The State of Texas v. Kenneth Earl Norris

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-24-00097-CR

The State of Texas, Appellant

v.

Kenneth Earl Norris, Appellee

FROM THE COMAL COURT AT LAW NO. 3 OF COMAL COUNTY
NO. 2022CR0317, THE HONORABLE DEBORAH WIGINGTON, JUDGE PRESIDING

MEMORANDUM OPINION

Appellee Kenneth Earl Norris was charged with driving while intoxicated (DWI),

with a blood-alcohol-concentration level of 0.15 or more. See Tex. Penal Code §§ 49.04(a), (d).

He filed a pretrial motion to suppress evidence obtained during the stop and ensuing

investigation. After conducting a hearing, the trial court granted the motion. The trial court

denied the State’s motion for reconsideration and entered findings of fact and conclusions of law.

The State contends that the trial court abused its discretion by granting the motion to suppress

and denying its motion for reconsideration because reasonable suspicion existed for the stop.

We disagree and affirm.

BACKGROUND

Comal County Sheriff’s Office Deputy Kyle Salisbury was the State’s only

witness at the suppression hearing. His offense report, affidavit for warrantless arrest, video
from his dashboard- and body-cameras, video of a blood draw from Norris, and video from

Deputy Patrick Byrne’s dashboard-camera—who arrived on the scene after the initial stop of

Norris—were admitted into evidence. Deputy Salisbury testified that at approximately 10:45 pm

on a Friday, he was in the process of completing a separate traffic stop on North Park Road,

about two or three car lengths away from the intersection of North Park and FM 306 when “the

driving behavior” of another driver—Norris—got his attention.

Norris was driving his truck down FM 306 when he turned right on North Park.

North Park had one lane and a shoulder for each direction of travel. Deputy Salisbury’s patrol

car was parked on the side of the road partially in the right-hand lane. Deputy Salisbury was at

the driver’s door of the car that he had pulled over in front of his patrol car, which placed Deputy

Salisbury in the road. A sound can be heard both on Deputy Salisbury’s dash-cam and body-cam

videos. In the body cam video, the already pulled over driver said, “Whoa,” in response to the

sound. Deputy Salisbury first turned his head and then his body in the direction of the noise.

Norris’s vehicle becomes visible on the body-cam footage about three seconds after the sound is

heard. The truck was driven very slowly on the opposite side of the road, passing Deputy

Salisbury’s car, and then beginning to pass Deputy Salisbury. Deputy Salisbury then walked

further into the road towards Norris’s truck, shouted, “Stop,” and slapped the hood of

Norris’s truck.

Deputy Salisbury asked, “What are you doing?” Norris answered, “I’m going

around you.” Deputy Salisbury told Norris, “You almost hit the back of my car.” Norris replied,

“I saw you.” In response to being asked where he was coming from, Norris answered

“Lucky’s,” which Deputy Salisbury testified was a bar that he knew was in the direction that

Norris was coming from. Deputy Salisbury directed Norris to pull over and quickly concluded

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the traffic stop that had been interrupted. Deputy Salisbury performed a series of standardized

field sobriety tests and arrested Norris for DWI. A blood sample was seized from him pursuant

to a warrant.

At the hearing, Deputy Salisbury testified that he “heard a vehicle rapidly

decelerate in the form of tires screeching,” and “looked and saw a large pickup had abruptly

stopped pretty close to the back of [his] car, almost as if they had misjudged the speed to the

turn.” He recognized these as cues of intoxication from his training. He described the turn as

“erratic” and “sharp.” He testified that there was not anything that would have obstructed

Norris’s view of his patrol car from FM 306. On cross-examination, Deputy Salisbury agreed

that there was nothing illegal about the turn including the hard braking and that it was neither

“too wide” nor “too narrow” a turn. He explained that the turn was “sharp” and “wasn’t

smooth,” which caused him to suspect that the driver was intoxicated. Deputy Salisbury agreed

that when Norris went around him in the opposite lane, it was done in a lawful manner. Deputy

Salisbury testified that when he slapped the truck and said, “Stop,” Norris was not free to go and

was detained.

Deputy Salisbury testified that he wrote the offense report within 48 hours of the

traffic stop and the affidavit for warrantless arrest the same night that he stopped and arrested

Norris. Neither the report nor affidavit mentioned that Norris’s truck nearly collided with

Deputy Salisbury’s car or stopped behind it or mentioned that before stopping Norris, Deputy

Salisbury knew Norris was coming from a direction that included a bar. The affidavit mentioned

“screeching tires” and a “sharp turn” as the reasons for the stop. The report stated that Deputy

Salisbury “heard a vehicle on FM 306 screech its tires,” which “made a sharp right turn onto

North Park Road and began driving towards me driving down the middle of the unmarked road.”

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The report explained that Deputy Salisbury “told the driver to stop and began speaking with

him” because of “the vehicle’s driving behavior.” The affidavit also stated that “the driver of the

truck . . . began driving down the middle of the undivided road” and that Deputy Salisbury

“signaled for the driver of the vehicle to stop.” In the video exhibits, it is apparent that the road

was not “undivided” or “unmarked,” and that Norris was driving within the opposite lane to go

around the traffic stop that was in progress. Deputy Salisbury confirmed on cross-examination

that the video depicts him slapping the car, but he did not include that in his report or affidavit.

He also confirmed that slapping a vehicle was not part of his training. When asked why he did

so, he explained that it was for his own safety because he was not sure if Norris had seen him

standing in the road. He also testified that he did not “yell” when he “told” Norris to stop.

Deputy Byrne arrived on the scene after the DWI investigation of Norris had

begun and the first driver had left. His dash-cam video shows the view of the intersection of

FM 306 and North Park but coming from the opposite direction that Norris had on FM 306 and

turning left instead of right onto North Park. Deputy Byrne’s dash-cam video depicts that it was

drizzling or raining when he arrived on the scene. Deputy Salisbury testified that it was “humid”

at the time of the stop.

After the hearing, the trial court granted Norris’s motion to suppress “based on a

lack of reasonable suspicion to stop the Defendant.” The state filed a motion for reconsideration

and the trial court held an additional hearing at which it invited additional briefing on the issue.

The trial court denied the State’s motion for reconsideration. The trial court made extensive

findings of fact and conclusions of law, including the following credibility determinations:

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31. This Court specifically finds Deputy Salisbury to not be credible
concerning his testimony that Mr. Norris came close to striking the back
of the Deputy’s vehicle due to both his written recollection from the event
and from the indisputable body camera footage.

32. Deputy Salisbury’s lack of credibility concerning his written recollection
comes from the fact that in his Probable Cause Affidavit and in his Police
Reports (that he testified he completes within 48 hours of an arrest) do not
mention a near collision or Mr. Norris’ vehicle coming near the back of
the Deputy’s patrol car.

33. Specifically, Deputy Salisbury’s Probable Cause Affidavit reads as
follows: “While on an unrelated traffic stop at FM 306/ North Park Road, I
heard tires screeching near FM 306. I turned around looked towards FM
306 and observed a silver truck turning sharply onto North Park Lane
coming my direction. The driver of the truck turned onto North Park Road
sharply and began driving down the middle of the undivided road
approaching me. I signaled for the driver of the vehicle to stop.”

34. This Court finds that the indisputable video evidence shows that the
roadway is in fact “marked” and that the Defendant did not come close to
hitting the back of the Deputy’s patrol vehicle.

....

36. The footage [of the first time that Norris’s vehicle can be seen on video] is
immediately following the Deputy hearing the tires, seeing Mr. Norris take
a sharp right turn, and the Deputy turning to face the intersection with his
body camera.

37. This takes place within three seconds.

38. Deputy Salisbury’s vehicle is partially on the roadway with his patrol
lights activated.

39. The yellowish lights to the right of the picture are from the truck driven by
Mr. Norris.

40. The indisputable visual evidence clearly shows Mr. Norris on the outside
lane slowly going around the Deputy’s vehicle.

41. This Court finds that Mr. Norris could not have applied his brakes on
FM 306, then taken a sharp right-hand turn, then come dangerously close
to colliding with the back of the patrol car, and then maneuvered from

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close behind the Deputy’s car to fully into the other lane within
three seconds.

42. The Deputy claimed that he was standing in the roadway when he slapped
on Mr. Norris’ vehicle.

43. The video clearly shows that the Deputy was not “standing in the
roadway’. He actually walked towards Mr. Norris’ vehicle to slap on it
while yelling “Stop!” 1

....

This Court does not find Deputy Salisbury credible on his observation that the
Defendant’s driving was suspicious or indicative of Driving While Intoxicated or any
other criminal activity based on the totality of the circumstances.

....

The Court does not find Deputy Salisbury credible concerning his testimony about Mr.
Norris almost hitting the back of his patrol car.

Based on these findings, the trial court concluded that Deputy Salisbury lacked reasonable

suspicion to stop Norris. The State appeals the trial court’s order granting Norris’s motion to

suppress and denying its motion for reconsideration.

STANDARD OF REVIEW

We review a trial court’s ruling on a motion to suppress evidence for an abuse of

discretion using a bifurcated standard. State v. Espinosa, 666 S.W.3d 659, 667 (Tex. Crim. App.

2023). A trial court abuses its discretion when its decision lies outside the zone of reasonable

disagreement, is arbitrary or unreasonable, or is without reference to any guiding rules or

principles. State v. Thomas, 428 S.W.3d 99, 103 (Tex. Crim. App. 2014); State v. Mechler,

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We note that the video shows Deputy Salisbury in the road during the traffic stop and
then walking further into the road to slap Norris’s car, which was in the other lane.
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153 S.W.3d 435, 439–40 (Tex. Crim. App. 2005) (citing Montgomery v. State, 810 S.W.2d 372,

378–79 (Tex. Crim. App. 1990)). In a suppression hearing, the trial judge is the sole trier of fact

and judge of the credibility of the witnesses and the weight to be given their testimony. Lerma

v. State, 543 S.W.3d 184, 190 (Tex. Crim. App. 2018). We therefore defer to a trial court’s

findings of fact that are supported by the record. Espinosa, 666 S.W.3d at 667. Likewise, we

afford almost total deference to a trial court’s rulings on mixed questions of law and fact if the

resolution to those questions turns on the evaluation of credibility and demeanor. State

v. Hardin, 664 S.W.3d 867, 871–72 (Tex. Crim. App. 2022). We review de novo legal

questions, such as the construction of a statute, and mixed questions that do not turn on

credibility and demeanor. Espinosa, 666 S.W.3d at 667; Hardin, 664 S.W.3d at 872. The

evidence and all reasonable inferences are viewed in the light most favorable to the trial court’s

ruling, which must be upheld if it is reasonably supported by the record and is correct under a

theory of law applicable to the case. Espinosa, 666 S.W.3d at 667.

A deferential standard also applies when a trial court’s findings of historical fact

are based on a video’s contents, over which there is a factual dispute. Miller v. State,

393 S.W.3d 255, 263 (Tex. Crim. App. 2012). However, “indisputable video evidence” may be

reviewed de novo, unless the trial court’s findings concern “whether a witness actually saw what

was depicted on a videotape.” State v. Duran, 396 S.W.3d 563, 571 (Tex. Crim. App. 2013); see

Carmouche v. State, 10 S.W.3d 323, 332 (Tex. Crim. App. 2000) (“[T]he nature of the evidence

presented in the videotape does not pivot ‘on an evaluation of credibility and demeanor.’ Rather,

the videotape presents indisputable visual evidence contradicting essential portions of [the

officer’s] testimony. In these narrow circumstances, we cannot blind ourselves to the videotape

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evidence simply because [the officer’s] testimony may, by itself, be read to support the Court of

Appeals’ holding.”).

“When a police officer stops a defendant without a warrant, the State has the

burden of proving the reasonableness of the stop at a suppression hearing.” State v. Cortez,

543 S.W.3d 198, 204 (Tex. Crim. App. 2018). “An officer may make a warrantless traffic stop if

the ‘reasonable suspicion’ standard is satisfied.” Jaganathan v. State, 479 S.W.3d 244, 247

(Tex. Crim. App. 2015) (citing Guerra v. State, 432 S.W.3d 905, 911 (Tex. Crim. App. 2014)).

“‘Reasonable suspicion’ means ‘a particularized and objective basis for suspecting the particular

person . . . of criminal activity.’” Johnson v. State, 622 S.W.3d 378, 384 (Tex. Crim. App. 2021)

(quoting Kansas v. Glover, 589 U.S. 376, 380 (2020)). It exists if an officer “has specific

articulable facts that, when combined with rational inferences from those facts, would lead him

to reasonably suspect that a particular person has engaged or is (or soon will be) engaged in

criminal activity.” Cortez, 543 S.W.3d at 204. “The articulable facts need only show that some

activity out of the ordinary has occurred, some suggestion to connect the detainee to the unusual

activity, and some indication that the unusual activity is related to crime.” Johnson, 622 S.W.3d

at 384. The detaining officer does not need to be able to pinpoint a particular penal infraction or

establish that a defendant committed a crime. Id.; Derichsweiler v. State, 348 S.W.3d 906, 916

(Tex. Crim. App. 2011); Martinez v. State, 348 S.W.3d 919, 923 (Tex. Crim. App. 2011); see

Guerra, 432 S.W.3d at 912 (“It is not necessary that the reasonable suspicion relate to a specific

criminal offense.”). Reasonable suspicion requires only “‘some minimal level of objective

justification’ for the stop.” Hamal v. State, 390 S.W.3d 302, 306 (Tex. Crim. App. 2012)

(quoting Foster v. State, 326 S.W.3d 609, 614 (Tex. Crim. App. 2010)). This means a level of

suspicion more than a mere “hunch” but less than probable cause. Johnson, 622 S.W.3d at 384.

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The test for reasonable suspicion looks at the totality of the circumstances and focuses “solely on

whether an objective basis exists for the detention,” disregarding the officer’s subjective intent.

State v. Kerwick, 393 S.W.3d 270, 274 (Tex. Crim. App. 2013); see State v. Elias, 339 S.W.3d

667, 675 (Tex. Crim. App. 2011) (“[I]t does not matter whether the objective facts support a

detention for the specific offense [the officer] intended to detain the appellee for as long as the

facts otherwise objectively support a detention for some offense.”).

Our inquiry into reasonable suspicion is “multi-faceted,” and determinations made

in other cases “will seldom be a useful precedent for another.” Ornelas v. United States,

517 U.S. 690, 698 (1996) (cleaned up). Instead, reasonable suspicion is a “commonsense,

nontechnical conception[ ] that deal[s] with ‘the factual and practical considerations of everyday

life on which reasonable and prudent men, not legal technicians, act.’” Id. (cleaned up). The

facts are judged under “an objective standard: would the facts available to the officer at the

moment of the seizure or the search ‘warrant a man of reasonable caution in the belief’ that the

action taken was appropriate?” Terry v. Ohio, 392 U.S. 1, 21–22 (1968). Thus, we should avoid

a formulaic approach or a piecemeal comparison of similar factors in other cases and instead

consider the totality of the circumstances in this case and rely on commonsense inferences and

deductions about the cumulative information available to the deputy at the time of the stop.

Tanner v. State, 228 S.W.3d 852, 857 (Tex. App.—Austin 2007, no pet.).

DISCUSSION

The State contends that the trial court erred when it granted Norris’s motion to

suppress. It contends that at the time the deputy slapped Norris’s truck and said, “Stop,” he had

reasonable suspicion that Norris had just committed reckless driving, failure to control speed, an

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unsafe turn, or disorderly conduct. See Tex. Transp. Code §§ 545.103, .351(a), (b), .401; Tex.

Penal Code § 42.01(a)(5). The State also contends that the deputy had reasonable suspicion that

Norris was driving while intoxicated because, as the State views the evidence, it was late at night

(10:45 pm), his tires screeched, he nearly hit the parked patrol car with its lights flashing, and he

was driving from a direction that includes bars. The State urges that if Norris was not

intoxicated, he would have seen the deputy’s unobstructed parked patrol car with flashing lights

prior to making the turn and would not have had to brake so hard as to make his tires screech.

In response, Norris contends that none of that is supported by the record. He

contends that there is no evidence of the speed of his truck as he approached the intersection, of

what caused the sound on the video, of a “near collision,” or that he had an unobstructed view.

The State relies heavily on its contention that Norris nearly collided with the

deputy’s patrol car. However, the trial court made a contrary factual finding and found the

deputy’s testimony regarding how Norris’s truck took the turn was not credible. The trial court

made the credibility findings—after viewing the video evidence, reading the reports, and hearing

the deputy’s live testimony during the hearing—that Deputy Salisbury’s observations regarding

Norris’s driving being suspicious or indicative of driving while intoxicated or any other criminal

activity or that Norris almost hit the back of his patrol car were not credible. Because the

credibility determination was made based at least partially on the deputy’s live testimony and is

not contradicted by the video, we give deference to the trial court’s credibility finding. Miller,

393 S.W.3d at 263. Notably, Deputy Salisbury agreed when asked whether Norris’s driving was

otherwise lawful and clarified that the stop was not about a traffic violation but suspicion of

DWI. Outside of the deputy’s testimony of suspicious driving behavior and assertion that Norris

nearly hit his vehicle, which the trial court determined was not credible, the remaining evidence

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in the record and known to the deputy at the time of the stop is that Norris’s vehicle made a noise

while he turned, that it was 10:45 pm on a Friday night, and that he was traveling from the

direction where bars are located.

Applying the applicable standard, we conclude that the trial court did not abuse its

discretion by granting Norris’s motion to suppress and denying the State’s motion for

reconsideration.

The State requests that we abate and remand this case to the trial court for

additional factual findings. See State v. Mendoza, 365 S.W.3d 666, 671–73 (Tex. Crim. App.

2012). First, the State requests that we abate because it contends that the trial court’s findings

demonstrate that it applied the wrong legal tests instead of considering the totality of the

circumstances. Not only did the trial court’s conclusions of law establish that it considered the

totality of the circumstances, but we also apply that test de novo. Next, the State contends that

the trial court used “weasel words” in its finding, which were disfavored by the Court of

Criminal Appeals in Mendoza. Id. at 671–72. Notably, in the Mendoza opinion, the Court of

Criminal Appeals reasoned that the trial court’s use of “weasel words” such as “believed,”

“noticed,” “felt,” and “stated,” which were used to describe the officer’s testimony, did not

adequately support the trial court’s factual and credibility findings in favor of the officer’s

testimony. Id. The situation here is distinguishable. Although the trial court made findings with

similar language, the words were used to convey the trial court’s lack of confidence in the

statements and make clear that the trial court was not adopting what Deputy Salisbury “stated” or

“testified” as its own finding. This situation is the opposite of the one discussed in Mendoza.

See id. The State also contends that the trial court failed to make essential findings and made

findings that were unsupported by the record and internally inconsistent. We understand this

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contention to be based on the State’s disagreement with the trial court’s resolution of the

conflicts in the evidence and its credibility determinations. However, we already addressed these

issues above and concluded that the trial court did not abuse its discretion. Thus, we decline to

abate and remand this case to the trial court for it to make additional findings of fact.

We overrule the State’s issues challenging the trial court’s order of suppression,

denial of its motion for reconsideration, and findings of fact.

CONCLUSION

We affirm the trial court’s order of suppression.

__________________________________________
Gisela D. Triana, Justice

Before Chief Justice Byrne, Justices Triana and Kelly

Affirmed

Filed: October 17, 2025

Do Not Publish

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