Holmquist, Marcus Lee ( 2015 )

PD-0401-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 5/8/2015 4:07:44 PM
Accepted 5/12/2015 1:45:51 PM
ABEL ACOSTA
COURT OF CRIMINAL APPEALS CLERK
PD-0401-15
State of Texas, Appellee,
v.
Marcus Lee Holmquist, Appellant.
On Discretionary Review from
No. 05-13-01388-CR
Fifth Court of Appeals, Dallas
On Appeal from No. CR13-0496
County Court at Law, Rockwall County
Petition for Discretionary Review
Patrick Short
603 White Hills Drive
Rockwall, Texas 75087
Phone: 972-771-1441 May 12, 2015
Fax: 972-771-0377
patrick@patrickshort.com
Texas Bar No. 21216900
Attorney for Appellant
ORAL ARGUMENT REQUESTED
Identity of Parties, Counsel, and Judges
Marcus Lee Holmquist, Appellant
Patrick Short, Attorney for Appellant at Suppression Hearing and on Appeal,
603 White Hills Drive, Rockwall, Texas 75087, phone (972) 771-1441, fax (972)
771-0377, email: patrick@patrickshort.com
State of Texas, Appellee.
Kenda Culpepper, Rockwall County District Attorney, Attorney for Appellee,
1111 E. YellowJacket Lane Suite 201, Rockwall, Texas 75087, phone (972) 204-
6800, fax (972) 204-6809.
Craig Stoddart, Rockwall County Assistant District Attorney, Appellate
Division, Attorney for Appellee on Appeal, 1111 E. YellowJacket Lane Suite
201, Rockwall, Texas 75087, phone (972) 204-6800, fax (972) 204-6809.
Jennifer Barnes Molina, Rockwall County Assistant District Attorney,
Attorney for Appellee at Suppression Hearing, 1111 E. YellowJacket Lane
Suite 201, Rockwall, Texas 75087, phone (972) 204-6800, fax (972) 204-6809.
Hon. Brian Williams, Presiding Judge at Suppression Hearing, Rockwall
County Court at Law, 1111 E. YellowJacket Lane Suite 403, Rockwall, Texas
75087, phone (972) 204-6412, fax (972) 204-6419.
Page 2 of 32
Table of Contents
Identity of Parties, Counsel, and Judges 2
Table of Contents 3
Table of Authorities 5
Statement Regarding Oral Argument 8
Statement of the Case 9
Procedural History 11
Questions or Grounds for Review 13
Argument 14
Question for Review One: In violation of the Fourth and
Fourteenth Amendments of the United States Constitution, the
Court of Appeals erred when it affirmed the trial court's
denial of Appellant's motion to suppress evidence because at
the time the officer observed the traffic violation, the detaining
officer had allowed the violation to go stale, therefore, the stop
was not effected within a reasonable time and distance. 14
Question for Review Two: Does a traffic control device (traffic
light) controlling the inner-most designated turn-only lane
supersede the statutory requirement of illuminating a turn
signal pursuant to Texas Transportation Code Section 545.104
when the driver is less than two car lengths (clearly within 100
feet and not moving nor parked) from an intersection,
stationary and awaiting the traffic control device's instruction
on when to proceed through the designated turn? 26
Conclusion and Prayer 29
Certificate of Service 31
Page 3 of 32
Certificate of Compliance with Tex. Rule App. Proc. 9.4 32
Appendix A: Findings of Fact and Conclusions of Law
Appendix B,: Judgment and Opinion of the Court of Appeals in Holmquist v.
State, No. 05-13-01388-CR, 2015 WL 500809 (Tex. App. Feb. 5, 2015) (Not
designated for publication).
Page 4 of 32
Table of Authorities
Cases
Alabama v. White, 496 U.S. 325 (1990) 15, 17
Amador v. State, 275 S.W.3d 872 (Tex. Crim. App. 2009) 21
Arizpe v. State, 308 S.W.3d 89 (Tex. App. San Antonio
2010, no pet.) 16, 17
Armstrong v. State, 550 S.W.2d 25 (Tex. Crim. App. 1977) 17
Brother v. State, 166 S.W.3d 255 (Tex. Crim. App. 2005) 16, 24
Brown v. Texas, 433 U.S. 47 (1979) 16
Coolidge v. New Hampshire, 403 U.S. 443 (1971) 16
Corbin v. State, 85 W.W.3d 272 (Tex.Crim.App. 2002) 19
Crittenden v. State, 899 S.W.2d 668 (Tex.Crim.App. 1995) 20
Fla. v. Royer, 460 U.S. 491 (1983) 16
Ford v. State, 158 S.W.3d 488 (Tex. Crim. App. 2005) 15, 17
Garcia v. State, 43 S.W.3d 527 (Tex. Crim. App. 2001) 15, 17, 19
Goudeau v. State, 209 S.W.3d 713 (Tex. App. Houston [14th Dist.]
2006, no pet.) 27
Kelly v. State, 721 S.W.2d 586 (Tex. App. Houston [1st Dist.]
1986, no pet.). 16
Livingston v. State, 731 S.W.2d 744 (Tex. App. Beaumont 1987, pet. ref.) 16
Page 5 of 32
Martinez v. State, 348 S.W.3d 919 (Tex. Crim. App. 2011) 15, 17
Pesina v. State, 676 S.W.2d 122 (Tex. Crim. App. 1984) 18
Pham v. State, 175 S.W.3d 767 (Tex. Crim. App. 2005) 21, 22
Rhodes v. State, 945 S.W.2d 115 (Tex. Crim. App. 1997),
cert. denied, 522 U.S. 894 (1997) 15, 17
State v. Bryant, 161 S.W.3d 758 (Tex. App. Fort Worth 2005, no pet.) 16
State v. Cullen, 227 S.W.3d 278 (Tex. App. San Antonio 2007, pet. ref.) 18
State v. Dixon, 151 S.W.3d 271 (Ct. App. — Texarkana 2004) 19, 20, 23
State v. Dixon, 206 S.W.3d 587 (Tex. Crim. App. 2006) 19, 20, 24, 26
United States v. Granado, 302 F.3d 421 (5th Cir. 2002) 27
Wehring v. State, 276 S.W.3d 666 (2008) 28
Zayas v. State, 972 S.W.2d 779 (Tex. App. Corpus Christi
1998, pet. ref.) 15, 17
Constitutions
U.S. Const. Amend. IV passim
U.S. Const. Amend. XIV passim
Tex. Const. Art. 1, § 9 9, 11, 16, 20
Statutes and Rules
Tex. Code Crim. Proc. Art. 14.01 22
Tex. Code Crim. Proc. Art. 38.23 9, 11, 21, 22
Page 6 of 32
Tex. Pen. Code § 49.04 11
Tex. Rule App. Proc. 9.4 32
Tex. Rule App. Proc. 9.5 31
Tex. Rule App. Proc. 68.4 8
Tex. Rule App. Proc. 68.11 31
Tex. Rule Evid. 201 22
Tex. Transp. Code § 544.004 28, 29
Tex. Transp. Code § 544.009 28, 29
Tex. Transp. Code § 545.101 28, 29
Tex. Transp. Code § 545.104 24, 26, 28, 29
Tex. Transp. Code § 545.151 28, 29
Tex. Transp. Code § 545.363 18
Page 7 of 32
Statement Regarding Oral Argument
Appellant requests oral argument. See Tex. Rule App. Proc. 68.4(c). This is
a meritorious appeal of a criminal case. Appellant believes that the facts and legal
arguments are adequately presented in this petition. However, should this Court
determine that its decisional process will be significantly aided by oral argument,
Appellant will be honored to present oral argument.
Page 8 of 32
To The Honorable Judges of the Court of Criminal Appeals:
Marcus Lee Holmquist, Appellant, respectfully submits this petition for
discretionary review:
Statement of the Case
This petition for discretionary review requests that this Court review the
judgment and opinion of the Fifth Court of Appeals in Holmquist v. State, No. 05-
13-01388-CR, 2015 WL 500809 (Tex. App. Feb. 5, 2015) (Not designated for
publication).
Appellant was stopped by a City of Rockwall police officer Benton Brumit
in a marked patrol car on March 13, 2013 at about 12:26 a.m. at the 1100 block of
Ridge Road about 1.6 miles north of Interstate 30. (RR2, 5-7, 16.)I Such stop
violated the Fourth and Fourteenth Amendments of the United States Constitution,
and/or Article 1, Section 9 of the Texas Constitution and the statutory violation
pursuant to Texas Code of Criminal Procedure Article 38.23.
The trial court erred by denying Appellant's motion to suppress evidence
because based upon the evidence (1) there was not reasonable suspicion that
Appellant committed any crime or driving violation that was not attenuated from
1 The Clerk's Record, is comprised of three volumes: Clerk's Record, Revised Clerk's Record
and Supplemental Clerk's Record. Apparently the Clerk's Record was numbered incorrectly so
referenced in this Petition will be "RCR" and "CR-Supp." followed by the page number of the
Clerk's Record. The Reporter's Record, comprised of four volumes, is referenced as "RR"
followed by the volume number and the page number, so page 2 of volume 2 is referenced as
"RR2, 2."
Page 9 of 32
the only violation, and (2) the original traffic violation became stale, ignored and
useless because it was disregarded in the hopes that reasonable suspicion to stop
the defendant's vehicle for driving while intoxicated would develop, but it did not.
Page 10 of 32
Procedural History
This case is an appeal of an Original Order Granting Community
Supervision, Judgment and Sentence, imposed on August 29, 2013 in Rockwall
County Court at Law under Cause Number CR13-0496. (RCR, 21-23). Appellant
was charged by information for Driving While Intoxicated under Texas Penal Code
§ 49.04. (RCR, 7). The information alleged that on or about the March 13, 2013,
Appellant operated a motor vehicle in a public place while not having the normal
use of mental or physical faculties by reason of the introduction of alcohol, a
controlled substance, a drug, a dangerous drug, or a combination of two or more
such substances, or any other substance into his body, or by having an alcohol
concentration of at least 0.08.
Motion to Suppress
Prior to trial, Appellant filed a motion to suppress evidence, asking the court
to suppress the following evidence: (1) a breath test result, (2) HGN results, (3)
field sobriety test results, (4) any video depicting events transpiring after the stop,
(5) video and opinions of the arresting officer found to be formed after the stop,
(RCR, 9). U.S. Const. Amend. IV & XIV; Tex. Const. Art. 1, §9; Tex. Code Crim.
Proc. Art. 38.28. The court denied Appellant's Motion to Suppress evidence on
August 21, 2013. (RCR, 13).
Page 11 of 32
The trial court sentenced Appellant on August 29, 2013 to 90 days in the
Rockwall County Jail, but suspended the sentence for 12 months placing him on
community supervision. (RCR, 21-23; RR3, 6).
On August 22, 2013 Appellant filed Defendant's Request for Findings of
Fact and Conclusions of Law. (RCR, 17-18, 29-30). This Court abated Appellant's
appeal and the trial court's findings of fact and conclusions of law were filed on
April 7, 2014. (See Appendix A).
Court of Appeals
Appellant appealed the conviction. On February 5, 2015, the Fifth Court of
Appeals affirmed the conviction. Holmquist v. State, No. 05-13-01388-CR, 2015
WL 500809 (Tex.App. Feb. 5, 2015). (See Appendix B). This petition for
discretionary review follows.
Page 12 of 32
Questions or Grounds for Review
The first question is whether, in violation of the Fourth and Fourteenth
Amendments of the United States Constitution, the Court of Appeals erred in
affirming the trial court's denial of Appellant's motion to suppress because at the
time the officer observed the traffic violation, the detaining officer allowed the
violation to go stale, therefore, the stop was not effected within a reasonable time
and distance.
The pages of the record in which the first matter complained of are found
throughout the Reporter's Record and Clerk's Record; especially on page 13 of the
Revised Clerk's Record.
The second question is whether a traffic control device controlling the inner-
most designated turn-only lane supersedes the statutory requirement of
illuminating a turn signal pursuant to the Texas Transportation Code when the
driver is less than two car lengths from an intersection, stationary and awaiting the
traffic control device's instruction on when to proceed?
The pages of the record in which the second matter complained of are also
found throughout the record; especially on the following pages: Reporter's Record
Volume 2, pages 1-9, 11, 14, 17, 20, 27, 32, 36-37; and Volume 4, pages 2-4.
Page 13 of 32
Argument
I. Question for Review One: In violation of the Fourth and Fourteenth
Amendments of the United States Constitution, the Court of Appeals erred
when it affirmed the trial court's denial of Appellant's motion to suppress
evidence because at the time the officer observed the traffic violation, the
detaining officer had allowed the violation to go stale, therefore, the stop was
not effected within a reasonable time and distance.
A. The opinion of the Court of Appeals ignores the facts and the law.
In affirming the trial court below, the Court of Appeals relied entirely too
much on the implicit findings the trial court supposedly made in their denial of
Appellant's motion to suppress. The Court of Appeals did not discuss whether
reasonable justification existed for the officer's delay in effecting a traffic stop in
this case. Rather, they determined that the record and the trial court's findings
"support an implied finding that there was reasonable justification for Brumit's
delay." App. B, pg. 11.
The Court of Appeals' opinion further states, in concluding the Appellant
committed a traffic violation, the "trial court implicitly found a delay of 1.6 miles
in stopping Holmquist after Brumit's observation of the traffic violation was not
unreasonable." Id. Again, the Court of Appeals is basing their opinion in this case
on determinations they claim are implied by findings made by the trial court
below.
Page 14 of 32
The Court of Appeals further makes the conclusory determination that there
was reasonable suspicion Appellant committed a traffic offence. As shown below,
there was no actual violation of the transportation code to constitute "criminal
activity." See Ford v. State, 158 S.W.3d 488, 492-93 (Tex. Crim. App. 2005)
(Reasonable suspicion exists when, based on the totality of the circumstances, the
officer has articulable facts, when combined with rational inferences, lead the
officer to conclude a person is, has been, or soon will be, engaged in criminal
activity).
When this Court gages the reasonableness of the officer's actions from his
perspective as a reasonable officer at the scene, and not with the advantage of
hindsight, there is no unusual activity on the part of the Appellant in this case. See
Garcia v. State, 43 S.W.3d 527, 531-532 (Tex. Crim. App. 2001); Rhodes v. State,
945 S.W.2d 115, 117-118 (Tex. Crim. App. 1997), cert. denied, 522 U.S. 894
(1997); Zayas v. State, 972 S.W.2d 779, 790 (Tex. App. Corpus Christi 1998, pet.
ref.); Martinez v. State, 348 S.W.3d 919, 923 (Tex. Crim. App. 2011); Alabama v.
White, 496 U.S. 325, 330-332 (1990); U.S. Const. Amend. IV and XIV.
The Court of Appeals ignored all of evidence and case law provided to them
in making their determination in this case. Therefore, the Court of Appeals erred in
affirming the trial court's decision to deny Appellant's motion to suppress. Thus,
Appellant asks the Court of Criminal Appeals to grant discretionary review.
Page 15 of 32
B. Reasonable suspicion to stop a motorist in general
Vehicles are entitled to the same basic Fourth Amendment protection against
unreasonable search and seizure as other personal property. Coolidge v. New
Hampshire, 403 U.S. 443, 456-64 (1971); Livingston v. State, 731 S.W.2d 744, 747
(Tex.App. Beaumont 1987, pet. ref.). In order to stop and detain a motorist without
running afoul of the Fourth and Fourteenth Amendments and Texas Constitution
Article 1, § 9, a police officer must have reasonable suspicion based upon specific
and articulable facts that the motorist engaged in or is about to engage in criminal
activity. Brother v. State, 166 S.W.3d 255, 257 (Tex. Crim. App. 2005). These
facts must amount to more than a mere suspicion, but need not be based upon an
officer's personal observations. Id. at 258-59; Arizpe v. State, 308 S.W.3d at 91-92.
An encounter is not considered a "seizure' for Fourth Amendment
purposes, and there is no investigative detention unless a detention has occurred.
Florida v. Royer, 460 U.S. 491, 497-498 (1983); State v. Bryant, 161 S.W.3d 758,
761 (Tex.App. Fort Worth 2005, no pet.). An investigative detention is permitted
only if the officer has a reasonable suspicion, based on objective facts, the
individual is involved in criminal activity. See Brown v. Texas, 433 U.S. 47, 52
(1979); Kelly v. State, 721 S.W.2d 586, 587 (Tex.App. Houston [1st Dist.] 1986,
no pet.). Reasonable suspicion is suspicion founded on articulable facts that, in
light of the officer's experience and general knowledge, lead to the reasonable
Page 16 of 32
conclusion that criminal activity is being conducted and the detained person is
connected with the activity. Armstrong v. State, 550 S.W.2d 25, 30-31 (Tex. Crim.
App. 1977); Alabama, 496 U.S. at 331-32.
Reasonable suspicion is an objective determination, so the particular
motivation of the officer for making an investigatory detention does not matter if
there was an objectively reasonable basis for the officer's actions. See Garcia, 43
S.W.3d at 531. The reasonableness of an officer's actions is judged from the
perspective of a reasonable officer at the scene, without the advantage of hindsight;
allowances are made under rapidly changing circumstances when officers must
make quick decisions. Id. at 531-532; Rhodes, 945 S.W.2d at 117-8; Zayas, 972
S.W.2d at 790.
In Martinez, the Court of Criminal Appeals held "[T]he determination of
reasonable suspicion is dependent upon both the content of the information known
to the officer and its degree of reliability. . . .Those facts must show unusual
activity, some evidence that connects the detainee to the unusual activity, and some
indication that the unusual activity is related to crime." Martinez, 348 S.W.3d at
923; Alabama, 496 U.S. at 330. This determination is made by objectively
considering the "totality of the circumstances," which includes both the quantity
and quality of information. Id., Ford, 158 S.W.3d at 492-93; Arizpe, 308 S.W.3d
Page 17 of 32
at 92; State v. Cullen, 227 S.W.3d 278, 282 (Tex. App. San Antonio 2007, pet.
ref.); Pesina v. State, 676 S.W.2d 122, 127 (Tex. Crim. App. 1984).
Officer Brumit had no reasonable suspicion to stop Appellant because (1)
the stated reason for the stop diminished and became stale, and (2) Appellant did
not commit any traffic violation in Brumit's presence that justify being pulled over
before or after the ostensible traffic violation for "failure to signal turn" became
stale. The record does not reflect that Appellant was given a traffic citation once
stopped.
C. Speed was not the reason for the stop.
The officer testified that going 30 in a 45 miles per hour speed zone was not
a traffic violation and understood there was not reasonable suspicion to stop the
vehicle(s) based on their speed. (RR2, 10, 12, 22). He also testified that Appellant
and the vehicle in front of him were not impeding traffic. (RR2, 22-23). The officer
unequivocally testified in relation to the speed of the vehicle(s): "It [the speed]
wasn't the reason for the stop, correct." (RR2, 36). Therefore, the vehicle(s) were
not in violation of the statute governing minimum speed. Tex. Transp. Code
§ 545.363(a)(b).
Thus, the totality of the circumstances test is not in issue in this case. There
is no evidence in the record supporting a reasonable suspicion based upon specific
and articulable facts that Appellant engaged in or is about to engage in criminal
Page 18 of 32
activity after the left hand turn violation. Therefore, this fact precludes the totality
of the circumstances test being used in this case because the "totality" of the reason
for the stop was the mere traffic violation.
D. The Officer's delay was unreasonable.
Despite the decision of the Court of Appeals, there is no evidence in the
record that supports the stop based on the objective reasonable officer at the scene
standard. It is not reasonable to believe if a police officer sees a traffic violation he
would not pull them over for the violation within a reasonable time and distance.
See Garcia, 43 S.W.3d at 531. It clearly is the factor in this case. In State v. Dixon,
206 S.W.3d 587 (Tex. Crim. App. 2006) the court citing the lower court states:
"It is also clear that the trial court did not believe the officer's allegations
that they pulled Appellee over because he committed a traffic offense. The
fact that they waited for over three miles after the alleged violation to stop
Appellee diminishes the credibility of their claim that they stopped him for
an unlawful turn...the trial judge was in effect saying, "If you really thought
the driver had committed a traffic offense, then why did you wait so long
before pulling him over?" Id. at 591.
In State v. Dixon, 151 S.W.3d 271 (Ct.App.—Texarkana 2004) citing Corbin
v. State, 85 S.W.3d 272, 278 (Tex.Crim.App. 2002) the court noted:
"[T]he 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." Dixon, 151 S.W.3d at 274.
The court went on to say, "[w]e do not hold that a delay of this distance will
Page 19 of 32
always be unreasonable. In each such instance, the court should properly consider
all of the factors surrounding the stop." Id. at 275.
In the instant case, the officer's delay is clearly unreasonable. Is it
reasonable to believe the delay was so that a second back-up officer could come to
assist Officer Brumit in pulling two vehicles over for "failure to signal turn."?
The delay goes to the credibility of the reason for the stop. Dixon, 206
S.W.3d at 591. This case is not an objectively valid traffic stop and is therefore
unlawful even if the officer did have an ulterior motive based on the record before
this court. Crittenden v. State, 899 S.W.2d 668, 674 (Tex.Crim.App. 1995). This is
an "each such instance" case because this officer by his testimony precludes a
pretext stop analysis under Crittenden, which would have been legal under Texas
Constitution Article I, § 9. Instead this officer testifies and excludes that he
followed both vehicles (one with Appellant driving) out of the Pizza Getti parking
lot. Or, that he has memory of such. Yet, when he radios for back-up to pull not
one vehicle over for a traffic violation but two vehicles, his own radio call tells
what he doesn't remember—that he might have "two of them." Not two drivers
who failed to signal their left hand turns? The officer says two, "10-55s;" two DWI
suspects. This is the exact circumstance that Crittenden, and Justice Baird's
dissenting opinion seemed to address regarding Texas Constitution Article I, § 9.
Especially given that the trial court did not make a finding on the officer's
Page 20 of 32
credibility—the court's is silent as to the credibility of the officer's testimony in
the instant case. App. A.
E. The State has the burden to prove reasonableness of the initial stop.
The burden in this case is on the State to prove the reasonableness of the
seizure, which was the initial stop. A defendant who alleges a violation of
the Fourth Amendment has the burden of producing evidence that rebuts the
presumption of proper police conduct. Amador v. State, 275 S.W.3d 872, 878 (Tex.
Crim. App. 2009). The defendant carries this burden simply by establishing that
the seizure occurred without a warrant, then the burden shifts to the State to prove
the reasonableness of the seizure. Id. The stop of defendant by the officer clearly
was without a warrant,2 so the State now has the burden. However, the State
cannot meet it.
In addition, a defendant who moves for suppression under Texas Code of
Criminal Procedure Article 38.23 due to the violation of a statute has the burden of
producing evidence of a statutory violation. Pham v. State, 175 S.W.3d 767, 772
(Tex.Crim.App. 2005). When the defendant meets this burden, the State bears the
burden to prove compliance with the Statute. Id. Article 38.23(a) provides that
"[Mc) evidence obtained by an officer or other person in violation of any
provisions of the Constitution or laws of the State of Texas, or of the Constitution
2 Stipulated at the beginning of the motion to suppress hearing. (RR2, 4).
Page 21 of 32
or laws of the United States of America, shall be admitted in evidence against the
accused on the trial of any criminal case." Tex. Code Crim. Proc. Art. 38.23(a).
Article 38.23(b)'s good-faith exception does not apply because no warrant is at
play here. Tex. Code Crim. Proc. Art. 38.23(b). Because Appellant will show that
there was such a delay in the stop, i.e. a stale violation, no offense occurred in the
presence of the officer justifying the delayed stop, under Texas Code of Criminal
Procedure, the warrantless stop and subsequent arrest of Appellant was illegal.
Tex. Code Crim. Proc. Art. 14.01. Thus, Appellant met his burden of producing
evidence of a statutory violation; the State must now prove compliance with
Article 14.01. Pham, 175 S.W.3d at 772; Tex. Code Crim. Proc. Art. 38.23(a).
F. The State cannot prove compliance with Article 14.01.
If the only purpose for the delayed stop was so that the officer could be safe,
why didn't he pull Appellant over in the most well lit area of Rockwall County,
Texas—the McDonalds, Arby's, Chevron Gas station area, immediately next to
Interstate 30—to cite him for the traffic citation? The officer could have called for
a back up unit to come while the detaining officer waited in his patrol vehicle until
back up arrived. The area the officer chose to stop both vehicles is considerably
darker—behind the old Government Center at 1101 Ridge Road.
Appellant requests this court take judicial notice pursuant to Texas Rules of
Evidence 201 of the two areas recited in the immediately preceding paragraph as to
Page 22 of 32
the lighting conditions. (See State's 1). There are not many more secluded and
darker areas in Rockwall than where the officer pulled Appellant over. There is
nothing that interfered with the'officer's ability to stop Appellant's vehicle earlier.
Dixon, 151 S.W.3d at 274.
Going slow is evidence of prudent driving as it is evidence of a "concern" as
the conflicted testimony of the officer states. (RR2, 38). Nevertheless, the officer
testified that the slow driving was a factor in vehicle's detention. (RR2, 10, 12, 22-
23). Nowhere in the record does it show the officer intended to give a traffic
citation to Appellant, but only that what he observed was a traffic violation.
If a lawful stop can become unreasonable for taking too long, the converse
of that can also be true—not effectuating a vehicle within a reasonable time and
reasonable distance for a traffic violation. It is one thing to argue reasonable
suspicion based on articulable facts to pull one vehicle over for DWI based on not
putting a left hand turn signal indicator on. But to say that you have two "10-55s"
based on not putting a left hand turn signal indicator on is remarkable. The only
way you would know that is if you saw the detainees leave an establishment that
serves alcohol, assumed that they drank alcohol while there and pulled them over
to see if your hunch or speculation is right. This the law does not allow. The
officer cannot rely on mere suspicion or a hunch. Brother at 258-259.
Page 23 of 32
If in fact the officer did not have Appellant under surveillance, following the
Appellant/defendant(s) out of the Pizza Getti eating establishment, why does his
vehicle move so quickly out of the parking lot of where Pizza Getti is located?
And, what articulable facts give rise to reasonable suspicion after the initial
"failure to signal turn" when evaluating the testimony of the officer and a review
of the in-car video cam?
A review of the record and video cam demonstrates the diminishment of the
"failure to signal turn" being the reasonable suspicion to detain Appellant; because,
"[i]n order to render lawful a motor vehicle stop for a traffic offense, must the stop
be effected within a reasonable time and a reasonable distance after the alleged
violation." The Dixon court answered "yes." Dixon, 206 S.W.3d at 592.
If drivers commit a traffic violation, cite them as soon as practicable—not
1.6 miles and three minutes and six seconds (3:06 min./sec.) later when your DWI
investigation doesn't produce driving facts that make your investigation stronger.
This officer's delay in detaining the Appellant/Defenants' for/their ostensible
violation of Tex. Transportation Code Section 545.104(a)—it could not be for
545.104(b) because there is no evidence to indicate how many feet they did not
continuously signal before the turn from the designated turn only lane—shows that
his reason for stopping became more and more stale as the vehicle(s) passed
McDonald's, Culver's, White Hills Drive, Yellowjacket Lane, and the railroad
Page 24 of 32
tracks crossing Ridge Road. This officer drove effectively for 6 laps (1/4 mile per
lap) around any regulation high school track in Texas, before he decided to detain
Appellant and the vehicle in front of Appellant/Co-Defendant for "Failure to
Signal Turn."
Page 25 of 32
II. Question for Review Two: Does a traffic control device (traffic light)
controlling the inner-most designated turn-only lane supersede the statutory
requirement of illuminating a turn signal pursuant to Texas Transportation
Code Section 545.104 when the driver is less than two car lengths (clearly
within 100 feet and not moving nor parked) from an intersection, stationary
and awaiting the traffic control device's instruction on when to proceed
through the designated turn?
In affirming the decision of the trial court, the Court of Appeals concluded
that as a matter of law it is a violation of the transportation code for a person
making a turn from a turn-only lane to do so without signaling. See App. B. This
holding is based upon the language of Texas Transportation Code Section
545.104(b), which they claim is clear and unambiguous. See Tex. Transp. Code
Ann. § 545.104(b). The Court of Appeals states that there are no exceptions for
situations in which there is only one direction to turn. App. B, pg. 8. However, the
Court of Appeals did not discuss that, based on an opinion from the Court of
Criminal Appeals discussed below, the trial court is given some discretion in this
matter.
In Dixon v. State, the Court of Criminal Appeals found it to be in the
discretion of the trial court to find that no violation occurred when a motorist failed
to use a turn signal when turning from a turn only lane. Dixon, 206 S.W.3d at 591.
In support, the court stated: "The trial judge made it clear that he believed the turns
made by Appellee were lawful, so no traffic violation was committed and the stop
was not valid." Id.
Page 26 of 32
Additionally, the Dixon court did not determine whether such failure to
signal was a violation of the Texas Transportation Code.
Clearly, the record before this court demonstrates that the findings of fact by
the trial court show that the officer was in the Pizza Getti parking lot (App. A,
FF#1), that Appellant, the "together vehicle" with Appellant (if front of Appellant)
and Officer Brumit were all stationary in a left-hand turn-only lane (Id., FF#2), that
Appellant's only legal movement was the left hand turn (Id., FF#3), there was a
traffic controlled device (a traffic light) (Id., FF#4), Officer Brumit incorrectly,
based on Dixon, testified that a left-hand turn from the left hand turn-only lane
without activating defendant's left-hand turn signal is a class "C" traffic code
violation (Id., FF#5), and that the traffic violation Officer Brumit stopped
Appellant for was "fail to signal turn" which violates Dixon (Id., FF#6), and there
were no further traffic violations after the illegal left hand turn made by
[Appellant]. (Id.,, FF#11). The lead vehicle was stopped by a second Rockwall
Police Officer on the same basis that Appellant was stopped—"fail to signal turn".
(Id., FF#12). So, not only was Appellant stopped, but so was another individual,
both on the basis of an officer's honest but mistaken understanding of the traffic
law that prompted a stop is not an exception to the reasonable suspicion
requirement. Goudeau v. State, 209 S.W.3d 713, 716 (Tex. App. Houston [14th
Dist.] 2006, no pet.); U.S. v. Granado, 302 F.3d 421, 423 (5th Cir. 2002).
Page 27 of 32
Officer Brumit's testimony provides that the "reasonable suspicion" to stop
Appellant was that Appellant "failed to signal turn." (RR2, 10, 29, 22; FF#5, 6).
Further, 545.104(a) and (b) of the Texas Transportation Code and its conflict
with the Traffic Control Device, Section 544.004(a), like a traffic light that
controls when to proceed through a designated turn only lane to turn are vague and
ambiguous as it relates to operators of vehicles who enter a designated turn only
lane that designates one's "intention to turn" direction by virtue of the lane
designation itself, and for the operators who "intend" to turn right or left but enter
the designated turn only lane less that 100 feet before the turn, are stationary and
have no "movement" of their vehicle while being less than 100 feet before the turn.
Therefore, Transportation Code Section 545.104(a) and (b) as applied to this
Appellant's case is not clear and unambiguous. Wehring v. State, 276 S.W.3d 666,
669 (2008); See also conflicts with Tex. Transp. Code 544.009, 545.101(b) and
545.151(a)(1)(A).
It should also be noted, that it appears to Appellant, that this may be a case
of first impression where there is an actual traffic control device, a designated turn-
only lane and a turn made without illuminating a turn signal on video cam while
actually in the traffic controlled, designated turn-only lane where there is no
dispute as to the driver illuminating his turn signal. Appellant did not.
Page 28 of 32
Nevertheless, based on the foregoing arguments and analysis, reasonable suspicion
to stop Appellant's vehicle was neither legally reasonable nor justified.
Conclusion and Prayer
The Court of Appeals erred when it affirmed the trial court's denial of
Appellant's motion to suppress evidence because based upon the evidence, (a) the
stop was predicated on a stale minor traffic violation and reasonable suspicion was
not obtained again within a reasonable time and a reasonable distance after the
stale violation occurred, and (b) the stop was predicated on the assumption that the
vehicle that is stationary, in the turn only lane controlled by a traffic controlled
device and less than two car lengths from the intersection but not moving, nor
parked, cannot comply with Texas Transportation Code Section 545.1043, as
written, (c) the holdings in both Dixon decisions and their practical application to
Texas vehicle operators.
For the reasons stated in this petition, Appellant respectfully prays this Court
grant discretionary review, find that the Court of Appeals erred, reverse the
judgment of the Court of Appeals, grant the relief requested in this petition, and
remand this case back to the trial court for further proceedings.
3
Also conflicts between Traffic Control Device, Tex. Transp. Code Sec. 544.004(a) and Tex.
Transp. Code Secs. 544.009, 545.101(b), 545.151(a)(1)(A).
Page 29 of 32
Respectfully submitted,
Patrick Short
603 White Hills Drive
Rockwall, Texas 75087
Phone: 972-771-1441
Fax: 972-771-0377
patrick@patrickshort.com
Texas Bar No. 21216900
Attorney for Appellant
/s/ Patrick Short
Patrick Short
Page 30 of 32
Certificate of Service
This certifies that on May 8, 2015, a true and correct copy of the foregoing
document was forwarded to all counsel of record via the following: See Tex. Rule
App. Proc. 9.5 (2014) and 68.11 (2014).
1. Craig Stoddart ❑By Fax
Assistant District Attorney ❑By Certified Mail, RRR
Rockwall, Texas ❑By First Class Mail
Appellate Section ❑By Hand-Delivery
1111 E. Yellowjacket Lane, Ste. 201 ❑Email Delivery
Rockwall, Texas 75087
cstoddart@rockwallcountytexas.com
/s/ Patrick Short
Patrick Short
Page 31 of 32
Certificate of Compliance with Tex. Rule App. Proc. 9.4
This certifies that this document complies with the type-volume limitations
because this document is computer-generated and does not exceed 4,500 words.
See Tex. Rule App. Proc. 9.4(i)(2)(D). Using the word-count feature of Microsoft
Word, the undersigned certifies that this document contains 3,815 words in the
document except in the following sections: caption, identity of parties and counsel,
statement regarding oral argument, table of contents, index of authorities,
statement of the case, statement of issues presented, statement of jurisdiction,
statement of procedural history, signature, proof of service, certification, certificate
of compliance, and appendix. This document also complies with the typeface
requirements because it has been prepared in a proportionally-spaced typeface
using 14-point font. See Tex. Rule App. Proc. 9.4 (2014).
/s/ Patrick Short
Patrick Short
Page 32 of 32
APPENDIX "A"
FILED FOR RECORD
ROCKWALL CO, TEXAS
CAUSE NO. CR13-0496
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STATE OF TEXAS § IN TUE COUNTy5tc2
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FINDINGS OF FACT AND CONCLUSIONS OF LAW
FINDINGS OF FACT:
1. At 12:21:42 a.m. Rockwall Police Officer Benton Brumit's ("Officer Brumit")
patrol vehicle %%as positioned in the parking lot where a local restaurant named
Pizza Getti is located and it serves alcoholic beverages. (RR2, 17. 5-20; 27, 10-
13).
At approximately 12:22:16 a.m. on March 13. 2013. Officer Benton Brumit was
in a marked patrol car facing east while directly behind defendant. and observed
defendant's vehicle stationary in a left-hand turn-only lane and begin his left-hand
turn in the left-hand turn only lane northbound, from the south service road of
Interstate 30 onto Ridge Road in Rockwall, exas. (RR2. 7.5-9: 825; 9.4-7: 20, 3-
12; RR4, 4; See State's Fx. "F' and Del's Ex. "1" & "2").
3. Defendant(s) only legal movement for their vehicle(s) is to make a left hand turn.
(RR2. 21, 9-12).
4. When the traffic light changed from red to green, defendant's vehicle and the
vehicle immediately ahead of it continued through the green light and made a left-
hand turn From the left turn-only lane onto Ridge Road from the south service
road of Interstate 30 without activating their left hand turn signals. (RR2. 9,20-
25; State's Exhibit "I").
5. Officer Brumit testified making a left-hand turn from the left hand turn-only lane
without activating defendant's left-hand turn signal is a Class "C" I raffle Code
violation. (RR2, 10. 1-.5).
6. The traffic violation that defendant's vehicle was stopped for was "fail to signal
turn." (RR2, 29, 22)
7. Defendant drove 30 miles per hour in a 45 mile per hour speed zone from the
south service road of Interstate 30 on Ridge Road for a distance of approximately
1.6 miles before Officer Brumit activated his emergency 0% erhead lights to stop
defendant's %chicle. (RR2, 10, 15-20, 16, 17-19: 36, 2-9).
1 indinas 01 1 act and Conclthions 14'1 tn% 'lute 11(411)&1mm, R 11-0.1in)
8. At 12:23:47 a.m. Officer Brumit calls for a backup unit to pull over the lead
vehicle while he pulls over defendant's vehicle. (RR2, 37, 19-21),
9. Officer Brumit continued to follow the defendant while waiting for his cover
officer to arrive before activating his emergency overhead lights to stop
defendant's vehicle (RR2, 14, 22-25; 15, 1-4).
10. At 12:25:22 a.m. Officer Brumit illuminated his emergency lights to stop
defendant's vehicle. (RR2, 39, 8-10).
11. There was no further traffic violation after the illegal left hand turn made by
defendant. (RR2, 25, 5-8; 9, 20-25).
12.The lead vehicle was stopped by a second Rockwall Police Officer, Officer Norlin
on the same basis that defendant was stopped—"fail to signal turn". (RR2, 14, 24-
25; State's Exhibit "1").
13.At the time of the detention, neither Officer Brumit nor Officer Norlin had a
warrant to detain or seize either vehicle, (RR2, 4, 18-22),
14. Officer Brumit identified defendant, Marcus Lee Holmquist in open court. (RR2,
7,22-25).
CONCLUSIONS OF LAW:
1. "The Fourth Amendment to the United States Constitution permits a
warrantless detention of a person, short of a full-blown custodial arrest, if the
detention is justified by reasonable suspicion." State v. Kerwick, 393 S.W.3d
270, 273 (Tex. Crim. App. 2013), citing Terry v. Ohio, 392 U.S. 1, 28 (1968),
and Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011).
Z. Detentions and arrests are Fourth Amendment seizures and therefore implicate
Fourth Amendment protections. State v. Castleberry, 332 S.W.3d 460, 466
(Tex. Crim. App. 2011). "[W]hen a seizure takes the form of a detention,
Fourth Amendment scrutiny is necessary—it must be determined whether the
detaining officer had reasonable suspicion that the citizen is, has been, or is
about to be engaged in criminal activity." Id. (citations omitted).
3. A police officer lawfully conducts a temporary detention when he has
reasonable suspicion that an individual is involved in criminal activity.
Balentine v. State, 71 S.W.3d 527, 530 (Tex. Crim. App. 2002). Reasonable
suspicion requires more than a hunch; it exists only when an officer has
specific, articulable facts that, taken together with reasonable inferences from
those facts, would lead the officer to reasonably conclude that the person
detained is, has been, or soon will be, engaging in criminal activitiy. Ford,
2
Findings of Fact and Conclusions of Law — State v. Holmquist, CR13.0496,
158 S.W.3d at 492 (citing Garcia v. State. 43 S.W.3d 527, 530 (Tex. Crim,
App. 2001)). The reasonable suspicion determination is an objective one made
by considering the totality of the circumstances, Id. at 492-93.
4. Making a left hand turn in a designated left hand turn only lane without
illuminating the vehicle's left hand turn signal violates Texas Transportation
Code section 545.104(a).
5. Based upon defendant's violation of the Texas Transportation Code
545.104(a), Officer Brumit's detention of defendant's vehicle was justified by
reasonable suspicion.
Judge Presiding
3
Findings of Fact and Conclusions of Law — State v. Holmquist, CRI3.0496.
APPENDIX "B"
AFFIRMED; Opinion Filed February 5, 2015.
In The
(Court of Appeals
ffiftll District of &exas at Dallas
No. 05-13-01388-CR
MARCUS LEE HOLMQUIST, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law
Rockwall County, Texas
Trial Court Cause No. CR13-0496
OPINION
Before Justices Fillmore and Thomas, Retired'
Opinion by Justice Fillmore
After the trial court denied Marcus Lee Holmquist's motion to suppress evidence, he
pleaded guilty to misdemeanor driving while intoxicated (DWI). The trial court sentenced him
to ninety days' confinement and a $400 fine, suspended the sentence, and placed him on twelve
months' community supervision. In two issues, Holmquist contends the trial court erred by
denying his motion to suppress because a traffic-violation stop was not effected within a
reasonable time and distance, and a traffic light controlling a turn-only lane superseded the
statutory requirement of section 545.104 of the transportation code. We affirm the trial court's
judgment.
The Honorable Linda Thomas, Chief Justice of the Court of Appeals for the Fi1111 District of Texas—Dallas, Retired, sitting by
assignment. Justice Michael O'Neill was a member of the original panel and participated in the submission of this case; due to his retirement, he
did not participate in the issuance of this opinion. See Tex. R. APP. P. 41.1(b).
Background
Holmquist was charged with misdemeanor DWI. Prior to trial, Holmquist filed a motion
to suppress contending his detention, arrest, seizure, and custody occurred without reasonable
suspicion. Holmquist sought suppression of evidence obtained incident to and as a result of the
allegedly unlawful arrest, custody, and seizure, including a breath test result, field sobriety test
results, a video recording, and opinions of the arresting officer.
At the suppression hearing, Rockwall Police Department patrol officer Benton Brumit
testified that at approximately 12:26 a.m. on March 13, 2013, he observed the vehicle driven by
Holmquist in a left turn-only lane of an intersection without an activated turn signal. Brumit
testified, and the video recording made by the camera in Brumit's patrol vehicle showed, that
when the traffic light changed to green, Holmquist's vehicle and the vehicle in front of
Holmsquist's vehicle made left-hand turns at the intersection without signals indicating the
drivers' intention to turn left. Brumit testified turning left without signaling the intention to turn
was a traffic violation for which he could write a traffic violation citation. Brumit turned left at
the intersection and followed the vehicles, intending to stop both drivers for the traffic violation
of failing to signal a left-hand turn.
Brumit noted the vehicles were traveling at approximately thirty miles per hour in a forty-
five-miles-per-hour speed zone. Brumit testified the vehicles were not impeding traffic, and
driving below the maximum speed limit did not constitute a traffic violation. However, in
addition to the observed traffic violation of failing to signal a left turn, other factors such as the
time of night, the proximity to establishments at which alcoholic beverages were served, and the
vehicles traveling below the speed limit caused Brumit to believe the two drivers might be
intoxicated.
—2—
In the interest of officer safety, Brumit prefers not to make simultaneous traffic stops of
multiple vehicles by himself. Therefore, he radioed for another patrol unit to proceed to his
location to assist him. When Brumit observed the arrival of the cover patrol unit driven by
Officer Norlin, Brumit activated the emergency lights on his vehicle and stopped Holmquist's
vehicle while relying on Norlin to stop the other vehicle. Brumit testified it was 1.6 miles from
Holmquist's left turn to the point where Brumit activated the emergency lights on his patrol
vehicle.
The trial court entered the following findings of face
I. At 12:21:42 a.m. Rockwall Police Officer Benton Brumit's . . . patrol
vehicle was positioned in the parking lot where a local restaurant named
Pizza Getti is located and it serves alcoholic beverages.
2. At approximately 12:22:16 a.m. on March 13, 2013, [Brumit] was in a
marked patrol car facing east while directly behind [Holmquist], and
observed [Holmquist's] vehicle stationary in the left-hand turn only lane
and begin his left-hand turn in the left-hand turn only lane northbound,
from the south service road of Interstate 30 onto Ridge Road in Rockwall,
Texas.
3. Defendant(s) only legal movement for their vehicle(s) is to make a left
hand turn.
4. When the traffic light changed from red to green, [Holmquist]'s vehicle
and the vehicle immediately ahead of it continued through the green light
and made a left-hand turn from the left turn-only lane onto Ridge Road
from the south service road of Interstate 30 without activating their left
hand turn signals.
5. [Brumit] testified making a left-hand turn from the left hand turn-only lane
without activating [Holmquist]'s left-hand turn signal is a Class "C"
Traffic Code violation.
6. The traffic violation that [Holmquist]'s vehicle was stopped for was "fail
to signal turn."
7. [Holmquist] drove 30 miles per hour in a 45 mile per hour speed zone
from the south service road to Interstate 30 on Ridge Road for a distance
2 The trial court's references to record citations in its findings of fact are not included here
—3—
of approximately 1.6 miles before [Brumit] activated his emergency
overhead lights to stop [Holmquist]'s vehicle.
8. At 12:23:47 a.m. [Brumit] call[ed] for a backup unit to pull over the lead
vehicle while he pulls over [Holmquist]'s vehicle.
9. [Brumit] continued to follow [Holmquist] while waiting for his cover
officer to arrive before activating his emergency overhead lights to stop
[Holmquist]'s vehicle.
10. At 12:25:22 a.m. [Brumit] illuminated his emergency lights to stop
[Holmquist]'s vehicle.
11. There was no further traffic violation after the illegal left hand turn made
by [Holmquist].
12. The lead vehicle was stopped by a second Rockwall Police Officer,
Officer Norlin on the same basis that [Holmquist] was stopped—"fail to
signal turn."
13. At the time of the detention, neither [Brumit] nor [Norlin] had a warrant to
detain or seize either vehicle.
14. [Brumit] identified [Holmquist] in open court.
The trial court concluded as a matter of law that a person making a left-hand turn from a left-
hand turn only lane without signaling the turn violates section 545:104 of the transportation code.
Based upon Holmquist's violation of section 545.104, the trial court concluded Brumit's
detention of Holmquist was justified by reasonable suspicion.
The trial court denied Holmquist's motion to suppress. Holmquist filed this appeal.
Motion to Suppress
In two issues, Holmquist asserts the arresting officer had no reasonable suspicion to stop
him because "at the time the officer observed the traffic violation, the detaining officer had
allowed the violation to go stale, therefore, the stop was not effected within a reasonable time
and distance" and because the left-turn only traffic control device at the intersection superseded
the requirement in section 545.104(b) of the transportation code that he signal his intention to
turn left.
Standard of Review
We review a trial court's ruling on a motion to suppress evidence under a bifurcated
standard of review. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013). We
review the trial court's factual findings for an abuse of discretion, but review the trial court's
application of the law to the facts de novo. Id. We give almost total deference to the trial court's
determination of historical facts. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App.
2010). This same highly deferential standard applies regardless of whether the trial court granted
or denied a motion to suppress evidence. State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex.
Crim. App. 2008). We give the same deference to the trial court's conclusions with respect to
mixed questions of law and fact that turn on credibility or demeanor. State v. Ortiz, 382 S.W.3d
367, 372 (Tex. Crim. App. 2012). We review mixed questions of law and fact that do not turn on
credibility and demeanor, as well as purely legal questions, de novo. State v. Woodard, 341
S.W.3d 404, 410 (Tex. Crim. App. 2011).
When the trial court makes specific findings of fact, we determine whether the evidence
supports those findings. Id. As a general rule, we view the evidence in the light most favorable
to the trial court's ruling and afford the prevailing party the strongest legitimate view of the
evidence and all reasonable inferences that may be drawn from that evidence. State v. Duran,
396 S.W.3d 563, 571 (Tex. Crim. App. 2013). We will uphold 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.
Turrubiate, 399 S.W.3d at 150.
Reasonable Suspicion
A routine traffic stop is similar to an investigative detention. See Berkemer v. McCarty,
468 U.S. 420, 436-39 (1984). An investigative detention is a seizure. Powell v. State, 5 S.W.3d
369, 375 (Tex. App.—Texarkana 1999, pet. ref' d). Therefore, a traffic stop must be reasonable
—5—
under the United States and Texas Constitutions. Id.; see U.S. CONST. amend. IV; TEX. CoNsT.
art. I, § 9.
To determine the reasonableness of an investigative detention, we must determine (1)
whether the police officer's action was justified at its inception, and (2) whether it was
reasonably related in scope to the circumstances which justified the interference in the first place.
Terry v. Ohio, 392 U.S. 1, 19-20 (1968); Davis v. State, 947 S.W.2d 240, 242 (Tex. Crim. App.
1997). Reasonableness is measured in objective terms by examining the totality of the
circumstances. Ohio v. Robinette, 519 U.S. 33, 39 (1996). After an initial traffic-violation stop,
the officer is entitled to rely on all of the information obtained during the course of his contact
with the citizen in developing the articulable facts that would justify a continued investigatory
detention. Powell, 5 S.W.3d at 377 (citing Razo v. State, 577 S.W.2d 709, 711 (Tex. Crim. App.
[Panel Op.] 1979)). Where the initial detention is based on a traffic violation, various
combinations of factors will support a reasonable suspicion of criminal activity sufficient to
justify a continued detention or further questioning unrelated to the traffic violation. Id.
Holmquist attacks the reasonableness of the investigative detention, that is whether
Brumit had a reasonable suspicion to justify an investigative detention. See Davis, 947 S.W.2d
at 242-43. Specifically, a police officer must have a reasonable suspicion that some activity out
of the ordinary is occurring and some indication the unusual activity is related to crime. Id. at
244; Garza v. State, 771 S.W.2d 549, 558 (Tex. Crim. App. 1989). A police officer has
reasonable suspicion to detain a person if he has specific, articulable facts that, combined with
rational inferences from those facts, would lead him reasonably to conclude that the person
detained is, has been, or soon will be engaged in criminal activity. Crain v. State, 315 S.W.3d
43, 52 (Tex. Crim. App. 2010). In making a reasonable suspicion determination, we disregard
the subjective intent or motive of the officer making the stop and consider solely, under the
—6—
totality of the circumstances, whether there was an objective basis for the stop. See Ford v.
State, 158 S.W.3d 488, 492-93 (Tex. Crim. App. 2005).
An officer may lawfully stop and reasonably detain a person for a traffic violation.
Garcia v. State, 827 S.W.2d 937, 944 (Tex. Crim. App. 1992); see also Walter v. State, 28
S.W.3d 538, 542 (Tex. Crim. App. 2000) (decision to stop an automobile generally reasonable
where officer has probable cause to believe traffic violation has occurred). Section 545.104 of
the transportation code, titled "Signaling Turns; Use of Turn Signals," provides:
(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(a) & (b) (West 2011). The record includes Brumit's
testimony at the hearing on the motion to suppress that Holmquist and the driver of the vehicle in
front of him failed to signal their left-hand turns. The video introduced in evidence at the
hearing shows that neither Holmquist nor the driver of the vehicle in front of him signaled an
intention to turn left when approaching the intersection, while sitting stationary at the
intersection awaiting the traffic light's indication to turn, or while making the left-hand turn.
The trial court found that neither Holmquist nor the driver of the vehicle in front of him activated
their left-hand turn signals, and Brumit testified that making the left-hand turn without signaling
was a traffic code violation. The trial court found the traffic violation for which Holmquist was
stopped was failing to signal his turn.
The trial court concluded as a matter of law that a person making a left-hand turn from a
turn only lane without signaling the vehicle's turn violates section 545.104 of the transportation
3
Section 545 106 of the transportation code, titled "Signals by Fland and Arm or by Signal Lamp," providtes that, except in instances not
applicable here, an operator of a motor vehicle required to give a stop or turn signal shall do so by using the hand and arm or lighting signal
lamps approved by the Texas Depanment of Public Safety. Tux. TRANSP. CODE ANN. § 545.106(a) (West 2011).
—7—
code. Based upon Holmquist's violation of section 545.104, the trial court further concluded
Brum it's detention of Holmquist was justified by reasonable suspicion.
Failure to Signal Intent to Turn
Holmquist does not dispute that he did not signal his intention to turn left. He
acknowledges he was within 100 feet of the intersection, where he was "awaiting" the traffic
light's "instruction" on when to turn left. However, in his second issue, Holmquist contends the
left turn-only traffic control device at the intersection superseded the requirement in section
545.104(b) that he signal his intent to turn left.
The trial court concluded as a matter of law that a person making a turn from a turn-only
lane without signaling the turn violates section 545.104 of the transportation code. We agree.
The beginning point in statutory construction analysis is the statute's plain language. Ex
Parte Whiteside, 12 S.W.3d 819, 821 (Tex. Crim. App. 2000). If a statute is clear and
unambiguous, we apply the plain meaning of its words. Hines v. State, 75 S.W.3d 444, 447
(Tex. Crim. App. 2002). Only if the statute's plain language leads to absurd results or the
language is ambiguous may a reviewing court consider extra-textual factors. Whiteside, 12
S.W.3d at 821.
Section 545.104(b) clearly and unambiguously requires a vehicle operator intending to
turn right or left to "signal continuously for not less than the last 100 feet of movement of the
vehicle before the turn." See TEX. TRANSP. CODE ANN. § 545.104(b). The plain language of
section 545.104(b) requires the driver to signal for a turn; it does not include exceptions for those
situations in which there is only one direction to turn. See Wehring v. State, 276 S.W.3d 666,
668, 670 (Tex. App.—Texarkana 2008, no pet.) (section 545.104(b) requires driver to signal his
intent to turn, even from a turn-only lane).4 "We cannot say that requiring the use of a turn
signal while entering a turn-only lane and making the turn would lead to absurd results." /d.5
The court of criminal appeals did not determine in State v. Dixon, 206 S.W.3d 587 (Tex.
Crim. App. 2006), "that a turn signal is unnecessary when turning from a dedicated turn lane.
Rather, the issue before the court was whether it was within the trial judge's discretion to decide
whether to believe the arresting officer's assertion that he initiated the traffic stop for a traffic
offense.' Mahaffey v. State, 316 S.W.3d 633, n.32 (Tex. Crim. App. 2010) (quoting Diaz v.
State, No. 03-08-00523-CR, 2009 WL 2195427, at *2, (Tex. App.—Austin July 23, 2009, no
pet.) (mem. op.) (not designated for publication)). "Under the plain language of the
Transportation Code, all movements right or left on the roadway must be made safely, but only
some—turns, lane changes, or starts from a parked position—require a signal." Id. at 643
(emphasis added).
We conclude the language of section 545.104 of the transportation code is not
ambiguous,6 and the clear language of that statute required Holmquist to signal his intention to
make a left-hand turn. The fact that I lolniquist was in a turn-only lane did not provide an
See State r. Kidd, No 03-09-00620-CR, 2010 WL 5463893, at *2, *3 (Tex. App.—Austin Dec. 30, 2010, no pet.) (mein. op.) (not
designated for publication) (defendant failed to continuously signal his intent to turn for not less than 100 feet before the turn and deputy was
authorized to enforce the law and detain defendant for that traffic violation; evidence related to DWI seized after the lawful traffic stop was
legally gathered and trial court erred in granting motion to suppress), State v. Elias, No. 08-08-00085-CR, 2012 WL 4392245, at *6-7 (Tex
App.—El Paso Sept. 26, 2012, pet rerd) (not designated for publication) (evidence supported reasonable inference defendant violated section
545.104(b) of the transportation code by failing to continuously signal his intention to turn for the last 100 feet of movement of the vehicle before
the turn, initial detention supported by reasonable suspicion defendant committed traffic violation, and trial court erred by granting motion to
suppress).
See 'Mains v. State, No 05-02-00314-CR, 2002 WI. 31521373, at *2 (Tex. App.—Dallas Nov. 14, 2002, pet rerd) (not designated for
publication) ("The plain language of [section 545.104] requires the driver to signal for a turn." Applying the plain language of section 545.104
does not lead to an absurd result Section 545 104 "provides a clear, bright-line rule by which drivers of motor vehicle[s] and police officers
charged with enforcing the laws may operate. If a turn is made from one street onto another, a signal is required."), Kidd, 2010 WL 5463893, at
*2 (section 545.104(b) clearly and unambiguously requires driver intending to turn to "signal continuously for not less than the last 100 feet of
movement of the vehicle before the turn," and does not lead to absurd results; applying language of section 545.104(b) provides reliable bright-
line rule for drivers of motor vehicles and police officers charged with enforcing the law); see also Diaz v. State, No. 03-08-00523-CR, 2009 WL
2195427, at *2-3 (Tex. App.—Austin July 23, 2009, no pet.) (mem. op.) (not designated for publication) (under section 545.104(b), driver's
failure to signal when turning from designated turn lane was traffic violation).
6 Holmquist's counsel acknowledged at oral submission that even if section 545.104(b) of the transportation code is ambiguous, and even
assuming no violation of section 545.104(b) had occurred, a traffic stop based on a mistaken understanding of the law can be reasonable under
Helen v. North Carolina, 135 S. Ct. 530, 539, 540 (2014) (even assuming no violation of state law had occurred, police officer's mistaken
understanding of the law was reasonable, and thus traffic stop was valid).
–9–
exception to the mandatory language of the statute. We resolve Holmquist's second issue
against him.
State Traffic Violation
In his first issue, Holmquist maintains the traffic stop was illegal under Dixon, because of
an unreasonable amount of time and extended distance between the traffic offense and the traffic
stop. In Dixon, the court of criminal appeals upheld the trial court's grant of a motion to
suppress the fruits of a traffic stop that was based on a failure to signal a turn from a designated
turn lane. The court of criminal appeals noted the trial court's findings of fact indicated the stop
and search were generally unreasonable for reasons other than the unnecessary delay between
turns made without signaling the intention to turn and the traffic stop, including that the turns
were legal, the length of the detention and extent of the search conducted were excessive, and
information on which the police based surveillance was not from a reliable source. Dixon, 206
S.W.3d at 590. The court also stated it was "clear that the trial court did not believe the officers'
allegations that they pulled Appellee over because he committed a traffic offense," and the court
of appeals "properly determined that it was within the discretion of the trial judge to decide
whether to believe the officers' claim that they pulled Appellee over for a traffic offense." Id. at
591'
In Dixon, the court of appeals stated that in assessing whether a delay in time or distance
between a traffic violation and a traffic stop is unreasonable, the court should properly consider
all of the factors surrounding the stop. Dixon v. State, 151 S.W.3d 271, 275 (Tex. App.—
Texarkana 2004), aff'd, 206 S.W.3d 587.8 Here, Brumit attributed the delay in making the traffic
7
See also Carey v. State, No. 05-08-01300-CR, 2010 WL 610924, at *2 (Tex. App.—Dallas Feb. 23, 2010, no pet.) (not designated for
publication) (appellant misplaced his reliance on Dixon; "Dixon did not turn on the officer's delay between 'the amount of time or the distance
between the traffic offense and the traffic stop.' Rather, the trial court did not believe that Dixon committed a traffic offense.") (citation omitted)
8
See also Powell v. State, No. 03-10-00728-CR, 2011 WL 4357756, at *5 (Tex. App.—Austin Sept. 14, 2011, no pet.) (mem. op.) (not
designated for publication).
—10—
stop to the fact that he intended to stop Holmquist's vehicle and the vehicle in front of Holmquist
for failing to signal an intention to make a left-hand turn. Brumit testified that, in the interest of
officer safety, he prefers not to make simultaneous traffic stops of multiple vehicles by himself.
Brumit radioed for another patrol officer to provide back up and to make the traffic stop of the
vehicle in front of Holmquist, and when the cover patrol unit arrived, Brumit made the traffic
stop of Holmquist's vehicle.
The trial court concluded Holmquist committed a traffic violation, and detention of
Holmquist after that traffic violation was justified by reasonable suspicion. In so concluding, the
trial court implicitly found a delay of 1.6 miles in stopping Holmquist after Brumit's observation
of the traffic violation was not unreasonable. The record, as summarized above, and the trial
court's explicit findings, support an implied finding that there was a reasonable justification for
Brumit's delay in effecting the traffic stop. In contrast to the trial judge's disbelief of the
officer's testimony in Dixon, the trial court here believed Brumit, as demonstrated by its denial
of the motion to suppress.
After reviewing the record, the evidence, when viewed objectively, supports the arresting
officer's reasonable suspicion determination. Under the totality of the circumstances, we
conclude the arresting officer articulated specific facts and circumstances which, taken together
with rational inferences from those facts and circumstances, constituted reasonable suspicion that
Holmquist had committed a traffic violation by failing to continuously signal his intention to turn
for the last 100 feet of movement before he turned left, thus justifying the stop. See TEX.
TRANSP. CODE ANN. § 545.104(b); see also Garcia, 827 S.W.2d at 944 (officer may lawfully
stop and reasonably detain person for traffic violation).9
9 See also /Commie,. v. Tex. Dep't of Pub. Safely, No. 05-08-01182-CV, 2009 WL 1959256, at *2 (Tex. App.—Dallas July 9, 2009, no pet.)
(mein. op.) (not designated for publication).
—11—
We conclude the trial court did not err by denying Holmquist's motion to suppress. We
resolve Holmquist's first issue against him.
Conclusion
Having resolved Holmquist's issues against him, we affirm the trial court's judgment.
/Robert M. Fillmore/
ROBERT M. FILLMORE
JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
131388F.U05
Tourt of Appeals
District of 0exas at Dallas
JUDGMENT
MARCUS LEE HOLMQUIST, Appellant On Appeal from the County Court at Law,
Rockwall County, Texas,
No. 05-13-01388-CR V. Trial Court Cause No. CR13-0496.
Opinion delivered by Justice Fillmore,
THE STATE OF TEXAS, Appellee Justice Thomas, Retired, participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 5th day of February, 2015.