Kevin Dean Dunn v. State , 2015 Tex. App. LEXIS 5196 ( 2015 )


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  •                        COURT OF APPEALS
    SECOND DISTRICT OF TEXAS
    FORT WORTH
    NO. 02-14-00059-CR
    KEVIN DEAN DUNN                                                  APPELLANT
    V.
    THE STATE OF TEXAS                                                     STATE
    ----------
    FROM COUNTY CRIMINAL COURT NO. 1 OF TARRANT COUNTY
    TRIAL COURT NO. 1298839
    ----------
    OPINION
    ----------
    I. INTRODUCTION
    Appellant Kevin Dean Dunn appeals his conviction for driving while
    intoxicated with a blood alcohol concentration of .15 or higher, a class-A
    misdemeanor.   See Tex. Penal Code Ann. 49.04(a), (d) (West Supp. 2014).
    Dunn pleaded not guilty, but a jury found him guilty; the trial court assessed
    Dunn’s punishment at ninety days’ confinement and a $1,250.00 fine. The trial
    court suspended imposition of Dunn’s sentence and placed him on community
    supervision for a twenty-four month term. In his first two issues, Dunn argues
    that the trial court erred by denying his motion to suppress because (1) the
    arresting officer lacked reasonable suspicion or probable cause to stop his
    vehicle and (2) the search warrant affidavit made by the officer in order to seize a
    sample of Dunn’s blood contained false statements or statements made with a
    reckless disregard for their truth. In his third issue, Dunn asserts that error exists
    in the court’s charge because it contained an improper instruction stating that a
    traffic stop is valid when it is premised on reasonable suspicion that the person
    committed a traffic offense. We will affirm.
    II. BACKGROUND
    One evening in August at around 11:00 p.m., while City of Grapevine
    Police Officer Daniel McClain was on patrol, Dunn pulled up next to Officer
    McClain’s patrol car at a red light. Officer McClain’s dash-cam video recorded
    the evening’s events and shows that when the light turned green, Dunn
    accelerated ahead of Officer McClain. As Dunn drove, he drifted into Officer
    McClain’s lane, requiring Officer McClain to slow down to avoid a collision. Dunn
    corrected his vehicle, and Officer McClain changed lanes, so that his patrol car
    was following directly behind Dunn’s vehicle. When Dunn’s vehicle drifted the
    other direction and topped the broken white line, prompting a driver in the
    adjacent lane to brake, Officer McClain stopped Dunn for failing to maintain a
    2
    single lane of travel. It was late at night, and Officer McClain thought Dunn could
    be driving while intoxicated.
    In an affidavit for a search warrant to obtain a sample of Dunn’s blood,
    Officer McClain stated that when he began talking with Dunn, he smelled a
    “strong odor of an alcoholic beverage” and observed that Dunn had bloodshot,
    watery eyes and spoke “with a thick tongue.” At Officer McClain’s request, Dunn
    got out of his vehicle. Officer McClain noted that Dunn swayed as he stood and
    that Dunn walked unsteadily. Dunn refused to perform field sobriety tests; Officer
    McClain arrested him for driving while intoxicated.
    Dunn refused to consent to a blood draw; Officer McClain prepared an
    affidavit for a search warrant to obtain a specimen of Dunn’s blood and obtained
    a warrant. Dunn’s blood alcohol content exceeded .15.
    Dunn filed two separate motions to suppress: one challenging the grounds
    for the stop and arrest, the other contending that Officer McClain’s statements in
    his affidavit were false or made with a reckless disregard for the truth. The trial
    court conducted successive, back-to-back hearings on Dunn’s two motions to
    suppress and denied them.1
    1
    The trial court issued findings of fact concerning Dunn’s second motion to
    suppress and we previously abated this appeal at Dunn’s request to permit the
    trial court to make findings of fact concerning Dunn’s first motion to suppress.
    The trial court supplemented its findings and conclusions with findings regarding
    the first motion to suppress, stating that Officer McClain was a credible and
    reliable witness at the suppression hearing and that he possessed reasonable
    suspicion to stop Dunn’s vehicle. Dunn then filed a motion requesting that this
    court disregard the trial court’s supplemental findings of fact and conclusions of
    3
    III. THE CONSTITUTIONAL PREREQUISITE TO A TRAFFIC STOP
    Dunn’s first and third issues are premised on the contention that the United
    States Supreme Court in Whren v. United States, 
    517 U.S. 806
    , 
    116 S. Ct. 1769
    (1996), “without announcing that a substantive change had occurred,
    mysteriously raised” the prerequisite for a stop based on a traffic violation from
    reasonable suspicion to probable cause. Consequently, in his first issue, Dunn
    argues that the trial court erroneously denied his first suppression motion
    because Officer McClain did not have probable cause for the stop. Dunn’s third
    issue claims that the jury charge incorrectly instructed that reasonable suspicion
    of a traffic offense justifies a stop when, according to Dunn’s interpretation of
    Whren, probable cause is required for such a stop.
    A. Law Governing Traffic Stops
    The Fourth Amendment protects against unreasonable searches and
    seizures by government officials. U.S. Const. amend. IV; Wiede v. State, 
    214 S.W.3d 17
    , 24 (Tex. Crim. App. 2007). To suppress evidence because of an
    alleged Fourth Amendment violation, the defendant bears the initial burden of
    producing evidence that rebuts the presumption of proper police conduct.
    Amador v. State, 
    221 S.W.3d 666
    , 672 (Tex. Crim. App. 2007); see Young v.
    law. Dunn complains of the trial court’s supplemental conclusion that Officer
    McClain possessed reasonable suspicion to stop him. Because we review this
    conclusion and the facts upon which it is based in connection with Dunn’s first
    two issues, and because Dunn requested the supplemental findings of fact and
    conclusions of law, we deny his motion that we disregard them.
    4
    State, 
    283 S.W.3d 854
    , 872 (Tex. Crim. App.), cert. denied, 
    558 U.S. 1093
    (2009). A defendant satisfies this burden by establishing that a search or seizure
    occurred without a warrant. 
    Amador, 221 S.W.3d at 672
    . Once the defendant
    has made this showing, the burden of proof shifts to the State, which is then
    required to establish that the search or seizure was conducted pursuant to a
    warrant or was reasonable. 
    Id. at 672–73;
    Torres v. State, 
    182 S.W.3d 899
    , 902
    (Tex. Crim. App. 2005); Ford v. State, 
    158 S.W.3d 488
    , 492 (Tex. Crim. App.
    2005).
    A detention, as opposed to an arrest, may be justified on less than
    probable cause if a person is reasonably suspected of criminal activity based on
    specific, articulable facts. Terry v. Ohio, 
    392 U.S. 1
    , 21, 
    88 S. Ct. 1868
    , 1880
    (1968); Carmouche v. State, 
    10 S.W.3d 323
    , 328 (Tex. Crim. App. 2000). An
    officer conducts a lawful temporary detention when he or she has reasonable
    suspicion to believe that an individual is violating the law. Crain v. State, 
    315 S.W.3d 43
    , 52 (Tex. Crim. App. 2010); 
    Ford, 158 S.W.3d at 492
    . Reasonable
    suspicion exists when, based on the totality of the circumstances, the officer has
    specific, articulable facts that when combined with rational inferences from those
    facts, would lead the officer to reasonably conclude that a particular person is,
    has been, or soon will be engaged in criminal activity. 
    Ford, 158 S.W.3d at 492
    .
    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. 
    Id. 5 Dunn’s
    argument that Whren raised the prerequisite for a traffic stop to
    probable cause is the same argument that was advanced by the defendant in
    United States v. Lopez-Soto, and we agree with the Ninth Circuit’s response:
    Lopez-Soto argues that the Supreme Court’s decision in Whren . . .
    stands for the proposition that an officer must have probable cause
    to make a traffic stop. He relies on the Court’s observation that, “[a]s
    a general matter, the decision to stop an automobile is reasonable
    where the police have probable cause to believe that a traffic
    violation has occurred.”
    Prior to Whren, it was settled law that reasonable suspicion is
    enough to support an investigative traffic stop.
    ....
    We do not believe that the Court in Whren intended to change
    this settled rule. The passage on which Lopez-Soto relies tells us
    only that probable cause is sufficient to support a traffic stop, not
    that it is necessary. If the Supreme Court announced in Whren a
    new rule of law, as Lopez-Soto contends, we would expect it to have
    acknowledged the change and explained its reasoning. Such an
    explanation is notably absent from the Whren opinion. Instead, the
    facts of Whren involved speeding and failure to signal, and the
    parties agreed that, from these facts, the police had probable cause
    to make the disputed stop. This threshold agreement allowed the
    Whren Court to address a different issue, namely the constitutional
    relevance of the officers’ subjective intent in making the stop, to
    which the Court gave sustained attention. Given that probable
    cause was clearly satisfied on the facts before the Court in Whren
    and that the Court directed its focus elsewhere, we do not believe
    that the casual use of the phrase “probable cause” was intended to
    set a new standard.
    . . . [T]he Fourth Amendment requires only reasonable
    suspicion in the context of investigative traffic stops.
    
    205 F.3d 1101
    , 1104–05 (9th Cir. 2000) (citations omitted).
    6
    The Ninth Circuit’s treatment of the argument accords with Texas law. See
    
    Ford, 158 S.W.3d at 492
    (“An officer conducts a lawful temporary detention when
    he has reasonable suspicion to believe that an individual is violating the law.”);
    see also, e.g., Delafuente v. State, 
    414 S.W.3d 173
    , 179 (Tex. Crim. App. 2013)
    (“Taken together, these facts and inferences are sufficient to lead a reasonable
    officer to conclude that appellant was engaged in criminal activity, namely a
    violation of [Texas Transportation Code] Section 545.363(a).”); Abney v. State,
    
    394 S.W.3d 542
    , 548 (Tex. Crim. App. 2013) (“In this case, the State was
    required to show that the officer had reasonable suspicion that Appellant
    committed the traffic violation of driving in the left lane without passing when a
    sign (a traffic control device) prohibited such action.”).
    Because reasonable suspicion is the threshold for a traffic stop, the trial
    court’s jury charge was not erroneous, and we overrule Dunn’s third issue. See
    Sanchez v. State, 
    418 S.W.3d 302
    , 308 (Tex. App.—Fort Worth 2013, pet. ref’d)
    (citing Kirsch v. State, 
    357 S.W.3d 645
    , 649 (Tex. Crim. App. 2012)) (“[I]f [jury-
    charge] error did not occur, our analysis ends.”). We now turn to whether the
    facts support the trial court’s finding that Officer McClain had reasonable
    suspicion to stop Dunn for failing to maintain a single lane of travel.
    B. Motion to Suppress
    We review a trial court’s ruling on the motion to suppress evidence under a
    bifurcated standard of review. 
    Amador, 221 S.W.3d at 673
    ; Guzman v. State,
    
    955 S.W.2d 85
    , 89 (Tex. Crim. App. 1997). In reviewing the trial court’s decision,
    7
    we do not engage in our own factual review. Romero v. State, 
    800 S.W.2d 539
    ,
    543 (Tex. Crim. App. 1990); Best v. State, 
    118 S.W.3d 857
    , 861 (Tex. App.—Fort
    Worth 2003, no pet.). The trial judge is the sole trier of fact and judge of the
    credibility of the witnesses and the weight to be given their testimony. 
    Wiede, 214 S.W.3d at 24
    –25; State v. Ross, 
    32 S.W.3d 853
    , 855 (Tex. Crim. App. 2000),
    modified on other grounds by State v. Cullen, 
    195 S.W.3d 696
    (Tex. Crim. App.
    2006). Therefore, we give almost total deference to the trial court’s rulings on
    (1) questions of historical fact, even if the trial court’s determination of those facts
    was not based on an evaluation of credibility and demeanor, and (2) application-
    of-law-to-fact questions that turn on an evaluation of credibility and demeanor.
    
    Amador, 221 S.W.3d at 673
    ; Montanez v. State, 
    195 S.W.3d 101
    , 108–09 (Tex.
    Crim. App. 2006); Johnson v. State, 
    68 S.W.3d 644
    , 652–53 (Tex. Crim. App.
    2002). But when application-of-law-to-fact questions do not turn on the credibility
    and demeanor of the witnesses, we review the trial court’s rulings on those
    questions de novo. 
    Amador, 221 S.W.3d at 673
    ; Estrada v. State, 
    154 S.W.3d 604
    , 607 (Tex. Crim. App. 2005); 
    Johnson, 68 S.W.3d at 652
    –53.
    Stated another way, when reviewing the trial court’s ruling on a motion to
    suppress, we must view the evidence in the light most favorable to the trial
    court’s ruling. 
    Wiede, 214 S.W.3d at 24
    ; State v. Kelly, 
    204 S.W.3d 808
    , 818
    (Tex. Crim. App. 2006). When the trial court makes explicit fact findings, as here,
    we determine whether the evidence, when viewed in the light most favorable to
    the trial court’s ruling, supports those fact findings. 
    Kelly, 204 S.W.3d at 818
    –19.
    8
    We then review the trial court’s legal ruling de novo unless its explicit fact
    findings that are supported by the record are also dispositive of the legal ruling.
    
    Id. at 818.
    We must uphold the trial court’s ruling if it is supported by the record
    and correct under any theory of law applicable to the case even if the trial court
    gave the wrong reason for its ruling. State v. Stevens, 
    235 S.W.3d 736
    , 740
    (Tex. Crim. App. 2007); Armendariz v. State, 
    123 S.W.3d 401
    , 404 (Tex. Crim.
    App. 2003), cert. denied, 
    541 U.S. 974
    (2004).
    The Transportation Code provides, “An operator on a roadway divided into
    two or more clearly marked lanes for traffic: (1) shall drive as nearly as practical
    entirely within a single lane and (2) may not move from the lane unless that
    movement can be made safely.” Tex. Transp. Code Ann. § 545.060(a)(1)(2)
    (West 2011). Officer McClain saw Dunn drift from his lane twice, which can be
    seen on the video. And contrary to Dunn’s assertion on appeal, the drifting was
    unsafe; Officer McClain as well as another driver had to slow down to avoid
    hitting Dunn.2 Viewing the video and Officer McClain’s testimony in the light most
    2
    Dunn asserts that Officer McClain’s self-described “evasive maneuver”
    involved only taking his foot off the accelerator and did not involve braking or
    making a quick movement. Regardless, deceleration, whether by braking or
    discontinuing acceleration, in response to a weaving driver, is evasive, and
    unsafe weaving does not require that other drivers brake or make quick, furtive
    movements. See Taylor v. Sate, 
    916 S.W.2d 680
    , 681–82 (Tex. App.—Waco
    1996, pet. ref’d) (considering swerving into another lane and almost hitting an
    officers’ vehicle therein to be unsafe driving); see also Yeakley v. State, No. 03-
    09-00584-CR, 
    2011 WL 677391
    , at *4 (Tex. App.—Austin Feb. 25, 2011, pet.
    dism’d) (holding that surrounding drivers’ use of caution to avoid the appellant’s
    weaving vehicle did not render the weaving safe).
    9
    favorable to the trial court’s ruling, see 
    Wiede, 214 S.W.3d at 24
    ; 
    Kelly, 204 S.W.3d at 818
    –19, 
    Montanez, 195 S.W.3d at 109
    , we conclude that the record
    supports the trial court’s ruling. We overrule Dunn’s first issue.
    IV. VERACITY OF AFFIDAVIT STATEMENTS
    Dunn’s second issue is premised on Franks v. Delaware, in which the
    United States Supreme Court held,
    [W]here the defendant makes a substantial preliminary showing that
    a false statement knowingly or intentionally, or with reckless
    disregard for the truth, was included by the affiant in the warrant
    affidavit, and if the alleged false statement is necessary to the
    finding of probable cause, the Fourth Amendment requires that a
    hearing be held at the defendant’s request.
    
    438 U.S. 154
    , 155–56, 
    98 S. Ct. 2674
    , 2675 (1978).
    In conducting a Franks suppression review, we use the same bifurcated
    review outlined in the previous section, giving almost total deference to the trial
    court’s rulings on questions of historical fact and application-of-law-to-fact
    questions that turn on an evaluation of credibility and demeanor while reviewing
    de novo application-of-law-to-fact questions that do not turn on credibility and
    demeanor. Davis v. State, 
    144 S.W.3d 192
    , 201 (Tex. App.—Fort Worth 2004,
    pet. ref’d) (op. on reh’g). An affidavit supporting a search warrant begins with the
    presumption of validity. 
    Franks, 438 U.S. at 171
    , 98 S. Ct. at 2684; Cates v.
    State, 
    120 S.W.3d 352
    , 355 (Tex. Crim. App. 2003). It is the defendant’s burden
    to rebut that presumption by proving by a preponderance of the evidence that the
    affiant made false statement deliberately or with a reckless disregard for the
    10
    truth. 
    Franks, 438 U.S. at 156
    , 
    171, 98 S. Ct. at 2676
    , 2684; 
    Davis, 144 S.W.3d at 201
    . The defendant must also show that absent the false information, the
    remaining content is insufficient for probable cause. 
    Franks, 438 U.S. at 156
    ,
    
    171–72, 98 S. Ct. at 2676
    , 2684–85; 
    Davis, 144 S.W.3d at 201
    ; see 
    Cates, 120 S.W.3d at 356
    .
    In its findings of fact and conclusions of law, the trial court stated that the
    affidavit statements were all borne out by the testimony at the suppression
    hearing and that there was no proof that Officer McClain deliberately made false
    statements or made statements with a reckless disregard for the truth. Dunn
    disagrees,   challenging   several   of   the   affidavit   statements   and   noted
    observations, including the statement that Dunn drifted into Officer McClain’s
    lane and almost collided with his patrol vehicle, that appellant had a strong odor
    of alcohol, that Dunn “spoke with a thick tongue[,]” that Dunn’s clothing was
    disorderly, that Dunn swayed and staggered, and that Dunn had an
    uncooperative attitude.    Having already determined that the video supports
    Officer McClain’s description of Dunn drifting into his lane in an unsafe manner,
    this statement in the affidavit is not false. See 
    Franks, 438 U.S. at 156
    , 
    171–72, 98 S. Ct. at 2676
    , 2684–85 (instructing that information that is proven to be false
    and to have been made intentionally, knowingly, or with a reckless disregard for
    the truth is to be omitted and the rest of the affidavit reviewed for probable
    cause); 
    Davis, 144 S.W.3d at 201
    (same); see 
    Cates, 120 S.W.3d at 356
    (same).
    11
    Officer McClain’s observations in his affidavit that Dunn’s eyes were bloodshot,
    red, and watery were not challenged before the trial court or on appeal.
    The only evidence that Dunn claims establishes the falsity of Officer
    McClain’s affidavit and testimony is the video of the stop. We note, however, that
    the video sheds no light on Officer McClain’s assertion that Dunn smelled
    strongly of alcohol. Moreover, although slight swaying is arguably visible on the
    video, in general the subtleties of swaying, slight staggering, and even speaking
    “thick-tongued” are not always amenable to being captured by a video camera
    installed in an officer’s patrol vehicle parked several feet away, especially when
    the stop occurs when it is dark outside as in this case, or by the audio equipment
    worn by the officer. See Tucker v. State, 
    369 S.W.3d 179
    , 187 n.1 (Tex. Crim.
    App. 2012) (Womack, J., concurring) (noting that the evidentiary value of video
    evidence often depends on other factors because “[t]he clarity of the video is
    often dependent on the lighting, angle or focus of the camera, or the camera’s
    distance from the object recorded” and “[t]he audio may be inaudible due to the
    tone of the speaker, static, or other background noise”). Viewing the video in the
    light most favorable to the trial court’s ruling, it supports the court’s implicit finding
    that the officer’s affidavit statements were accurate. See 
    id. at 185
    (“The court of
    appeals should view the video in the light most favorable to the trial court’s ruling
    and assume that the trial court made implicit findings that support the denial of
    Appellant’s motion to suppress.”); 
    Montanez, 195 S.W.3d at 109
    .
    12
    Even assuming that the video evidence did not corroborate Officer
    McClain’s affidavit and testimony as implicitly found by the trial court, it did not
    disprove his affidavit or testimony or expose a deliberate falsehood or reckless
    disregard for the truth.   Dunn’s belief that the video did not support Officer
    McClain’s affidavit statements—which Dunn characterizes on appeal as Officer
    McClain’s “purely subjective” opinions—is the type of suspicion better channeled
    into a robust cross-examination rather than serving as a foundation for a Franks
    hearing. See 
    Franks, 438 U.S. at 171
    , 98 S. Ct. at 2684 (“[T]he challenger’s
    attack must be more than conclusory and must be supported by more than a
    mere desire to cross-examine.”). In short, without more evidence, Dunn failed to
    rebut the affidavit’s presumption of validity with a preponderance of the evidence
    showing Officer McClain made false statements deliberately or with a reckless
    disregard for the truth. 
    Franks, 438 U.S. at 156
    , 
    171, 98 S. Ct. at 2676
    , 2684;
    
    Cates, 120 S.W.3d at 355
    ; 
    Davis, 144 S.W.3d at 201
    . And we must respect the
    trial court’s finding that Officer McClain was credible at the hearing, see 
    Davis, 144 S.W.3d at 201
    , and implicit finding that the video supported Officer McClain’s
    affidavit statements, see 
    Tucker, 369 S.W.3d at 185
    . Accordingly, we overrule
    Dunn’s second issue.
    13
    V. CONCLUSION
    Having overruled Dunn’s three issues, we affirm the trial court’s judgment.
    /s/ Sue Walker
    SUE WALKER
    JUSTICE
    PANEL: GARDNER, WALKER, and GABRIEL, JJ.
    PUBLISH
    DELIVERED: May 21, 2015
    14
    

Document Info

Docket Number: NO. 02-14-00059-CR

Citation Numbers: 478 S.W.3d 736, 2015 Tex. App. LEXIS 5196

Judges: Gardner, Walker, Gabriel

Filed Date: 5/21/2015

Precedential Status: Precedential

Modified Date: 11/14/2024

Authorities (21)

State v. Ross , 2000 Tex. Crim. App. LEXIS 101 ( 2000 )

Cates v. State , 2003 Tex. Crim. App. LEXIS 829 ( 2003 )

Wiede v. State , 2007 Tex. Crim. App. LEXIS 100 ( 2007 )

Romero v. State , 1990 Tex. Crim. App. LEXIS 186 ( 1990 )

Crain v. State , 2010 Tex. Crim. App. LEXIS 794 ( 2010 )

Franks v. Delaware , 98 S. Ct. 2674 ( 1978 )

Carmouche v. State , 2000 Tex. Crim. App. LEXIS 8 ( 2000 )

United States of America,plaintiff-Appellee v. Armando ... , 205 F.3d 1101 ( 2000 )

State v. Kelly , 2006 Tex. Crim. App. LEXIS 2060 ( 2006 )

State v. Cullen , 2006 Tex. Crim. App. LEXIS 1281 ( 2006 )

Torres v. State , 2005 Tex. Crim. App. LEXIS 2038 ( 2005 )

Young v. State , 2009 Tex. Crim. App. LEXIS 979 ( 2009 )

Davis v. State , 2004 Tex. App. LEXIS 7089 ( 2004 )

Whren v. United States , 116 S. Ct. 1769 ( 1996 )

Estrada v. State , 2005 Tex. Crim. App. LEXIS 112 ( 2005 )

Ford v. State , 2005 Tex. Crim. App. LEXIS 399 ( 2005 )

Best v. State , 2003 Tex. App. LEXIS 8346 ( 2003 )

Johnson v. State , 2002 Tex. Crim. App. LEXIS 17 ( 2002 )

Montanez v. State , 2006 Tex. Crim. App. LEXIS 830 ( 2006 )

Armendariz v. State , 123 S.W.3d 401 ( 2003 )

View All Authorities »