Opinion
NO. 03-15-00553-CR
03-02-2016
The State of Texas, Appellant v. Philip Dubord, Appellee
FROM THE COUNTY COURT AT LAW NO. 3 OF TRAVIS COUNTY
NO. C-1-CR-12-204755, HONORABLE MICHAEL J. MCCORMICK, JUDGE PRESIDINGORDER AND MEMORANDUM OPINION
PER CURIAM
The State of Texas appeals from the trial court's order granting Philip Dubord's motion to suppress evidence gathered after a traffic stop. See Tex. Code Crim. Proc. art. 44.01(a)(5). We will abate the appeal and remand for further proceedings.
BACKGROUND
Austin Police Department Officer Adam Johnson testified that he saw appellant make two lane changes on a city street without signaling and, given the late hour and location near downtown Austin, thought appellant might be intoxicated. Johnson testified that he followed appellant onto a freeway and measured appellant's speed at 72 miles per hour in a 65 mph zone. He said that appellant's vehicle drifted across the lane lines several more times, the last of which involved moving into a lane occupied by another vehicle. Johnson said he then stopped appellant.
Appellant moved to suppress evidence gathered pursuant to this traffic stop. The court granted the motion to suppress and made the following findings of fact and conclusions of law:
After a hearing on Defendant's motion the court makes the following findings of fact:
1. In the early morning hours of 3-23-12 Officer Johnson observed the Defendant traveling west in the 1600 block of West Sixth Street.
2. The Defendant moved across two lanes of traffic and headed onto MoPac Boulevard, and Officer Johnson followed.
3. Officer Johnson testified he followed the Defendant for approximately six more miles before stopping him, testifying that the defendant crossed from his lane of travel on more than one occasion.
CONCLUSION OF LAW
Defendant argues his stop and arrest were without probable cause.
The fact the officer waited six miles to stop the defendant diminishes the credibility of his claim that he stopped the defendant for lane change violations on Sixth Street.
STANDARD OF REVIEW
An officer may initiate a temporary detention when he reasonably suspects that the detainee has violated 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 an objective officer to reasonably suspect that a particular person has, or soon will be, engaged in criminal activity. Id.; see also Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011). In assessing whether reasonable suspicion existed, we consider the totality of the circumstances. Ford, 158 S.W.3d at 492-93.
When asked, the trial court must make findings of fact and conclusions of law adequate to provide us with a basis on which to review its application of law to the facts. State v. Saenz, 411 S.W.3d 488, 495 (Tex. Crim. App. 2013). The trial court must make findings covering every potentially dispositive issue that might reasonably be said to have arisen in the course of the suppression proceedings. State v. Elias, 339 S.W.3d 667, 676 (Tex. Crim. App. 2011). If findings are requested and made but provide an inadequate basis upon which to make a legal conclusion, we must abate and remand to the trial court for additional findings. Saenz, 411 S.W.3d at 495.
DISCUSSION
The State contends that the trial court abused its discretion in suppressing the State's evidence. We conclude that the trial court's findings do not allow us to properly assess this issue.
The trial court's findings and conclusions do not address the officer's testimony that several events in addition to the lane changes on Sixth Street formed the basis for the stop. The trial court noted that the officer claimed to have seen appellant drift out of his lane several times, but did not address the credibility of that claim. The court did not address Johnson's testimony that he made the stop based on "[t]he continued minor violations that I continued to observe from this vehicle as we traveled from the 1600 block of West 6th Street down MoPac." The trial court made no finding regarding the existence or credibility of the officer's claims that he measured the appellant exceeding the speed limit, that he saw a final unsignaled lane change that endangered another vehicle, and that "directly after [Dubord] almost collided with another vehicle [] I made the decision to make that traffic stop. Up until that point, I had not made that decision to make that traffic stop."
In Elias, the trial court granted a motion to suppress based on its conclusion that a peace officer had no reasonable suspicion or probable cause to believe that Elias had committed a traffic violation in his presence while stopped at an intersection. 339 S.W.3d at 672. The court of criminal appeals held that the trial court should have made a finding regarding the arresting officer's testimony that he saw the driver fail to signal a turn in advance of the intersection. Id. at 676. Remand to the trial court was the proper remedy. Id.
Because the findings and conclusions do not address the stated basis for the stop, we must abate and remand the cause for further findings and conclusions. See Saenz, 411 S.W.3d at 498. The trial court shall make the necessary supplemental findings of fact and conclusions of law and any necessary related new order, and the trial court clerk shall file a supplemental record with this Court's clerk containing those findings and conclusions.
It is ordered on March 2, 2016. Before Chief Justice Rose, Justices Pemberton and Bourland Abated and Remanded Filed: March 2, 2016 Do Not Publish