State of Texas v. June Suzanne Kreie--Appeal from 6th District Court of Lamar County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-03-00084-CR

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THE STATE OF TEXAS, Appellant

V.

JUNE SUZANNE KREIE, Appellee

On Appeal from the 6th Judicial District Court

Lamar County, Texas

Trial Court No. 19436

Before Morriss, C.J., Ross and Carter, JJ.

Opinion by Justice Carter

O P I N I O N

The State of Texas has appealed from a pretrial order granting a motion to suppress evidence. The record shows that a police officer, Bill McFadden, was detailed to watch a house where drug transactions had been reported and to look for narcotics activity. McFadden testified he followed June Suzanne Kreie's car as she left the location until she went past a stop line on a street and failed to stop at a stop sign. She had no driver's license; thus, McFadden placed her under arrest for failure to provide a license on request and called for a female officer to come and search her.

As a result of the stop, contraband was recovered from Kreie. Based on the testimony of the police officer, the trial court granted the motion to suppress, stating the stop was illegal.

Under the present law, an objectively valid traffic stop is not unlawful under Article I, Section 9 simply because the detaining officer had some ulterior motive for making it. Tex. Const. art. I, 9. The objective test is to be applied in determining whether an improper and unlawful stop occurred. The Texas Court of Criminal Appeals also has held that this is the proper way to apply the Fourth Amendment to the United States Constitution. Crittenden v. State, 899 S.W.2d 668, 671 (Tex. Crim. App. 1995) (state analysis), relying on Garcia v. State, 827 S.W.2d 937 (Tex. Crim. App. 1992) (federal analysis), and Hamilton v. State, 831 S.W.2d 326, 330 (Tex. Crim. App. 1992); see Whren v. United States, 517 U.S. 806, 809-10 (1996) (the question is whether the officer could have made the stop for the reason given).

In cases where the trial court concludes that an unlawful or improper stop did notoccur, that usually has the effect of ending our analysis because there is typically evidence that, if believed by the trial court, would support that conclusion. In this situation, however, where the court granted the motion to suppress, a different situation may present itself. The Garcia opinion itself, after concluding no pretext doctrine existed, concluded by recognizing that "the appropriate limitation of an officer's discretion, under the Fourth Amendment, is the existence of a law and the actual commission of the offense; an officer's subjective intent is relevant only to a credibility determination of his stated reasons for stopping or arresting an individual." Garcia, 827 S.W.2d at 944.

The only testimony before the trial court in this case is the testimony of the arresting officer. The State did not request findings of fact, and no written findings of fact were filed. When a trial court does not make explicit findings of fact, we review the evidence in the light most favorable to the trial court's ruling and assume it made findings that are supported by the record and buttress its conclusion. See Carmouche v. State, 10 S.W.3d 323, 327-28 (Tex. Crim. App. 2000). The findings are not statutorily required, but this analysis appears to be created by the courts in an attempt to maintain consistency with the general rule that a fact-finder's decision should not be overturned if there is evidence that could support its finding. In reviewing a ruling on a motion to suppress, we must defer to the trial court's factual determinations. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). //

In this case, the officer's testimony was undisputed. The trial court was not required to believe that evidence. In State v. Ross, 32 S.W.3d 853 (Tex. Crim. App. 2000), the court specifically reviewed the question of whether a trial court might disbelieve the State's uncontroverted evidence and therefore act within its discretionary authority by ordering evidence suppressed.

In Ross, an alcoholic beverage agent was the only witness to testify at the hearing on the defendant's motion to suppress. Id. at 854. The agent's testimony, if believed, demonstrated he had reasonable suspicion to detain the defendant and probable cause to later arrest and search the defendant. Id. at 857. The trial court granted the motion to suppress without making findings of fact. Id. at 854. The Texas Court of Criminal Appeals recognized that the trial court might simply not find the State's agent to be a credible or believable witness. The court acknowledged the witness had testified to facts that would show reasonable suspicion or probable cause. The court then stated:

The trial court, however, was free to disbelieve all of the agent's testimony. As the sole trier of fact and judge of credibility, the trial court was not compelled to believe the agent's testimony, even if uncontroverted, based on credibility and demeanor. Because the evidence, if believed, would compel a denial of the motion to suppress, the record supports the second theory that the trial court did not find the agent's testimony to be credible based on demeanor, appearance, and tone.

Id. at 857. The court added that, because the "scenario is a mixed question of law and fact, the resolution of which turns on an evaluation of credibility and demeanor," the proper standard of review was "'almost total deference' to the trial ruling." Id. at 856 (quoting Guzman, 955 S.W.2d at 89). The same situation was also before the Austin Court of Appeals in State v. Nash, 55 S.W.3d 110, 113 (Tex. App. Austin 2001, no pet.), but with the difference that findings of fact were filed in that case. The Austin court reviewed the findings and concluded they clearly showed the trial court's disbelief of the officer's testimony. The court applied the Ross analysis and affirmed the suppression order.

In this case, like Ross, we likewise have no written findings of fact. There is, however, a distinction that can be drawn between our case and Ross and Nash. In this case, the trial court made no written findings, but made several pronouncements from the bench concerning its view of the evidence.

Several cases have held in the context of this type of suppression hearing where no written findings were made, but the trial court made statements from the bench, that such oral statements were clearly intended to act as findings of fact. In that context, the Corpus Christi Court of Appeals, relying on an earlier opinion from the Texas Court of Criminal Appeals, reviewed the record and found that "the trial court pronounced what apparently were meant to be oral findings of facts [sic] and we will accord deference to the same." Pena v. State, 61 S.W.3d 745, 752-53 (Tex. App. Corpus Christi 2001, no pet.). In so doing, the court relied on State v. Groves, 837 S.W.2d 103, 105 n.5 (Tex. Crim. App. 1992). In that case, the court held that, where a trial court clearly intended oral pronouncements to be an expression of its findings of fact and conclusions of law, they were reviewed by the appeals courts as such.

The officer's testimony was he had stopped Kreie because she violated a traffic law. If believed, that would justify the initial stop. Thus, the only theory that could support the trial court's ruling is that the court did not believe the officer's testimony and that the stop was not lawful. // Had the court reached this conclusion, we would be required to defer to the trial court's ruling because it would necessarily have turned on an evaluation of the credibility of the witnesses. Ross, 32 S.W.3d at 856; Guzman, 955 S.W.2d at 89.

In this case, however, the statements by the trial court make it clear that it did not suppress the evidence because it disbelieved the officer, but instead accepted the facts. The court ended the hearing as defense counsel began to cross-examine the officer, stating:

THE COURT: We don't need to go any further here. This is a pretextual stop. It's illegal.

. . . .

THE COURT: I'm going to suppress it and everything she did and everything they've got. This is similar to following people until they touch a line on a road and then arrest them for getting out of their lanes. The court of criminal appeals has outlawed that, and we need to outlaw this.

. . . .

THE COURT: Pretextual stop all the way.

From this statement, the basis for the trial court's ruling is clear. It relied on the officer's admission that he was following Kreie and looking for a violation of any traffic offense in order to have cause to detain her, for the stated purpose of looking for drugs. However, as stated above, under the current state of the law, an objectively valid traffic stop is not unlawful just because the officer had some ulterior motive for making it.

The trial court in this case actually suppressed the evidence because it acted on the facts as presented by the officer, stating he stopped Kreie because she passed the stop line. The trial court considered that as a pure pretextual stop and found it to be illegal. Thus, we must reverse because the reason stated by the trial court for suppressing the evidence is contrary to the law.

We also recognize that the trial court ended the hearing and issued its ruling before defense counsel had a chance to cross-examine the officer or to offer any evidence. We therefore remand the case to the trial court to allow the State and the defense an opportunity to present further evidence regarding the motion to suppress and other proceedings, as necessary.

We reverse and remand this matter to the trial court for further proceedings consistent with this opinion.

Jack Carter

Justice

Date Submitted: September 26, 2003

Date Decided: October 24, 2003

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