Nicholas Ryan Nadeau v. the State of Texas ( 2022 )

Affirm and Opinion Filed August 3, 2022
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-01137-CR
NICHOLAS RYAN NADEAU, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 296th Judicial District Court
Collin County, Texas
Trial Court Cause No. 296-83228-2018
MEMORANDUM OPINION
Before Justices Myers, Carlyle, and Goldstein
Opinion by Justice Myers
A jury convicted appellant Nicholas Ryan Nadeau of possession of
methamphetamine and assessed punishment at twenty-five years in prison. In four
issue, appellant contends (1) the case should be abated because of a conflict between
a written order granting appellant’s motion to suppress and an oral denial of that
same motion; (2) the court erred when it denied appellant’s motion to suppress; (3)
the court erred in not allowing an investigator for the defense to testify as an expert;
and (4) the court erred in not charging the jury pursuant to article 38.23 of the Texas
Code of Criminal Procedure. We affirm.
DISCUSSION
1. Abatement for Finding by Trial Court
In his first issue, appellant argues the trial court should be required to make
findings to clarify an apparent conflict in the record between a written order signed
by the court granting appellant’s pretrial motion to suppress and, later, following a
suppression hearing, an oral denial of that same motion. The State agreed with
appellant to the extent that the law required abatement due to the conflicting oral
denial of the motion to suppress.
On June 14, 2022, we abated this matter to the trial court pursuant to rule 44.4
of the Texas Rules of Appellate Procedure and Henery v. State, 364 S.W.3d 915,
919 (Tex. Crim. App. 2012), to determine whether the trial court intended the written
order granting the motion to suppress to control, or whether the court intended the
oral pronouncement to control. On June 30, in response to our order, the court held
a hearing and found it had inadvertently signed the order granting the motion to
suppress. The court clarified that its ruling was that the motion to suppress was
denied, and the court vacated the order granting the motion to suppress.
Because the trial court’s ruling granting the motion to suppress resulted from
clerical error, it did not warrant reversal. See id. We therefore overrule appellant’s
first issue.
2. Motion to Suppress
In his second issue, appellant contends the trial court erred in denying his
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motion to suppress the contraband found in his car because the police officer failed
to provide specific and articulable facts to support his initial stop of appellant’s car.
We review a trial court’s ruling on a motion to suppress under a bifurcated
standard of review. State v. Staton, 599 S.W.3d 614, 616 (Tex. App.—Dallas 2020,
pet. ref’d) (citing State v. Ruiz, 577 S.W.3d 543, 545 (Tex. Crim. App. 2019)). We
give almost total deference to the trial court’s determination of historical facts and
review de novo the application of the law to the facts. Id. We view the record in the
light most favorable to the trial court’s ruling. Id. When, as in this case, the trial
court does not make explicit findings of fact, we view the evidence in the light most
favorable to the trial court’s ruling and assume the trial court made implicit findings
of fact supported by the record. Lerma v. State, 543 S.W.3d 184, 190 (Tex. Crim.
App. 2018). We will sustain the ruling of the trial court if it is correct under any
applicable theory of law. Id.Before trial, defense counsel filed a motion to suppress claiming Officer
Colton Roelofs of the Frisco Police Department did not have reasonable suspicion
to conduct the traffic stop that led to appellant’s arrest for possession of
methamphetamine. Roelofs testified that on May 24, 2018, he was conducting
narcotics interdiction with his K9 in an area where he had made a lot of drug arrests.
He saw appellant leave a Valero gas station, get in his car, and drive off. Appellant
was wearing a “7-Eleven” shirt, which caught the officer’s eye.
Roelofs had a clear line of sight as appellant’s vehicle drove past the place
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where the officer’s Tahoe was parked, and appellant’s turn signal was off as he
crossed in front of the officer’s patrol car. The officer pulled out and started driving
behind appellant, who quickly activated his turn signal and made a right turn into a
Snap-E-Jack gas station. Appellant’s car was approximately a car length or a car
length and a-half away from the turn. The officer based this approximation on the
length of his Tahoe, which was 17.1 feet long, and stated that there was “no way”
the turn signal was activated “outside of 25 feet” from the turn. He later summarized
the distance as “maybe inside of 25 feet, but nowhere close to outside of a hundred
feet” from the turn. Roelofs testified that what he saw was a violation of the Texas
Transportation Code.
Roelofs testified that appellant passed the initial turn into the gas station and
appeared to make a split-second decision to turn at the next entrance once the officer
started driving behind him. Roelofs stated that it was not possible appellant’s turn
signal was on at the time, but if it was, he did not see it “whatsoever” and he “had
the angle to where I would have been able to see it.” The officer testified that he
“would have been able to see [appellant’s] violation clearly, or I would . . . not have
pulled him over.”
During the hearing, the State showed Officer Roelofs’s in-car video. Within
the first few seconds, the video depicts appellant’s car moving across the video
frame, the officer pulling out behind appellant’s vehicle, and appellant’s turn signal
blinking right just before the turn.
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The defense called a private investigator, Daryl Parker, who testified that he
used software programs such as Google Earth and Corel Draw and made
measurements at the scene. Based on his on-scene measurements and his review of
the officer’s in-car video, Parker’s conclusion was that the turn signal was on at
approximately 162 feet from the turn. Parker admitted on cross-examination that he
was not there on the night of the stop, and he was basing his conclusion on estimates
and could not say what the officer could or could not see.
At the end of the hearing, the trial court denied appellant’s motion to suppress,
stating:
Excellent investigation, I think, but we are not limited to what the video
camera says. We are to take into consideration all of the evidence as a
whole, including the officer’s testimony. Just think about the days when
we didn’t have video cameras at all. And so the motion to suppress is
denied.
The court did not issue any findings of fact or conclusions of law. The case
proceeded to trial on August 26, 2019, and the jury found appellant guilty.
For Fourth Amendment purposes, a traffic stop is a seizure and must be
reasonable to be lawful. Vasquez v. State, 324 S.W.3d 912, 919 (Tex. Crim. App.
2019). A police officer may make a warrantless traffic stop based on reasonable
suspicion of a traffic violation. See Jaganathan v. State, 479 S.W.3d 244, 247 (Tex.
Crim. App. 2015). An officer has reasonable suspicion if he or she has specific,
articulable facts that, when combined with rational inferences from those facts,
would lead him or her to reasonably suspect that a particular person has been or soon
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will be engaged in criminal activity. Id. This is an objective standard that disregards
any subjective intent of the officer making the stop and looks solely to whether an
objective basis for the stop exists. Wade v. State, 422 S.W.3d 661, 668 (Tex. Crim.
App. 2013); Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). A
determination of reasonable suspicion is made by considering the totality of the
circumstances. Wade, 422 S.W.3d at 668; Ford, 158 S.W.3d 492–93. The burden
is on the State to demonstrate the reasonableness of the investigatory stop. Goudeau
v. State, 209 S.W.3d 713, 716 (Tex. App.—Houston [14th Dist.] 2006, no pet.); see
also Ford, 158 S.W.3d at 492.
The evidence in this case supports that Officer Roelofs had reasonable
suspicion to conduct a warrantless traffic stop of appellant based on appellant’s
traffic violation. The officer testified that he observed appellant activate his turn
signal at a distance of “maybe inside of 25 feet, but nowhere close to outside of a
hundred feet” from the right-hand turn. According to the Texas Transportation
Code, “[a]n 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 § 545.104(b). The officer’s personal observation of appellant failing
to signal his right turn continuously for at least 100 feet before turning, combined
with the evidence from the officer’s in-car video, provided objective, articulable
facts supporting a reasonable suspicion to stop appellant for a traffic violation. See
Castro v. State, 227 S.W.3d 737, 742 (Tex. Crim. App. 2007) (officer’s observation
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of illegal lane change provided sufficient objective, articulable facts to support
finding of reasonable suspicion that driver committed traffic violation by failing to
signal lane change). Therefore, based on our review of the record, we conclude the
trial court did not err in denying appellant’s motion to suppress.
We next consider appellant’s alternative request that we remand this case to
the trial court for entry of specific findings of fact. In support of his position,
appellant cites State v. Elias, 339 S.W.3d 667 (Tex. Crim. App. 2011), but this
reliance is misplaced. Elias states in part that “‘upon the request of the losing party
on a motion to suppress evidence, the trial court shall state its essential findings.’”
Id. at 674 (quoting State v. Cullen, 195 S.W.3d 696, 699 (Tex. Crim. App. 2006)).
“‘[E]ssential findings’” mean “‘findings of fact and conclusions of law adequate to
provide an appellate court with a basis upon which to review the trial court’s
application of the law to the facts.’” Id. (quoting Cullen, 195 S.W.3d at 699). The
findings may be written or stated on the record at the conclusion of the hearing.
Cullen, 195 S.W.3d at 699. “[A]n appellate court must abate for additional findings
of fact when a party has requested findings of fact and the findings that are made by
a trial court are so incomplete that an appellate court is unable to make a legal
determination.” State v. Saenz, 411 S.W.3d 488, 495 (Tex. Crim. App. 2013). In
this case, however, there is no indication either party requested findings.
Furthermore, because the trial court made oral findings at the conclusion of the
hearing that are adequate for our review, a remand for additional findings is
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unnecessary. We overrule appellant’s second issue.
3. Defense Investigator Testifying as Expert
In his third issue, appellant argues the trial court abused its discretion and
violated rule 702 by not allowing defense investigator Daryl Parker to testify as an
expert witness regarding his investigation and findings.
The admission of expert testimony is governed by Texas Rule of Evidence
702. Morales v. State, 32 S.W.3d 862, 865 (Tex. Crim. App. 2000). Pursuant to
rule 702, a witness may offer an expert opinion if the witness is qualified to do so
by knowledge, skill, experience, training, or education and the witness possesses
scientific, technical, or other specialized knowledge that will assist the trier of fact
to understand the evidence or to determine a fact in issue. TEX. R. EVID. 702. If the
trial court determines the underlying facts or data do not provide a sufficient basis
for the expert’s opinion, the opinion is inadmissible. See TEX. R. EVID. 705(c).
Before admitting expert testimony under rule 702, the trial court must be satisfied
that three conditions are met: (1) the witness qualifies as an expert by reason of his
knowledge, skill, experience, training, or education; (2) the subject matter of the
testimony is an appropriate one for expert testimony; and (3) admitting the expert
testimony will actually assist the factfinder in deciding the case. Vela v. State, 209
S.W.3d 128, 131 (Tex. Crim. App. 2006). These requirements are commonly
referred to as qualification, reliability, and relevance. Id. Each requirement raises
distinct questions and issues, and an objection based on one requirement does not
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preserve error as to another. Shaw v. State, 329 S.W.3d 645, 655–56 (Tex. App.—
Houston [14th Dist.] 2010, pet. ref’d).
We review a trial court’s decision on whether to allow expert opinion
testimony for an abuse of discretion. Gallo v. State, 239 S.W.3d 757, 765 (Tex.
Crim. App. 2007). We must uphold the trial court’s ruling if it was within the zone
of reasonable disagreement. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim.
App. 2000). We also review the trial court’s ruling in light of the evidence before
the trial court at the time the ruling was made. Id.At the outset, we note that appellant’s brief does not identify what particular
testimony by Parker the trial court excluded. The record shows there were two
hearings on the admissibility of Parker’s testimony that were held out of the jury’s
presence, the first before he testified and the second part of the way through his
testimony. At the first hearing, defense counsel, when asked by the court under what
rule he was conducting the hearing, hesitated to clarify if was offering Parker as an
expert or a lay witness, saying both that Parker was being offered as an investigator
and “not necessarily as an expert witness,” and that he was going to offer Parker as
an expert regarding the results of his investigation.
After admitting Parker’s CV and listening to him explain his background and
education and the specific techniques he used in his analysis of the traffic stop (e.g.,
using Google Earth “to map out the scene,” and then using the officer’s in-car video
“to determine reference points throughout the video”), the trial court appeared to
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rule that Parker was not qualified to testify as an expert that, based on looking at the
lights on the video, appellant’s blinker was on at least 100 feet before the turn. The
court noted there was no indication Parker was “some lighting expert” or “what
expert would testify to that,” and the jury could “watch the same video” and reach
its own conclusion. The court indicated it had no concern about Parker testifying to
“where he thinks the hundred feet [mark] was or is because he measured it.” But the
court was concerned about Parker testifying “that based upon his analysis the blinker
was on outside of a hundred feet” because Parker was not qualified to provide such
testimony.
The second hearing held out of the jury’s presence occurred after Parker
started testifying, and it involved multiple rulings on redactions of Parker’s slide
presentation due to hearsay and speculation objections from the State. The trial court
also appeared to rule that Parker could not testify to where appellant activated his
blinker “because that’s complete speculation,” and, again, the jurors could watch
“the very same video” and come to their own conclusions.
Appellant contends the trial court’s refusal to allow Parker to testify to his
“findings and conclusion” was an abuse of discretion, yet appellant does not identity
what, specifically, Parker was prevented from offering. He provides only general
references to Parker’s testimony. Even so, to the extent the court limited Parker’s
testimony, appellant fails to show an abuse of discretion by the court in its rule 702
evaluation. Appellant claims Parker has experience in crime scene reconstruction;
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he is a crime scene investigator; and an accident reconstruction expert. There is,
however, nothing in the record to indicate Parker is an accident reconstruction
expert. Also, while Parker testified to his training and experience in investigations
and crime scene reconstruction, appellant fails to make the connection between those
fields of expertise and Parker’s testimony. The trial court asked defense counsel
what expertise Parker had regarding lighting and the way it reflected “off the road,”
to which counsel responded that Parker took measurements. The court observed that
measurements were “a different thing,” and the court said it did not know “what
expert testimony [Parker] is providing” regarding lighting. The trial court also
questioned whether such an opinion was verifiable and asked if there was a journal
on that subject, to which counsel responded that any conclusory statements on
Parker’s slide presentation could be edited out. Furthermore, the court could have
considered other factors that impacted Parker’s credibility, e.g., testifying that the
turn signal was on at 162 feet during the suppression hearing and at the 148-foot
mark at the rule 702 hearing; acknowledging that he could not say what Officer
Roelofs could or could not see on the night of the stop.
We additionally conclude that appellant was not harmed by any error in the
limitation of Parker’s testimony. See TEX. R. APP. P. 44.2(b). The record shows that
Parker testified at length before the jury regarding the results of his investigation.
He showed the jury a series of slides with satellite images, maps, and photos of the
officer’s in-car video. He showed an image “approximating the field of view” of the
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officer’s in-car camera, and it showed where, on the image, the 100-foot mark was
located from the turn into the gas station. Parker testified that he took physical
measurements at the scene; he calculated the speed of appellant’s car; and he testified
that he believed appellant’s brake lights were activated at the 148-foot mark. He
also showed nine frames depicting appellant’s car moving from the point at which
he believed “the brake lights were activated until it leaves the screen.” He described
what he believed was a “change in dimensions of the light . . . as the vehicle moves
through the frame,” stating that it appeared to grow and diminish as appellant’s car
moved across the video screen. He discussed what he believed was a “color change”
in the image from one frame to the next, and that the vehicle at that point was at the
148-foot mark. During closing arguments, defense counsel emphasized its theory
that appellant’s car was at the 148-foot mark when the turn signal was activated,
based on the change in lighting.
We overrule appellant’s third issue.
4. Jury Charge
In his fourth issue, appellant contends the trial court erred in not charging the
jury pursuant to article 38.23 of the Code of Criminal Procedure on the issue of
whether appellant was lawfully detained.
Under article 38.23(a), when the evidence raises a question on whether
evidence was illegally obtained, the jury shall be instructed that if it believes, or has
a reasonable doubt, that the evidence was obtained in violation of the law, the jury
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shall disregard any evidence so obtained. See TEX. CODE CRIM. PROC. 38.23(a);
Madden v. State, 242 S.W.3d 504, 510 (Tex. Crim. App. 2007).
The record shows such an instruction was included in the court’s charge to the
jury at guilt/innocence. It states as follows:
Any evidence obtained by an officer or other person in violation of any
provision of the Constitution or laws of the State of Texas or of the
Constitution or laws of the United States shall be disregarded by the
jury.
You are instructed that before an officer has the right to make a
temporary investigative detention of a defendant. the officer must have
a reasonable suspicion that the defendant is connected with some
criminal activity that is or has occurred.
“Reasonable suspicion” means a suspicion that would be held by an
ordinary and prudent person in the same circumstances as the officer.
Now, therefore, before you consider the testimony of Officer Colton
Roelofs concerning his observation of the defendant at the time of his
detention, you must first find beyond a reasonable doubt that the officer
had such reasonable suspicion, and if you do not so find beyond a
reasonable doubt you will disregard such testimony and evidence.
Indeed, defense counsel quoted and explained this language to the jury during
closing arguments.
Because the issue raised by appellant was given to the jury, appellant’s
complaint is without merit, and we therefore overrule his fourth issue.
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We affirm the trial court’s judgment.
191137f.u05
Do Not Publish /Lana Myers//
TEX. R. APP. P. 47.2(b) LANA MYERS
JUSTICE
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