Opinion
NUMBER 13-16-00188-CR
01-19-2017
HUAN TUONG DU, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the County Court at Law No. 5 of Fort Bend County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Contreras, and Longoria
Memorandum Opinion by Justice Rodriguez
Justice Dori Contreras, formerly Dori Contreras Garza. See TEX. FAM. CODE ANN. § 45.101 et seq. (West, Westlaw through 2015 R.S.).
Appellant Huan Tuong Du filed a pretrial motion to suppress evidence obtained during a traffic stop. When the motion was denied, Du pleaded guilty to driving while intoxicated. On appeal, Du challenges the denial of his motion to suppress, arguing that the State failed to meet its burden to demonstrate reasonable suspicion. We affirm.
This case is before the Court on transfer from the Fourteenth Court of Appeals in Houston pursuant to an order issued by the Supreme Court of Texas. See TEX. GOV'T. CODE ANN. § 73.001 (West, Westlaw through 2015 R.S.). Because this is a transfer case, we apply the precedent of the Fourteenth Court of Appeals to the extent it differs from our own. See TEX. R. APP. P. 41.3.
I. BACKGROUND
At the suppression hearing, the State alleged that Du had committed two traffic violations in view of the arresting officer: driving on an improved shoulder and violating the "Move Over Act" (the Act). The Act requires motorists to take specific precautions when passing stationary emergency vehicles which have their emergency lights activated. See TEX. TRANSP. CODE ANN. § 545.157 (West, Westlaw through 2015 R.S.). When, as in this case, the roadway is a multi-lane highway with a posted speed limit of 65 miles per hour, a passing motorist must either vacate the lane nearest to the emergency vehicle or slow to a speed twenty miles per hour less than the posted speed limit. Id. The State argued that either violation was sufficient to establish reasonable suspicion to temporarily detain Du.
The sole witness at the suppression hearing was the arresting officer, Kevin Longtin. The State also introduced video of Du's arrest and the events leading up to it, as captured by the patrol vehicle's dashboard camera.
Longtin testified that the events in question began on the night of December 19, 2014, when he was conducting a traffic stop of another driver. Longtin's patrol vehicle was stationary on the shoulder of Highway 59 near Sugar Land, Texas, behind the other driver's vehicle. The patrol vehicle's overhead lights were on during this traffic stop. Longtin completed the stop and returned to his vehicle. He then turned off his front- facing emergency lights, but his rear-facing emergency lights remained active. According to Longtin, he never turned off his rear-facing lights in such situations—reentering the flow of highway traffic at night—because doing so would put him and other motorists at risk.
While Longtin and the other driver waited to drive back onto the highway, Du drove by in the right lane, nearest to Longtin. It is undisputed that the speed limit on that section of the highway was 65 miles an hour. Longtin estimated Du's speed to be "above 45 miles per hour" as he passed the patrol car. However, Longtin conceded that Du applied his brakes either as he passed Longtin or immediately after and that he did not verify Du's speed on radar or by pacing him. As Longtin pursued Du down Highway 59, he witnessed Du briefly weave out of the right lane twice, onto the improved shoulder. Longtin then initiated a traffic stop.
Review of the patrol-vehicle video confirms much of Longtin's testimony. The video also shows that after Longtin initiated the traffic stop, he asked Du why he had been weaving in and out of his lane. However, the video does not clearly show any point where Du crossed over the line onto the improved shoulder, as Longtin testified. Longtin attested this was simply due to the video's low quality, which did not compare to the human eye.
Du was then arrested and charged with driving while intoxicated. Prior to trial, Du moved to suppress the evidence stemming from the traffic stop. He argued that the State had not carried its burden to demonstrate reasonable suspicion based on either traffic offense. The trial court denied his motion, and Du pleaded guilty. By one issue on appeal, Du challenges the trial court's denial of his motion to suppress.
II. STANDARD OF REVIEW
A trial court's denial of a motion to suppress is reviewed under a bifurcated standard of review. Brodnex v. State, 485 S.W.3d 432, 436 (Tex. Crim. App. 2016). We afford almost complete deference to the trial court's determination of historical facts, especially if those are based on an assessment of credibility and demeanor. Id. However, we conduct a de novo review of mixed questions of law and fact that do not hinge on credibility or demeanor determinations. Id. "Although the trial court is the sole factfinder at the suppression hearing, we 'review de novo whether the totality of circumstances is sufficient to support an officer's reasonable suspicion of criminal activity.'" Id. at 437 (quoting Crain v. State, 315 S.W.3d 43, 48-49 (Tex. Crim. App. 2010)). If the trial court does not make express findings of fact, we view the evidence in the light most favorable to the trial court's rulings, and we will assume it made any implicit findings of fact that are supported by the record. Crain, 315 S.W.3d at 48.
III. REASONABLE SUSPICION
An officer conducts a lawful temporary detention when he has reasonable suspicion to believe that an individual is violating the law. Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). Reasonable suspicion exists if 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 actually is, has been, or soon will be engaged in criminal activity. Brodnex, 485 S.W.3d at 437. 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 based on the totality of the circumstances. Wade v. State, 422 S.W.3d 661, 668 (Tex. Crim. App. 2013). In deciding whether an officer had a reasonable suspicion, we examine the facts that were available to the officer at the time of the investigative detention. Brodnex, 485 S.W.3d at 437. If it is determined that there was not a reasonable suspicion on which to detain an individual, then the investigative detention violates the Fourth Amendment. Id.
IV. VIOLATION OF THE MOVE OVER ACT
Du raises three arguments to challenge the State's allegations related to the Act. He first argues that under the Act, the vehicle's emergency lights must be used in a precise fashion: all of the emergency lights mentioned in section 547.702 must be active at once. According to Du, the evidence establishes that Longtin did not use the lights in the required fashion, and the Act therefore does not apply.
The Act provides in part:
(a) This section applies only to the following vehicles:
(1) a stationary authorized emergency vehicle using visual signals that meet the requirements of Sections 547.305 and 547.702;
. . . .
(b) On approaching a vehicle described by Subsection (a), an operator, unless otherwise directed by a police officer, shall:
(1) vacate the lane closest to the vehicle when driving on a highway with two or more lanes traveling in the direction of the vehicle; or
(2) slow to a speed not to exceed:
TEX. TRANSP. CODE ANN. § 545.157. Du emphasizes the phrase "using visual signals that meet the requirements of Sections 547.305 and 547.702," and he directs our attention to the following language from section 547.702:(A) 20 miles per hour less than the posted speed limit when the posted speed limit is 25 miles per hour or more; or
(B) five miles per hour when the posted speed limit is less than 25 miles per hour.
(c) Except as provided by this section, an authorized emergency vehicle shall be equipped with signal lamps that:
Id. § 547.702(c) (West, Westlaw through 2015 R.S.). According to Du, the Act only applies when an emergency vehicle is using all of the emergency lights described in subsection (c). See id. During the hearing, Longtin conceded that only his rear emergency lights were in use when Du passed by.(1) are mounted as high and as widely spaced laterally as practicable;
(2) display four alternately flashing red lights, two located on the front at the same level and two located on the rear at the same level; and
(3) emit a light visible at a distance of 500 feet in normal sunlight.
However, Du neglects to mention subsection (f) of the same section, which provides that a "police vehicle may, but is not required to, be equipped with signal lamps that comply with Subsection (c)." Id. § 547.702(f). That is, the vehicle must be "using visual signals that meet the requirements of Section[] . . . 547.702," but section 547.702 places no "requirements" on the lights which must be equipped on police vehicles. Thus, it is sufficient that Longtin used those "visual signals" which were necessary to fulfill the purpose of the visual signals requirement: to notify approaching motorists of the need to drive cautiously in the presence of an emergency vehicle. See id.
Instead, Du appears to read the statute as if it provided that emergency vehicle must be "using [all of the] visual signals that [are mentioned in] Sections 547.305 and 547.702." Cf. TEX. TRANSP. CODE ANN. § 545.157. This interpretation is incompatible with the plain language of the statute and would also lead to an absurd result. See Ex parte Perry, 483 S.W.3d 884, 902 (Tex. Crim. App. 2016) ("In construing a statute, we give effect to the plain meaning of its language unless the language is ambiguous or the plain meaning leads to absurd results that the legislature could not have possibly intended."). If, as Du contends, police officers were required to use all of the lights mentioned in subsection (c) in order for the Act to apply, then any police department which took subsection (f) at face value would risk forfeiting the Act's protection entirely: police departments could choose to forego equipping their vehicles with subsection (c) lights, but they would be incapable of "using" all of those "visual signals" and would lose the protection of the Act, likely unwittingly. We do not believe that the Legislature could have intended to lay a subtle trap for the very police officers that the Act was intended to protect. Instead, there is nothing in the plain language of the statute which says that a police officer's use of emergency lights under section 545.157 must be coextensive with whatever lights are mentioned in section 547.702(c), whether or not the police vehicle must be equipped with those lights. We conclude that Du's first argument has no merit.
Second, Du argues that Longtin's only testimony about speed was "conclusory" testimony on a subjective topic, which is unacceptable under the rules laid out in Ford. See 158 S.W.3d at 493. We find Ford to be distinguishable. The arresting officer in Ford testified only that he stopped the defendant for "following too close" to another vehicle. Id. at 491. Beyond this label, the arresting officer did not provide any factual detail or discuss any of the statutory factors which were to be considered in determining whether a car is following too closely: the speed of the vehicles, traffic, the conditions of the highway, and whether the driver could safely stop. See id. at 490-91; Castro v. State, 227 S.W.3d 737, 741 (Tex. Crim. App. 2007) (discussing Ford); see also TEX. TRANSP. CODE ANN. § 545.062 (West, Westlaw through 2015 R.S.).
By comparison, Longtin discussed the factual situation at length. During direct examination, he walked the trial court through the video of the events step by step, explaining his range of considerations at each moment. For instance, Longtin discussed the moments when he first saw Du's truck passing by his vehicle close enough to "almost hit[] [his] side view mirror," whereupon he explained "I stated in my report that if I would have reached out my hand it would have been taken off." As to the evaluation of Du's speed, Longtin stated that based on his seven years of experience in gauging speed and verifying it using his radar, he had developed the ability to accurately assess a driver's speed by sight. Based on this ability and his training in accident reconstruction, he felt certain that Du's speed was greater than the allowable limit at the moment he observed Du pass. Longtin also stated that Du was driving roughly the same speed as nearby traffic, that the relevant speed limit was 65 miles per hour, and that soon after Du passed by, he applied his brakes. An officer's personal observation of a driver's speed may be sufficient to establish reasonable suspicion, so long as that observation is relayed in terms of the facts that make up the offense rather than the conclusions which overlay it. See Dillard v. State, 550 S.W.2d 45, 53 (Tex. Crim. App. 1977) (op. on reh'g); Gutierrez v. State, 327 S.W.3d 257, 263 (Tex. App.—San Antonio 2010, no pet.); McAfee v. State, 204 S.W.3d 868, 870 (Tex. App.—Corpus Christi 2006, pet. ref'd) (en banc); Icke v. State, 36 S.W.3d 913, 915-16 (Tex. App.—Houston [1st Dist.] 2001, pet. ref'd). Longtin articulated specific facts rather than the type of bare conclusions which will not suffice under Ford. See 158 S.W.3d at 493. Du's second argument is therefore without merit.
Third, Du argues that there was no evidence establishing when Longtin came to believe that Du's speed was greater than 45 miles per hour: before the traffic stop, when this belief could support reasonable suspicion, or after the traffic stop, when it could not. Du refers to the rule that "[i]nformation that the officer either acquired or noticed after a detention or arrest cannot be considered. A detention is either good or bad at the moment it starts." State v. Duran, 396 S.W.3d 563, 569-70 (Tex. Crim. App. 2013). According to Du, the detention was therefore "bad at the moment it start[ed]." See id. at 570. We disagree. As the patrol-vehicle video was played in court, the State asked Longtin to discuss Du's speed and weaving as they happened, by reference to various stages in the video. Longtin explained his speed estimate by reference to the early scenes of the video when Du was first passing Longtin's vehicle, not by reference to any events after the detention had begun. When the video reached the moment when the traffic stop was initiated, the State drew out the following testimony:
Q. Okay. At this point, you're pulling him over because he failed to get into the other lane; he failed to slow down to at least 45 and your emergency lights were activated at that point, and he also started to drive on the improved shoulder?In light of Longtin's time-specific explanation of his speed assessment, we find Du's third argument to be without merit.
A. Yes, ma'am.
Instead, the totality of the circumstances support a reasonable suspicion that Du had has been engaged in criminal activity, which justified the traffic stop. See Brodnex, 485 S.W.3d at 437. The trial court did not err in denying Du's motion to suppress. See id. at 436. We overrule Du's sole issue on appeal.
This being the case, we need not address Du's remaining argument, which concerns the offense of driving on an improved shoulder. See Ex parte Reyes, 474 S.W.3d 677, 680 (Tex. Crim. App. 2015) ("An appellate court is not required to address issues that become moot because of the resolution of other issues."); see also TEX. R. APP. P. 47.1.
V. CONCLUSION
We affirm the judgment of the trial court.
NELDA V. RODRIGUEZ
Justice Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 19th day of January, 2017.