Geraline Gregory Lincoln v. State ( 2015 )

Affirmed and Memorandum Opinion filed November 5, 2015.
In The
Fourteenth Court of Appeals
NO. 14-14-00957-CR
NO. 14-14-00959-CR
GERALINE GREGORY LINCOLN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 337th District Court
Harris County, Texas
Trial Court Cause Nos. 1424405 and 1424406
MEMORANDUM OPINION
Appellant Geraline Gregory Lincoln pled guilty following the denial of his
motion to suppress to the offenses of possession of a controlled substance and felon in
possession of a weapon. In accordance with a plea agreement, the trial court sentenced
appellant to confinement for eight years in the Institutional Division of the Texas
Department of Criminal Justice in each case; the sentences were ordered to run
concurrently. In his sole issue, appellant claims the trial court erred in denying his
motion to suppress because there was no reasonable basis for the traffic stop leading to
his subsequent arrest.1
STANDARD OF REVIEW
We generally review a trial court’s decision to grant or deny a motion to suppress
using an abuse-of-discretion standard. Swain v. State, 181 S.W.3d 359, 365 (Tex. Crim.
App. 2005). During the suppression hearing, the trial court is the exclusive trier of fact
and judge of the witnesses’ credibility. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim.
App. 2000); Mason v. State, 116 S.W.3d 248, 256 (Tex. App.—Houston [14th Dist.]
2003, pet. ref’d). An appellate court affords almost total deference to the trial court’s
determination of historical facts supported by the record. Johnson v. State, 68 S.W.3d
644, 652–53 (Tex. Crim. App. 2002) (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex.
Crim. App. 1997)). We afford the same amount of deference to a trial court’s ruling on
mixed questions of law and fact if the resolution turns on evaluating credibility and
demeanor. Johnson, 68 S.W.3d at 652; Guzman, 955 S.W.2d at 89. We review de novo,
however, those mixed questions of law and fact not turning on credibility or demeanor.
Johnson, 68 S.W.3d at 653 (citing Guzman, 955 S.W.2d at 89).
If the trial court’s ruling is reasonably supported by the record and is correct on
any theory of law applicable to the case, the reviewing court must sustain it. Villarreal
v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996); Flores v. State, 172 S.W.3d 742,
748 (Tex. App.—Houston [14th Dist.] 2005, no pet.). When the trial judge makes
express findings of fact, we view the evidence in the light most favorable to his ruling
and determine whether the evidence supports these factual findings. Valtierra v. State,
310 S.W.3d 442, 447 (Tex. Crim. App. 2010).
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After appellant was stopped, outstanding warrants were discovered. Following a search
incident to arrest, a firearm and controlled substance were found.
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THE EVIDENCE
Deputy Robert Johnson testified that he first saw appellant’s vehicle traveling
north in the southbound lanes on Saratoga. Johnson testified it was a two-lane roadway
and described appellant’s driving as “reckless” but admitted there was no other traffic in
the area. Johnson stopped at the intersection and looked northbound on Saratoga.
Johnson originally stated that he believed the stop sign was at Saratoga and Autumn
Forest but later corrected himself to say the stop sign was at Whitter Forest and
Saratoga. Johnson saw the vehicle turn westbound on Whitter Forest without using a
turn signal. Johnson proceeded to overtake the vehicle to conduct a traffic stop. The
vehicle traveled eastbound on Whitter Forest and then turned northbound on Wildforest
Drive. Appellant pulled into the driveway of a residence on Wildforest Drive without
using a turn signal.
On cross-examination, Johnson testified the first traffic violation he observed was
appellant’s failure to maintain a single lane of traffic. The next violations occurred at the
intersection of Saratoga and Whitter Forest where appellant made a right turn without
stopping at the stop sign or signaling a turn. Johnson explained that his dash-cam video
would not show the failures to signal a turn due to the positioning of the patrol car —
facing westbound — in relation to appellant’s vehicle — traveling northbound. Johnson
identified four violations: failure to maintain a single lane, failure to stop at a stop sign,
and two failures to signal a turn.
Deputy Mohamd Bousalmi testified appellant was on Saratoga and “rolled
through” a stop sign at Saratoga and Whitter Forest and then turned right without
signaling a turn. Subsequently, appellant turned left on Wildforest without signaling.
Dousalmi testified that appellant was driving “almost on the opposite side of the street”
and failed to maintain a single lane.
Appellant testified that he was driving on the right side of the street, stopped at
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the stop sign at the corner of Saratoga and Whitter Drive, and signaled his turn onto
Whitter Drive. According to appellant, his turn signal was also on when he turned left
on Wildforest Drive and when he made the last turn into the residential driveway.
Appellant testified there was no other traffic.
The trial court made findings on the record. The trial court found the officers
testified to five separate and distinct reasons for the traffic stop: (1) failure to maintain a
single lane; (2) failure to stop at a stop sign at the corner of Saratoga and Whitter; (3)
failure to signal a turn at the corner of Saratoga and Whitter; (4) failure to signal a turn
at the corner of Whitter and Wildforest; and (5) failure to signal a turn at the corner
from Wildforest into the residential driveway. The trial court found the videotape did
not clearly show the first four violations but did show the last. The trial court further
found the videotape did not contradict the officers’ testimony but that the violations
“just were not shown.” The trial court found the officers provided an objective reason
why those four violations are not depicted on the videotape. The trial court found the
officers’ testimony was credible and that Officer Johnson had an objectively reasonable
suspicion that a traffic violation had occurred before stopping appellant’s vehicle. The
trial court concluded that under the totality of the circumstances and the evidence
presented the stop was reasonable and denied the motion to suppress.
ANALYSIS
A routine traffic stop closely resembles an investigative detention. Berkemer v.
McCarty, 468 U.S. 420, 436–37, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984). “If an officer
has a reasonable basis for suspecting that a person has committed a traffic offense, the
officer may legally initiate a traffic stop.” Zervos v. State, 15 S.W.3d 146, 151 (Tex.
App.—Texarkana 2000, pet. ref’d). The State is not required to show a traffic offense
was actually committed, but only that the officer reasonably believed a violation had
occurred. Tex. Dep’t of Pub. Safety v. Fisher, 56 S.W.3d 159, 163 (Tex. App.—Dallas
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2001, no pet.); accord Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001). See
also Cook v. State, 63 S.W.3d 924, 927 n.5 (Tex. App.—Houston [14th Dist.] 2002, pet.
ref’d) (noting that there is no requirement that a traffic regulation is actually violated).
The record supports the trial court’s findings. The videotape does not show the
first four violations but neither does it show they did not occur. The videotape does
show the back of appellant’s vehicle as it turned into the residential driveway and no
turn signal can be seen. Thus the videotape does not indisputably contradict the officers’
testimony. See Montanez v. State, 195 S.W.3d 101, 109 (Tex. Crim. App. 2006) (to the
extent the trier of fact’s determination of historical facts is based on a videotape of a
traffic stop admitted into evidence, the trier of fact is entitled to deference, but only if
those factual determinations are supported by the record); Carmouche v. State, 10
S.W.3d 323, 332 (Tex. Crim. App. 2000) (declining to give that almost total deference
to factfinder’s determination of historical facts because “the videotape present[ed]
indisputable visual evidence contradicting essential portions of [the officer’s]
testimony”). See also State v. Houghton, 384 S.W.3d 441, 446 (Tex. App.—Fort Worth
2012, no pet.) (the reviewing court is to give almost total deference to the trier of fact’s
factual determinations unless the video recording indisputably contradicts those
findings).
Viewing the evidence in the light most favorable to the trial court’s ruling, we
conclude the evidence supports the trial court’s findings. Accordingly, appellant’s issue
is overruled and the judgments of the trial court are affirmed.
/s/ Sharon McCally
Justice
Panel consists of Justices Jamison, McCally, and Wise.
Do Not Publish — Tex. R. App. P. 47.2(b).
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