State v. Salvador Vasquez, Jr. ( 2015 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
THE STATE OF TEXAS, §
No. 08-13-00079-CR
Appellant, §
Appeal from the
v. §
County Court at Law No. 7
SALVADOR VASQUEZ, JR., §
of El Paso County, Texas
Appellee. §
(TC# 20120C07670)
§
OPINION
Salvador Vasquez, Jr., was pulled over for suspicion of driving while intoxicated (DWI)
and subsequently arrested for that offense. The stop and arrest were documented in a video
recording. Vasquez filed a pretrial motion to suppress on the basis, among others, that the officer
detained him “without any reasonable suspicion that he was engaged in criminal activity.” At the
suppression hearing, the trial court saw the video recording and heard the officer’s testimony.
The trial court concluded the stop was illegal and granted Vasquez’s motion. Relying primarily
on this Court’s opinion in State v. Alderete, 314 S.W.3d 469 (Tex.App.--El Paso 2010, pet ref’d),
the State contends the stop was justified and, therefore, the trial court erred ruling to the contrary.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Vasquez was riding his motorcycle on Interstate 10 at approximately midnight when
El Paso Police Officer Raul Lom stopped him. While speaking to Vasquez, Lom smelled the
odor of alcohol on Vasquez’s breath and accused him of drinking. Vasquez initially denied the
accusation but, after further prodding, admitted to consuming “[t]hree or four beers.” Lom
administered the three standard field sobriety tests: the horizontal gaze nystagmus test (HGN);
the walk-and-turn test; and the one-leg-stand test.1 Lom determined Vasquez exhibited six of six
clues of intoxication on the HGN test, five of eight clues on the walk-and-turn test, and one of four
clues on the one-leg stand test. Based on his observations and Vasquez’s performance on the
field sobriety tests, Lom arrested Vasquez for DWI. The State charged Vasquez with
misdemeanor DWI, and he moved to suppress all evidence concerning his arrest. See TEX.PENAL
CODE ANN. § 49.04 (West Supp. 2013). At the suppression hearing, Lom testified he observed
Vasquez, who was directly ahead of him, “swinging his left arm back and forth at the same time he
was riding the motorcycle” and noticed “the motorcycle . . . weaving left and right . . . within the
lane.” According to Lom, most DWIs occur between 11:00 p.m. and 3:00 a.m. and one of the
most common things “intoxicated drivers, unlike sober drivers, [do] [is] . . . weave within a lane
like that[.]” Lom stated he followed Vasquez for approximately three miles before pulling him
over for suspicion of DWI based on his “experience,” “the time of evening[,]” “the actions being
taken[,]” and “the weaving.”2
On cross-examination, Lom agreed weaving within a lane is not a traffic offense. He also
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Lom ordered Vasquez to perform the field sobriety tests and chose not to inform Vasquez of his right to refuse.
However, whether Vasquez was coerced into performing the tests is not an issue before us. The sole question before
us is the justification for the stop.
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Lom, a thirty-five-year veteran of the police department, was a member of its DWI Task Force. According to Lom,
he had been on the task force for the past ten years and, during that period, had conduced 2,000 DWI investigations.
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admitted Vasquez did not drive onto “the safety shoulder of the interstate” as alleged in his written
report of the incident. Lom’s admission is borne out by the recording, which shows the
motorcycle weaving within the lane and occasionally touching its boundaries but never crossing
them.3 The recording also appears to show both of Vasquez’s hands on the handlebars at all
times, contrary to Lom’s testimony.
Following the hearing, the trial court signed an order granting the motion to suppress and
issued findings of fact and conclusions of law. The relevant findings and conclusions include:
FINDINGS OF FACT
. . .
2. Officer Lom testified that the Defendant was driving with one hand extended
straight out to his side. (Tr. P. 7, 10)
3. The video shows that the Defendant drove with both hands on the handle bars.
4. Officer Lom wrote in his report and testified that the Defendant was going in
and out of his lane and drove onto the shoulder. (Tr. p. 42, 43, 45)
5. The video shows that the Defendant at all times drove within a center lane that
was not even adjacent to a shoulder.
6. Both Officer Lom’s testimony and the video show that the Defendant, while
staying in a lane, did go from side to side within the lane. This was done in a
smooth rhythmic pattern.
7. Officer Lom wrote in his report that the Defendant was following another
vehicle too closely. He did not give any facts to support this conclusory
allegation and the video does not show such a violation.
. . .
CONCLUSIONS OF LAW
. . .
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Immediately before Lom activated his overhead lights, Vasquez moved over into the next lane but signaled before
doing so.
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2. There may be situations when weaving within a lane, combined with the time
of night and other factors, may support a finding of reasonable suspicion to justify a
stop.
3. Because of the following credibility concerns in the state’s presentation, this is
not such a case. The video does not confirm, and may actually refute, the claims
that the Defendant drove one handed, left his lane, drove on the shoulder, [and]
followed too closely . . . .
MOTION TO SUPPRESS
In its sole issue, the State contends the trial court erred in granting the motion to suppress
based on the conclusion that the traffic stop was illegal. According to the State, Officer Lom was
justified in stopping Vasquez for suspicion of DWI because of his training, experience, and
observations, namely of Vasquez weaving within the lane at that late hour. We disagree.
Applicable Law
A police officer is justified in detaining a motorist when, based on the totality of the
circumstances, the officer has specific articulable facts, together with rational inferences from
those facts, that lead him to conclude that the motorist is, has been, or soon will be engaged in
criminal activity. See Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 1884, 20 L. Ed. 2d 889 (1968);
Woods v. State, 956 S.W.2d 33, 38 (Tex.Crim.App. 1997).
Standard of Review
We review a trial court’s decision to grant or deny a motion to suppress for an abuse of
discretion. Montanez v. State, 195 S.W.3d 101, 108 (Tex.Crim.App. 2006). A trial court abuses
its discretion when its decision was so clearly wrong as to lie outside the zone of reasonable
disagreement. Cantu v. State, 842 S.W.2d 667, 682 (Tex.Crim.App. 1992); Montgomery v. State,
810 S.W.2d 372, 391 (Tex.Crim.App. 1990)(op. on reh’g).
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1. The Correct Standard: Almost Total Deference
In conducting our review, we give a trial court’s determination of historical facts almost
total deference, especially when they are based on an evaluation of credibility and demeanor and
supported by the record. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). “That
same deferential standard of review ‘applies to a trial court’s determination of historical facts
[even] when that determination is based on a videotape recording admitted into evidence at a
suppression hearing.’” State v. Duran, 396 S.W.3d 563, 570 (Tex.Crim.App. 2013). “Although
appellate courts may review de novo ‘indisputable visual evidence’ contained in a videotape, the
appellate court must defer to the trial judge’s factual findings on whether a witness actually saw
what was depicted on a videotape or heard what was said . . . .” Id. at 570-71 [Internal citations
omitted]. In other words, “the trial court’s factual determinations are entitled to almost total
deference so long as they are supported by the record, meaning that the video does not indisputably
negate the trial court’s findings.” State v. Gendron, No. 08-13-00119-CR, 2015 WL 632215, *3
(Tex.App.--El Paso Feb. 11, 2015, no pet. h.).
We also afford the same amount of deference to a trial courts’ rulings on the application of
the law to the facts—so called mixed questions of law and fact—if resolution of those questions
turns on an evaluation of credibility and demeanor. Guzman, 955 S.W.2d at 89. We may review
de novo “mixed questions of law and fact” not falling within this category. Id.
2. The State’s Position: De Novo Review
The State argues we should review the trial court’s ruling de novo, rather than under the
deferential standard, because the only issue before us is whether the trial court correctly applied
the law to a “concrete” set of facts not subject to credibility determinations. According to the
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State, the “concrete” set of facts is Vasquez’s “swerving within the lane, on the freeway, at night.”
The State asserts these facts are “concrete” and, thus, not subject to credibility determinations
because they are conclusively established by indisputable visual evidence—the recording. For
the reasons articulated below, we are not persuaded by the State’s argument.
Discussion
Applying the almost total deference standard of appellate review, we conclude the trial
court did not abuse its discretion in granting Vasquez’s motion to suppress.
The critical fact in this case is the relevant significance of Vasquez’s driving pattern, the
explanation of which rests on the testimony of a witness the trial court found was not credible.
Officer Lom testified that, based on his experience, Vasquez’s driving pattern—driving
one-handed, weaving within his lane, and riding onto the shoulder late at night—indicated
Vasquez was intoxicated. But the trial court found Officer Lom lacked credibility because the
video recording contradicted some of the events he claimed justified stopping Vasquez, and the
recording does not indisputably negate the trial court’s findings. Thus, the trial court reasonably
could have disbelieved, and was entitled to disbelieve, the portion of Officer’s Lom’s testimony
that, based on his experience, he had a reasonable suspicion Vasquez was intoxicated. Because
we are not in a better position than the trial court to assess factual issues turning on credibility, and
because the record supports rather than indisputably negates the trial court’s factual findings, we
defer to the trial court’s resolution of this issue.
The State contends the trial court’s credibility determinations are irrelevant in determining
whether Officer Lom was justified in stopping Vasquez for suspicion of DWI because the facts
critical in making that determination were conclusively established by the recording. According
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to the State, “once [Vasquez] swerved within the lane, late at night, and was seen doing so by an
officer very experienced in detecting DWI’s, as conclusively shown in the video recording, and as
expressly found by the trial court, [Officer] Lom was legally justified in stopping him for his
operation of the motorcycle.” In support of the proposition that an experienced DWI officer may
legally stop a driver for suspicion of DWI if he witnesses the driver weaving within a lane late at
night, the State cites the aforementioned Alderete v. State. The State’s reliance on Alderete is
misplaced.
In Alderete, we reversed a trial court’s finding that a traffic stop was improper. 314
S.W.3d at 471, 474-75. There, two police officers followed the appellee’s vehicle for one-half
mile in the early morning hours and noticed it weaving within its lane. Id. at 471. At the
suppression hearing, both officers testified that, based on their training and experience, weaving
within a lane late at night is a common characteristic exhibited by an intoxicated driver. Id.
“Consequently, the officers initiated a traffic stop, not because she violated the traffic code, but
because she was swerving within her lane at a late hour, which based on their experience, indicated
that she was intoxicated.” Id. Although the trial court found the officers were credible, it
granted the motion to suppress on the basis that they lacked authority to stop the appellee because
weaving within a lane was not a traffic code violation. Id. Because the trial court accepted the
State’s version of events and the only question before us was whether the trial court properly
applied the law to the facts it found, we reviewed the trial court’s ruling de novo. Id. at 472.
Employing that standard, we concluded the trial court erred because the officers had a reasonable
suspicion, based on the totality of the circumstances, including their experience, that the appellee
was driving while intoxicated. Id. at 474-75.
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Our case is distinguishable. In Alderete, the historical facts of the events leading to the
stop were uncontested and unmixed with credibility disputes. Here, as mentioned above, the
converse is true. The explanation for the relative significance of Vasquez’s driving pattern rested
on Officer Lom’s testimony. But his explanation was implicitly rejected by the trial court
because it found his testimony unreliable. As we recently stated in State v. Gendron, “the State
cannot ask us to rely on the officer’s years of training and experience in interpreting the facts
shown on the video when the trial court found the officer’s testimony unreliable.” 2015 WL
632215, at *6. Thus, although the recording shows Vasquez’s vehicle drifting back and forth
within its lane late at night, absent a credible witness’s interpretation of the significance of those
movements, we are in no position to conclude that Vasquez’s movements are indicative of an
impaired driver. Because the recording does not indisputably contradict the trial court’s findings,
its ruling is afforded almost total deference. Under that standard, we cannot say the trial court’s
ruling is so clearly wrong as to lie outside the zone of reasonable disagreement.
The State’s issue is overruled.
CONCLUSION
The trial court’s judgment is affirmed.
March 18, 2015
YVONNE T. RODRIGUEZ, Justice
Before McClure, C.J., Rodriguez, and Hughes, JJ.
(Do Not Publish)
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