Trevion James Phipps v. State

• Court: Court of Appeals of Texas
• Decided: January 27, 2021
• Docket: 09-18-00473-CR
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-18-00473-CR __________________

TREVION JAMES PHIPPS, Appellant

V.

THE STATE OF TEXAS, Appellee

__________________________________________________________________

On Appeal from the 221st District Court Montgomery County, Texas Trial Cause No. 18-03-04010-CR __________________________________________________________________

MEMORANDUM OPINION

Introduction

In 2018, a Montgomery County Grand Jury indicted Trevion James Phipps on

a charge of possession with intent to deliver dihydrocodeinone, a controlled

substance, in an amount of 28 grams or more but less than 200 grams. 1 The charges

stem from a search, incident to a traffic stop for speeding, during which a state

trooper found the contraband in Phipps’s car. On the first day of his trial, the trial

1 Tex. Health & Safety Code Ann. § 481.114. 1 court considered the motion Phipps had filed to suppress the search. In his motion,

Phipps asserted the facts leading up to the stop did not show the trooper reasonably

could have believed that Phipps was speeding.

Phipps raises two issues for our review. He contends the trial court erred when

it (1) denied his motion to suppress and (2) failed, when instructing the jury in its

charge, to advise the jury that it could disregard the evidence the trooper discovered

in his car if it believed or had reasonable doubt about whether the State obtained the

evidence in his car in violation of the law. 2 For the reasons explained below, we

conclude Phipps’s issues lack merit. We will affirm.

Background

While on patrol on the service road next to I-45 in Montgomery County,

Corporal Trace Turner, an employee of the Texas Department of Public Safety,

noticed a car in his mirror that was catching up to him from the rear. Suspecting the

car was being driven faster than the posted speed, and while driving on the feeder

road, Trooper Turner increased the speed of his patrol car in an effort to match the

speed of the car that was being driven on the highway while the approaching car was

closing on the patrol car from behind.

After Phipps passed the patrol car, Trooper Turner merged onto the highway,

activated his lights, and stopped Phipps. Trooper Turner was the sole witness who

2 See Tex. Code Crim. Proc. Ann. art. 38.23. 2 testified in the hearing conducted on Phipps’s motion to suppress. During the

hearing, Trooper Turner testified that, based on the pacing maneuver he described

using in an effort to gage Phipps’s speed, he estimated that Phipps was going 75

miles per hour. The trooper explained that 75 was ten miles over the posted speed

limit on I-45, as the posted speed is 65 m.p.h. in the area where he stopped Phipps.

Trooper Turner also testified that Phipps was driving at an unreasonable speed given

the traffic conditions in the area where the stop occurred.

The Law and Standard of Review

Police officers who witness what they reasonably believe to be a traffic

violation may stop and detain the car seen violating a traffic law if the officer has

reasonable suspicion that the car’s driver violated the law. 3 The reasonable suspicion

standard applies to the decision a police officer makes to stop another car since under

the Fourth Amendment, the stop is treated as a detention. 4 Trooper Turner’s

testimony reflects that Phipps was stopped for speeding, a traffic violation if there is

evidence showing the officer stopped a car being driven “at a speed greater than is

3 See id. art. 14.01(b) (providing that “[a] peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view”); Garcia v. State, 827 S.W.2d 937, 944 (Tex. Crim. App. 1992) (explaining the record supported the trial court’s finding that the police stopped the defendant for a traffic violation, which made the detention reasonable under the Fourth Amendment). 4 U.S. CONST. amend. IV; see also Davis v. State, 947 S.W.2d 240, 245 (Tex. Crim. App. 1997). 3 reasonable and prudent under the circumstances then existing.” 5 In proving that

someone was speeding, the law provides that driving above the posted speed limit

on a highway “is prima facie evidence that the speed is not reasonable and prudent

and that the speed is unlawful.”6

To prove that a police officer had a reasonable suspicion to stop someone who

was speeding, the State must identify the specific and articulable facts the officer

observed that led the officer to reasonably infer that the offense of speeding is or

soon will occur.7 The standard that governs whether reasonable suspicion exists is

objective.8 Consequently, our review of the testimony offered to explain why the

officer detained another driver focuses on whether the facts described in the hearing

would have allowed a reasonable police officer to infer that reasonable suspicion

exists given the facts and circumstances described by the witnesses in the hearing. 9

We use a bifurcated standard when asked to review a trial court’s ruling on a

motion to suppress. 10 In Phipps’s case, after ruling on Phipps’s motion, the trial court

did not provide the parties with express written findings to explain the reasons it

relied on when it denied Phipps’s motion. Even so, in the absence of written findings,

5 See Tex. Transp. Code Ann. §§ 542.001, 545.351(a). 6 Id. § 545.352(a). 7 Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). 8 Id. 9 Id. 10 Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). 4 we must infer “the necessary factual findings that support the trial court’s ruling if

the record evidence (viewed in light most favorable to the ruling) supports these

implied fact findings.” 11

The record shows the trial court’s decision to deny Phipps’s motion hinged on

the decision that court made resolving mixed questions of law and fact. As such, the

trial court’s ruling hinged on that court’s assessment of Trooper Turner’s credibility,

given that he is the sole witness who testified in the suppression hearing about the

circumstances that led him to stop Phipps. In reviewing rulings on mixed questions

of law and fact, we give the trial court almost total deference if its ruling depends on

the evaluation the trial court made on the credibility of the witnesses who testified

on the defendant’s motion.12 On the other hand, if the trial court’s ruling involved a

mixed question of law and fact that did not hinge on the matters of credibility and

demeanor, we apply a de novo standard in our review of the ruling.13

Here, the record shows that the trial court’s ruling hinged on the trial court’s

decision to find Trooper Turner to be a credible witness. Consequently, unless the

record reveals that the opinion Trooper Turner expressed is unsupported by the

objective facts he described, we must defer to the ruling the trial court made to deny

11 State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008). 12 See State v. Kerwick, 393 S.W.3d 270, 273 (Tex. Crim. App. 2013) (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)). 13 Id. 5 Phipps’s motion to suppress the evidence Trooper Turner discovered in Phipps’s car

after Phipps consented to Trooper Turner’s request that he be allowed to search

Phipps’s car.14

Analysis-Motion to Suppress

Rule 701 of the Texas Rules of Evidence allows trial courts to admit some

types of opinions offered by a lay witness based on what the witness has described

when it concerns a matter the witness personally observed.15 Opinion testimony by

a lay witness may be admitted if the opinion the witness offers is an opinion that is

rationally based on the witness’s perception and helpful to a clear understanding of

the witness’s testimony or to determining a fact at issue in the dispute.16 Whether

Trooper Turner’s testimony is admissible as lay opinion testimony was contested in

the hearing. Phipps argued that the trooper’s testimony was not admissible based on

his argument that Trooper Turner did not have a sufficient opportunity to view

Phipps’s car as it closed on the trooper’s to accurately measure Phipps’s speed.

According to Phipps, the facts Trooper Turner described are insufficient to support

the conclusion the trooper drew from them that Phipps was speeding.

To be clear, as relevant to our review, the question is whether the evidence

the officer described allowed the trial court to reasonably resolve whether Trooper

14 See id. 15 Tex. R. Evid. 701. 16 Id. 6 Turner, based on the facts and circumstances he described, allowed the trooper to

form a reasonable suspicion to believe that Phipps was speeding. 17 In his brief,

Phipps suggests an experienced police officer cannot form a reasonable opinion

about the speed at which another vehicle is being driven based on visual observations

alone. We disagree. Experienced drivers may form a lay opinion about the speed of

other vehicles they observe on a roadway based on the objective facts they describe,

and depending on the facts the witness articulates, the facts described may be

sufficient for a court to allow a lay witness to express a lay opinion about another

vehicle’s speed.18 Whether a lay witness is qualified to express an opinion is

governed by Rule 701 of the Texas Rules of Evidence, which provides that a lay

witness may testify to an opinion when the witness has drawn the opinion from facts

the witness rationally perceived if the opinion is helpful to an understanding of the

witness’s testimony or to the need the factfinder has to determine a fact at issue in

the dispute.19 As embodied in Rule 701, the question is whether the record shows

17 See Madden v. State, 242 S.W.3d 504, 516 n.26 (Tex. Crim. App. 2007) (noting that under Texas law, a fact issue does not exist based simply on the possibility that the jury may choose to disbelieve some or all of the State’s evidence). 18 Tex. R. Evid. 701. 19 See id.; Curran v. State, No. 07-10-0078-CR, 2011 Tex. App. LEXIS 935, at *3 (Tex. App.—Amarillo 2011, pet. ref’d) (not designated for publication) (explaining that “[s]peed is one area in which lay opinions may be offered”); McMillan v. State, 754 S.W.2d 422, 425 (Tex. App.—Eastland 1988, pet. ref’d) (stating that “[t]he opinions of lay witnesses, when competent, are admissible concerning estimates of age, size, quality, time, and estimates of distance and speed”). 7 that an officer in Trooper Turner’s position and given his testimony rationally

perceived that Phipps was driving in excess of the posted speed.

Phipps criticizes the trial court’s decision to credit Trooper Turner’s opinion

for four reasons. First, he suggests that Trooper Turner failed to use radar equipment

to verify Phipps’s speed before pulling him over for speeding. Second, Phipps

criticizes the trial court for crediting Trooper Turner’s testimony since Trooper

Turner acknowledged in the hearing that he had not applied any scientific formulas

to verify his estimate of Phipps’s speed. Third, Phipps argues that Trooper Turner’s

impression about Phipps’s speed—around 75 m.p.h.—hinged on what he saw while

it was night and while obstructions appeared at various times between the cars as

Phipps approached Turner’s position on the feeder road. Fourth, Phipps argues that

Trooper Turner failed to apply the technique of pacing that he described properly,

as he had not based his estimate by a comparison between the speed of Phipps’s car

to the car he was in while driving his car alongside, meaning parallel, to Phipps.

In our opinion, Phipps’s arguments go to the weight the trial court chose to

give Trooper Turner’s testimony and to whether the trial court had the discretion to

accept Trooper Turner’s testimony as sufficiently reliable to demonstrate that the

trooper formed a reasonable suspicion to believe that Phipps was driving his car

above the posted speed. While it’s true that Trooper Turner couched his opinion in

miles per hour and he did not describe his opinion as merely an estimate, the

8 evidence allowed the trial court to view the opinion as an estimate and not a precise

mathematical calculation of Phipps’s speed. The other facts show the trooper

explained he did not use a radar to gage Phipps’s speed, and the trooper agreed he

did not apply any scientific formulas designed to determine another object’s speed.

Yet the estimate was not based merely on Trooper Turner’s visual impression of

Phipps’s car, he also tried to match the speed the two cars were being driven as

Phipps closed on his position from behind. And the estimate that Trooper Turner

described is one that he based on facts he described, all of which he personally

observed as Phipps closed on the trooper and then passed him while he was driving

on the feeder. Additionally, the fact that there were obstructions at times between

the two cars goes to the weight the trial court chose to give Trooper Turner’s opinion.

And Phipps does not even suggest the trooper’s opinion was inadmissible because it

was not helpful to a clear understanding of Trooper Turner’s testimony about why

he stopped Phipps.

While the trial court in exercising its discretion might have chosen not to

believe or to credit Trooper Turner’s testimony, we must give the trial court’s ruling

almost complete deference given that the trial court had the right to decide whether

the trooper was a credible witness. 20 As the factfinder, the trial court (not this Court)

had the right to resolve the discrepancies that Phipps pointed out and to decide

20 See Garcia-Cantu, 253 S.W.3d at 241. 9 whether the testimony should be given any weight. Stated another way, we reject

Phipps’s suggestion that Trooper Turner had to determine Phipps’s exact speed by

using a radar or a scientific method rather than offering a lay opinion about his speed

to form a reasonable suspicion to believe that Phipps was driving over the posted

speed.21

In his brief, Phipps relies mainly on Ford v. State 22 to support his argument

that the record doesn’t support the trial court’s ruling on his motion to suppress. The

case, however, is easily distinguishable. In Ford, the Court of Criminal Appeals

explained that, when a police officer expresses an opinion about whether another

vehicle is following too closely, the record must contain more than the officer’s bare

opinion to support a ruling denying a motion to suppress.23 But unlike the record in

Phipps’s case, the officer’s testimony in Ford failed to reveal the facts the officer

21 See Dillard v. State, 550 S.W.2d 45, 53 (Tex. Crim. App. 1977) (op. on reh’g) (“We disagree with appellants’ contention that unless [the officer] knew the exact speed which the automobile was traveling, no violation occurred.”); Infante v. State, 397 S.W.3d 731, 735-36 (Tex. App.—San Antonio 2013, no pet.) (rejecting argument that the defendant’s own calculations proved that officers improperly paced his vehicle and holding that the trial court may resolve discrepancies between time and distance estimates in its ruling); Icke v. State, 36 S.W.3d 913, 915-16 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d) (upholding trial court’s ruling shown by the arresting officer’s testimony that his opinion about the defendant’s speed was one formed based on the officer’s experience and without using radar). 22 Ford v. State, 158 S.W.3d at 494. 23 Id. (“The State failed to elicit any testimony pertinent to what facts would allow [the officer] to objectively determine Ford was violating a traffic law.”). 10 relied on when he formed the opinion that he expressed in the trial. 24 Identifying the

facts the officer saw in forming the opinion are necessary to the appellate record, as

appellate courts require the record to show the police officer articulated the facts on

which they relied to form their respective opinions that led them to reasonably

believe that “a particular person actually is, has been, or soon will be engaged in

criminal activity.” 25 Trooper Turner identified those facts in the hearing on Phipps’s

motion.

Having rejected Phipps’s arguments, we conclude the trial court did not abuse

its discretion by finding Trooper Turner adequately described the objective facts that

he relied when he decided to stop Phipps’s car.

Analysis-Charge Error

In his second issue, Phipps complains of charge error. He argues the trial court

erred by overruling his request to instruct the jury that it needed to decide whether it

believed or had a reasonable doubt about whether Trooper Turner stopped Phipps

after acquiring a reasonable suspicion to believe that Phipps was speeding.26 To

review a complaint alleging charge error, we must first determine whether the

24 Id. 25 Id. at 492. 26 See Tex. Code Crim. Proc. Ann. art. 38.23; Texas Criminal Pattern Jury Charges: General, Evidentiary & Ancillary Instructions 8.6, at 195-196 (2018) (Instruction—Exclusionary Rules—Evidence Obtained as Result of Traffic Stop for Speeding); see also Madden, 242 S.W.3d at 508 n.5. 11 alleged error exists.27 If so, we then determine whether the error caused sufficient

harm to merit reversing the judgment. 28

Under Texas law, the Code of Criminal Procedure requires trial courts to

exclude evidence in a trial if the State obtained the evidence by violating the law.29

But if the evidence shows that a fact issue exists about whether the police conduct

was illegal, the jury must resolve whether the police obtained the evidence illegally

by submitting an instruction to the jury that asks the jury “if it believes, or has a

reasonable doubt, that the evidence was obtained in violation of the provisions of

this Article…[that it must] disregard any such evidence so obtained.” 30

But to raise a fact issue on the question of speeding, Phipps needed to do more

than rely on questions he asked Trooper Turner while cross-examining him in the

trial.31 That’s because to demonstrate that the record shows a fact issue existed on

speeding, the record must contain affirmative evidence that shows Phipps “did not

speed.” Trooper Turner never testified in the hearing or at trial that Phipps was not

speeding. And no other evidence showing that Phipps was not speeding is in the

record before us in Phipps’s appeal. 32 Thus, the arguments Phipps raises in his appeal

27 Druery v. State, 225 S.W.3d 491, 504 (Tex. Crim. App. 2007). 28 Id. 29 Tex. Code Crim. Proc. Ann. art. 38.23. 30 Id. art. 38.23(a). 31 See Madden, 242 S.W.3d at 514. 32 Id. at 513-14. 12 merely complain that Trooper Turner should have done more than he did to support

the opinion he expressed in the trial. Since the record contains no affirmative

evidence from which a jury could have reasonably concluded that Phipps was not

speeding, we hold the trial court had no duty to instruct the jury to decide whether

Trooper Turner conducted a legal stop. 33

For the reasons explained above, we overrule Phipps’s second issue.

Conclusion

We hold that Phipps’s issues lack merit. Accordingly, the trial court’s

judgment is

AFFIRMED.

_________________________ HOLLIS HORTON Justice

Submitted on August 10, 2020 Opinion Delivered January 27, 2021 Do Not Publish

Before Golemon, C.J., Kreger and Horton, JJ.

33 Id. 13