Opinion
No. 05-08-00826-CR
Opinion issued July 13, 2009. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the County Criminal Court No. 5, Dallas County, Texas, Trial Court Cause No. MB05-67289-F.
Before Justices WRIGHT, BRIDGES, and FRANCIS.
MEMORANDUM OPINION
A jury convicted David Wayne Labelle of misdemeanor driving while intoxicated, and the trial court assessed punishment at 150 days in the county jail, probated for twenty-four months, and a $750 fine. In two issues, appellant complains the trial court failed to make findings of fact and conclusions of law on his motion to suppress and erred in denying his motion to suppress. We affirm. At the suppression hearing, Dallas Police Officer Tyrone Wall testified he was traveling eastbound on Leisure Street at about 11 p.m. when a pickup, driven by appellant, pulled out onto the street from an apartment complex driveway, forcing Officer Wall to hit his brakes and swerve onto the curb to avoid a collision. Officer Wall said he activated his emergency lights, made a U-turn, and stopped appellant for failing to yield the right of way. Hans DeLeon Smith, a passenger in appellant's vehicle, testified appellant made a complete stop and looked both ways before pulling out onto Leisure Street that night. After appellant made the turn onto Leisure Street, Smith said he saw a police car coming toward them at a "high rate of speed . . .," but they had enough room "to get past it." Smith said at no point did the police car almost hit appellant's vehicle nor did the police car go up on the curb. After hearing the evidence, the trial court denied appellant's motion to suppress evidence based on an unlawful stop. In his first issue, appellant complains that, despite his request, the trial court failed to make findings of fact and conclusions of law regarding the denial of his motion to suppress. After appellant filed his brief, this Court abated the appeal and ordered the trial court to make findings and conclusions regarding the motion to suppress. We have now received the findings and conclusions; accordingly, the first issue is moot. In his second issue, appellant complains the trial court erred in denying his motion to suppress because the arresting officer failed to provide specific, articulable facts to support the lawfulness of the traffic stop, which led to his DWI arrest. In findings of fact and conclusions of law, the trial court determined appellant pulled out of a private driveway that had a crosswalk and failed to yield the right of way to oncoming traffic, violating sections 545.155 and 545.256 of the Texas Transportation Code. The trial court also determined the officer had reasonable suspicion to make a traffic stop of appellant. When a police officer stops a defendant without a warrant and without the defendant's consent, the State has the burden at a suppression hearing of proving the reasonableness of the stop. Russell v. State, 717 S.W.2d 7, 9-10 (Tex.Crim.App. 1986). An officer conducts a lawful temporary detention when he has a 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 reasonable person actually is, has been, or soon will be engaged in criminal activity. Id. This is an objective standard that disregards the subjective belief of the officer making the stop and looks solely to whether an objective basis for the stop exists. Id. A reasonable suspicion determination is made by considering the totality of the circumstances. Id. In evaluating the totality of the circumstances we use a bifurcated standard of review. We give almost total deference to the trial court's determination of historical facts and review de novo the trial court's application of law to facts not turning on credibility and demeanor. Id. Section 545.155 provides that "[a]n operator about to enter or cross a highway from an alley, building, or private road or driveway shall yield the right-of-way to a vehicle approaching on the highway to be entered." Tex. Transp. Code Ann. § 545.155 (Vernon 1999). Section 545.256 provides that "[a]n operator emerging from an alley, driveway, or building in a . . . residence district shall . . . on entering the roadway, yield the right-of-way to an approaching vehicle. Id. at § 545.256. Appellant argues the State failed to adduce evidence of specific, articulable facts to establish appellant failed to yield the right of way. Specifically, he argues Officer Wall could not define "right of way" and his testimony was therefore conclusory. Additionally, he argues Officer Wall "testified to no facts evidencing his own due care for others' safety, which the common law requires for a party to make a claim of a right-of-way violation by such others." Whether Officer Wall could provide a definition of right of way satisfactory to appellant is not the issue. The issue is whether Wall provided specific facts, not conclusions, regarding why he stopped appellant. Officer Wall testified that appellant, driving a pickup, pulled out in front of him from an apartment driveway, forcing Officer Wall to slam on his brakes, swerve, and hop a curb to avoid a collision. This testimony was not conclusory; these were specific facts to support a reasonable belief that appellant illegally failed to yield the right of way to an approaching vehicle. To the extent appellant relies on Smith's testimony to undermine that of Officer Wall, we defer to the trial court on credibility issues. We conclude the trial court did not err in denying appellant's motion to suppress. We overrule the second issue. We affirm the trial court's judgment.