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Date: 02-23-2021

Case Style:

Trevion James Phipps v. The State of Texas

Case Number: 09-18-00473-CR


Court: Court of Appeals Ninth District of Texas at Beaumont

Plaintiff's Attorney: William J. Delmore III
Philip S. Harris

Defendant's Attorney:

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Beaumont, Texas - Criminal defense attorney represented Trevion James Phipps with a Possession With Intent to Deliver a Controlled Substance charge.

While on patrol on the service road next to I-45 in Montgomery County,
Corporal Trace Turner, an employee of the Texas Department of Public Safety,
noticed a car in his mirror that was catching up to him from the rear. Suspecting the
car was being driven faster than the posted speed, and while driving on the feeder
road, Trooper Turner increased the speed of his patrol car in an effort to match the
speed of the car that was being driven on the highway while the approaching car was
closing on the patrol car from behind.
After Phipps passed the patrol car, Trooper Turner merged onto the highway,
activated his lights, and stopped Phipps. Trooper Turner was the sole witness who
See Tex. Code Crim. Proc. Ann. art. 38.23.
testified in the hearing conducted on Phipps’s motion to suppress. During the
hearing, Trooper Turner testified that, based on the pacing maneuver he described
using in an effort to gage Phipps’s speed, he estimated that Phipps was going 75
miles per hour. The trooper explained that 75 was ten miles over the posted speed
limit on I-45, as the posted speed is 65 m.p.h. in the area where he stopped Phipps.
Trooper Turner also testified that Phipps was driving at an unreasonable speed given
the traffic conditions in the area where the stop occurred.
The Law and Standard of Review
Police officers who witness what they reasonably believe to be a traffic
violation may stop and detain the car seen violating a traffic law if the officer has
reasonable suspicion that the car’s driver violated the law.
3 The reasonable suspicion
standard applies to the decision a police officer makes to stop another carsince under
the Fourth Amendment, the stop is treated as a detention.
4 Trooper Turner’s
testimony reflects that Phipps was stopped for speeding, a traffic violation if there is
evidence showing the officer stopped a car being driven “at a speed greater than is
See id. art. 14.01(b) (providing that “[a] peace officer may arrest an offender
without a warrant for any offense committed in his presence or within his view”);
Garcia v. State, 827 S.W.2d 937, 944 (Tex. Crim. App. 1992) (explaining the record
supported the trial court’s finding that the police stopped the defendant for a traffic
violation, which made the detention reasonable under the Fourth Amendment).
U.S. CONST. amend. IV; see also Davis v. State, 947 S.W.2d 240, 245 (Tex.
Crim. App. 1997).
reasonable and prudent under the circumstances then existing.”5 In proving that
someone was speeding, the law provides that driving above the posted speed limit
on a highway “is prima facie evidence that the speed is not reasonable and prudent
and that the speed is unlawful.”6
To prove that a police officer had a reasonable suspicion to stop someone who
was speeding, the State must identify the specific and articulable facts the officer
observed that led the officer to reasonably infer that the offense of speeding is or
soon will occur.
7 The standard that governs whether reasonable suspicion exists is
8 Consequently, our review of the testimony offered to explain why the
officer detained another driver focuses on whether the facts described in the hearing
would have allowed a reasonable police officer to infer that reasonable suspicion
exists given the facts and circumstances described by the witnesses in the hearing.
We use a bifurcated standard when asked to review a trial court’s ruling on a
motion to suppress.
10 In Phipps’s case, after ruling on Phipps’s motion, the trial court
did not provide the parties with express written findings to explain the reasons it
relied on when it denied Phipps’s motion. Even so, in the absence of written findings,
See Tex. Transp. Code Ann. §§ 542.001, 545.351(a).
Id. § 545.352(a).
Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005).
Id. 9
Id. 10Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010).
we must infer “the necessary factual findings that support the trial court’s ruling if
the record evidence (viewed in light most favorable to the ruling) supports these
implied fact findings.”11
The record shows the trial court’s decision to deny Phipps’s motion hinged on
the decision that court made resolving mixed questions of law and fact. As such, the
trial court’s ruling hinged on that court’s assessment of Trooper Turner’s credibility,
given that he is the sole witness who testified in the suppression hearing about the
circumstances that led him to stop Phipps. In reviewing rulings on mixed questions
of law and fact, we give the trial court almost total deference if its ruling depends on
the evaluation the trial court made on the credibility of the witnesses who testified
on the defendant’s motion.
12 On the other hand, if the trial court’s ruling involved a
mixed question of law and fact that did not hinge on the matters of credibility and
demeanor, we apply a de novo standard in our review of the ruling.
Here, the record shows that the trial court’s ruling hinged on the trial court’s
decision to find Trooper Turner to be a credible witness. Consequently, unless the
record reveals that the opinion Trooper Turner expressed is unsupported by the
objective facts he described, we must defer to the ruling the trial court made to deny
11State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008).
12See State v. Kerwick, 393 S.W.3d 270, 273 (Tex. Crim. App. 2013) (citing
Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)).
Phipps’s motion to suppress the evidence Trooper Turner discovered in Phipps’s car
after Phipps consented to Trooper Turner’s request that he be allowed to search
Phipps’s car.
Analysis-Motion to Suppress
Rule 701 of the Texas Rules of Evidence allows trial courts to admit some
types of opinions offered by a lay witness based on what the witness has described
when it concerns a matter the witness personally observed.15 Opinion testimony by
a lay witness may be admitted if the opinion the witness offers is an opinion that is
rationally based on the witness’s perception and helpful to a clear understanding of
the witness’s testimony or to determining a fact at issue in the dispute.
16 Whether
Trooper Turner’s testimony is admissible as lay opinion testimony was contested in
the hearing. Phipps argued that the trooper’s testimony was not admissible based on
his argument that Trooper Turner did not have a sufficient opportunity to view
Phipps’s car as it closed on the trooper’s to accurately measure Phipps’s speed.
According to Phipps, the facts Trooper Turner described are insufficient to support
the conclusion the trooper drew from them that Phipps was speeding.
To be clear, as relevant to our review, the question is whether the evidence
the officer described allowed the trial court to reasonably resolve whether Trooper
14See id.
15Tex. R. Evid. 701.
Turner, based on the facts and circumstances he described, allowed the trooper to
form a reasonable suspicion to believe that Phipps was speeding.
17 In his brief,
Phipps suggests an experienced police officer cannot form a reasonable opinion
about the speed at which another vehicle is being driven based on visual observations
alone. We disagree. Experienced drivers may form a lay opinion about the speed of
other vehicles they observe on a roadway based on the objective facts they describe,
and depending on the facts the witness articulates, the facts described may be
sufficient for a court to allow a lay witness to express a lay opinion about another
vehicle’s speed.
18 Whether a lay witness is qualified to express an opinion is
governed by Rule 701 of the Texas Rules of Evidence, which provides that a lay
witness may testify to an opinion when the witness has drawn the opinion from facts
the witness rationally perceived if the opinion is helpful to an understanding of the
witness’s testimony or to the need the factfinder has to determine a fact at issue in
the dispute.
19 As embodied in Rule 701, the question is whether the record shows
17See Madden v. State, 242 S.W.3d 504, 516 n.26 (Tex. Crim. App. 2007)
(noting that under Texas law, a fact issue does not exist based simply on the
possibility that the jury may choose to disbelieve some or all of the State’s evidence).
18Tex. R. Evid. 701.
19See id.; Curran v. State, No. 07-10-0078-CR, 2011 Tex. App. LEXIS 935,
at *3 (Tex. App.—Amarillo 2011, pet. ref’d) (not designated for publication)
(explaining that “[s]peed is one area in which lay opinions may be offered”);
McMillan v. State, 754 S.W.2d 422, 425 (Tex. App.—Eastland 1988, pet. ref’d)
(stating that “[t]he opinions of lay witnesses, when competent, are admissible
concerning estimates of age, size, quality, time, and estimates of distance and
that an officer in Trooper Turner’s position and given his testimony rationally
perceived that Phipps was driving in excess of the posted speed.
Phipps criticizes the trial court’s decision to credit Trooper Turner’s opinion
for four reasons. First, he suggests that Trooper Turner failed to use radar equipment
to verify Phipps’s speed before pulling him over for speeding. Second, Phipps
criticizes the trial court for crediting Trooper Turner’s testimony since Trooper
Turner acknowledged in the hearing that he had not applied any scientific formulas
to verify his estimate of Phipps’s speed. Third, Phipps argues that Trooper Turner’s
impression about Phipps’s speed—around 75 m.p.h.—hinged on what he saw while
it was night and while obstructions appeared at various times between the cars as
Phipps approached Turner’s position on the feeder road. Fourth, Phipps argues that
Trooper Turner failed to apply the technique of pacing that he described properly,
as he had not based his estimate by a comparison between the speed of Phipps’s car
to the car he was in while driving his car alongside, meaning parallel, to Phipps.
In our opinion, Phipps’s arguments go to the weight the trial court chose to
give Trooper Turner’s testimony and to whether the trial court had the discretion to
accept Trooper Turner’s testimony as sufficiently reliable to demonstrate that the
trooper formed a reasonable suspicion to believe that Phipps was driving his car
above the posted speed. While it’s true that Trooper Turner couched his opinion in
miles per hour and he did not describe his opinion as merely an estimate, the
evidence allowed the trial court to view the opinion as an estimate and not a precise
mathematical calculation of Phipps’s speed. The other facts show the trooper
explained he did not use a radar to gage Phipps’s speed, and the trooper agreed he
did not apply any scientific formulas designed to determine another object’s speed.
Yet the estimate was not based merely on Trooper Turner’s visual impression of
Phipps’s car, he also tried to match the speed the two cars were being driven as
Phipps closed on his position from behind. And the estimate that Trooper Turner
described is one that he based on facts he described, all of which he personally
observed as Phipps closed on the trooper and then passed him while he was driving
on the feeder. Additionally, the fact that there were obstructions at times between
the two cars goes to the weight the trial court chose to give Trooper Turner’s opinion.
And Phipps does not even suggest the trooper’s opinion was inadmissible because it
was not helpful to a clear understanding of Trooper Turner’s testimony about why
he stopped Phipps.
While the trial court in exercising its discretion might have chosen not to
believe or to credit Trooper Turner’s testimony, we must give the trial court’s ruling
almost complete deference given that the trial court had the right to decide whether
the trooper was a credible witness.
20 As the factfinder, the trial court (not this Court)
had the right to resolve the discrepancies that Phipps pointed out and to decide
20See Garcia-Cantu, 253 S.W.3d at 241.
whether the testimony should be given any weight. Stated another way, we reject
Phipps’s suggestion that Trooper Turner had to determine Phipps’s exact speed by
using a radar or a scientific method rather than offering a lay opinion about his speed
to form a reasonable suspicion to believe that Phipps was driving over the posted
In his brief, Phipps relies mainly on Ford v. State22 to support his argument
that the record doesn’t support the trial court’s ruling on his motion to suppress. The
case, however, is easily distinguishable. In Ford, the Court of Criminal Appeals
explained that, when a police officer expresses an opinion about whether another
vehicle is following too closely, the record must contain more than the officer’s bare
opinion to support a ruling denying a motion to suppress.
23 But unlike the record in
Phipps’s case, the officer’s testimony in Ford failed to reveal the facts the officer
21See Dillard v. State, 550 S.W.2d 45, 53 (Tex. Crim. App. 1977) (op. on
reh’g) (“We disagree with appellants’ contention that unless [the officer] knew the
exact speed which the automobile was traveling, no violation occurred.”); Infante v.
State, 397 S.W.3d 731, 735-36 (Tex. App.—San Antonio 2013, no pet.) (rejecting
argument that the defendant’s own calculations proved that officers improperly
paced his vehicle and holding that the trial court may resolve discrepancies between
time and distance estimates in its ruling); Icke v. State, 36 S.W.3d 913, 915-16 (Tex.
App.—Houston [1st Dist.] 2001, pet. ref’d) (upholding trial court’s ruling shown by
the arresting officer’s testimony that his opinion about the defendant’s speed was
one formed based on the officer’s experience and without using radar).
22Ford v. State, 158 S.W.3d at 494.
23Id. (“The State failed to elicit any testimony pertinent to what facts would
allow [the officer] to objectively determine Ford was violating a traffic law.”).
relied on when he formed the opinion that he expressed in the trial.24 Identifying the
facts the officer saw in forming the opinion are necessary to the appellate record, as
appellate courts require the record to show the police officer articulated the facts on
which they relied to form their respective opinions that led them to reasonably
believe that “a particular person actually is, has been, or soon will be engaged in
criminal activity.”25 Trooper Turner identified those facts in the hearing on Phipps’s
Having rejected Phipps’s arguments, we conclude the trial court did not abuse
its discretion by finding Trooper Turner adequately described the objective facts that
he relied when he decided to stop Phipps’s car.
Analysis-Charge Error
In his second issue, Phipps complains of charge error. He argues the trial court
erred by overruling his request to instruct the jury that it needed to decide whether it
believed or had a reasonable doubt about whether Trooper Turner stopped Phipps
after acquiring a reasonable suspicion to believe that Phipps was speeding.
26 To
review a complaint alleging charge error, we must first determine whether the
24Id. 25Id. at 492.
26See Tex. Code Crim. Proc. Ann. art. 38.23; Texas Criminal Pattern Jury
Charges: General, Evidentiary & Ancillary Instructions 8.6, at 195-196 (2018)
(Instruction—Exclusionary Rules—Evidence Obtained as Result of Traffic Stop for
Speeding); see also Madden, 242 S.W.3d at 508 n.5.
alleged error exists.27 If so, we then determine whether the error caused sufficient
harm to merit reversing the judgment.
Under Texas law, the Code of Criminal Procedure requires trial courts to
exclude evidence in a trial if the State obtained the evidence by violating the law.
But if the evidence shows that a fact issue exists about whether the police conduct
was illegal, the jury must resolve whether the police obtained the evidence illegally
by submitting an instruction to the jury that asks the jury “if it believes, or has a
reasonable doubt, that the evidence was obtained in violation of the provisions of
this Article…[that it must] disregard any such evidence so obtained.”30
But to raise a fact issue on the question of speeding, Phipps needed to do more
than rely on questions he asked Trooper Turner while cross-examining him in the
trial.31 That’s because to demonstrate that the record shows a fact issue existed on
speeding, the record must contain affirmative evidence that shows Phipps “did not
speed.” Trooper Turner never testified in the hearing or at trial that Phipps was not
speeding. And no other evidence showing that Phipps was not speeding is in the
record before us in Phipps’s appeal.32 Thus, the arguments Phipps raises in his appeal
27Druery v. State, 225 S.W.3d 491, 504 (Tex. Crim. App. 2007).
29Tex. Code Crim. Proc. Ann. art. 38.23.
30Id. art. 38.23(a).
31See Madden, 242 S.W.3d at 514.
32Id. at 513-14.
merely complain that Trooper Turner should have done more than he did to support
the opinion he expressed in the trial. Since the record contains no affirmative
evidence from which a jury could have reasonably concluded that Phipps was not
speeding, we hold the trial court had no duty to instruct the jury to decide whether
Trooper Turner conducted a legal stop.
For the reasons explained above, we overrule Phipps’s second issue.

Outcome: We hold that Phipps’s issues lack merit. Accordingly, the trial court’s
judgment is

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