Wall, Lisa D. ( 2015 )


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  •                                                                                  PD-0693-15
    PD-0693-5                                COURT OF CRIMINAL APPEALS
    AUSTIN, TEXAS
    Transmitted 7/8/2015 11:25:08 AM
    Accepted 7/9/2015 4:14:04 PM
    ABEL ACOSTA
    IN THE                                                    CLERK
    COURT OF CRIMINAL APPEALS
    LISA D. WALL,                  §
    APPELLANT                 §
    V.                             §               NO. PD-0693-15
    §
    THE STATE OF TEXAS,            §
    APPELLEE                  §
    APPELLANT’S PETITION FOR DISCRETIONARY REVIEW OF THE DECISION
    OF THE COURT OF APPEALS FOR THE SECOND COURT DISTRICT
    OF TEXAS IN CAUSE NUMBER 02-13-00552-CR, AFFIRMING THE
    JUDGMENT OF THE TRIAL COURT IN CAUSE NUMBER CR-2012-
    01008-D IN COUNTY CRIMINAL COURT NO. 4 OF DENTON COUNTY,
    TEXAS; THE HONORABLE JOE BRIDGES, PRESIDING.
    §§§
    APPELLANT’S PETITION FOR REVIEW
    §§§
    JASON ZENDEH DEL
    Lead Counsel for Appellant
    The Zendeh Del Law Firm
    7600 San Jacinto Place, Suite 200
    Plano, Texas 75024
    Telephone (214) 919-3600
    Facsimile (214) 919-3599
    Jason@zenlawfirm.com
    State Bar Number 24044988
    July 9, 2015
    !
    !
    IDENTITY OF PARTIES AND COUNSEL
    The trial judge was the Honorable Joe Bridges, the presiding judge of
    County Criminal Court No. 4 of Denton County, Texas.
    Appellant is Lisa D. Wall, who was the Defendant in the below trial court
    case. Appellant was represented at trial and on appeal by Jason Zendeh Del of the
    Zendeh Del Law Firm. This attorney’s address is 7600 San Jacinto Place, Suite
    200, Plano, Texas 75024.
    The State of Texas, which is represented by Denton County District
    Attorney Paul Johnson, is also a party to this litigation. At trial, the State was
    represented by Sarah Wood. On appeal, the State was represented by Catherine
    Luft. The address of these attorneys is Denton County District Attorney’s Office,
    1450 E. McKinney Street, Denton, Texas 76209.
    ii!
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    TABLE OF CONTENTS
    TABLE OF AUTHORITIES .................................................................................... v
    STATEMENT REGARDING ORAL ARGUMENT .............................................. 1
    STATEMENT OF THE CASE ................................................................................ 2
    PROCEDURAL HISTORY AND COURT OF APPEALS’ OPINION .................. 3
    QUESTION FOR REVIEW ..................................................................................... 4
    STATEMENT OF FACTS ...................................................................................... 5
    DISCUSSION ........................................................................................................... 6
    I. The Court of Appeals opinion………………………………………….....6
    II. Reasonable suspicion in a motion to suppress…………………………..6
    Fourth Amendment…………………………………………………...8
    III. The court of appeals upheld the conviction, and reversed the trial
    court’s judgment, when the evidence did not support the determination that
    Officer Padgett possessed reasonable suspicion to initiate the traffic stop.10
    CONCLUSION....................................................................................................... 14
    PRAYER................................................................................................................. 15
    CERTIFICATE OF COMPLIANCE ...................................................................... 16
    iii!
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    CERTIFICATE OF SERVICE ............................................................................... 16
    COURT OF APPEALS’ OPINION........................................................................ 17
    iv!
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    TABLE OF AUTHORITIES
    CASES
    Abney v. State, 394S.W.3d 542 (Tex. Crim. App. 2013).......................................... 7
    Amador v. State, 
    275 S.W.3d 872
    (Tex. Crim. App. 2009) ...................................... 7
    Armendariz v. State, 
    123 S.W.3d 401
    (Tex. Crim. App. 2003), cert. denied, 
    541 U.S. 974
    (2004).................................................................................................... 8
    Brown v. Texas, 
    443 U.S. 47
    (1979) ......................................................................... 9
    Cady v. Dombrowski, 413 U.S.433 (1973) ............................................................. 10
    Corbin v. State, 
    85 S.W.3d 272
    (Tex. Crim. App. 2002......................................... 10
    Ford v. State, 
    158 S.W.3d 488
    (Tex. Crim. App. 2005) ....................................... 6, 7
    Guzman v. State, 
    955 S.W.2d 85
    (Tex. Crim. App. 1997) ....................................... 7
    State v. Kerwick, 
    393 S.W.3d 270
    (Tex. Crim. App. 2013) ............................. 11, 13
    State v. Stevens, 
    235 S.W.3d 736
    (Tex. Crim. App. 2007)....................................... 8
    Terry v. Ohio, 
    392 U.S. 1
    (1968) ................................................................... 8, ,9, 13
    United States v. Brigmont-Ponce, 
    422 U.S. 873
    (1975) ........................................... 8
    Wall v. State, No. 02-13-00552-CR, 
    2015 WL 2169307
    (Tex. App.—Fort Worth
    May 7, 2015 ) (memo op.) (not for publication)................................. 3, 6, 10, 11, 14
    v!
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    Whren v. United States, 
    517 U.S. 806
    (1996) ....................................................... 8, 9
    Wright v. State, 
    7 S.W.3d 148
    (Tex. Crim. App. 1999) ........................................... 9
    STATUTES
    U.S. Cons. Amend. IV .............................................................................................. 8
    Tex. Cons. Art. 1,§10................................................................................................ 8
    vi!
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    IN THE
    COURT OF CRIMINAL APPEALS
    LISA D. WALL,                       §
    APPELLANT                      §
    V.                                  §             NO. PD-0693-15
    §
    THE STATE OF TEXAS,                 §
    APPELLEE                       §
    APPELLANT’S PETITION FOR DISCRETIONARY REVIEW OF THE DECISION
    OF THE COURT OF APPEALS FOR THE SECOND DISTRICT OF TEXAS
    IN CAUSE NUMBER 02-13-00552-CR, AFFIRMING THE JUDGMENT OF
    THE TRIAL COURT IN CAUSE NUMBER CR-2012-01008-D IN COUNTY
    CRIMINAL COURT NO. 4 OF DENTON COUNTY, TEXAS; THE
    HONORABLE JOE BRIDGES, PRESIDING.
    STATEMENT REGARDING ORAL ARGUMENT
    Oral argument is not necessary to resolve the issues raised by this case.
    1!
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    STATEMENT OF THE CASE
    Appellant was convicted of the misdemeanor offense of Driving While
    Intoxicated (“DWI”). [CR 111] The trial court sentenced Appellant to 300 days
    confinement in the Denton County Jail and a $500 fine. [CR 111] However, the
    trial court suspended the imposition of the jail sentence and placed Appellant on
    fifteen months of community supervision. [CR 111]
    2!
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    PROCEDURAL HISTORY AND COURT OF APPEALS’ OPINION
    On appeal, Appellant argued that the trial court abused its discretion by
    denying Appellant’s motion to suppress the evidence obtained during the unlawful
    stop of Appellant’s vehicle. [App. brief at 3]
    A panel of judges from the Second District Court of Appeals affirmed the
    trial court’s judgment. Wall v. State, No. 02-13-00552-CR, 
    2015 WL 2169307
    , at
    *1 (Tex. App.—Fort Worth, May 7, 2015) (memo op.) (not for publication). In its
    opinion, however, the appellate court sustained Appellant’s issue that the trial court
    erred when it found in its findings of fact that the officer had reasonable suspicion
    to stop Appellant on the basis of disregarding a control device or making an overly
    wide U-turn. 
    Id. at *4.
    The court of appeals went on to determine that the trial
    court did err when it ruled to deny Appellant’s motion to suppress on the basis that
    the officer had reasonable suspicion that Appellant was engaged in criminal
    activity. 
    Id. at *5.
    The trial court had made findings of fact, after hearing evidence
    at the suppression hearing, that Appellant’s driving was not reasonable suspicion
    of DWI. [CR 104] The court of appeals upheld the trial court’s judgment under
    this theory.
    3!
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    QUESTION FOR REVIEW
    Did the court of appeals erroneously review and affirm the trial court’s
    ruling on the motion to suppress? Specifically, did the appellate court improperly
    uphold the motion to suppress on a theory that the trial court had found did not
    exist (i.e., that the officer had reasonable suspicion to stop Appellant’s vehicle and
    initiate a temporary detention) in its findings of fact and conclusions of law?
    4!
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    STATEMENT OF FACTS
    On December 18, 2011, Appellant was driving her pickup truck1 in Denton
    County, Texas. [2 RR 7-9] At approximately 2:00 a.m., Corey Padgett, a police
    officer with the Denton Police Department, pulled his patrol car behind
    Appellant’s vehicle at the intersection of Fulton and University. [2 RR 7-9] He
    stated that Appellant was travelling eastbound. [2 RR 10] Officer Padgett testified
    that the light at the intersection was flashing yellow, which indicated that cars were
    to proceed with caution through the light. [2 RR 9] He stated that Appellant,
    however, was completely stopped at the light for a longer than normal period. [2
    RR 9, 12]
    Officer Padgett then testified that Appellant proceeded through the light and
    approached a second flashing yellow light at Alice and University. [2 RR 13]
    There, Appellant slowed down significantly in the middle of the intersection, but
    she did not completely stop her vehicle. [2 RR 13] He then stated that after
    proceeding through the intersection, Appellant changed lanes, got into the left-
    hand lane, and made a U-turn. [2 RR 14] At that point, Officer Padgett turned on
    his overhead patrol lights and Appellant pulled her vehicle into a Kroger parking
    lot. [2 RR 25-26]
    !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
    1
    Appellant will refer to her truck as a “vehicle” throughout the brief.
    5!
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    DISCUSSION
    I. The Court of Appeals’ opinion.
    The Fort Worth court of appeals determined that the trial court’s finding that
    the officer did not have reasonable suspicion to stop Appellant’s vehicle on the
    basis of DWI was not supported by the evidence. 
    Id. at 5.
    The appellate court
    upheld Appellant’s conviction under this theory.                        
    Id. However, the
    court of
    appeals agreed with Appellant and went on to state in its opinion that the trial
    court’s findings that Appellant committed traffic offenses (i.e., making an
    improper U-turn and disregarding a traffic control device) were not supported by
    evidence. Wall, 
    2015 WL 2169307
    , at *4.2
    II. Reasonable suspicion in a motion to suppress.
    “To suppress evidence on an alleged Fourth Amendment violation, the
    defendant bears the initial burden of producing some evidence that rebuts the
    presumption of proper police conduct.” Ford v. State, 
    158 S.W.3d 488
    , 492 (Tex.
    Crim. App. 2005). When a defendant meets the burden by establishing that the
    search or seizure occurred without a warrant, the burden shifts to the State to prove
    that the search or seizure was prompted by reasonable suspicion that an individual
    !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
    2
    !Appellant’s brief will not focus on this theory because the court of appeals held that the officer did not
    have reasonable suspicion to stop Appellant’s vehicle on the basis of committing a traffic offense.
    However, Appellant will brief this issue if this Court so requests.
    6!
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    was violating the law. Abney v. State, 
    394 S.W.3d 542
    , 547 (Tex. Crim. App.
    2013); see also Amador v. State, 
    275 S.W.3d 872
    , 878 (Tex. Crim. App. 2009).
    Here, at the beginning of the suppression hearing, the State stipulated that
    this case involves a warrantless arrest. [2 RR 7] Therefore, this stipulation shifted
    the burden to the State to establish the reasonableness of the warrantless detention.
    See 
    Ford, 158 S.W.3d at 492
    .
    A court of appeals reviews a trial court’s denial of a motion to suppress
    under a bifurcated standard of review to evaluate the totality of the circumstances
    and determine whether reasonable suspicion exists. See 
    Abney, 394 S.W.3d at 547
    ;
    Guzman v. State, 
    955 S.W.2d 85
    , 89 (Tex. Crim. App. 1997). The court of appeals
    will give “almost total deference to the trial court’s determination of historical
    facts, especially when the trial court’s findings are based on an evaluation of
    credibility and demeanor.”      
    Abney, 394 S.W.3d at 547
    ; see also 
    Guzman, 955 S.W.2d at 89
    .
    The court of appeals will then review the trial court’s legal ruling de novo
    unless its explicit fact findings that are supported by the record are also dispositive
    of the legal ruling. 
    Ford, 158 S.W.3d at 493
    . The appellate court must uphold the
    trial court’s ruling if it is supported by the record and correct under any theory of
    law applicable to the case even if the trial court gave the wrong reason for its
    7!
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    ruling.    State v. Stevens, 
    235 S.W.3d 736
    , 740 (Tex. Crim. App. 2007);
    !Armendariz v. State, 
    123 S.W.3d 401
    , 404 (Tex. Crim. App. 2003), cert. denied,
    
    541 U.S. 974
    (2004).
    Fourth Amendment
    The United States Constitution protects persons against “unreasonable
    searches and seizures.” U.S. Cons. amend. IV. The United States and Texas
    Constitutions proclaim that law enforcement personnel may not search an
    individual absent a warrant based on probable cause. Id.; Tex. Cons. art. 1,§10. It
    has long been the rule, however, that a temporary investigative detention and pat
    down search for possible weapons or contraband without a warrant is permissible
    provided the officer has a reasonable belief the individual has been engaged in
    criminal activity or is armed. See generally Terry v. Ohio, 
    392 U.S. 1
    (1968).
    A seizure under the Fourth Amendment must be objectively reasonable in
    light of the particular circumstances of the case. See 
    id. at 21-22.
    Whether a
    traffic 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
    enforcement.” United States v. Brigmont-Ponce, 
    422 U.S. 873
    , 878 (1975). A
    seizure based on reasonable suspicion or probable cause will generally be
    8!
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    reasonable. Whren v. United States, 
    517 U.S. 806
    , 818 (1996); 
    Terry, 392 U.S. at 21-23
    .
    For an officer to initiate a traffic stop, the officer must have more than a
    mere hunch. 
    Whren, 517 U.S. at 818
    . The officer must be able to articulate
    objective facts and circumstances that demonstrate he or she reasonably believed
    the Defendant was engaged in criminal activity. See, eg., Brown v. Texas, 
    443 U.S. 47
    , 51 (1979) (to detain, officers must “have a reasonable suspicion, based on
    objective facts, that the individual is involved in criminal activity”); 
    Terry, 392 U.S. at 30
    (reasonable suspicion exists only where policeman reasonably
    concludes, inter alia, “that criminal activity may be afoot”).
    The law does provide, however, that if a police officer objectively has
    reasonable suspicion or probable cause that an offense has been committed then he
    or she may reasonably seize an individual through the exercise of his community
    caretaking function. Wright v. State, 
    7 S.W.3d 148
    , 151-52 (Tex. Crim. App.
    1999). This is the so-called community caretaking function and is the exception to
    the warrant requirement. 
    Id. at 151.
    An integral part of a police officer’s duty is to “serve and protect.” 
    Id. As part
    of this duty, a police officer can approach and assist an individual whom he or
    she believes is in need of help. 
    Id. An officer
    will act reasonable “when he
    9!
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    stopped the vehicle out of concern for the welfare of the [Defendant]” and not to
    investigate the Defendant. 
    Id. This doctrine
    necessarily examines the intent of the officer when he or she
    invokes the doctrine. Importantly, both the United States Supreme Court and the
    Court of Criminal Appeals of Texas have held that the “community caretaking
    function, however, is ‘totally divorced from the detention, investigation, or
    acquisition of evidence relating to the violation of a criminal statute.” Cady v.
    Dombrowski, 
    413 U.S. 433
    , 441 (1973); Corbin v. State, 
    85 S.W.3d 272
    , 276-77
    (Tex. Crim. App. 2002). That is, a police officer cannot cloak his intent to conduct
    a criminal investigation, by invoking the community caretaking function. 
    Corbin, 85 S.W.3d at 276-77
    . Thus, an officer’s subjective intent is paramount in those
    cases. 
    Id. III. The
    court of appeals upheld the conviction, and reversed the trial court’s
    judgment, when the evidence did not support the determination that Officer
    Padgett possessed reasonable suspicion to initiate the traffic stop.
    As stated above, the appellate court affirmed Appellant’s conviction on the
    theory that Officer Padgett had reasonable suspicion to stop Appellant’s vehicle on
    the basis of DWI. Wall, 
    2015 WL 2169307
    , at *5-6. In doing so, the court of
    appeals reversed the trial court’s finding and conclusion that Officer Padgett did
    not have reasonable suspicion to temporarily detain Appellant on this theory. 
    Id. The trial
    court made the following relevant findings of fact:
    10!
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    The Court finds the driving of the defendant is not reasonable
    suspicion of driving while intoxicated. Caution in entering an
    intersection is proper. The Defendant sat at the intersection for 26
    seconds that the [sic] Officer Padgett could observe and that is not
    obstructing a highway.
    But the court finds the defendant could be stopped for disregarding
    the traffic control device and making a wide turn over the white line.
    Holt v. State, 
    724 S.W.2d 914
    (Tex. App.-San Antonio 1987). The
    Court is finding that the Video showing the action is sufficient
    without the officer testifying that he saw this or was relying on it.
    [CR 104-05]
    The appellate court, however, citing State v. Kerwick on the basis that
    “reasonable suspicion is a mixed question of law that is reviewed de novo on
    appeal,” determined that the trial court’s findings were not supported by the record
    and that Officer Padgett did possess reasonable suspicion to stop Appellant’s
    vehicle on the basis of suspected DWI. 
    393 S.W.3d 270
    , 273 (Tex. Crim. App.
    2013); Wall, 
    2015 WL 2169307
    , at *5. The appellate court based its determination
    on (1) Appellant’s “prolonged stop” at one flashing yellow light, (2) delayed
    response to brake and subsequently almost complete stop in the middle of the
    another flashing yellow light intersection, (3) Officer Padgett’s testimony that he
    had made previous DWI stops at a flashing yellow light at the exact location that
    Appellant’s vehicle was travelling, and (4) Officer Padgett’s testimony that
    11!
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    Appellant was driving her vehicle at approximately 2:00 a.m. on a weekend in an
    area that bars are located. 
    Id. At the
    suppression hearing, Officer Padgett testified as follows:
    [State]:      And at what point did you suspect the driver to be
    intoxicated?
    [Officer]:    Upon contact with them and after speaking with them.
    [State]:      And what about their driving habits led you to suspect
    them for DWI?
    [Officer]:    I’ve had DWIs before where somebody stops at a
    flashing yellow light on University; at that exact area,
    actually. So stopping at flashing yellow lights is not
    normal. The time of the day. It’s 2:00 a.m. Bars close.
    It’s when most of our DWIs happen.
    ....
    [Appellant]: And on that occasion, and also in your report, you listed
    two very specific reasons as to why you pulled over Ms. Wall, why
    you indicated that traffic stop; is that correct?
    [Officer]:    Yes.
    [Appellant]: And those two very specific reasons are she, one,
    disregarded a traffic control device; and, two, you wanted to do a
    welfare check. Is that correct?
    [Officer]: I believe that’s in the reason part of the LEADRS, but it
    also – in the PC narrative, it also states the possible intoxication.
    ....
    12!
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    [Appellant]: And at a prior hearing, when you testified under oath, we
    talked about this case and you gave two reasons that you stopped Ms.
    Wall; disregarding a traffic control device and checking on her
    welfare. Is that correct?
    [Officer]:    Yes.
    [Appellant]: And as a matter of fact, I specifically asked you, “Were
    there any other reasons to stop her?” And you stated, “No.” Do you
    recall that?
    [Officer]:    I believe so.
    [Appellant]: Okay. I also asked you precisely when did this incident
    turn into a DWI investigation. And your response then was only after
    you made contact with her and you went into your – your clues of
    intoxication, odor, that type of thing. Do you recall that?
    [Officer]:    Yes.
    [2 RR 15, 17-18]
    Here, the record clearly supports the trial court’s finding that Appellant’s
    driving was not reasonable suspicion of DWI. [CR 104-05] During his testimony
    at the suppression hearing, Officer Padgett testified that he did not have reasonable
    suspicion that Appellant was driving while intoxicated.           2 RR 15, 17-18]
    Therefore, when the appellate court viewed the evidence in the light most
    favorable to the trial court’s ruling, the court should have affirmed the trial court’s
    finding. See 
    Kerwick, 393 S.W.3d at 273
    .
    As stated in Terry v. Ohio, reasonable suspicion only exists when a police
    officer reasonably concludes that “criminal activity may be 
    afoot.” 392 U.S. at 30
    .
    13!
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    Officer Padgett stated under examination from both the State and Appellant that he
    did not suspect DWI until he stopped Appellant’s vehicle and made contact with
    her. [2 RR 15, 17-18] The officer testified that the only reasons he listed for
    stopping Appellant’s vehicle were (1) disregarding a traffic control device and (2)
    welfare check. [2 RR 17-18] Only after further examination from the prosecutor
    did Officer Padgett state Appellant’s driving habits led him to suspect DWI. [2 RR
    15] Clearly, based on his own testimony, Officer Padgett did not have reasonable
    suspicion to stop Appellant’s vehicle on the basis of DWI. Although the court of
    appeals pointed out that Officer Padgett testified to the factors that he considered
    justified his stop of Appellant’s vehicle on suspicion of DWI, this testimony came
    after Officer Padgett stated that he did not suspect DWI until after he approached
    her vehicle. [2 RR 15]
    As such, the appellate court erroneously determined that when viewing the
    evidence in the light most favorable to the trial court’s ruling that the trial court’s
    determination that Officer Padgett did not possess reasonable suspicion to stop
    Appellant’s vehicle was not supported by the record. Wall, 
    2015 WL 2169307
    , at
    *5.
    CONCLUSION
    The Second District Court of Appeals erroneously determined that Officer
    Padgett had reasonable suspicion to stop Appellant’s vehicle on the basis of DWI.
    14!
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    First, after reviewing the evidence, the trial court found that the evidence did not
    support the reasonable suspicion argument. Second, the evidence presented at the
    trial court does not support a determination by the appellate court that the officer
    had reasonable suspicion to temporarily detain Appellant.         The trial court’s
    findings of fact are supported by the record and therefore, should be dispositive of
    the ruling. See Ford, 
    158 S.W. 3rd
    at 493. This Court should reverse the Fort
    Worth Court of Appeal’s opinion and hold that the trial court’s finding that the
    officer did not have reasonable suspicion to stop Appellant’s vehicle on the basis
    of DWI was correct and supported by the record.
    PRAYER
    Appellant prays that her petition be granted and that the Court of Appeals’
    judgment be reversed in part as it applies to the officer having reasonable suspicion
    of DWI to stop Appellant’s vehicle and render the judgment that the lower court
    should have rendered (i.e., reversing Appellant’s conviction).         Alternatively,
    Appellant prays that the court of appeals’ judgment affirming the trial court’s
    judgment be reversed.
    15!
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    Respectfully submitted,
    ___________________________
    Jason A. Zendeh Del
    Lead Counsel for Appellant
    The Zendeh Del Law Firm
    7600 San Jacinto Place, Suite 200
    Plano, Texas 75024
    Telephone (214) 919-3600
    Facsimile (214) 919-3599
    Jason@zenlawfirm.com
    State Bar Number 24044988
    CERTIFICATE OF COMPLIANCE
    I certify that this document contains 3,494 words.
    ___________________________
    Jason A. Zendeh Del
    CERTIFICATE OF SERVICE
    A copy of Appellant’s petition for discretionary review has been sent to
    Denton County District Attorney’s Office, Attn: Appellate Division, via fax (940)
    349-2601, on the dame date as filing.
    ___________________________
    Jason A. Zendeh Del
    16!
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    APPENDIX- COURT OF APPEALS’ OPINION
    17!
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    2015 WL 2169307
         Only the Westlaw citation is currently available.
    SEE TX R RAP RULE 47.2 FOR DESIGNATION                                   II. FACTUAL AND PROCEDURAL
    AND SIGNING OF OPINIONS.                                                  BACKGROUND3
    DO NOT PUBLISH TEX. R. APP. P. 47.2(B)                        Officer Corey Padgett, driving his patrol unit, approached
    Court of Appeals of Texas,                              an intersection where he observed Wall stopped at a
    Fort Worth.                                      flashing yellow light. Wall remained stopped for several
    seconds, and cross-traffic, which had a flashing red light,
    Lisa D. Wall, Appellant                              drove warily through the intersection when Wall did not.
    v.                                        After a few seconds, Wall drove through the intersection,
    The State of Texas, State                            and Officer Padgett followed her.
    NO. 02–13–00552–CR | DELIVERED: May 7, 2015                      As Wall approached another intersection with a flashing
    yellow light, she braked hard but late, coming to an
    FROM COUNTY CRIMINAL COURT NO. 4 OF                                  almost complete stop in the middle of the intersection.
    DENTON COUNTY, TRIAL COURT NO. CR–2012–                              Before her vehicle completely stopped, Wall accelerated
    01008–D                                                              through the intersection, changed lanes, and made a U-
    turn. Based on Wall’s curious driving behavior, Officer
    Attorneys and Law Firms
    Padgett initiated a traffic stop.
    Jason Zendeh Del, Plano, TX, for Appellant.
    When Officer Padgett began talking with Wall, he
    Paul Johnson, Dist Atty., Catherine Luft, Asst. Dist. Atty.,         observed that her eyes were glassy and red, her speech
    Denton, TX, for State.                                               was slurred, and that she had a slight smell of alcohol.
    Officer Padgett administered standard field sobriety tests,
    PANEL: LIVINGSTON, C.J.; WALKER and GABRIEL,                         and Wall displayed six clues of intoxication on the
    JJ.                                                                  horizontal gaze nystagmus test. Officer Padgett arrested
    Wall for driving while intoxicated, and a subsequent
    blood draw revealed that Wall had a blood alcohol
    MEMORANDUM OPINION1                                    concentration of .16.
    Wall filed a motion to suppress evidence seized as a result
    SUE WALKER, JUSTICE                                                  of Officer Padgett’s traffic stop, arguing that Officer
    Padgett lacked reasonable suspicion to stop her vehicle.
    At the suppression hearing, Officer Padgett testified that
    Wall’s reaction to the two lights had made him suspect
    that she was intoxicated. He explained that stopping at a
    I. INTRODUCTION2
    flashing yellow light is not normal, even if it is not a
    traffic violation to do so. From his training, Officer
    *1 Appellant Lisa D. Wall appeals her conviction for
    Padgett knew that intoxicated drivers often fail to follow
    driving while intoxicated. After the trial court denied her
    traffic signals, and he considered a driver’s inability to
    motion to suppress evidence, Wall pleaded no contest.
    The trial court assessed her punishment at 300 days’                 respond properly to a flashing yellow light to be a big
    confinement, which the court suspended; the trial court              indicator of intoxication. In fact, Officer Padgett had
    made prior DWI stops at a flashing yellow light “at that
    placed Wall on community supervision for fifteen
    exact area” of the road that Wall was travelling. Given
    months. Wall perfected this appeal.
    Wall’s driving behavior and the fact that it was around
    2:00 a.m. on a weekend day in a neighborhood with many
    In her sole issue, Wall argues that the trial court erred by
    bars, Officer Padgett suspected that Wall was intoxicated.
    denying her motion to suppress. The State raises a cross-
    point, asserting that although the trial court correctly
    *2 The trial court admitted and reviewed a video
    denied Wall’s motion to suppress, the denial was proper
    recording of the traffic stop. After the hearing, the trial
    on an alternative ground rejected by the trial court—that
    court denied Wall’s suppression motion. In its findings of
    the stop of Wall’s vehicle was justified based on the
    arresting officer’s reasonable suspicion that Wall was               fact and conclusions of law, the trial court determined that
    driving while intoxicated. Because we sustain Wall’s                 Wall’s driving did not give rise to reasonable suspicion
    that she was driving while intoxicated. But the trial court
    issue but also sustain the State’s cross-point, we will
    concluded that Officer Padgett could have stopped Wall
    affirm the trial court’s judgment.
    for either of the two traffic violations that Officer Padgett
    had observed: Wall’s disregard of a traffic control device
    18!
    !
    and Wall’s U-turn, which the trial court considered too               novo unless its explicit fact findings that are supported by
    wide because Wall allegedly straddled the turning lane’s              the record are also dispositive of the legal ruling. 
    Id. at white
    line in the turn.                                               818. We must uphold the trial court’s ruling if it is
    supported by the record and correct under any theory of
    law applicable to the case even if the trial court gave the
    wrong reason for its ruling. State v. Stevens, 
    235 S.W.3d 736
    , 740 (Tex.Crim.App.2007); Armendariz v. State, 123
    III. STANDARDS OF REVIEW                                  S.W.3d 401, 404 (Tex.Crim.App.2003), cert. denied,
    541 U.S. 974
    (2004).
    A. MOTION TO SUPPRESS
    We review a trial court’s ruling on a motion to suppress
    evidence under a bifurcated standard of review. Amador                         B. STATUTORY CONSTRUCTION
    v. State, 
    221 S.W.3d 666
    , 673 (Tex.Crim.App.2007);
    Guzman        v.    State,   
    955 S.W.2d 85
    ,     89            Statutory construction is a question of law that we review
    (Tex.Crim.App.1997). In reviewing the trial court’s                   de novo. Yazdchi v. State, 
    428 S.W.3d 831
    , 837
    decision, we do not engage in our own factual review.                 (Tex.Crim.App.2014). In construing a statute, we seek to
    Romero       v.   State,    
    800 S.W.2d 539
    ,     543             effectuate the collective intent or purpose of the
    (Tex.Crim.App.1990); Best v. State, 
    118 S.W.3d 857
    , 861               legislators who enacted the legislation. 
    Id. We look
    first
    (Tex.App.–Fort Worth 2003, no pet.). The trial judge is               to the statute’s literal text, and we read words and phrases
    the sole trier of fact and judge of the credibility of the            in context and construe them according to the rules of
    witnesses and the weight to be given their testimony.                 grammar and common usage unless they have acquired
    Wiede      v.    State,    
    214 S.W.3d 17
    ,     24–25             technical or particular meaning. 
    Id. When statutory
    (Tex.Crim.App.2007); State v. Ross, 
    32 S.W.3d 853
    , 855                language is clear and unambiguous, we give effect to its
    (Tex.Crim.App.2000), modified on other grounds byState                plain meaning unless to do so would lead to absurd
    v. Cullen, 
    195 S.W.3d 696
    (Tex.Crim.App.2006).                        consequences that the legislature could not have possibly
    intended. 
    Id. at 837–38.
    Therefore, we give almost total deference to the trial
    court’s rulings on (1) questions of historical fact, even if
    the trial court’s determination of those facts was not based
    on an evaluation of credibility and demeanor, and (2)
    application-of-law-to-fact questions that turn on an                       IV. THE TRIAL COURT’S FINDINGS AND
    evaluation of credibility and demeanor. Amador, 221                                   CONCLUSIONS
    S.W.3d at 673; Montanez v. State, 
    195 S.W.3d 101
    , 108–
    09 (Tex.Crim.App.2006); Johnson v. State, 68 S.W.3d                   *3 The trial court’s findings of fact and conclusions of
    644, 652–53 (Tex.Crim.App.2002). Concerning questions                 law included the following:
    of historical fact, even when a video tape of the stop
    exists, the trial court’s factual determinations are entitled           The Court finds the driving of the defendant is not
    to almost total deference so long as they are supported by              reasonable suspicion of driving while intoxicated.
    the record. SeeTucker v. State, 
    369 S.W.3d 179
    , 185                     Caution in entering an intersection is proper. The
    (Tex.Crim.App.2012); Montanez v. State, 195 S.W.3d                      Defendant sat at the intersection for 26 seconds that the
    101, 109 (Tex.Crim.App.2006). Concerning application-                   [sic] Officer Padgett could observe and that is not
    of-law-to-fact questions that do not turn on the credibility            obstructing a highway.
    and demeanor of the witnesses, we review the trial court’s
    rulings on those questions de novo. Amador, 221 S.W.3d                  But the court finds the defendant could be stopped for
    at 673; Estrada v. State, 
    154 S.W.3d 604
    , 607                           disregarding the traffic control device and making a
    (Tex.Crim.App.2005); 
    Johnson, 68 S.W.3d at 652
    –53.                      wide turn over the white line.
    ....
    Stated another way, when reviewing the trial court’s
    ruling on a motion to suppress, we must view the                        The Court therefore denies the motion to suppress.
    evidence in the light most favorable to the trial court’s
    ruling. 
    Tucker, 369 S.W.3d at 185
    ; 
    Wiede, 214 S.W.3d at 24
    ; State v. Kelly, 
    204 S.W.3d 808
    , 818
    (Tex.Crim.App.2006). When the trial court makes explicit
    fact findings, we determine whether the evidence, when                    V. LAW ON WARRANTLESS DETENTIONS
    viewed in the light most favorable to the trial court’s
    ruling, supports those fact findings. Kelly, 204 S.W.3d at            The Fourth Amendment protects against unreasonable
    818–19. We then review the trial court’s legal ruling de              searches and seizures by government officials. U.S.
    19!
    !
    Const. amend. IV; 
    Wiede, 214 S.W.3d at 24
    . To suppress                498, 503–04 (Tex.App.–Fort Worth 2008, pet. ref’d)
    evidence because of an alleged Fourth Amendment                       (following cases that interpret the statute as proscribing,
    violation, the defendant bears the initial burden of                  not just a movement, but an unsafe movement).
    producing evidence that rebuts the presumption of proper
    police conduct. 
    Amador, 221 S.W.3d at 672
    ; seeYoung v.
    State, 
    283 S.W.3d 854
    , 872 (Tex.Crim.App.), cert.
    denied,558 U.S. 1093 (2009). A defendant satisfies this
    burden by establishing that a search or seizure occurred                  V. REASONABLE SUSPICION OF DRIVING
    without a warrant. 
    Amador, 221 S.W.3d at 672
    . Once the                            WHILE INTOXICATED
    defendant has made this showing, the burden of proof
    shifts to the State, which is then required to establish that         *4 As detailed below, the evidence—viewed in the light
    the search or seizure was conducted pursuant to a warrant             most favorable to the trial court’s finding that the
    or was reasonable. 
    Id. at 672–73;
    Torres v. State, 182                evidence supported a traffic-offense stop of Wall for
    S.W.3d 899, 902 (Tex.Crim.App.2005); Ford v. State,                   disregarding a traffic control device or for making an
    
    158 S.W.3d 488
    , 492 (Tex.Crim.App.2005).                              overly wide U-turn and viewed in the light most favorable
    to its finding that the evidence did not support a
    To justify a brief detention for investigative purposes, the          reasonable suspicion that Wall was driving while
    officer must be able to articulate something more than an             intoxicated—does not support these findings. SeeKelly,
    “inchoate and unparticularized suspicion or ‘hunch.’ 
    204 S.W.3d at 820
    –21 (holding evidence viewed in light
    Foster v. State, 
    326 S.W.3d 609
    , 613–14 (Tex.Crim.App.                most favorable to trial court’s ruling did not support it). In
    2010) (citing Terry v. Ohio, 
    392 U.S. 1
    , 27, 
    88 S. Ct. 1868
    ,           fact, the video from Officer Padgett’s dash cam
    1883 (1968)). Specifically, the officer must have some                indisputably negates the trial court’s findings that Wall
    minimal level of objective justification for making the               committed the traffic offenses of disregarding a traffic
    stop; when the officer can “point to specific and                     control device and making an overly wide turn over the
    articulable facts which, taken together with rational                 white line. See
    Tucker, 369 S.W.3d at 185
    (“If the video
    inferences from those facts, reasonably warrant [the]                 evidence does not support the trial court’s conclusion,
    intrusion” on the freedom of the person being detained, an            then the court of appeals should reverse.”); State v.
    investigative detention is reasonable. 
    Id. (citing Terry,
                Houghton, 
    384 S.W.3d 441
    , 446 (Tex.App.–Fort 
    Worth 392 U.S. at 21
    ); seeDerichsweiler v. State, 
    348 S.W.3d 2012
    , no pet.) (“We thus give almost total deference to
    906, 914 (Tex.Crim.App.2011); Brother v. State, 166                   the trial court’s factual determinations unless the video
    S.W.3d 255, 257 (Tex.Crim.App.2005). A brief intrusion                recording indisputably contradicts the trial court’s
    is warranted, for instance, where the officer reasonably              findings.”).
    suspects that the person detained actually is, has been, or
    soon will be engaged in criminal activity. Derischweiler,             Looking first to whether Wall’s reaction to the 
    flashing 348 S.W.3d at 914
    ; 
    Brother, 166 S.W.3d at 257
    . The                    yellow light constituted a traffic violation, the
    reasonableness of a given detention turns on the totality of          transportation code simply states that a driver facing a
    the circumstances, which considers the public and private             flashing yellow light “may” proceed with caution.
    interests that are at stake. 
    Brother, 166 S.W.3d at 259
    n.6.          SeeTex. Transp. Code Ann. § 544.008(b). Nothing in the
    provision proscribes stopping or excessively decelerating
    An officer has probable cause to stop and arrest a driver if          at a flashing yellow light. See 
    id. Generally, the
    term
    he observes the driver commit a traffic offense. State v.             “may” indicates an element of discretion rather than
    Gray, 
    158 S.W.3d 465
    , 469–70 (Tex.Crim.App.2005);                     compulsion, which is better communicated with words
    seeState v. Ballman, 
    157 S.W.3d 65
    , 70 (Tex.App.–Fort                 like “shall.” See, e.g.,Ford v. State, 
    305 S.W.3d 530
    , 539
    Worth 2004, pet. ref’d). Relevant here, the transportation            (Tex.Crim.App.2009) (discussing difference between
    code provides: “The operator of a vehicle facing a                    “may” and “must” or “shall”). For example, in the
    flashing yellow signal may proceed through an                         preceding subsection of the same statute, the
    intersection or past the signal only with caution.” Tex.              transportation code states that a driver facing a flashing
    Transp. Code Ann. § 544.008(b) (West 2011). Texas law                 red signal “shall” stop. See Tex. Transp. Code Ann. §
    governing U-turns on a divided highway and not at an                  544.008(a) (West 2011); see alsoYazdchi, 428 S.W.3d at
    intersection, as in this case, requires that the turn be made         837 (holding that words are interpreted in context); Ford,
    at a location where the dividing physical barrier 
    allows 305 S.W.3d at 539
    (discussing consistent use of the term
    and be made safely and not at the crest of a hill or in the           “may” throughout the article relevant there). Giving the
    middle of a curve. SeeTex. Transp. Code Ann. §§                       may-proceed-with-caution language of section 544.008(b)
    545.063(b)(1), 545.102, 545.103 (West 2011). Regarding                its plain meaning, Wall’s overreaction to the flashing
    lane compliance, a violation for failure to maintain a                yellow light, although unusual, did not violate that
    single lane requires that a driver’s deviation from a lane            section. SeeTex. Transp. Code Ann. § 544.008(b). The
    be made in an unsafe manner. SeeTex. Transp. Code Ann.                evidence, viewed in the light most favorable to the trial
    § 545.060(a) (West 2011); Fowler v. State, 266 S.W.3d                 court’s finding that Wall disregarded a traffic-device,
    does not support this finding. 
    SeeYazdchi, 428 S.W.3d at 20
    !
    !
    837 (holding that statutes are reviewed de novo); Amador,             flashing-yellow-light intersection were contextualized 
    by 221 S.W.3d at 673
    (de novo review of application-of-law-              Officer Padgett’s testimony that he observed Wall driving
    to-fact questions); 
    Estrada, 154 S.W.3d at 607
    (same);                at 2:00 a.m. on a weekend in a neighborhood with bars.
    
    Johnson, 68 S.W.3d at 652
    –53 (same).                                  According to Officer Padgett, intoxicated drivers are often
    confused by flashing traffic control signals, and he noted
    Looking next to whether Wall’s U-turn constituted a                   that he had made prior DWI stops at a flashing yellow
    traffic offense, the video does not support the trial court’s         light in “that exact area” of the road that Wall was
    finding that it did. Although Wall traversed the turning              travelling. Officer Padgett thus articulated something
    lane’s white line while entering the turning lane, she did            more than an “inchoate and unparticularized suspicion or
    not re-cross it prior to or during her U-turn. Wall made              ‘hunch.’ ” 
    Foster, 326 S.W.3d at 613
    –14. Considering the
    the U-turn at a proper opening in the barrier and not at the          totality of the circumstances, Officer Padgett possessed
    crest of a hill or near a curve. SeeTex. Transp. Code Ann.            “some minimal level of objective justification for making
    §§ 545.063(b)(1); 545.102. No cars were near, and there               the stop” because he pointed to specific and articulable
    is no evidence the turn was done in an unsafe manner.                 facts—Wall’s peculiar driving through two flashing-
    SeeTex. Transp. Code Ann. § 545.103. Thus, even                       yellow-light intersections, the fact that intoxicated drivers
    assuming Wall re-crossed the right line or prolonged her              are often confused by flashing-light intersections, the fact
    transition across it, there is no evidence that the                   that Officer Padgett had made other DWI arrests in this
    movement was unsafe, and thus it was not a violation. See             very location at the flashing-light intersections, the fact
    Tex. Transp. Code Ann. §§ 545.060(a); Fowler, 266                     that Wall was driving at 2:00 a.m. on a weekend in a
    S.W.3d at 503–04; see alsoTex. Transp. Code Ann. §                    location near bars—which, taken together with rational
    545.103 (requiring all turns and movements be done                    inferences from those facts, provided reasonable
    safely). Other than the video, there was no evidence of               suspicion that Wall was engaged in criminal activity,
    Wall’s U-turn, and Officer Padgett did not mention, either            DWI. See Id.(citing 
    Terry, 392 U.S. at 15
    ); see
    in his affidavit or in his testimony, that Wall’s U-turn was          
    alsoDerichsweiler, 348 S.W.3d at 914
    ; Brother, 166
    improperly performed. Thus, again, giving these                       S.W.3d at 257. The evidence, viewed in the light most
    transportation code sections their plain meaning, no                  favorable to the trial court’s finding that Officer Padgett
    evidence exists in the record that Wall violated them. The            did not possess reasonable suspicion to initiate a
    evidence, viewed in the light most favorable to the trial             temporary detention of Wall, does not support this
    court’s finding, does not support the trial court’s finding           finding. SeeState v. Kerwick, 
    393 S.W.3d 270
    , 273
    that Wall’s U-turn constituted a traffic violation.                   (Tex.Crim.App.2013) (“[R]easonable suspicion is a
    
    SeeYazdchi, 428 S.W.3d at 837
    (statutes reviewed de                   mixed question of law that is reviewed de novo on
    novo); 
    Amador, 221 S.W.3d at 673
    (de novo review of                   appeal.”); 
    Amador, 221 S.W.3d at 673
    (noting de novo
    application-of-law-to-fact questions); Estrada, 154                   review of application-of-law-to-fact questions); Estrada,
    S.W.3d at 607 (same); 
    Johnson, 68 S.W.3d at 652
    –53                    154 S.W.3d at 607 (same); 
    Johnson, 68 S.W.3d at 652
    –53
    (same); see also
    Tucker, 369 S.W.3d at 185
    (holding that               (same).
    appellate courts cannot uphold a finding if the video
    record does not support it); 
    Houghton, 384 S.W.3d at 446
                 We overrule the portion of Wall’s sole issue asserting that
    (same).                                                               we should not affirm the denial of her motion to suppress
    on the ground that Officer Padgett possessed reasonable
    *5 Having determined that the traffic-offense findings and            suspicion to stop her. We sustain the State’s cross-point
    conclusions made by the trial court in denying Wall’s                 challenging the trial court’s finding and conclusion that
    motion to suppress are not supported by the evidence, we              Officer Padgett did not possess reasonable suspicion to
    sustain the portion of Wall’s issue challenging these                 initiate a temporary detention of Wall. We affirm the trial
    findings.                                                             court’s denial of Wall’s motion to suppress on this theory.
    
    SeeStevens, 235 S.W.3d at 740
    (holding that appellate
    We next address Wall’s alternative argument and the                   courts may uphold a trial court’s judgment under any
    State’s cross-point. Wall alternatively argues that we                applicable theory of law supported by the record);
    cannot affirm the trial court’s denial of her motion to               
    Armendariz, 123 S.W.3d at 404
    (same).
    suppress on the ground that Officer Padgett possessed
    reasonable suspicion that Wall was engaged in the
    criminal activity of DWI because the trial court correctly
    found and concluded that he did not. The State argues that
    this finding by the trial court is not supported by the                                  VI. CONCLUSION
    evidence.
    *6 Having determined that the trial court’s denial of
    Wall’s prolonged stop at one flashing-yellow-light                    Wall’s motion to suppress was proper based on the theory
    intersection and her delayed application of her brakes and            that Officer Padgett possessed reasonable suspicion to
    quick, almost complete stop in the middle of the next                 initiate a temporary detention of Wall, we affirm the trial
    court’s judgment.
    21!
    !
    Not Reported in S.W.3d, 
    2015 WL 2169307
                                                                                      !
    All Citations
    Footnotes!
    !
    1!            SeeTex.!R.!App.!P.!47.4.!
    !
    !
    2!            This! case! was! originally! submitted! without! oral! argument! on! Friday,! May! 30,! 2014,! before! a! panel! consisting! of! Chief!
    Justice!Livingston,!Justice!Gardner,!and!Justice!Gabriel.!The!court,!on!its!own!motion!on!January!15,!2015,!ordered!this!case!
    !             reset!without!oral!argument!on!February!5,!2015;!assigned!this!case!to!a!new!panel,!consisting!of!Chief!Justice!Livingston,!
    Justice!Walker,!and!Justice!Gabriel;!and!assigned!the!undersigned!to!author!the!opinion.!
    !
    3!            As!set!forth!below,!the!events!leading!up!to!the!stop!were!recorded!by!Officer!Padget’s!dash!cam!video!recorder;!we!have!
    reviewed!the!video.!
    !             !
    !
    End$of$Document$                                                      ©!2015!Thomson!Reuters.!No!claim!to!original!U.S.!Government!Works.!
    $                                                                                                                                            !
    22!
    !