State v. Dixon , 2004 Tex. App. LEXIS 10462 ( 2004 )

151 S.W.3d 271 (2004)

The STATE of Texas, Appellant
v.
Richard Raymond DIXON, II, Appellee.

No. 06-03-00217-CR.

Court of Appeals of Texas, Texarkana.

Submitted October 25, 2004. Decided November 23, 2004.

Gary L. Waite, Assistant District Attorney, Mark Burtner, Lamar County District Attorney, Paris, for appellant.

Steven Miears, Bonham, for appellee.

Before MORRISS, C.J., ROSS and CARTER, JJ.

OPINION

Opinion by Justice ROSS.

The State of Texas appeals from a pretrial order suppressing evidence. The record shows that Richard Raymond Dixon, II, was stopped for a traffic offense and arrested. In a search incident to arrest, the officer found between one and four grams of methamphetamine. Dixon filed a motion to suppress, which the trial court granted after two pretrial hearings.

The State brings three points of error. It first contends the trial court erred in denying its right to a hearing on the motion to suppress and in making findings of fact when no evidence was presented. The State presents no argument in support of its position on this point and admits that the controlling law allows a trial court to decide a pretrial motion without hearing testimony.^[1] We find the State's lack of briefing on this point waives the issue. Further, we note that the request for findings of fact and conclusions of law was made by the State, not by Dixon. The doctrine of invited error applies, and even if the trial court did err by entering findings of fact, that could not enure to the benefit of the State. See Prystash v. State, 3 S.W.3d 522, 530-32 (Tex.Crim.App.1999).

The State primarily relies on its third point of error, wherein it contends the evidence is insufficient to support the trial court's order of suppression because the court relied on a concept of law that was improperly applied. Specifically, the State contends the trial court suppressed the evidence because it concluded the evidence was improperly obtained through a pretext stop. The State argues that the court's ruling rested on its conclusion this was a pretext stop and thus was per se illegal.

The State's argument is not fully supported by the court's written findings and conclusions. The court stated in its written conclusions it was suppressing the evidence because of the inordinate delay between the alleged traffic offense — not signaling a turn within 100 feet of an intersection^[2] — and the alleged traffic stop. The State did not suggest that the driver did not signal, but that he did not signal "within so many feet" before he turned. The record shows that, at the location of the alleged failure to signal, the street divides and a driver in the right-hand lane is required to turn right. The trial court found that Dixon's vehicle turned right at this location and concluded the turn was lawful.^[3]

The record further shows that, after this alleged traffic violation, the officers followed Dixon's vehicle for over three miles at in-town speeds before stopping the vehicle, with no suggestion of any reason for a delay. The record also shows that the officers asked for and received permission to search the vehicle, and found nothing. They searched Dixon, and found nothing. They searched the companion, Tina Morales, and found nothing. They then called for a drug dog and a female officer. The drug dog found nothing. However, the female officer searched Morales and found three baggies of methamphetamine in her underwear.

An officer may legally initiate a traffic stop if such officer has a reasonable basis for suspecting a person has committed a traffic offense. See Garcia v. State, 827 S.W.2d 937, 944 (Tex.Crim.App.1992). The burden is on the state to demonstrate the reasonableness of the stop. Tex. Dep't of Pub. Safety v. Chang, 994 S.W.2d 875, 877 (Tex.App.-Austin 1999, no pet.). Stopping a vehicle and detaining its occupants is a seizure within the meaning of the Fourth Amendment. Delaware v. Prouse, 440 U.S. 648, 653, 99 S. Ct. 1391, 59 L. Ed. 2d 660 (1979); Garza v. State, 771 S.W.2d 549, 558 (Tex.Crim.App.1989). A seizure under the Fourth Amendment must be objectively reasonable in light of the particular circumstances of the case. Maryland v. Wilson, 519 U.S. 408, 411, 117 S. Ct. 882, 137 L. Ed. 2d 41 (1997); Terry v. Ohio, 392 U.S. 1, 21-22, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). Whether a stop is reasonable depends on "a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers." Wilson, 519 U.S. at 411, 117 S. Ct. 882; United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S. Ct. 2574, 45 L. Ed. 2d 607 (1975); Prouse, 440 U.S. at 654-55, 99 S. Ct. 1391, 59 L. Ed. 2d 660.

The trial court concluded that the traffic stop was not reasonable, finding that it occurred 3.2 miles from the point of the alleged illegal turn and that "[n]o outside force or entity interfered with the arresting officer's ability to stop [Dixon]'s vehicle between the point of the alleged violation and the actual stop...." The court specifically found that the officers' stop of Dixon was not within a reasonable time or a reasonable distance after the alleged violation.

The State argues this scenario is effectively the same one addressed by this Court in State v. Kreie, No. 06-03-00084-CR, 2003 WL 22415741 (Tex.App.-Texarkana Oct. 24, 2003, no pet.) (not designated for publication). In that case, we recognized explicitly that the pretext doctrine no longer invalidates a stop and that, in considering whether an offense has been committed, "an officer's subjective intent is relevant only to a credibility determination of his stated reasons for stopping or arresting an individual." Id. at *1; Garcia, 827 S.W.2d at 944. We also recognized that, if a trial court disbelieved that an offense had occurred, then the court could suppress the evidence obtained as a result of the unlawful stop and that we are required to defer to the trial court's ruling because it necessarily turns on an evaluation of the credibility of the witnesses. Kreie, 2003 WL 22415741, at *1; State v. Ross, 32 S.W.3d 853, 856 (Tex.Crim.App.2000).^[4]

The critical difference in the instant case and Kreie is that, in this case, the court did not suppress the evidence because it found the stop was merely a pretext to look for drugs. The court suppressed the evidence because it concluded the 3.2-mile delay between the officers' claimed observation of a traffic offense and the ultimate stop was not within a reasonable time or a reasonable distance after the alleged violation. It also specifically found that nothing interfered with the officers' ability to stop the vehicle earlier.

At a suppression hearing, the trial court is the sole judge of the credibility of the witnesses and the weight to be given their testimony, and may choose to believe or disbelieve any or all of a witness' testimony. Alvarado v. State, 853 S.W.2d 17, 23 (Tex.Crim.App.1993); Allridge v. State, 850 S.W.2d 471, 492 (Tex.Crim.App.1991). In this case, the trial court entered findings of fact (inferring findings in favor of ruling). The trial court's ruling will only be reversed on appeal if no reasonable view of the record can support the trial court's conclusion under the correct law as applied to the facts viewed in the light most favorable to its legal conclusion. DuBose v. State, 915 S.W.2d 493, 497-98 (Tex.Crim.App.1996); State v. Rivenburgh, 933 S.W.2d 698, 700 (Tex.App.-San Antonio 1996, no pet.). To establish an abuse of discretion, the appealing party must show that the trial court's ruling lies outside the "zone of reasonable disagreement." DuBose, 915 S.W.2d at 496-97.

Further, the appellate court must sustain the trial court's ruling if it is reasonably supported by the record and is correct on any theory of law applicable to the case. Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App.1996); James v. State, 72 S.W.3d 35, 40 (Tex.App.-Texarkana 2001, pet. ref'd).

There is little guidance to be had on the question of how much time or distance can elapse between an officer's claimed observation of a traffic offense and the eventual stop. In a recent case reviewing a traffic stop, the Texas Court of Criminal Appeals looked at the distance on an interstate highway that an officer followed an alleged traffic violator as a consideration in deciding whether the officer was exercising a community caretaker function in stopping the vehicle. Corbin v. State, 85 S.W.3d 272, 278 (Tex.Crim.App.2002). The officer testified he had seen the car veer slightly over the side line and then move back into its lane. The court noted the officer had followed the car for over a mile before stopping the driver. Although the court did not make its decision based solely on the distance or length of time the officer followed the vehicle, that is clearly a matter to be considered when a court is deciding whether a traffic stop is reasonable.

We do not hold that a delay of this distance will always be unreasonable. In each such instance, the court should properly consider all of the factors surrounding the stop.^[5] In that context, we reiterate that the trial court made a specific finding that nothing would have prevented an earlier stop, that the stop was 3.2 miles from the point of the alleged violation, and that the stop was not made either within a reasonable time or a reasonable distance after the alleged violation.

There were no witnesses to give formal testimony in this case, but it is clear counsel for both sides agreed on the facts involved, the sequence of events, and the reasons for the actions taken by the arresting officers. It was within the discretion of the trial court to determine whether to believe the officers' allegations. See Meek v. State, 790 S.W.2d 618, 620 (Tex.Crim.App.1990). A reasonable review of the record supports the court's decision in this, as well as in its determination that too much time and space elapsed before the stop. We find the record can reasonably be viewed as supporting the trial court's conclusion, when viewed in the light most favorable to that conclusion. See DuBose, 915 S.W.2d at 497-98; Rivenburgh, 933 S.W.2d at 701.

We affirm the judgment.

NOTES

[1] See Tex.Code Crim. Proc. Ann. art. 28.01, § 1(6) (Vernon 1989).

[2] The Transportation Code provides as follows:

(a) An operator shall use the signal authorized by Section 545.106 to indicate an intention to turn, change lanes, or start from a parked position.

(b) An operator intending to turn a vehicle right or left shall signal continuously for not less than the last 100 feet of movement of the vehicle before the turn.

Tex. Transp. Code Ann. § 545.104 (Vernon 1999).

[3] We are aware of a possible split of authority between appellate courts on the question of whether a turn signal is required only if the turn is a ninety-degree turn. Compare Trahan v. State, 16 S.W.3d 146 (Tex.App.-Beaumont 2000, no pet.) (no turn or lane change necessary to exit freeway; thus statute does not apply); with Reha v. State, 99 S.W.3d 373, 375-76 (Tex.App.-Corpus Christi 2003, no pet.) (any turn, no matter the degree, requires use of turn signal under statute).

[4] This is a permissible method of determining such an issue, as explicitly set out by statute and as acknowledged by the Texas Court of Criminal Appeals. Rodriguez v. State, 844 S.W.2d 744, 745 (Tex.Crim.App.1992).

[5] See generally Balentine v. State, 71 S.W.3d 763, 771 (Tex.Crim.App.2002) (discussion of some considerations in determining whether length of investigative detention was unreasonable).