Fernandez v. State

• Decision Date: 11 February 2010
• Docket Number: No. 2-08-388-CR.,2-08-388-CR.
• Citation: 306 SW 3d 354
• Parties: Samuel Cendejas FERNANDEZ, Appellant, v. The STATE of Texas, State.
• Court: Texas Court of Appeals

306 S.W.3d 354

Samuel Cendejas FERNANDEZ, Appellant, v. The STATE of Texas, State.

No. 2-08-388-CR.

Court of Appeals of Texas, Fort Worth.

February 11, 2010.

Dunham & Rogers, P.C., C. Mark Nelon, Forth Worth, for Appellant.

Joe Shannon, Jr., Criminal District Attorney, Charles M. Mallin, Assistant Criminal District Attorney, Chief of Appellate Section, Helena F. Faulkner, Dawn Ferguson, Tarrant County, for the State.

PANEL: LIVINGSTON, DAUPHINOT, and McCOY, JJ.

OPINION

TERRIE LIVINGSTON, Justice.

In two related issues, appellant Samuel Cendejas Fernandez appeals his conviction for driving while intoxicated (DWI),¹ contending that the police did not have reasonable suspicion to stop his pickup. We affirm.

Background Facts

A few minutes after two o'clock on the morning of September 14, 2007, on Camp Bowie Boulevard, Fort Worth Police Officer Kenneth Simmons heard Fernandez's black pickup loudly squeal its tires and saw light smoke coming from the tires as the pickup fishtailed about two feet outside of its lane of traffic. Because he concluded that Fernandez was traveling without control and unsafely, Officer Simmons immediately went to his own car, drove behind Fernandez's pickup, and initiated a traffic stop. The traffic stop led to the State's charging Fernandez with DWI.

Fernandez filed several pretrial motions, including a motion to suppress all evidence obtained following the police's stop of his pickup because the police allegedly made the stop without a search warrant or any reasonable suspicion of criminal activity. The trial court denied Fernandez's motion to suppress, and then Fernandez entered an open plea of nolo contendere, received a sentence of thirty days' confinement and a $750 fine, and filed his notice of appeal. The State asked the trial court to enter findings of fact and conclusions of law related to the suppression issue, and the trial court did so by adopting the State's suggested findings and conclusions.

The Legality of Fernandez's Detention

In his first issue, Fernandez argues that the trial court erred by denying his motion to suppress and finding that Officer Simmons had reasonable suspicion to pull him over and detain him for, among other offenses, reckless driving.

Standard of review

We review a trial court's ruling on a motion to suppress evidence under a bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex.Crim.App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). In reviewing the trial court's decision, 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 v. State, 214 S.W.3d 17, 24-25 (Tex.Crim. App.2007); 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, 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. 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 819. 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, 124 S.Ct. 1883, 158 L.Ed.2d 469 (2004).

Applicable law and analysis

"An officer must have probable cause to stop a vehicle and arrest the driver for a traffic violation without a warrant." State v. Ballman, 157 S.W.3d 65, 70 (Tex.App.-Fort Worth 2004, pet. ref'd); see State v. Ballard, 987 S.W.2d 889, 892 (Tex.Crim.App.1999). Alternatively, an officer may stop and detain a driver, rather than arrest the driver, on reasonable suspicion of criminal activity. Tex. Dep't of Public Safety v. Gilfeather, 293 S.W.3d 875, 879-80 (Tex.App.-Fort Worth 2009, no pet.) (en banc op. on reh'g) (holding that an officer's stop of a car was justified because the officer reasonably suspected the offense of speeding); Fowler v. State, 266 S.W.3d 498, 502 (Tex.App.-Fort Worth 2008, pet. ref'd) (en banc); see Terry v. Ohio, 392 U.S. 1, 20-22, 88 S.Ct. 1868, 1879-80, 20 L.Ed.2d 889 (1968); Ford v. State, 158 S.W.3d 488, 492 (Tex.Crim.App. 2005); Carmouche v. State, 10 S.W.3d 323, 328-29 (Tex.Crim.App.2000); Bracken v. State, 282 S.W.3d 94, 97-99 (Tex.App.-Fort Worth 2009, pet. ref'd). 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 him 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.

Reasonable suspicion 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. In other words, "the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action." Garcia v. State, 827 S.W.2d 937, 942 n. 5 (Tex.Crim.App.1992) (quoting Scott v. United States, 436 U.S. 128, 138, 98 S.Ct. 1717, 1723, 56 L.Ed.2d 168 (1978)); see also State v. Patterson, 291 S.W.3d 121, 123 (Tex.App.-Amarillo 2009, no pet.) (explaining that the "subjective reasons uttered by the officer to legitimize the stop have no bearing on the outcome if the totality of the circumstances nonetheless would lead a police officer to reasonably suspect that crime is afoot").

"It is well settled that a traffic violation committed in an officer's presence authorizes an initial stop." Armitage v. State, 637 S.W.2d 936, 939 (Tex.Crim.App. Panel Op. 1982); see Walter v. State, 28 S.W.3d 538, 542 (Tex.Crim.App.2000). The State "is not required to show a traffic offense was actually committed, but only that the officer reasonably believed a violation was in progress." Tex. Dep't of Pub. Safety v. Fisher, 56 S.W.3d 159, 163 (Tex. App.-Dallas 2001, no pet.); see Tex. Dep't of Pub. Safety v. Axt, 292 S.W.3d 736, 739 (Tex.App.-Fort Worth 2009, no pet.).

One of the trial court's conclusions of law states that Officer Simmons had reasonable suspicion that Fernandez had committed the traffic offense of reckless driving. A person commits that offense when the person drives a vehicle in willful or wanton disregard for the safety of persons or property. Tex. Transp. Code Ann. § 545.401(a) (Vernon 1999). "In the context of reckless driving, `willful and wanton disregard' means the `deliberate and conscious indifference to the safety of others.'" Brown v. State, 183 S.W.3d 728, 733 (Tex.App.-Houston 1st Dist. 2005, pet. ref'd). Obviously, "proof of an evil or malicious intent is not an element of reckless driving." White v. State, 647 S.W.2d 751, 753 (Tex.App.-Fort Worth 1983, pet. ref'd). The trial court adopted the following findings of fact that support its reckless driving conclusion:

• "Officer Simmons saw Fernandez's vehicle rapidly accelerate in speed, causing the vehicle to fishtail and the tires to cross over the divider lane approximately two feet";

• "Officer Simmons heard Fernandez's vehicle make a loud screech and observed smoke coming from the tires as a result of the tires squealing";

• "At the time of the offense, there was other traffic traveling on Camp Bowie..., and Fernandez could have possibly wrecked into somebody when his car crossed over into other lanes of traffic"; and

• "Officer Simmons described the driving behavior as unsafe and typical of someone who is not in control of their vehicle."

The record, when viewed in the light most favorable to the court's ruling, supports these findings. See Wiede, 214 S.W.3d at 24; Kelly, 204 S.W.3d at 818-19. Fernandez argues (and the dissenting opinion asserts), however, that the testimony does not identify vehicles alongside, nor in proximity to him when he fishtailed and that the facts therefore still do not amount to reasonable suspicion of reckless driving. But Officer Simmons testified that there was other traffic on the same street as Fernandez when he went into more than one lane of traffic, that Fernandez put other drivers in "danger" because he "could have possibly wrecked," and, most importantly, that there were "maybe three" cars immediately in the vicinity of Fernandez's pickup.² Fort Worth Police Officer ...