State v. Hopper

• Decision Date: 25 November 1992
• Docket Number: No. 08-92-00029-CR,08-92-00029-CR
• Citation: 842 S.W.2d 817
• Parties: The STATE of Texas, Appellant, v. Edward Russell HOPPER, Appellee.
• Court: Texas Court of Appeals

Page 817

842 S.W.2d 817

The STATE of Texas, Appellant, v. Edward Russell HOPPER, Appellee.

No. 08-92-00029-CR.

Court of Appeals of Texas El Paso.

Nov. 25, 1992.

Mark H. Dettman, County Atty., Midland, for appellant.

Christopher McCormack, Midland, for appellee.

Before OSBORN, C.J., and KOEHLER and BARAJAS, JJ.

OPINION

KOEHLER, Justice.

In an interlocutory appeal by the State pursuant to Tex.Code Crim.Pro.Ann. art. 44.01(a)(5) (Vernon Supp.1992), a review is sought of the trial court's order suppressing any and all evidence obtained by law enforcement officers from the Appellee, Edward Russell Hopper, during a detention. We affirm.

In Point of Error No. One, the State argues the trial court applied an incorrect standard to determine the validity of the stop and erred in finding insufficient evidence to support the temporary detention of the Appellee. In Point of Error No. Two, the State argues the trial court incorrectly based its decision on the concept of a pretext stop. Appellee has not filed a brief in this cause.

Factual Background

In the hearing on Appellee's motion to suppress held on April 15, 1991, the following evidence was derived. At approximately 2:45 a.m. on September 12, 1990, Midland Police Officer Victor Rivera was on patrol in his assigned district when he saw a car turn a nearby corner at excessive speed. As Rivera pursued the car, Rivera stated that the car continued to be driven at a high rate of speed; however, the record does not reflect any particular speed Rivera believed the subject vehicle to be travelling. The car was about five blocks in front of Rivera when he noticed it stop at an intersection and make a U-turn. After the car passed Rivera going in the opposite direction, Rivera turned and proceeded to stop it. After the stop, Rivera started to administer some unspecified sobriety tests on the driver, Edward Russell Hopper, Appellee apparently in the belief that he was intoxicated. About that time, Rivera's back-up officer, Rene Flores, arrived and Rivera having recognized Appellee as the same person he had arrested on a driving while intoxicated charge on August 18, 1990, asked Flores to do the sobriety tests. According to Rivera, Flores conducted some (also unspecified) field sobriety tests and arrested Hopper for driving while intoxicated. No citations were issued nor did Rivera consider giving citations for any of the suggested traffic violations.

Appellee filed a motion to suppress any and all evidence stemming from the detention which he claimed was made without a warrant and without probable cause. Furthermore, Appellee alleged that the stop was pretextual and that as a result, the eventual arrest was also made without probable cause. After a considerable delay, the trial court on January 28, 1992, entered an order granting Appellee's motion to suppress. The State did not request, nor did the trial court file any findings of fact or conclusions of law. Thereafter, the State perfected this appeal.

Standard of Review

The trial judge is the sole and exclusive trier of facts at a hearing on a motion to suppress. Romero v. State, 800 S.W.2d 539 (Tex.Crim.App.1990); Cannon v. State, 691 S.W.2d 664 (Tex.Crim.App.1985), cert. denied, 474 U.S. 1110, 106 S.Ct. 897, 88 L.Ed.2d 931 (1986); State v. Wood, 828 S.W.2d 471, 474 (Tex.App.--El Paso 1992, no pet.). On appeal, where the trial court has made fact findings, a reviewing court does not engage in its own factual review but decides only whether the trial judge's fact findings are supported by the record. Lucas v. State, 791 S.W.2d 35, 47 (Tex.Crim.App.1989). Since the trial court did not make any findings of fact from which it could conclude that the evidence was inadmissible, we are constrained to review the entire record to ascertain whether there are any facts which lend support for any theory upon which the trial court's ruling can be sustained. If the facts are uncontroverted, as is true in this case, the sufficiency of the evidence to justify a temporary, warrantless detention or arrest is a question of law. Cf. Nickerson v. State, 645 S.W.2d 888, 890 (Tex.App.--Dallas), aff'd, 660 S.W.2d 825 (Tex.Crim.App.1983). We address only the question of whether the trial court improperly applied the law to the facts. Romero v. State, 800 S.W.2d at 543; Self v. State, 709 S.W.2d 662 (Tex.Crim.App.1986); Johnson v. State, 698 S.W.2d 154, 159 (Tex.Crim.App.1985), cert. denied, 479 U.S. 871, 107 S.Ct. 239, 93 L.Ed.2d 164 (1986).

If the trial judge's decision is correct on any theory of law applicable to the case, it will be sustained. Romero, 800 S.W.2d at 543; Spann v. State, 448 S.W.2d 128 (Tex.Crim.App.1969); Moreno v. State, 170 Tex.Crim. 410, 341 S.W.2d 455 (1960); Calloway v. State, 743 S.W.2d 645 (Tex.Crim.App.1988). This principle holds true even though the trial judge gives the wrong reason for his decision, Salas v. State, 629 S.W.2d 796 (Tex.App.--Houston [14th Dist.] 1981, no pet.), and is especially true with regard to the admission of evidence. Romero, 800 S.W.2d at 543; Dugard v. State, 688 S.W.2d 524 (Tex.Crim.App.1985). In the instant case, the trial court did not specify the theory on which he found the evidence to be inadmissible; thus, we need not specifically address the State's second point of error if the ruling can be affirmed on any theory. Therefore, the two points of error will be addressed simultaneously.

Burden of Proof

When a defendant seeks to suppress evidence on the basis of a Fourth Amendment violation, the Court of Criminal Appeals has placed the burden of proof initially upon the defendant. Russell v. State, 717 S.W.2d 7 (Tex.Crim.App.1986); Mattei v. State, 455 S.W.2d 761, 765-66 (Tex.Crim.App.1970). As the movant in a motion to suppress evidence, a defendant must produce evidence that defeats the presumption of proper police conduct and, therefore, shifts the burden of proof to the State. Russell v. State, 717 S.W.2d at 9. A defendant meets his initial burden of proof by establishing that a search or seizure occurred without a warrant. Mattei, 455 S.W.2d at 765-66. See also Wood, 828 S.W.2d at 474-75. Once a defendant has established (1) that a search or seizure occurred and (2) that no warrant was obtained, the burden of proof shifts to the State to produce either evidence of a warrant or to prove the reasonableness of the search or seizure pursuant to one of the recognized exceptions to the warrant requirement. See Wood, 828 S.W.2d at 475.

Analysis

Since the evidence clearly established the absence of a warrant, the burden rested upon the State to prove the existence of a valid exception to the warrant requirement. Initially, our attention is turned to the propriety of the stop of Appellee's car in regard to the alleged traffic violations. As an exception to the warrant requirement, circumstances short of probable cause may justify a temporary investigative detention. See Baeza v. State, 804 S.W.2d 612, 613 (Tex.App.--El Paso 1991, pet ref'd). ¹ In order to justify such a stop, an officer must possess specific articulable facts which amount to more than a mere hunch or suspicion that, combined with his personal experience and knowledge and any logical inferences, create a reasonable suspicion that criminal activity is afoot. See Garza v. State, 771 S.W.2d 549, 558 (Tex.Crim.App.1989); Hoag v. State, 728 S.W.2d 375, 380 (Tex.Crim.App.1987); Baeza, 804 S.W.2d at 613. A brief investigative stop or detention to determine one's identity or to maintain the status quo momentarily to obtain more information may be reasonably dependent upon the totality of the circumstances known to the officer at the time. See Livingston v. State, 739 S.W.2d 311, 326 (Tex.Crim.App.1987), cert. denied, 487 U.S. 1210, 108 S.Ct. 2858, 101 L.Ed.2d 895 (1988); Dickey v. State, 716 S.W.2d 499, 503-04 n. 4 (Tex.Crim.App.1986). The State argues, and we agree, that these principles apply to traffic violations just as they do to other crimes. Townsend v. State, 813 S.W.2d 181, 185 (Tex.App.--Houston [14th Dist.] 1991, pet. ref'd). See also Drago v. State, 553 S.W.2d 375, 377-78 (Tex.Crim.App.1977).

In the instant case, Rivera witnessed Hopper commit what he reasonably perceived to be three traffic violations. First, the potentially hazardous turn made at a high rate of speed evidenced by squealing tires; second, Hopper's continued driving at an excessive speed; and third, Rivera's belief that Hopper made an illegal U-turn. It is indeed reasonable to conclude "that one of the functions of patrol officers is to investigate what they reasonably perceive to be erratic or unsafe driving by motorists on public streets." Townsend, 813 S.W.2d at 185. As to the officer's authority to stop Hopper on less than probable cause, the trial court's suppression of the evidence, as a matter of law, is supportable only upon a finding that Rivera expressed no articulable facts to justify the detention. State v. Como, 821 S.W.2d 742, 744 (Tex.App.--Beaumont 1992, pet. ref'd). Upon the record before us, Rivera's testimony illustrated more than ample specific articulable facts coupled with his experience, knowledge and logical inferences to justify the initial stop with or without probable cause. Townsend, 813 S.W.2d at 185. Thus, the suppression of the evidence is insupportable on this theory.

The next theory upon which Hopper sought to suppress the evidence was on the ground the stop was allegedly pretextual as per Black v. State, 739 S.W.2d 240 (Tex.Crim.App.1987). In dismissing the "pretext arrest" doctrine as no longer viable as a matter of Fourth Amendment jurisprudence, the Court of Criminal Appeals disavowed reliance on the theory announced in Black. Garcia v. State, 827 S.W.2d 937, 940-44 (Tex.Crim.App.1992). In its stead, the Court held that upon the occurrence of an actual violation of the law, police officers are free to enforce the law violated and detain a person for the violation, regardless of the officer's...