Kristine Marie Murrell v. State ( 2015 )


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  •                                                                      ACCEPTED
    01-15-00200-CR
    FIRST COURT OF APPEALS
    HOUSTON, TEXAS
    5/28/2015 5:26:38 PM
    CHRISTOPHER PRINE
    CLERK
    No. 01-15-00200-CR
    FILED IN
    1st COURT OF APPEALS
    HOUSTON, TEXAS
    IN THE                    5/28/2015 5:26:38 PM
    FIRST COURT OF APPEALS            CHRISTOPHER A. PRINE
    HOUSTON, TEXAS                        Clerk
    KRISTINE MARIE MURRELL,
    Appellant
    VS.
    THE STATE OF TEXAS,
    Appellee
    _____________________________
    ON APPEAL FROM THE COUNTY CRIMINAL COURT
    NUMBER 14 OF HARRIS COUNTY, TEXAS
    CAUSE NO. 1973306
    ______________________________
    BRIEF FOR APPELLANT
    J. Dennis Hester
    State Bar No. 24065415
    COGDELL LAW FIRM, PLLC
    402 Main, St., 4th Floor
    Houston, Texas 77002
    Office:      713-426-2244
    Facsimile: 713-426-2255
    ORAL ARGUMENT REQUESTED
    IDENTIFICATION OF PARTIES
    Pursuant to TEX R. APP. P. 38.1(a), a complete list of the names and addresses of
    all interested parties is provided below so the members of this Honorable Court may
    determine whether they are disqualified to serve or should recuse themselves from
    participating in the decision of this case.
    Complainant or aggrieved party:
    The State of Texas
    Appellant or Defendant:
    Kristine Marie Murrell
    Trial Counsel for Appellant:
    Mark Alvan Metzger
    1770 St. James Place, Suite 115
    Houston, Texas 77056
    Appellate Counsel for Appellant
    J. Dennis Hester
    402 Main Street, 4th Floor
    Houston, Texas 77002
    Trial Counsel for the State:
    James Murphy
    Harris County District Attorney’s Office
    1201 Franklin Street, Suite 600
    Houston, Texas 77002
    Trial Judge:
    The Honorable Judge Michael R. Fields
    Harris County Criminal Court at Law Number 14
    1201 Franklin Street, 7th Floor
    Houston, Texas 77002
    ii
    TABLE OF CONTENTS
    IDENTIFICATION OF PARTIES………………………..………..……………...…….. ii
    INDEX OF AUTHORITIES…………………………………..…………………………. v
    STATEMENT OF THE CASE………………………………..…………………………. 1
    ISSUES PRESENTED……………………………………….…..……………………… 1
    STATEMENT OF THE FACTS………………...….…………………………………… 2
    A.   The hearing on Murrell’s motion to suppress.………………………..…………... 2
    B.   The court’s ruling denying the motion to suppress.………………………………. 4
    C.   The court’s findings of fact and conclusions of law.………………....................... 4
    SUMMARY OF THE ARGUMENT…………………………………………...……….. 6
    ARGUMENT…………………………………………………………………………….. 7
    A.   Issue one: The court’s findings that Murrell was
    changing speeds frequently, was driving below the
    speed limit, and was in an area with “several” establishments
    that serve alcohol are conclusory findings that deserve no weight……………….. 8
    1.    The court’s finding that Murrell was driving 10 to
    15 miles per hour below the speed limit and was
    frequently changing speeds is a conclusory finding………………………. 8
    2.    The court’s finding that Murrell was in an area with
    a high concentration of bars and restaurants was a
    conclusory finding……………………………………………………….. 10
    B.   Issue Two: The court’s findings that Murrell was “drifting”,
    that Simon was experienced in dealing with intoxicated persons,
    and that Simon testified that the time of the stop was when people
    would be leaving bars are unsupported by the record and
    deserve no weight……………………………..………………………………… 12
    iii
    1.    The Court’s finding that Simon observed Murrell “drift”
    is not supported by the record.………….…..……………………………. 13
    2.    The Court’s finding that Simon had extensive experience
    with intoxicated persons is unsupported by the record…………………... 13
    3.    The Court’s finding that “Simon testified that the time
    of the stop, approximately 1:30 a.m., was significant as
    that is when people would often be leaving bars and
    restaurants after drinking” is unsupported by the record………………… 14
    C.   Issue Three: The only evidence of intoxication was Murrell’s
    lane changes while signaling, which is insufficient to
    establish reasonable suspicion.……………………………….……………..…... 15
    1.    Frequent lane changes while signaling
    (even swerving) is insufficient…………..……….………………………. 15
    2.    Even if it were considered, Murrell’s driving slowly and
    alternating speeds is insufficient to establish reasonable
    suspicion of intoxication under totality of the circumstances…………… 16
    3.    Even if all factors are considered, the stop is not supported
    by reasonable suspicion………………………………………………….. 17
    CONCLUSION AND PRAYER……………………………………………………….. 18
    CERTIFICATE OF SERVICE…………………………………………………………. 20
    CERTIFICATE OF COMPLIANCE……….………………........................................... 20
    iv
    INDEX OF AUTHORITIES
    Cases
    Bass v. State, 
    64 S.W.3d 646
    (Tex. App.—Texarkana, 2001)……………….…………. 15
    Castro v. State, 
    227 S.W.3d 737
    (Tex. Crim. App. 2007)………...…………………... 6, 8
    Commonwealth v. Johnson, 
    908 N.E.2d 729
    (Mass. 2009)………………….…………. 12
    D.R. v. State, 
    941 So. 2d 536
    (Fla. 2d Ct. App. 2006)…………………………………... 12
    Ford v. State, 
    158 S.W.3d 488
    (Tex. Crim. App. 2005)……………………………... 8, 10
    Foster v. State, 
    326 S.W.3d 609
    (Tex. Crim. App. 2010)………..…………………….. 11
    Garcia v. State, 
    43 S.W.3d 527
    (Tex. Crim. App. 2001)………………………………... 7
    Hernandez v. State, 
    983 S.W.2d 867
    (Tex. App.—Austin 1998)…………….………… 15
    Klare v. State, 
    76 S.W.3d 68
    (Tex. App.—Houston [14th Dist], 2002)………………… 10
    Miller v. State, 
    393 S.W.3d 255
    (Tex. Crim. App. 2012)……………………………. 6, 12
    People v. Harris, 
    957 N.E.2d 930
    (Ill App. 1st 2011)………………………………….. 
    11 Pet. v
    . Texas Dept. of Public Safety,
    
    404 S.W.3d 1
    (Tex. App.—Houston [1st Dist.], 2013)…….……………………. 16
    Richardson v. State, 
    39 S.W.3d 634
    (Tex. App.—Amarillo, 2000)……………………. 16
    State v. Kerwick, 
    393 S.W.3d 270
    (Tex. Crim. App. 2013)……………………………... 7
    State v. Palmer, No. 2-03-526-CR,
    
    2005 WL 555281
    (Tex. App.—Fort Worth, Mar. 10, 2005)……………………. 17
    State v. Roberts, 
    947 So. 2d 167
    (La. App. 4th Cir. 2006)……………………………... 11
    United States v. Hill, 
    752 F.3d 1029
    (5th Cir. 2014)……………………………..…….. 11
    United States v. Montero–Camargo, 
    208 F.3d 1122
    (9th Cir. 2000)…………………... 10
    United States v. Neufeld-Neufeld, 
    338 F.3d 374
    (5th Cir. 2003)……………………….. 14
    v
    United States v. Wright, 
    485 F.3d 45
    (1st Cir. 2007)…………………………………… 10
    Waller v. State, No. 05-09-00097-CR,
    
    2009 WL 4642850
    (Tex. App.—Dallas, Dec. 9, 2009)………………...…… 17, 18
    White v. State, No. 2-07-234-CR,
    
    2008 WL 1867139
    (Tex. App.—Fort Worth, Apr. 24, 2008)…………………... 18
    Statutes
    TEX. R. APP. PRO. 9.4.………………………………………………………………….. 20
    TEX R. APP. P. 38.1.……………………………………………………………………… ii
    vi
    STATEMENT OF THE CASE
    On July 17, 2014, Appellant Kristine Murrell was charged by information with
    misdemeanor driving while intoxicated. (CR 6.) On November 7, 2014, Murrell filed a
    motion to suppress evidence. (CR 19-34.) On January 29, 2015, the trial court denied the
    motion to suppress and Murrell pleaded guilty. (CR 42-43.) On the same day, she was
    sentenced to one-year confinement, probated for one year. (CR 48.)
    The trial court certified Murrell’s right to appeal denial of her motion to suppress.
    (CR 47.) On February 13, 2015, Murrell filed a notice of appeal. (CR 55-57.) On
    February 16, 2015, the court entered findings of fact and conclusions of law. (CR 59-61.)
    ISSUES PRESENTED
    This case raises three issues, all regarding reasonable suspicion for the traffic stop:
    1.    Articulable facts or conclusory statements. Only articulable facts, not
    conclusory statements, can support reasonable suspicion. Here, the stop was
    justified based on driving at alternating speeds, below the speed limit, in an
    area with “several” bars. Nothing established how Murrell’s speed was
    determined—be it radar or pacing. The bar area was given no boundaries or
    specifics. Was suspicion wrongly based on conclusory evidence?
    2.     Unsupported fact findings. A court’s factual findings are given deference
    only if the record supports them. Here, the officer testified that Murrell was
    not weaving, did not fail to maintain a single lane, and that she changed
    lanes frequently but signaled each time. The trial court found that Murrell
    was drifting both “within” and “into the next lane”—facts that the officer
    never testified to. Does the record support that Murrell was “drifting”?
    3.     Totality of the circumstances. A traffic stop is justified only if the
    “totality of the circumstances” supports reasonable suspicion. Here, the
    officer stopped Murrell for suspicion of DWI, not a traffic offense.
    Omitting conclusory facts and facts unsupported by the record, an officer
    with 18-months experience observed Murrell engage in an unspecified
    amount of lane changes; signaling each time. Is this sufficient justification
    for a traffic stop?
    1
    STATEMENT OF THE FACTS
    On November 7, 2014, Murrell filed her motion to suppress evidence. (CR 19-34.)
    Among her arguments were that she was detained by law enforcement without reasonable
    suspicion. (CR 20.)
    A.     The hearing on Murrell’s motion to suppress.
    The hearing on Murrell’s motion to suppress was held on January 29, 2015. (RR
    1.) The sole issue was whether the stop of Murrell’s vehicle was supported by reasonable
    suspicion.
    Harris County Sheriff Deputy Junius Simon, who initiated the stop, was the
    hearing’s only witness. He explained that, at the time of the stop, he had 18-months
    experience in patrol and DWI investigations. (RR 5, 15-16, 23-24.) Simon testified that,
    prior to joining the Harris County Sheriff’s Office (“HCSO”), he spent 14-years
    employed with the U.S. Department of State as a lieutenant for the Bureau of Diplomat
    Security. (RR 5, 24.) No further details concerning the nature of his State Department
    employment or the reason for its termination were given. (See generally, RR 1-41.)
    The hearing established that, at approximately 1:30 a.m., on July 17, 2014, Simon
    initiated a traffic stop of Ms. Murrell. The stop occurred near the intersection of
    Kuykendahl Road and Cypresswood Drive in northern Harris County. (RR 5-7.) Simon
    believed that Murrell’s vehicle was traveling below the posted speed limit and was
    frequently changing speeds. (RR 6, 13.) According to Simon, Murrell never exceeded the
    speed limit. (RR 6.)
    2
    At first, Simon claimed that Murrell was travelling 10 to 15 miles an hour under
    the 40 mile-per-hour speed limit, and at varying speeds. (RR 6, 12-13.) On cross-
    examination, he admitted that his offense report established that Murrell never travelled
    more than 10 miles an hour under the speed limit. (RR 22-23.) He later testified that
    Murrell drove at approximately 30 miles per hour throughout the encounter. (RR 27.)
    Simon never articulated how Murrell’s speed was determined—be it by radar or
    otherwise. He explained that driving below the speed limit and changing speeds could be
    a sign of intoxication, or of car trouble. (RR 15.)
    A second basis for the stop was that, after making a right-hand turn, Murrell made
    an unspecified number of lane changes, signaling each time. (RR 8.) Simon did not
    articulate how many lane changes Murrell made, but explained, “I would speculate it was
    much – it was more than three times.” (RR 16.) Each time Murrell changed lanes, Simon
    moved behind her. (RR 18-19.) Simon claimed that, on prior occasions, he had seen
    intoxicated drivers signal just prior to changing lanes to “mask” a swerve to look like a
    deliberate lane change. (RR 8.) But Simon did not describe Murrell’s lane changes as
    failing to maintain a single lane, as drifting, or as “weaving.” (RR 21.) (“No, I didn’t
    observe any weaving.”)
    Simon explained, over defense counsel’s objection, that there are “several” bars
    and restaurants near the area where Murrell was stopped. (RR 9-10.) This “area” was
    never defined in terms of borders, boundaries, or otherwise. No specific bars or
    restaurants were named. No specific number or estimate of bars was provided. No one
    asked Simon when, if he knew, the bars and restaurants closed in the area, or if they were
    3
    still open at 1:30 a.m. He never testified that the area had heightened incidents of drunk
    driving arrests or accidents as compared to any other area of the Houston metropolitan
    area. Nor did Simon ever say he observed Murrell coming from any bar or restaurant—
    and he apparently did not. (See RR 9-10.)
    Simon followed Murrell for approximately one and a half miles. (RR 20.) Based
    on these facts, Simon conducted a traffic stop “solely for the issue of driving while
    intoxicated and nothing else.” (RR 11-12.) He did not stop Murrell for committing a
    traffic offense. (RR 13.) He did not have any concern for Murrell being in distress and
    did not justify the stop based on his community care taking function. (RR 10, 19-20.)
    B.     The court’s ruling denying the motion to suppress.
    At the conclusion of the hearing, the court denied Murrell’s motion to suppress.
    (RR 40.) The court took “judicial notice that [Simon] has seen a number of intoxicated
    persons” based on his experience with the Department of State. (RR 35.) The court found
    the officer, “truthful when he says that that area of Kuykendahl is heavily populated by
    bars that sell alcoholic beverages.” (RR 35.) The court continued to give significant
    weight to this factor in justifying its denial of the motion to suppress. (RR 36-37.) The
    court denied the motion to suppress and ordered the State to draft findings of fact and
    conclusions of law. (RR 40.)
    C.     The court’s findings of fact and conclusions of law.
    On February 16, 2015, the court adopted the State’s proposed findings of fact and
    conclusions of law. (CR 59-61.) Among the findings of fact were:
    4
    8.    Simon observed the defendant driving at variable and erratic
    speeds, generally dropping 10-15 miles per hour below the
    speed limit.
    9.    Simon observed defendant turn onto Cypresswood Drive and
    drift within her lane.
    10.   Simon observed the defendant change lanes frequently and
    signal each time just before drifting into the next lane.
    11.   Simon observed the defendant continue to make evasive lane
    changes when he pulled his vehicle behind hers.
    12.   Several establishments that sell alcoholic beverages are located
    near where the stop occurred.
    13.   Simon testified that the time of the stop, approximately 1:30
    AM, was significant as that is when people would often be
    leaving bars and restaurants after drinking.
    ***
    16.   The Court finds that Officer Simon is a credible witness with
    extensive experience in law enforcement, DWI investigation,
    and observing intoxication.
    (CR 60.)
    The court then made its conclusions of law, including:
    1.    Because the defendant repeatedly accelerated and decelerated,
    drove 10-15 mph below the speed limit, made evasive lane
    changes, given the location, time and circumstances, based on
    his training and experience, Simon had a reasonable suspicion
    that the defendant may be driving while intoxicated and the
    defendant was lawfully detained.
    2.    Based on the totality of the circumstances when the defendant
    repeatedly accelerated and decelerated, drove below the speed
    limit, evasively changed lanes, and drifted within the lane, in
    the early morning hours, where alcohol establishments were
    nearby, combined with his experience and training, Simon had
    reasonable suspicion that the defendant was driving while
    5
    intoxicated and was justified in conducting a traffic stop to
    further investigate that suspicion.
    (CR 61.)
    SUMMARY OF THE ARGUMENT
    Several of the trial court’s justifications for reasonable suspicion were improperly
    based on Simon’s conclusory statements, rather than articulated facts. Castro v. State,
    
    227 S.W.3d 737
    , 742 (Tex. Crim. App. 2007). One such finding was the officer’s
    subjective observation that Murrell was driving under the speed limit and was changing
    speeds. No testimony explained how Simon determined Murrell’s speed—there is only a
    conclusory statement that she was driving too slowly.
    Likewise, the trial court’s finding that the “area” where Murrell was stopped
    contained a high number of “establishments” serving alcohol was purely conclusory. No
    evidence of a number of bars was provided, nothing defined the borders of the area, and
    Simon never testified that the undefined area had heightened incidents of drunk driving.
    Simon offered only a conclusory statement that the undefined area had “several”
    establishments that serve alcohol.
    Other of the trial court’s justifications for the traffic stop, such as that Murrell was
    drifting within and outside of her lane, are unsupported by the record and must be
    excluded from the reasonable suspicion calculus. Miller v. State, 
    393 S.W.3d 255
    , 263
    (Tex. Crim. App. 2012). Review of the record shows Simon testified that Murrell
    changed lanes an unspecified amount of times while signaling. He did not say she was
    drifting. In fact, Simon testified that Murrell was not weaving.
    6
    The court’s finding that Simon is “experienced” in observing intoxicated persons
    based on his 14-year career with the Department of State is also unsupported. Nothing
    showed that Simon gained any such experience as a Department of State employee.
    When these improperly considered facts are excised from the “totality of the
    circumstances,” the remaining basis for the stop is that an inexperienced officer observed
    Murrell make unknown number of lane changes, while signaling. This does not provide
    sufficient reasonable suspicion for a traffic stop. The trial court’s ruling should be
    reversed.
    ARGUMENT
    THE TRAFFIC STOP WAS NOT SUPPORTED BY REASONABLE SUSPICION.
    Again, the stop in this case was based on a belief that Murrell could have been
    driving while intoxicated—it was not based on observation of a traffic offense. (RR 13.)
    The stop, therefore, is justified if, under the totality of the circumstances, Simon had
    specific articulable facts combined with rational inferences that would lead a reasonable
    officer to suspect that Murrell was driving while intoxicated. Garcia v. State, 
    43 S.W.3d 527
    , 530 (Tex. Crim. App. 2001).
    The trial court’s findings on mixed questions of law and fact that do not depend on
    the evaluation of credibility are reviewed de novo. State v. Kerwick, 
    393 S.W.3d 270
    , 273
    (Tex. Crim. App. 2013). Review of whether a specific set of facts amounts to reasonable
    suspicion is also de novo. 
    Id. 7 A.
        Issue one: The court’s findings that Murrell was changing speeds frequently,
    was driving below the speed limit, and was in an area with “several”
    establishments that serve alcohol are conclusory findings that deserve no
    weight.
    A conclusory statement or finding that is unsupported by articulable facts cannot
    support reasonable suspicion. Ford v. State, 
    158 S.W.3d 488
    , 493 (Tex. Crim. App. 2005).
    That is because, “[m]ere opinions are ineffective substitutes for specific, articulable facts
    in a reasonable-suspicion analysis.” 
    Id. The following
    fact-findings are conclusory and do
    not support reasonable suspicion.
    1.     The court’s finding that Murrell was driving 10 to 15 miles per hour
    below the speed limit and was frequently changing speeds is a
    conclusory finding.
    In Castro v. State, the Court of Criminal Appeals again emphasized that
    reasonable suspicion generally cannot be based on conclusory statements. Castro v. State,
    
    227 S.W.3d 737
    , 742 (Tex. Crim. App. 2007). Castro tailored a narrow exception to this
    rule and held that when an officer bases a decision to stop a vehicle on “objective” facts,
    such as failure to signal a lane change, conclusory statements may suffice. 
    Id. But where
    an officer’s “subjective determination,” justifies the stop—such as an observation that a
    defendant is speeding—a conclusory statement is never sufficient. 
    Id. Simon’s testimony
    concerning Murrell’s speed is conclusory and wholly
    unsupported. Traveling too slowly and frequently changing speeds are, like driving too
    fast (an example from 
    Castro, supra, at 742
    ), subjective determinations that require more
    than a conclusory statement. Simon stated that Murrell was changing speeds and
    travelling below the speed limit, but he never explained how this was determined. (See
    8
    e.g. RR 14-15.) Was Murrell’s speed clocked by radar? Was she paced? The record does
    not say. It provides only conclusory statements that she was driving slowly and changing
    speeds. Without more, both Castro and Ford say that Simon’s conclusory statements
    regarding Murrell’s speed are entitled to no weight in the reasonable suspicion analysis.
    Simon’s testimony concerning speed of travel was not only conclusory; it was
    inconsistent. First, Simon testified that she travelled 10 to 15 miles per hour under the
    speed limit and at alternating speeds. (RR 6.) Then, on cross-examination, he admitted
    that that his offense report established she was going 10 miles per hour below the 40
    mile-per-hour speed limit, not 15. (RR 21-22.) Then, on re-direct, Simon, inconsistent
    with testimony that Murrell was frequently changing speeds, stated that she drove
    approximately 30 miles-per-hour throughout the encounter:
    Q.     Now in your offense report you noted – defense counsel made a
    big deal about you said approximately 30 miles per hour.
    A.     Correct.
    Q.     So that would be an approximation of the speed through the entire
    encounter?
    A.     Exactly.
    (RR 27.) Had there been any testimony concerning how Murrell’s speed was determined,
    the record would perhaps be clearer. But only conclusory statements are provided. These
    conclusions do not support reasonable suspicion.
    9
    2.      The court’s finding that Murrell was in an area with a high
    concentration of bars and restaurants was a conclusory finding.
    The court found that “several establishments” in the area where Murrell was
    stopped sell alcohol. (CR 60.) This finding is also conclusory and deserves no weight.
    
    Ford, 158 S.W.3d at 493
    . No evidence or testimony indicated what number constitutes
    “several establishments.” No evidence showed the amount of DWI arrests or accidents in
    this undefined “area,” as compared with the rest of Harris County. Nothing defined the
    geographic borders of the area.
    A finding that an area is populated with bars where people commonly drive
    impaired is akin to presence in a “high crime area,” which is sometimes cited as a factor
    contributing to reasonable suspicion.1 But for presence in a “high crime area” to be given
    any weight, the area must at least be defined.2 In fact, courts require evidence of: (1) a
    nexus between the most prevalent crime in the area and the type of crime suspected in the
    case; (2) limited geographic boundaries; and (3) temporal proximity between evidence of
    heightened criminal activity and the date of the stop or search at issue. United States v.
    Wright, 
    485 F.3d 45
    , 53-54 (1st Cir. 2007) (citing cases from multiple courts, including
    the U.S. Supreme Court). No such evidence was presented here. Conclusory or vague
    1
    Presence in a high crime area, like time of night, is a factor to consider but is never
    enough by itself to establish reasonable suspicion. Klare v. State, 
    76 S.W.3d 68
    , 74 (Tex. App.—
    Houston [14th Dist], 2002, pet. ref’d)
    2
    The concern with failing to specify borders for an area considered to be “high crime” or a
    “bar district” is obvious. If the area is not limited, an entire neighborhood or community could be
    painted as a zone where constitutional protections and liberty is significantly lessened. See
    United States v. Montero–Camargo, 
    208 F.3d 1122
    , 1138 (9th Cir. 2000) (en banc) (“We must
    be particularly careful to ensure that a ‘high crime’ area factor is not used with respect to entire
    neighborhoods or communities . . . but is limited to specific, circumscribed locations where
    particular crimes occur with unusual regularity.”)
    10
    statements do not suffice. See United States v. Hill, 
    752 F.3d 1029
    , 1038 (5th Cir. 2014)
    (giving no credence to the government’s “vague and generalized contentions about the
    whole ‘area’ . . . being high crime.”).3
    Numerous jurisdictions have rejected presence in a particular area as a factor
    supporting reasonable suspicion where, like here, only conclusory testimony is offered. In
    State v. Roberts, a Louisiana court of appeal gave no significance to the officer’s “high
    crime area” testimony because:
    [T]here was nothing in the record, other than the conclusory statement
    that Mr. Roberts had been in a high crime area, to evidence that the
    area was, in fact, a high crime area. There was nothing in the record to
    reflect what crimes had been committed in the area or even that there
    had been any arrests in the area.
    State v. Roberts, 
    947 So. 2d 167
    , 170 (La. App. 4th Cir. 2006). The same is true here.
    This record is void of any facts supporting the conclusory statement that the area has
    “several establishments” that serve alcohol or that there were heightened incidents of
    drunk driving in the area.
    In People v. Harris, an Illinois court of appeal gave no significance to officer
    testimony that the defendant was in an area “known to be one of high burglaries and high
    robberies.” 
    957 N.E.2d 930
    , 937 (Ill App. 1st 2011). Again, no evidence was introduced
    concerning crime in the area. 
    Id. No evidence
    was introduced concerning the timing,
    3
    Murrell does not suggest that presence in an area with a high number of bars is not a
    factor in the reasonable suspicion analysis. But it must be supported by some articulable facts or
    common knowledge that the area was, for example, a “bar district.” See e.g. Foster v. State, 
    326 S.W.3d 609
    , 611-12 (Tex. Crim. App. 2010) (officer testified that “it is common for many
    people to be impaired in Austin’s Sixth Street bar district late at night,” which is where the stop
    occurred). Nothing like that is present here.
    11
    frequency or location of robberies and burglaries. 
    Id. Nor were
    the boundaries of the area
    defined. 
    Id. In D.R.
    v. State, a Florida court of appeal gave no weight to the testifying officer’s
    vague and unsubstantiated statement that a neighborhood was a known as an area with
    heightened narcotics activity and found such testimony could not be considered in the
    reasonable suspicion analysis. 
    941 So. 2d 536
    , 537-38 (Fla. 2d Ct. App. 2006).
    As stated by the Supreme Judicial Court of Massachusetts:
    The term ‘high crime area’ is itself a general and conclusory term that
    should not be used to justify a stop or a frisk, or both, without
    requiring the articulation of specific facts demonstrating the
    reasonableness of the intrusion.
    Commonwealth v. Johnson, 
    908 N.E.2d 729
    , 733 (Mass. 2009).
    The record does not provide sufficient information that the area where Murrell was
    stopped contained several establishments that sell alcohol. The area should have been
    defined and limited. The officer should have testified to similar arrests in the area. A
    specific number of, or at least an estimate of, “establishments” should have been
    provided. None of that is presented here. This factor deserves no weight.
    B.     Issue Two: The court’s findings that Murrell was “drifting”, that Simon was
    experienced in dealing with intoxicated persons, and that Simon testified that
    the time of the stop was when people would be leaving bars are unsupported
    by the record and deserve no weight.
    While a trial court’s fact findings that depend on witness credibility are given
    deference, that is only if they are supported by the record. Miller v. State, 
    393 S.W.3d 255
    ,
    263 (Tex. Crim. App. 2012) (“deference is due only if the trial court’s rulings are
    supported by the record”). Several of the court’s findings are unsupported in the record.
    12
    1.     The Court’s finding that Simon observed Murrell “drift” is not
    supported by the record.
    In finding of fact number 9, the trial court said: “Simon observed defendant turn
    onto Cypresswood Drive and drift within her lane.” (CR 60.) In finding of fact number 10,
    the court stated that Simon observed Murrell “drifting” from one lane to another. (CR
    60.) There is no such testimony in the record. The testimony was that, after Murrell
    turned on to Cypresswood, she changed lanes frequently, signaling each time. (RR 8, 18-
    19.) There was no testimony of “drifting.” To the contrary, the deputy explained:
    Q.     She wasn’t weaving, was she?
    A.     No, I didn’t observe any weaving.
    (RR 20-21.) The court’s finding that Murrell drifted is not supported by the record and
    entitled to no weight. Simon never testified to this.
    2.     The Court’s finding that Simon had extensive experience with
    intoxicated persons is unsupported by the record.
    At the conclusion of the hearing, the trial court, “took judicial notice that [Simon]
    has seen a number of intoxicated persons” based on his experience with the Department
    of State and with the HCSO. (RR 35.) In the findings of fact and conclusions of law, the
    court found Simon has “extensive experience in law enforcement, DWI investigation, and
    observing intoxication.” (CR 60.)
    The record contains no evidence that Simon had any experience with DWI
    investigations as a Department of State employee. The Department of State does not
    make arrests for driving while intoxicated or other state-level intoxication offenses. The
    13
    court’s taking of judicial notice that he is experienced in such investigations based on
    experience with the Department of State is unsustainable.
    The court’s finding that Simon is experienced, therefore, must have been based on
    his 18-months experience as a patrolman of the HCSO. To this point, Simon provided
    few vague details, that he had conducted “many” or “a lot” of DWI investigations. (RR at
    11, 23.) His 18-months experience and lack of specificity concerning that experience is
    insufficient to lend support to the reasonable suspicion finding. In United States v.
    Neufeld-Neufeld, the Fifth Circuit found that an officer with 18-months experience was
    “inexperienced,” though the reasonable suspicion calculus benefited from his partner’s
    13-years experience. 
    338 F.3d 374
    , 382 (5th Cir. 2003). Here, Simon did not have an
    experienced partner to offset his inexperience. His 18-months experience adds little, if
    anything, to the totality of the circumstances supporting reasonable suspicion.
    3.     The Court’s finding that “Simon testified that the time of the stop,
    approximately 1:30 a.m., was significant as that is when people would
    often be leaving bars and restaurants after drinking” is unsupported
    by the record.
    The court’s findings of fact and conclusions of law say that Simon testified the
    timing of the stop, being 1:30 a.m., was significant because it is when people would be
    leaving bars. (CR 60.) No such testimony is in the record.
    The time of a stop might be significant when an officer can articulate reasons why.
    But Simon, again, offered only conclusory testimony: “At 1:30, Your Honor, the thought
    in my mind was she was intoxicated.” (RR 10.) No explanation was given as to why that
    time is significant. Simon never said that 1:30 a.m. was a time when people would be
    14
    leaving bars in the area after drinking. The record does not support such a finding from
    the trial court.
    C.     Issue Three: The only evidence of intoxication was Murrell’s lane changes
    while signaling, which is insufficient to establish reasonable suspicion.
    When all improperly considered factors are excised, we are left with the following
    circumstances: (1) an inexperienced officer, (2) observed Murrell change lanes frequently
    while signaling. This is insufficient to support the traffic stop.
    1.      Frequent lane changes while signaling (even swerving) is insufficient.
    Counsel has not located a single case in Texas law that holds frequent lane
    changes while signaling to be a sign of intoxication. Such behavior is so consistent with
    lawful and unimpaired driving that it is probable that no officer has sought to base a
    traffic stop for DWI on such a fact. Consequently, no court has found it necessary to
    address a citizen’s lawful lane changes while signaling as a sign of intoxication. If this
    behavior alone were sufficient, then virtually every driver in the state would be pulled
    over at some point on suspicion of DWI.
    Fortunately that is not the case. Not even so-called drifting, swerving, or weaving
    are sufficient in themselves to support a DWI traffic stop. See Hernandez v. State, 
    983 S.W.2d 867
    , 870 (Tex. App.—Austin 1998) (“drifting” across a lane marker did not
    establish reasonable suspicion of intoxication; there are a “myriad of reasons” why a
    person might drift); Bass v. State, 
    64 S.W.3d 646
    , 649-50 (Tex. App.—Texarkana, 2001)
    (no reasonable suspicion where officer followed defendant for “about three miles” and
    observed defendant “swerving within his lane”).
    15
    Again, Murrell was not drifting or weaving. (RR 20-21.) She conducted
    completely lawful lane changes while signaling. This is insufficient to establish
    reasonable suspicion.
    2.     Even if it were considered, Murrell’s driving slowly and alternating
    speeds is insufficient to establish reasonable suspicion of intoxication
    under totality of the circumstances.
    As stated above, this Court should not consider the trial court’s finding that
    Murrell was driving below the speed limit at changing speeds because it is based on
    purely conclusive testimony. But even if all of the conduct were considered, it would not
    establish reasonable suspicion.
    First, slow driving alone does not justify a traffic stop for suspicion of DWI. See
    Peters v. Texas Dept. of Public Safety, 
    404 S.W.3d 1
    , 4-5 (Tex. App.—Houston [1st Dist.],
    2013) (driving 15 mph below speed limit late at night insufficient). As Simon himself
    testified, slow driving is not only a sign of intoxication, but also of car trouble. (RR 15.)
    In Richardson v. State, an officer conducted a traffic stop at 2:00 a.m. because the
    defendant was travelling 20 miles-per-hour below the posted speed limit. 
    39 S.W.3d 634
    ,
    636 (Tex. App.—Amarillo, 2000). As here, the arresting officer testified that slow
    driving is consistent with mechanical problems with a vehicle. 
    Id. at 640.
    The court ruled
    that driving 20 miles-per-hour below the speed limit at 2:00 a.m. is insufficient alone to
    justify an investigatory stop for driving while intoxicated. 
    Id. It reversed
    the defendant’s
    conviction.
    16
    3.     Even if all factors are considered, the stop is not supported by
    reasonable suspicion.
    To go a step further, even if the Court were to consider Murrell driving at
    alternating speeds below the speed limit, in an area with bars, and changing lanes several
    times while signaling, there would still be no reasonable suspicion under the totality of
    the circumstances. This is demonstrated by review of three cases involving driving more
    suspicious than Murrell’s and there was still an insufficient basis for the stop.
    In State v. Palmer, the court found an officer lacked reasonable suspicion to stop
    the defendant for driving while intoxicated. No. 2-03-526-CR, 
    2005 WL 555281
    , at *2-3
    (Tex. App.—Fort Worth, Mar. 10, 2005). The arresting officer observed the defendant:
    (1) in early morning hours, in proximity to local bars; (2) drive five miles per hour below
    the speed limit; (3) drive in an entrance ramp lane; (4) signal his intention to turn right
    when there was nowhere to turn; (5) apply his brakes in a sudden and unsafe manner
    when exiting the highway; (6) swerve over lane markers; (7) drive partially into the right-
    turn-only lane before rolling into the go-straight lane; and (8) hesitate before proceeding
    through a green light. 
    Id. at *2.
    The trial court properly granted the defendant’s motion to
    suppress and the appeals court upheld that decision. 
    Id. at *3.
    In Waller v. State, the court found facts insufficient for a traffic stop and reversed
    the appellant’s conviction for driving while intoxicated. No. 05-09-00097-CR, 
    2009 WL 4642850
    , at *5 (Tex. App.—Dallas, Dec. 9, 2009). There, a concerned citizen called the
    police to report the appellant’s possible drunken driving. 
    Id. at *1,
    5. When the arresting
    officer arrived at the scene, the appellant was driving 10 to 15 miles-per-hour under the
    17
    speed limit. 
    Id. at *5.
    The appellant made an evasive maneuver that could have been an
    attempt to avoid the officer. 
    Id. at *1,
    5. Considering the totality of the circumstances—
    the anonymous tip, the evasive driving behavior, and driving significantly under the
    speed limit—the court, “conclude[d] the State failed to satisfy its burden of
    demonstrating reasonable suspicion and the trial court erred in denying Waller’s motion
    [to suppress].” 
    Id. at *5.
    His conviction was reversed.
    White v. State, is also similar. No. 2-07-234-CR, 
    2008 WL 1867139
    , at *3 (Tex.
    App.—Fort Worth, Apr. 24, 2008). There, the appellant was observed a quarter mile from
    a bar, at 1:22 a.m., and traveling below the 45 mile-per-hour speed limit. 
    Id. at *3.
    The
    officer, unlike here, testified the time was significant because it was when “a lot of bars
    start to close around the area.” 
    Id. The officer
    observed appellant’s vehicle “drifting
    within his lane and [make a] sudden lane change from the right lane to the left lane and
    then, later, another lane change from the left lane to the right lane.” 
    Id. Like here,
    “Appellant signaled both lane changes.” 
    Id. Unlike here,
    the officer said the appellant
    was “drifting.” The court found the officer had no reasonable suspicion for the stop and
    reversed the trial court’s judgment denying the appellant’s motion to suppress. 
    Id. at *5.
    This Court should do the same—Murrell’s driving was less suspicious than the
    defendants’ in each of these three cases.
    CONCLUSION AND PRAYER
    Most of the trial court’s reasons for denying Murrell’s motion to suppress were
    based on conclusory facts or facts unsupported by the record. When those facts are
    18
    excised from the reasonable suspicion analysis, the only basis for the stop is Murrell’s
    lawful lane changes while signaling, which is insufficient.
    However, even if all of the facts are considered, there was still not sufficient
    reasonable suspicion for the stop.
    This Court should reverse the trial court’s ruling denying Murrell’s motion to
    suppress evidence, vacate the judgment of conviction, and remand this case to the trial
    court.
    Respectfully submitted,
    /s/ Dennis Hester
    J. Dennis Hester
    State Bar No. 24065415
    COGDELL LAW FIRM, PLLC
    402 Main St., 4th Floor
    Houston, Texas 77002
    (713) 426-2244
    (713) 426-2255 (Fax)
    dennis@cogdell-law.com
    Attorney for the Appellant
    19
    CERTIFICATE OF SERVICE
    I hereby certify that on May 28, 2015, a true and correct copy of the foregoing
    Brief on the Merits was served upon the Appellate Division of the Harris County District
    Attorney’s Office via facsimile at: (713) 755-5809.
    /s/ Dennis Hester
    J. Dennis Hester
    CERTIFICATE OF COMPLIANCE
    I certify, in accordance with TEX. R. APP. PRO. 9.4(i), that this Brief contains
    4,716 words excluding caption, identity of parties and counsel, table of contents, index of
    authorities, statement of the case, statement of the issues presented, signatures, proof of
    service, and certificate of compliance.
    /s/ Dennis Hester
    J. Dennis Hester
    20