Opinion
No. 04-15-00298-CR
01-27-2016
The STATE of Texas, Appellant v. Jose ESQUIVEL, Appellee
MEMORANDUM OPINION
From the County Court at Law No. 9, Bexar County, Texas
Trial Court No. 457593
Honorable Walden Shelton, Judge Presiding Opinion by: Luz Elena D. Chapa, Justice Sitting: Karen Angelini, Justice Marialyn Barnard, Justice Luz Elena D. Chapa, Justice AFFIRMED
The State appeals the trial court's order granting Jose Esquivel's motion to suppress evidence obtained as a result of an unlawful detention. The State argues the video recording admitted at the hearing on Esquivel's motion indisputably shows the detaining officer had reasonable suspicion to detain Esquivel. We affirm the trial court's order.
BACKGROUND
We summarize the trial court's findings of fact and conclusions of law as follows: Officer Brad Armstrong, who had worked for less than two years with the San Antonio Police Department, was on duty as a patrolman on April 24, 2015. Officer Armstrong parked his car to watch traffic on St. Mary's Street and faced the access road of IH-35. Officer Armstrong saw a white pick-up truck speeding and run a red light on St. Mary's, and he pursued the pick-up truck by following its tail lights. Prior to entering the access road to pursue the pick-up truck, Officer Armstrong had to stop because a Yellow Cab also ran the red light on St. Mary's. Officer Armstrong was then behind the Yellow Cab. Officer Armstrong stopped at two traffic lights before going up the ramp onto IH-35. Officer Armstrong lost sight of the pick-up truck when going up the ramp onto IH-35 and around to the right toward Culebra Road and Colorado Street.
Then, at approximately 3:00 a.m., on the Colorado Street exit of IH-10, Officer Armstrong stopped Esquivel, who was driving a white pick-up truck, and thereafter arrested him for driving while intoxicated. Esquivel filed a verified motion to suppress based on a warrantless seizure without any reasonable suspicion that he was engaged in criminal activity. The trial court held a hearing on Esquivel's motion to suppress. Officer Armstrong testified and a video recording from his patrol car's dashboard camera was admitted into evidence. The trial court found Officer Armstrong's testimony that he lost sight of the pick-up truck for only three seconds was contradicted by the video recording. Officer Armstrong also did not testify that he recalled particulars of the truck such as the license plate number.
The trial court concluded "[a]s a matter of law based on the totality of the circumstances that Officer Armstrong did not have an objectively reasonable basis for believing that [Esquivel's] vehicle was the same vehicle committing the traffic offense of speeding and running red lights after having lost sight of the vehicle in his pursuit." The trial court further concluded "there was no reasonable suspicion to detain [Esquivel]." The trial court granted Esquivel's motion to suppress and the State now appeals.
STANDARD OF REVIEW & APPLICABLE LAW
When we review a trial court's ruling on a motion to suppress, we accord the court's factual findings "almost total deference," provided its determinations are supported by the record. State v. Woodard, 341 S.W.3d 404, 410 (Tex. Crim. App. 2011). We view the evidence in the light most favorable to the trial court's ruling and afford its ruling "'the strongest legitimate view of the evidence and all reasonable inferences that may be drawn from that evidence.'" Id. (quoting State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008)). The trial court is the sole judge of the credibility of the witnesses and "may believe or disbelieve all or any part of a witness's testimony, even if that testimony is not controverted." State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). "And when reviewing mixed questions of law and fact, courts afford great deference to the trial judge's rulings, provided that those rulings depend upon evaluations of credibility and demeanor." Woodard, 341 S.W.3d at 410. "But when credibility and demeanor [are] irrelevant, courts conduct a de novo review." Id.
An officer has reasonable suspicion if he has specific, articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably conclude that the person detained is, has been, or soon will be engaged in criminal activity. Wade v. State, 422 S.W.3d 661, 668 (Tex. Crim. App. 2013). "[T]hese facts must amount to something more than an inchoate and unparticularized suspicion or hunch." Woods v. State, 956 S.W.2d 33, 35 (Tex. Crim. App. 1997) (quoting Terry v. Ohio, 392 U.S. 1 (1968)). This standard is an objective one, and the court will take into account the totality of the circumstances in order to determine whether a reasonable suspicion existed for the stop. Martinez v. State, 348 S.W.3d 919, 923 (Tex. Crim. App. 2011).
WHETHER THE TWO TRUCKS WERE THE SAME
In its first issue, the State argues that even if total deference is accorded to the trial court's findings, the video recording from Officer Armstrong's dashboard camera indisputably shows the pick-up truck that ran the red light and Esquivel's truck, the pick-up truck Officer Armstrong stopped two minutes later, are the same. We note that although Officer Armstrong testified at the hearing, we may not consider his testimony that is not in favor of the trial court's findings or ruling when addressing the State's issues for two reasons. First, the State's issues are limited to what the video recording shows "[e]ven ignoring Armstrong's testimony," and its briefing contains no clear and concise argument that Officer Armstrong's testimony supports its contentions. See TEX. R. APP. P. 38.1(i). Second, the trial court may disbelieve all of an officer's testimony even if his testimony is not controverted. Ross, 32 S.W.3d at 855. The trial court disbelieved Officer Armstrong's testimony that he lost sight of the pick-up truck for only three seconds and declined to find that the two trucks were the same. The trial court concluded Officer Armstrong lacked reasonable suspicion because he lacked an objectively reasonable basis for believing that Esquivel's truck was the same truck that committed traffic offenses on the IH-35 access road.
The State nevertheless argues the video recording indisputably shows the two trucks have the same distinct characteristics. The only "distinct characteristics" the State alludes to in its brief is the color of the truck and that the truck was made by GMC. However, the trial court found Officer Armstrong did not testify that he recalled particulars of the truck such as the license plate number. Furthermore, as the State admits, "the quality of the video [is] poor." The pick-up truck that ran the red light is largely blurred for the less-than-two seconds during which the truck is visible in the video recording. Even when the video recording is paused and freeze frames are compared, some of the frames appear to show markings on the back and side of the truck and other frames reveal the markings were either shadows or blurs. Due to the admittedly poor quality of the video recording, we conclude the video recording does not indisputably show any distinct characteristics of the truck that ran the red light.
Moreover, the trial court found the color of the truck that ran the red light was white, rather than two-toned as the State argues. The State contends the video recording indisputably shows that the truck is actually a two-tone black-and-white truck. But the quality of the video recording is so poor that we cannot conclude it indisputably shows either that the truck is both black and white or that it is entirely white and it appears to be partially black because of shadows and blurs. The video recording also does not indisputably show the truck that ran the red lights was a GMC. The trial court's finding that the pick-up truck that ran the red light was white is based on a legitimate view of the evidence. See Woodard, 341 S.W.3d at 410 (requiring us to view the evidence in the light most favorable to the trial court's ruling based on the strongest legitimate view of the evidence). Therefore, the video recording does not indisputably show that the pick-up truck that ran the red light and Esquivel's truck are the same.
WHETHER OFFICER ARMSTRONG OTHERWISE HAD
REASONABLE SUSPICION TO DETAIN ESQUIVEL
In its second issue, the State argues that regardless of whether Esquivel's pick-up truck was the same one that sped through the red light, Officer Armstrong had reasonable suspicion because he stopped Esquivel's white truck approximately two minutes after he observed a similarly colored truck in the same area commit a traffic violation. The State contends that if another officer had broadcast the information about the truck that sped through the red light, and Officer Armstrong had heard it, Officer Armstrong would have had reasonable suspicion to detain Esquivel.
We briefly summarize what the video recording indisputably shows: A white pick-up truck sped through the red light and continued along the access road of southbound IH-35. After Officer Armstrong turned right onto the access road, discernable tail lights of a vehicle moved up the access ramp, onto southbound IH-35, and out of sight. As Officer Armstrong drove along the IH-35 access road, he traveled two blocks and then approached two intersections that had red lights. Officer Armstrong came to a complete stop at the first stop light, activated his emergency lights, and then proceeded to the second stop light where he came to a near-complete stop. As Officer Armstrong drove up the ramp to get onto the upper deck of southbound IH-35 and drove for some distance, there were visible tail lights further ahead on southbound IH-35. There were no visible tail lights of any vehicle taking the interchange onto eastbound IH-10. Officer Armstrong took the interchange onto eastbound IH-10.
When Officer Armstrong took the interchange to drive eastbound on IH-10, there were no discernable tail lights of any vehicle ahead on the interchange or on IH-10, which splits into upper and lower decks. As the split in IH-10 became visible, there does not indisputably appear to be tail lights of a vehicle on either the upper or lower deck. Officer Armstrong took the lower deck of IH-10. The tail lights of a vehicle then became visible, and the vehicle exited the lower deck of IH-10 toward Colorado Street. The video recording does not indisputably show that the vehicle is a white pick-up truck until the vehicle turned right onto Colorado Street. Officer Armstrong stopped that pick-up truck, which Esquivel was driving.
Although the video recording appears to show some lights moving in the distance on IH-10, it is impossible to tell whether the lights are from a vehicle, a building, or the numerous lights around and affixed to the bottom of the upper deck, and, if they were from a vehicle, whether the vehicle was on the upper or lower deck. --------
In support of its second issue, the State argues, "If Armstrong had broadcast the vehicle description, a white GMC pick-up truck traveling on southbound IH-35 access road had run a red light at St. Mary's Street and then 2 minutes later another officer initiated the traffic stop of a white GMC pick-up truck in the proximate area, that second officer would have reasonable suspicion for the stop." We need not opine on whether, under those circumstances, the State would be correct because those are not the facts before us. The trial court found the pick-up truck was white, and we have concluded that the video does not indisputably show any particular characteristics of the pick-up truck, such as any markings that the truck was made by GMC. Furthermore, we disagree with the State's assertion that the white pick-up truck headed southbound on IH-35 was "in the proximate area" of the Colorado Street exit of eastbound IH-10. The video recording indisputably shows otherwise.
The State primarily relies upon two cases: Glass v. State, 681 S.W.2d 599 (Tex. Crim. App. 1984), and Orsag v. State, 312 S.W.3d 105 (Tex. App.—Houston [14th Dist.] 2010, pet. ref'd). In Glass, the Court of Criminal Appeals held the trial court erred by denying a motion to suppress because an officer had no reasonable suspicion to detain a driver based on an anonymous tip when, although the vehicle matched the anonymous tip's description, the officer did not testify when the alleged reported offense occurred or when the anonymous tip was received. 681 S.W.2d at 601-02. The court held that without any indication of the amount of time that transpired between offense and when the arresting officer detained the suspect, a detaining officer relying on that information lacks reasonable suspicion. See id. In other words, some indication of timeframe is necessary before a trial court can conclude an officer had reasonable suspicion. See id. Glass does not support establishing the exact length of time between the commission of an offense and the detention is sufficient to give an officer reasonable suspicion. See id. Reasonable suspicion always must be based upon the totality of the circumstances. See Martinez, 348 S.W.3d at 923.
In Orsag v. State, an officer who observed a "blue Toyota pickup" speeding broadcasted a description of the vehicle and reported it was headed southbound on U.S. Highway 59. 312 S.W.3d at 108. Another officer who was on patrol and traveling southbound on Highway 59 saw a blue Toyota pick-up truck. Id. He did not confirm with the officer who observed the traffic violation the vehicle he stopped was the same vehicle. Id. No further description of the vehicle or the driver was provided. Id. The detaining officer testified, based on the information he received, "he was looking for a blue Toyota speeding in the southbound inside (left) lane, [and] that it was 'just seconds' before he was at the same location where [the officer] made the dispatch call." Id. at 111. The court of appeals affirmed the trial court's denial of the defendant's motion to suppress because the detaining officer testified (1) the blue Toyota pick-up truck that he stopped matched the description of the speeding vehicle; (2) he stopped the pick-up truck soon after he received the dispatch call; (3) the vehicle was "a short distance from where it was seen speeding, nearing a construction zone where the vehicle could not easily evade him;" and (4) there were no other blue Toyota pick-up trucks in the area. Id. at 112-13.
The State cites other cases providing examples of when courts have held an officer has reasonable suspicion to detain a driver based on broadcasted information. The facts of those cases establish close temporal and physical proximity between the vehicle that was observed committing an alleged offense and the driver who is ultimately detained. In Mount v. State, 217 S.W.3d 716 (Tex. App.—Houston [14th Dist.] 2007, no pet.), the court affirmed a denial of a motion to suppress when the detaining officer found a similarly colored Cadillac pickup truck as one reported to have been stolen one block away from where the theft occurred about two minutes after the theft was reported. Id. at 725. In Louis v. State, 825 S.W.2d 752 (Tex. App.—Houston [14th Dist.] 1992, pet. ref'd), the court affirmed the denial of a motion to suppress when an officer stopped a similarly colored vehicle with three suspected robbers inside, as reported by police dispatch, on the same road driving the same direction as stated in the report less than two miles from the robbery site. Id. at 754; see also MacCubbin v. State, No. 04-12-00562-CR, 2013 WL 4829129, *4 (Tex. App.—San Antonio Sept. 11, 2013, no pet.) (mem. op., not designated for publication) (holding officer had reasonable suspicion to detain several men in an "unmarked, black police vehicle with 'constable' written on the side being recklessly driven up and down 1604 by a group of men who were not in uniform" because vehicle pulled over matched reported description "and was in the same area"); Leifeste v. State, No. 04-10-00603-CR, 2011 WL 742710, at *1 (Tex. App.—San Antonio Mar. 2, 2011, pet. ref'd) (mem. op., not designated for publication) (affirming denial of motion to suppress because the vehicle, which matched a reported description, was travelling down the same road in the same direction in the same area of town one or two minutes after the report).
This is not a case in which an officer has detained a driver traveling on the same road in the same direction only a few seconds after a similar vehicle was reported committing a traffic offense or where the driver could not have easily evaded the detaining officer. See Orsag, 312 S.W.3d at 111-13; Louis, 825 S.W.2d at 754. This is also not a case where, despite the passing of a few minutes, a vehicle matching the description of a vehicle involved in a reported offense was found within a block of the observed offense. See Mount, 217 S.W.3d at 725. Here, Officer Armstrong observed a white pick-up truck speed through a red light while on the access road of southbound IH-35. After losing sight of the pick-up truck and nearly two minutes later, Officer Armstrong stopped a similar truck, which was heading in a different direction and exiting off of a different highway.
The video recording does not indisputably show that Officer Armstrong had anything "more than an inchoate and unparticularized suspicion or hunch" that the truck that sped through the red light on the IH-35 access road exited IH-35, then took the lower deck of IH-10, then took the Colorado Street exit off of IH-10. See Woods, 956 S.W.2d at 35 We hold that under the trial court's findings of fact, which are supported by a legitimate view of the record, Officer Armstrong lacked reasonable suspicion to detain Esquivel.
CONCLUSION
We affirm the trial court's order.
Luz Elena D. Chapa, Justice DO NOT PUBLISH