Veronica Anneth Gonzalez v. State ( 2015 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
_________________
NO. 09-14-00322-CR
_________________
VERONICA ANNETH GONZALEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
________________________________________________________________________
On Appeal from the County Court at Law No. 5
Montgomery County, Texas
Trial Cause No. 13-286006
________________________________________________________________________
MEMORANDUM OPINION
After the trial court denied her oral motion to suppress1, appellant Veronica
Anneth Gonzalez, with an agreed punishment recommendation from the State,
pleaded guilty to the offense of driving while intoxicated. In accordance with the
plea agreement, the trial court found Gonzalez guilty of driving while intoxicated,
sentenced Gonzalez to one year in jail, suspended the sentence, placed her on
1
From the record before us, it appears that Gonzalez did not file a written
motion to suppress the evidence.
1
community supervision for two years, and assessed a fine of $1,200. Gonzalez
appeals the trial court’s denial of her motion to suppress the stop. We affirm.
Factual and Procedural Background
Around 4 a.m. on February 10, 2013, Shenandoah Police Officer, Joseph
Peart, was on patrol when he noticed a vehicle in his rearview mirror. The vehicle
stood out to Peart because the vehicle’s right turn signal was on, but the vehicle did
not change lanes. At the time of the incident, the speed limit for this section of the
road was forty-five miles per hour. Peart believed he was traveling approximately
forty-five miles per hour, but he did not know his exact speed. Peart recalled that
the vehicle was catching up to him.
Peart pulled into a parking lot and retrieved his light detection and ranging
device (“LIDAR”). According to Peart, as the vehicle passed him, he noticed it
was traveling at a “high rate of speed,” so he decided to use the LIDAR, which
confirmed the vehicle was traveling at a rate of sixty miles per hour. Peart then
pulled out of the parking lot and began to pursue the vehicle. 2 While in pursuit,
Peart noticed that the vehicle’s right turn signal remained on while the vehicle
2
Once Peart began his pursuit, he activated his dashboard camera (dash
cam). The trial court admitted Peart’s dash cam video into evidence. However, the
video is not part of the appellate record.
2
passed through an intersection of the highway. Thereafter, Peart activated his lights
and initiated a traffic stop.
According to Peart, the main reason he initiated the traffic stop was that the
vehicle was speeding. Peart acknowledged that he did not include his observation
of the unsafe lane change in his police report. He also acknowledged that he told
Gonzalez that he pulled her over for speeding and did not mention to Gonzalez that
he had observed her make an unsafe lane change.
Gonzalez denied speeding the night of the traffic stop. However, Gonzalez
admitted that when Peart asked her if she knew how fast she was driving, she
responded she was driving fifty miles per hour. Gonzalez explained that she did
not think she was speeding because she thought the speed limit was fifty miles per
hour and did not know that the speed limit was only forty-five miles per hour.
The trial court concluded that Peart made a valid traffic stop. The trial court
made the following findings of fact: (1) the vehicle stopped without Peart turning
his lights on; (2) Peart used the LIDAR to confirm his belief that Gonzalez was
traveling above the speed limit; and (3) Gonzalez drove with her turn signal on and
changed lanes a number of times.
3
Standard of Review
We review a trial court’s denial of a motion to suppress under a bifurcated
standard of review. Abney v. State, 394 S.W.3d 542, 547 (Tex. Crim. App. 2013).
We review the trial court’s factual findings for an abuse of discretion and the trial
court’s application of the law to the facts de novo. Turrubiate v. State, 399 S.W.3d
147, 150 (Tex. Crim. App. 2013). At a suppression hearing, the trial court is the
sole and exclusive trier of fact and judge of the witnesses’ credibility and may
choose to believe or disbelieve all or any part of the witnesses’ testimony. Maxwell
v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002).
Motion to Suppress
In her sole issue on appeal, Gonzalez argues that the trial court erred in
failing to suppress evidence obtained from an invalid traffic stop. She claims that
Peart had no valid basis to stop her because there was insufficient evidence to
believe that she had committed the traffic offense of speeding. She argues that
Peart stopped her based solely on the information provided him from a LIDAR
unit.3
3
“A LIDAR unit operates by sending pulses of light toward a moving
vehicle.” Ryan V. Cox & Carl Fors, Admitting Light Detection and Ranging
(LIDAR) Evidence in Texas: A Call for Statewide Judicial Notice, 42 ST. MARY’S
L.J. 837, 849 (2011). The LIDAR unit measures the distance between the unit and
the vehicle, which is calculated by measuring the time it takes for the laser pulse to
4
During the State’s direct examination of Peart, Gonzalez asked to take Peart
on “voir dire” outside the presence of the jury. After examining Peart about his
LIDAR knowledge and how he specifically used the LIDAR unit that night,
Gonzalez raised essentially an oral motion to suppress, stating that the State had
not presented a “valid basis for the stop[.]” During the hearing, Gonzalez argued
that the sole basis for the traffic stop was the LIDAR technology, which she
maintained was inadmissible because it was not scientifically valid technology.
The Fourth Amendment protects against unreasonable searches and seizures
by government officials. U.S. CONST. amend. IV; Wiede v. State, 214 S.W.3d 17,
24 (Tex. Crim. App. 2007). To suppress evidence because of an alleged Fourth
Amendment violation, the defendant bears the initial burden of producing evidence
that rebuts the presumptions of proper police conduct. Amador v. State, 221
S.W.3d 666, 672 (Tex. Crim. App. 2007). A defendant satisfies this initial burden
by establishing that a search or seizure occurred without a warrant. Id. The burden
then shifts to the State, which is required to establish that the search or seizure was
conducted pursuant to a warrant or was reasonable under the totality of the
circumstances. See id. at 672-73.
travel back to the unit. Id. Using known variables of distance and time, the unit
calculates the speed of the vehicle. Id.
5
“[T]he Supreme Court has recognized that the decision to stop an
automobile is reasonable where the police have probable cause to believe that a
traffic violation has occurred.” Walter v. State, 28 S.W.3d 538, 542 (Tex. Crim.
App. 2000) (citing Whren v. United States, 517 U.S. 806, 810 (1996)). If an officer
observes a traffic violation, probable cause for a traffic stop exists, and the officer
is free to enforce the laws and detain the driver for the violation. See Tex. Code
Crim. Proc. Ann. art. 14.01(b) (West 2015) (“A peace officer may arrest an
offender without a warrant for any offense committed in his presence or within his
view.”); Arizona v. Johnson, 555 U.S. 323, 331 (2009); Boughton v. State, 643
S.W.2d 147, 148 (Tex. App.—Fort Worth 1982, no pet.) (citing Praska v. State,
557 S.W.2d 83 (Tex. Crim. App. 1977)).
Gonzalez relies on Hall v. State, 297 S.W.3d 294 (Tex. Crim. App. 2009) for
the proposition that the LIDAR unit has not been proven to be scientifically
reliable and, therefore, cannot form the sole basis of a valid stop. Gonzalez’s
reliance on Hall is misplaced. In reaching its decision in Hall, the Court of
Criminal Appeals emphasized that the law enforcement officer “relied solely on
LIDAR technology” in making his determination that the defendant was speeding.
Hall, 297 S.W.3d at 298. The Court noted that there was no evidence that the
LIDAR unit was used to confirm the officer’s otherwise independent, personal
6
observation that the defendant was speeding. Id. Whereas here, Officer Peart
testified that he personally observed Gonzalez driving at a high rate of speed in a
forty-five mile per hour zone. He also testified that he was driving approximately
forty-five miles per hour and that Gonzalez gained on him at that speed. “A speed
in excess of the limits . . . is prima facie evidence that the speed is not reasonable
and prudent and that the speed is unlawful.” Tex. Transp. Code Ann. § 545.352(a)
(West Supp. 2014). Contrary to Gonzalez’s argument, Peart did not decide to stop
Gonzalez based solely on the LIDAR technology. Officer Peart’s observation of
Gonzalez’s speeding was alone sufficient to justify the traffic stop. See Icke v.
State, 36 S.W.3d 913, 915-16 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d);
see also Dillard v. State, 550 S.W.2d 45, 53 (Tex. Crim. App. 1977) (op. on reh’g);
McAfee v. State, 204 S.W.3d 868, 870 (Tex. App.—Corpus Christi 2006, pet.
ref’d); Hesskew v. Tex. Dep’t Pub. Safety, 144 S.W.3d 189, 191 (Tex. App.—Tyler
2004, no pet.); Tex. Dep’t Pub. Safety v. Nielsen, 102 S.W.3d 313, 317 (Tex.
App.—Beaumont 2003, no pet.). Accordingly, we hold the trial court did not abuse
its discretion in denying Gonzalez’s oral motion to suppress evidence. We overrule
Gonzalez’s sole issue on appeal.
We affirm the judgment of the trial court.
7
AFFIRMED.
______________________________
CHARLES KREGER
Justice
Submitted on June 23, 2015
Opinion Delivered August 12, 2015
Do not publish
Before McKeithen, C.J., Kreger, and Horton, JJ.
8