
5 latter prohibits walking with one’s back to traffic, the former does not so long as there is no
intervening space, physical barrier, or clearly marked divider on the roadway. This leads
us to conclude, especially since we have been cited to nothing in subtitle C of title 7 of the
Transportation Code indicating otherwise, that Amarillo’s provision must give way.3
Accordingly, the trial court erred in granting the motion to suppress. So, we reverse
that order and remand the cause for further proceedings.
Brian Quinn Chief Justice
Publish.
3 W e do not ignore Patterson’s contention that §552.006 applies only to roadways in which the boundaries are m arked, and, because the street in question had no curbs or lane m arkings, there were no boundary lines. Nothing in the plain language of the statute indicates that curbs or lane m arkings are required for a road to be deem ed a highway, and we opt not to read in what the legislature left out.