State of Texas v. Dixon, II, Richard Raymond ( 2006 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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PD-0077-05

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THE STATE OF TEXAS

v.

RICHARD RAYMOND DIXON, II, Appellee

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On Discretionary Review of Case 06-03-00217-CR of the Sixth Court of Appeals Lamar County

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Womack, J., filed a dissenting opinion, in which Keller, P.J., and Keasler, J., joined.

As the Court's opinion points out, ante at 6-7, the Court of Appeals' opinion fell into the ditch by attributing more importance to the issue of the officers' delay in stopping the appellant than the record will bear. I fear that this Court's opinion may be running into the ditch on the other side of the road.

As the Court's opinion says, ante at 5, we should "give almost total deference to a trial court's express or implied determination of historical facts and review de novo the trial court's application of the law … to those facts."

I agree with the Court's statement, ante at 8: "The trial judge made it clear that he believed the turns made by appellee were lawful, so no traffic violation was committed and the stop was not valid." That belief was expressly stated at the beginning of the trial court's Finding of Fact and Conclusion of Law Number 7, ante at 3: "The right hand turn and the left hand turn were lawful turns …."

The problem, with which this Court's opinion does not deal, is that we cannot tell whether the trial judge's belief was a finding of fact, to which we owe almost total deference, or a conclusion of law, to which we owe none.

If Number 7 was a finding of fact that the turns were legal because the appellee did signal his intention to turn each time, we are bound to accept that finding. But is it not remarkable that the word "signal" appears nowhere in the findings of fact and conclusions of law?

Is the Court overlooking the significance of the rest of the words in Number 7? "The right hand turn and the left hand turn were lawful turns from designated turn lanes that allowed those lanes to be used for turn only." Do those words not suggest that the trial court concluded, as a matter of law, that a driver may turn from a dedicated turn lane without signaling? Such a conclusion would be reviewed de novo.

Are not the trial court's oral statements more consistent with a conclusion of law than a finding that the officers were lying about the absence of turn signals? The judge said (see ante at 7):

Even though they may be testifying they stopped him for a traffic offense, the court's not bound by that. I don't care what they say they stopped him for. If I find there was an legal [illegal?] basis for it, I think that's what I have to make my ruling on. It seems to me that the traffic stop, if the facts you recite are correct and he made two turns from dedicated turn lanes on the light, I would not think there was any valid traffic stop.

I have inserted the word "illegal" in the third sentence because it seems more likely to be what the judge said, in light of the fourth sentence. And the fourth sentence is consistent with a conclusion of law about the requirement to signal from a dedicated turn lane, and inconsistent with a finding of fact that the appellant did signal.

The case well could turn on a conclusion of law, not a finding of fact. The question could be resolved easily by a remand to the trial court.

I respectfully dissent.

Filed February 15, 2006.

Publish.