                                                                                      ACCEPTED
                                                                                  08-17-00175-CR
                                08-17-00175-CR                         EIGHTH COURT OF APPEALS
                                                                                 EL PASO, TEXAS
                                                                               5/29/2018 11:19 PM
                                                                                DENISE PACHECO
                                                                                           CLERK



                              NO. 08-17-00175-CR
                                                           FILED IN
                                                    8th COURT OF APPEALS
                               IN THE                   EL PASO, TEXAS
                        COURT OF APPEALS            5/29/2018 11:19:14 PM
                    EIGHTH DISTRICT OF TEXAS            DENISE PACHECO
         ___________________________________________________ Clerk


                         THE STATE OF TEXAS,
                                     Appellant,

                                       v.

                               JESUS TABARES,
                                        Appellee.


                  On Appeal from Cause No. 20140C13890
         In the County Criminal Court No. 4 of El Paso County, Texas

                             APPELLANT’S BRIEF
                             Oral Argument is Waived


                 EL PASO COUNTY PUBLIC DEFENDER’S OFFICE

Attorneys for the Appellee                  JAIME GÁNDARA,
                                            Chief Public Defender

                                            Octavio A Dominguez
                                            Assistant Public Defender
                                            State Bar No. 24075582
                                            500 E. San Antonio, Room 501
                                            El Paso, Texas 79901
                                            (915)546-8185 Ext. 3528
                                            FAX (915) 546-8186
                    NAMES OF PARTIES AND COUNSEL

     Pursuant to Texas Rules of Appellate Procedure, Rule 38.1(a), Appellant

offers the following names of all parties, trial and appellate counsel:

1.   Defendant/Appellee JESUS TABARES was represented at the trial stage by

     Octavio A Dominguez and Yajaira Halm, El Paso County Assistant Public

     Defender’s, 500 E. San Antonio, Suite 501, El Paso, TX, 79901.

2.   The State of Texas was represented at the trial stage by Ghalib A. Serang and

     David J. Nunez, Assistant District Attorneys, 500 E. San Antonio, Suite 201,

     El Paso, TX 79901.

3.   The Trial Court Judge was Judge JESUS HERRERA presiding for Judge of

     the County Criminal Court No. 4, 500 E. San Antonio, Suite 702, El Paso, TX

     79901.

4.   Currently at the appellate stage, Mr. Tabares, is represented by Jaime

     Gándara, El Paso County Public Defender and Octavio A Dominguez,

     Assistant Public Defender, El Paso County Public Defender’s Office, 500 E.

     San Antonio, Suite 501, El Paso, TX 79901.

5.   At the Appellate stage, the State is represented by District Attorney, Jaime

     Esparza and Raquel Lopez, Assistant District Attorney, Appellate Division,

     500 E. San Antonio, Suite 201, El Paso, TX 79901.




                                          ii
                            TABLE OF CONTENTS



Names of Parties and Counsel                    ii

Table of Contents                               iii

Table of Authorities                            iv

Statement of the Case                           1

Reply to Issues Presented                       2

Statement of Facts                              3

Summary of the Argument                         8

Argument                                        9

Prayer for Relief                               22

Certificate of Service                          23

Certificate of Compliance                       23




                                 iii
                        TABLE OF AUTHORITIES


Criminal Court of Appeals Cases

Brezeale v. State, 683 S.W.2d 446 (Tex. Crim. App. 1984)……………………...11

Carmouche v. State, 10S.W.3d 323 (Tex. Crim. App. 2000……………………...10

Carter v. State, 3 309 S.W.3d 31 (Tex. Crim. App. 2010)……………………….15

Castro v. State, 227 S.W.3d 737 (Tex. Crim. App. 2007)………………………..11

Garcia v. State, 827 S.W.2d 937 (Tex. Crim. App. 1992)………………………..11

Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997)……………..…..9, 10, 11

Hardin v. State, 471 S.W.2d 60 (Tex. Crim. App. 1971)……………..………........9

McCloud v. State, 527 S.W.2d 885 (Tex. Crim. App. 1975)……………………...10

Miller v. State, 393, S.W.3d 255 (Tex. Crim. App. 2012)………………………..13

Romero v. State, 800 S.W.2d 539 (Tex. Crim. App. 1990)…….............………9, 10

State v. Duran, 396 S.W.3d 563 (Tex. Crim. App. 2013)………………...12, 14, 18

State v. Ross, 32 S.W.3d 853 (Tex. Crim. App. 2000)……………………..9, 10, 17

State v. Steelman, 93 S.W.3d 102 (Tex. Crim. App. 2002)………..….….…….…..9

State v. Weaver, 349 S.W.3d 521 (Tex. Crim. App. 2011)………….……11, 19, 21

Walter v. State, 28 S.W.3d 538 (Tex. Crim. App. 2000)………………………….12

Woods v. State, 956 S.W.2d 33 (Tex. Crim. App. 1997)……….…………………11

Court of Appeal Cases

Burke v. State, 27 S.W.3d 651 (Tex. App.--Waco 2000)………………………9, 10

Robuck v. State, 40 S.W.3d 650 (Tex. App.--San Antonio 2001)………….............9



                                     iv
State v. Gendron, 2015 Tex. App. LEXIS 1334, 2015 WL 632215 (Tex. App—El
Paso 2015……………………………………………………………………...15, 17

State v. Vasquez, No. 08-13-00079-CR, 2015 Tex. App. LEXIS 2543 (Tex. App.--
El Paso 2015)………...………………………………………………..14, 17, 20, 21

Young v. State, 133 S.W.3d 839 (Tex. App.--El Paso 2004)…………...........……11

United States Supreme Court Cases

Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)……………. …11

Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996)….12




                                      v
                                  STATEMENT OF THE CASE

        The State of Texas (hereinafter “the State”) charged Jesus Tabares

(hereinafter “Tabares”) with Driving While Intoxicated in a one-count information.

(CR: 6).1 Tabares pled not guilty to that charge. (CR: 38). On June 13, 2017,

Tabares filed his Motion to Suppress Evidence. (CR: 53-56). The trial court heard

and granted Tabares’ Motion to Suppress on July 14, 2017. (CR: 58-59, 81);

(RR:1, 38). The State’s Notice of Appeal was filed on July 27, 2017. (CR: 77).




1
  In this Brief, “CR” refers to the Clerk’s Record, which is followed by page number. “RR” refers to the Reporter’s
Record, and is followed by the volume number, then page number. “SX” refers to the State’s exhibits, also
numbered. "DX" refers to Defense exhibits.
                                                        1
         REPLY TO ISSUES PRESENTED FOR REVIEW

1) THE TRIAL COURT CORRECTLY RULED THAT SGT. VAN VALEN’S
TESTIMONY WAS NOT CREDIBLE AND THUS SGT. VAN VALEN
LACKED REASONABLE SUSPICION TO CONDUCT A TRAFFIC STOP
BASED ON THE NO-HEADLIGHTS VIOLATION

2) THE TRIAL COURT CORRECTLY RULED THAT SGT. VAN VALEN’S
TESTIMONY WAS NOT CREDIBLE AND THUS SGT. VAN VALEN
LACKED REASONABLE SUSPICION TO CONDUCT A TRAFFIC STOP
BASED ON OTHER ALLEGED VIOLATIONS




                           2
                                      STATEMENT OF FACTS

        On December 21, 2014, El Paso Police Sergeant John Van Valen (“Van

Valen”), while in the course of patrol, pulled over Tabares’ vehicle at the 1600

block of North Zaragosa in El Paso, Texas. (RR:7-9); (CR:8). Following the stop,

Tabares was arrested for allegedly driving while intoxicated with a blood alcohol

concentrate of 0.15 or more. (CR:8-9).


        On January 9, 2015, the Office of the El Paso County Public Defender was

appointed to represent Tabares on the matter. (CR:11-13). On March 19, 2015,

Tabares was arraigned. (CR:34). On June 13, 2017, Tabares filed both a motion

to suppress confession or statements and a motion to suppress evidence, asking the

court to exclude the State’s evidence on the grounds that it was obtained

unlawfully because Tabares was pulled over without probable cause and without a

warrant. (CR:48-52; 53-56).


        The matter was heard on July 17, 2017, by Judge Jesus Herrera of El Paso

County Criminal Court Number 4. (CR:58). The State called Van Valen to testify

as to the stop and also introduced dash cam video from the patrol car.2 (RR:7-11).




2
 For efficiency purposes the Defense will adopt the State’s citation nomenclature. Citation to the dashcam video
will be by the real-time timestamps reflected in the upper, right-hand corner of the dash-camera video admitted into
evidence. See State’s Exhibit 1 (“SX1”).
                                                        3
      Van Valen testified he pulled over Tabares for three alleged traffic

violations: (1) not having his taillights on, (2) not having his headlights on, and (3)

making several lane changes without signaling. (RR:17-18). Van Valen testified

that in the course of his stop, and prior to Van Valen activating his lights and siren,

Tabares’ vehicle did not have its tail lights or headlights activated. (RR:15). He

later identified a point during the stop where he alleged that Tabares activated both

his taillights and headlights. (RR:15-16; 20-22). In regards to the violations for not

signaling lane changes, Van Valen clarified that the failure to signal violations

occurred when Tabares’ vehicle allegedly drifted into the center turn lane without

signaling, then drifted to the right, back to the left most northbound lane, again

allegedly without signaling. (RR:19)


      In response to questioning from defense counsel, Van Valen acknowledged

that he is trained to observe and record relevant details of a stop in his police report

and, if charges follow, in the complaint affidavit. (RR: 24-25). Van Valen agreed

that if a driver were to turn on his lights halfway through a traffic stop, that it

would be relevant information to include in a traffic stop. (RR:25-26). After taking

a moment to review his report and complaint affidavit, Van Valen admitted that he

did not include that relevant observation in his report or complaint affidavit.

(RR:27-28).



                                           4
         In response to questioning from the judge, Van Valen testified that at all

times, he was behind Tabares’ vehicle driving Northbound on Zaragoza; Tabares’

vehicle never passed Van Valen’s and Tabares was not speeding. (RR:34-35). Van

Valen stated that he first noticed that Tabares’ lights were allegedly not on when

Tabares was traveling in the center lane, ahead and to the left, and later when he

saw that there was no illumination on the roadway. (RR:36). He acknowledged he

was at least half a block in distance from the vehicle at the time. (RR:36). He

stated that the video did not capture all of his observations of Tabares’ vehicle,

even though it starts thirty seconds before Van Valen activated his lights and siren.

(RR:34-35). He indicated that in those more than thirty seconds that he followed

Tabares’ vehicle, they travelled for at least half a block. (RR35-36).


         He acknowledged that someone driving at 5:00 am without tail lights or

headlights would be driving in an unsafe manner. (RR:29). He identified other

vehicles on the road at the same time travelling southbound. 3 He admitted that

despite the alleged threat to other vehicles on the road, he waited at least thirty

seconds to turn on his lights and siren to pull Tabares’ vehicle over. (RR:31).


         The dash cam introduced into evidence by the State provides a clear view of

the stop. Tabares can be seen driving northbound on Zaragoza, with Van Valen


3
 The State conceded that there were other vehicles in the vicinity and that driving without taillights or headlights on
could be unsafe for other vehicles. (RR:30-31).
                                                          5
several car lengths behind him. See SX1 at 05:05:27-5:05:50. Van Valen is at least

half a block away from Tabares’ vehicle at the outset. See SX1 at 05:05:27. At the

location where the stop occurred, Zaragoza is a 5 lane street, with two streets each

running north and south, and a center dividing lane reserved for left hand turns.

See generally SX1 at 05:06:05-05:06:10. Tabares is driving in the left-most

northbound lane. See generally SX1.


         Van Valen follows Tabares approximately thirty seconds before activating

his sirens. See SX1 at 05:05:27-5:05:55. In that time, Tabares’ vehicle does not

change lanes. See SX1 at 05:05:27-5:05:55. Tabares remains in the left-most

northbound lane for the entirety of the relevant time. See SX1 at 05:05:27-5:05:55.

At some point during the stop, Tabares’ vehicle safely drifts within its own lane.

See SX1 at 05:05:37-05:05:40.


         Tabares’ tail lights become more clearly illuminated as Van Valen closes the

distance between the vehicles when Tabares engages and then disengages the

brakes of his vehicle.4 See SX1 at 05:05:43-05:05:51.


         Van Valen activates his siren. See SX1 at 05:05:55. Tabares first signals a

right lane change but then changes his mind and signals and turns left, first into the

4
  The State conceded that at this point in the video, the taillights “are more illuminated now” than they were “two
seconds ago.” (RR:21); SX1:05:05:40-05:05:44). Van Valen testified that the image of the video depicting the
moment he testified corresponded to Tabares turning on the tail lights and that defense counsel questioned regarding
the engagement of Tabares’ vehicle’s brake lights was “distorted” and that it was “hard for [him] to tell] because [i]t
looks like one continuous bar . . . on the back of the trunk.” (RR:22-24); (SX1 at 05:05:41-05:05:47).
                                                          6
center turn lane and then into an Auto Zone parking lot. See SX1 at 05:05:57-

05:06:08. As the car turns into the parking lot, Tabares’ headlights and tail lights

are clearly on. (RR:22-24); (SX1 at 05:06:28).

      Following testimony by Van Valen and the presentation of the evidence, the

trial court issued the following pronouncement on the motion:

      These are [the] Court’s finds of fact. That the defendant was stopped
      on or about the 21st of December, 2014, at approximately 05:05. Five
      o’clock in the morning. That the defendant was stopped pursuant to an
      allegation made that lights – headlights or taillights – were noticeably
      off on the vehicle that the defendant was driving, northbound on
      Zaragoza Boulevard, in El Paso County, Texas.
      After the conclusion of the evidence, these are the findings –
      conclusions of law, rather. Oh, no. Findings of fact. I find it very, very
      difficult to put all my eggs in the basket of the credibility of this
      sergeant, police sergeant.
      …
      I’m going to grant the motion to suppress. Quite frankly, I find the
      credibility of this police officer in question. Court taking notice of the
      video involved, and the discrepancy between what is obviously on the
      video and what is on the affidavit, and what he states and his lack of –
      or inability to explain how he was able to see the headlights being on
      or off at the distance that, at least from what I could see on the video,
      was likely, possible.
      Therefore, I’m going to grant the motion to suppress. I don’t think
      there was sufficient cause to stop.
(RR:37-38).




                                          7
                       SUMMARY OF THE ARGUMENT

1. The evidence supports the trial court’s conclusion that Sgt. Van Valen lacked

reasonable suspicion in conducting a traffic stop of Tabares.

2. The evidence and the record show that the trial court found the testimony of Sgt.

Van Valen lacked credibility in regards to all parts of his testimony.

3. Specifically, the trial court found that Sgt. Van Valen’s testimony was contrary

to what was depicted in the video evidence played at the Motion to Suppress.

4. The trial court determined that Sgt. Van Valen’s testimony in particular about

the headlights was so contrary to the video evidence that it called into question Sgt.

Van Valen’s credibility in regards to the other alleged violations.

5. The trial court is due near total deference in its evaluation of the credibility and

demeanor of Sgt. Van Valen.

6.    Based on the record and the evidence, this court should affirm the trial

court’s ruling granting Tabares’ Motion to Suppress the basis of the traffic stop.




                                          8
                                   ARGUMENT

1. RESTATEMENT OF FIRST ISSUE: THE TRIAL COURT CORRECTLY
RULED THAT SGT. VAN VALEN’S TESTIMONY WAS NOT CREDIBLE
AND THUS SGT. VAN VALEN LACKED REASONABLE SUSPICION TO
CONDUCT A TRAFFIC STOP BASED ON THE NO-HEADLIGHTS
VIOLATION

      a. Standard of Review

      Generally speaking, the rulings of a trial court are presumed to be correct

and the appellant must affirmatively show the existence of error. Hardin v. State,

471 S.W.2d 60, 63 (Tex. Crim. App. 1971). A trial court’s rulings on a motion to

suppress evidence are analyzed using a bifurcated standard of review. State v.

Steelman, 93 S.W.3d 102, 107 (Tex. Crim. App. 2002) (citing Romero v. State, 800

S.W.2d 539, 543-44 (Tex. Crim. App. 1990)); State v. Ross, 32 S.W.3d 853, 856

(Tex. Crim. App. 2000); Robuck v. State, 40 S.W.3d 650, 654 (Tex. App.--San

Antonio 2001, pet. ref’d); Burke v. State, 27 S.W.3d 651, 654 (Tex. App.--Waco

2000, pet. ref’d). In Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997),

the Court of Criminal Appeals identified three different types of appellate issues to

identify the proper standard of review: (1) “historical facts that the record supports

especially when the trial court’s fact findings are based on an evaluation of

credibility and demeanor;” (2) “application of law to facts, also known as mixed

questions of law and fact, the ultimate resolution of those questions turns on an


                                          9
evaluation of credibility and demeanor;” and (3) “mixed questions of law and fact

not falling within [the second] category.”

      Guzman instructs appellate courts to give deference to the trial court’s

determination, expressed or implied, of historical facts, if supported by the record,

and generally will review de novo the court’s application of the law to the facts.

Ross, 32 S.W.3d at 856; Carmouche v. State, 10S.W.3d 323, 329 (Tex. Crim. App.

2000); Burke, 27 S.W.3d at 654. The trial court’s legal ruling will be upheld if it is

correct on any theory of the law applicable to the case, even if the trial court gives

the wrong reason for its opinion. Romero, 800 S.W.2d at 543. The same amount of

deference applies to a trial court’s rulings on “mixed questions of law and fact,” if

the resolution of those ultimate questions turns on an evaluation of credibility and

demeanor. Guzman, 955 S.W.2d at 89; Ross, 32 S.W.3d at 856.

      An appellate court is not required to give deference to the legal ruling of the

trial court and is not bound by an improper legal ruling. These “mixed questions of

law and fact not falling within [the second] category” are entitled to de novo

review and is limited to questions of law or mixed questions of law and fact that do

not depend upon the determinations of credibility and demeanor. Guzman, 955

S.W.2d at 89.

       A reviewing court must indulge every presumption in favor of the regularity

of the procedures in the trial court. McCloud v. State, 527 S.W.2d 885, 887 (Tex.

                                         10
Crim. App. 1975). Appellate courts should view the evidence in the light most

favorable to the trial court’s ruling. Guzman, 955 S.W.2d at 89 (internal citation

omitted). “The winning side is afforded the ‘strongest legitimate view of the

evidence’ as well as all reasonable inferences that can be derived from it.” State v.

Duran, 396 S.W.3d 563, 570 (Tex. Crim. App. 2013), quoting State v. Weaver, 349

S.W.3d 521, 525 (Tex. Crim. App. 2011). Thus, absence of direct proof of their

falsity, the trial court recitations in the records are binding. Brezeale v. State, 683

S.W.2d 446, 450 (Tex. Crim. App. 1984) (opinion on rehearing).

      b. Application

      Because Tabares was stopped without a warrant and without his consent, the

State had the burden of proving the reasonableness of the stop. See Castro v. State,

227 S.W.3d 737, 741 (Tex. Crim. App. 2007); Young v. State, 133 S.W.3d 839,

841 (Tex. App.--El Paso 2004, no pet.). A police officer is justified in detaining a

motorist when, based on the totality of the circumstances, the officer has specific

articulable facts, together with rational inferences from those facts, that lead him to

conclude that the motorist is, has been, or soon will be engaged in criminal

activity. See Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889

(1968); Woods v. State, 956 S.W.2d 33, 38 (Tex. Crim. App. 1997). An officer

may lawfully stop and detain a person for a traffic violation that the officer

witnesses. See Garcia v. State, 827 S.W.2d 937, 944 (Tex. Crim. App. 1992). The

                                         11
decision to stop an automobile is reasonable when an officer has probable cause to

believe that a traffic violation has occurred. Whren v. United States, 517 U.S. 806,

810, 116 S.Ct. 1769, 1772, 135 L.Ed.2d 89 (1996); Walter v. State, 28 S.W.3d 538,

542 (Tex. Crim. App. 2000).

      The trial court ruled that Van Valen lacked reasonable suspicion to stop

Tabares because it found that Van Valen was not credible. As previously

discussed, the trial court’s credibility assessment would typically be, and is,

entitled to near total deference. However, the State insists that the trial court is not

entitled to deference on its rulings for two reasons. It argues that “to the extent that

the trial court based its ruling on a determination of fact that Sgt. Van Valen did

not observe Tabares’ failure to display his headlights, such a determination is

unsupported by the record in two respects[:]” 1) Van Valen provided a basis for his

observation (residual illumination on the road) and 2) the video corroborates Van

Valen’s testimony that Tabares’ vehicle did not have its head lights on prior to

initiation of the traffic stop. App.’s Brief at 12-13. Consequently, the State argues,

that traffic violation alone was sufficient to establish reasonable suspicion to pull

Tabares over. In brief, the State’s argument simply boils down to its insistence that

the video indisputably corroborates Van Valen’s version of events and thus the

Court should apply a de novo standard of review.




                                          12
           The State cherry picks legal holdings without explaining how the facts in

those cases support the circumstances in this case. See App.’s Brief 11-12. In fact,

several of the cases cited by the State actually support the position that the trial

court’s ruling is due near total deference. In Duran, the trial court granted a motion

to suppress for the defendant that turned on a credibility issue where the trial courts

conclusion was, apparently, in contradiction to what the State insisted was depicted

in the video evidence. Duran, 396 S.W.3d at 568. The State appealed and the

appeals court reversed the trial court. Id. The Criminal Court of Appeals, however,

sided with the trial court and ruled that the “same deferential standard of review

‘applies to a trial court’s determination of historical facts [even] when that

determination is based on a videotape recording admitted into evidence at a

suppression hearing.’” Id. at 570. It further held that “[a]lthough appellate courts

may review de novo ‘indisputable visual evidence’ contained in a videotape, the

appellate court must defer to the trial judge’s factual findings on whether a witness

actually saw what was depicted on a videotape or heard what was said . . . .” Id. at

570-71 (citations omitted). It distinguished Miller v. State, 393, S.W.3d 255 (Tex.

Crim. App. 2012)5 by stating that in that case, the trial judge’s findings “were

contradicted by [recorded] events” that did not involve an evaluation of

credibility.” Id. at 573. In other words, de novo review of the trial court’s


5
    Also cited in support without discussion by State. See App.’s Brief 11-12.
                                                           13
application of the law to the historical facts is permissible only if the facts are not

dependent upon determinations of credibility and demeanor of the involved

witness.

           Another case cited by the State without discussion is instructive on how this

Court has dealt with credibility assessments related to video evidence of the stop. 6

See State v. Vasquez, No. 08-13-00079-CR, 2015 Tex. App. LEXIS 2543 (Tex.

App.--El Paso 2015, pet. ref’d) (not designated for publication). In Vasquez, the

State again argued that the trial court’s findings were not entitled to almost total

deference in its ruling. Id. at *7. In Vasquez, an officer had pulled over a

motorcyclist for purportedly driving in a manner that the officer, through his

training and experience, identified with intoxicated driving, including driving on

the shoulder, weaving in the lane and operating the motorcycle with only one hand.

Id. at *1-3. A video recording was introduced at the hearing that disproved some of

the officer’s observations, specifically that the motorcycle never entered the

shoulder of the road. Id. at *3. Based on that inconsistency, the trial court found the

officer’s testimony not credible, holding that “[t]he video does not confirm, and

may actually refute, the [officer’s] claims.” Id. at *5. The trial court granted the

motion to suppress and the State appealed. Id.




6
    See App.’s Brief 11-12.
                                            14
       On appeal, this Court ruled that the correct standard of review was near total

deference because “the recording does not indisputably contradict the trial court’s

findings . . . .” Id. at *11. The Court reasoned that the trial court was justified in

finding the officer’s testimony not credible because

       the video recording contradicted some of the events he claimed
       justified stopping [the defendant], and the recording does not
       indisputably negate the trial court’s findings. Thus, the trial court
       reasonably could have disbelieved, and was entitled to disbelieve, the
       portion of [the officer’s] testimony that, based on his experience, he
       had a reasonable suspicion [the defendant] was intoxicated. Because
       we are not in a better position than the trial court to assess factual
       issues turning on credibility, and because the record supports rather
       than indisputably negates the trial court’s factual findings, we defer to
       the trial court’s resolution of this issue.

Id. at *8.


       Case after case supports the proposition that the trial court’s ruling should be

entitled to near total deference. See Carter v. State, 3 309 S.W.3d 31, 40 (Tex.

Crim. App. 2010) (providing that “a trial court’s determination of historical facts

based on a videotape recording is still reviewed under a deferential standard”);

State v. Gendron, 2015 Tex. App. LEXIS 1334, 2015 WL 632215, at *7-10 (same,

discussing the law). In Gendron, another case decided by this Court, the arresting

officer testified that he pulled over the defendant motorist after observing the

motorist swerving from lane to lane at least five times over a two mile distance and

that other drivers were placed in danger. Gendron, 2015 Tex. App. LEXIS 1334 at


                                          15
*3-4. In the course of cross examination and following the playing of the dash cam

recording of the stop, the officer acknowledged that the motorist only crossed lanes

“once or twice” rather than the five times he had testified earlier and conceded that

traffic was light and that at some points the motorist was not endangering anyone.

Id. at *4-5. The trial court ruled that at most it noticed slight weaving within a lane,

and not even the crossing of lanes “once or twice” that the officer had

compromised on. Id. at *6. The court also found that the video did not support the

officer’s testimony regarding the danger the motorist placed other drivers in

because traffic was light. Id. Because the trial court found the dash cam did not

support the officer’s claims, and in fact contradicted them, it found his testimony

not credible and granted the motion to suppress based on lack of reasonable

suspicion. Id. The trial court was upheld on appeal. See id. at *16, 18.


      Similarly in this case, the trial court reviewed the video multiple times and

even questioned Van Valen directly to assess for itself how Van Valen could have

seen the lack of headlight illumination of Tabares’ vehicle. (RR:33-36). In

response to the trial court’s questioning, Van Valen stated he knew Tabares’

headlights were off “by the lack of illumination on the roadway,” even though Van

Valen admitted that throughout the time he was aware of Tabares’ vehicle, Van

Valen was behind Tabares’ vehicle, his own vehicle was never passed by Tabares

on the road, and Van Valen was at least half a block length in distance. (RR:36).

                                          16
The trial court clearly did not find Van Valen’s answer satisfactory because it was

the very last question posed to Van Valen and the trial court promptly ruled in

favor of Tabares. (RR:36-38). Moreover, Van Valen acknowledged that he did not

include in his complaint affidavit the relevant fact that Tabares allegedly turned on

his headlights in the course of the stop. (RR:27-28).


      In a motion to suppress hearing, the trial court is the sole trier of fact and

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

Ross, 32 S.W.3d at 855. Because the trial court observes first-hand the demeanor

and appearance of a witness, as opposed to an appellate court which can only read

an impersonal record, the judge may believe or disbelieve all or any part of a

witness’s testimony, even uncontroverted. Id. Here, it is clear that the trial court

disbelieved Van Valen’s testimony. Because the State’s appellate issue involves

the trial court’s application of the law to the facts, and it turns on an evaluation of

the credibility and demeanor of Van Valen--whether Van Valen could have

observed the headlights on from his position on the road—the trial court is entitled

to near total deference of its ruling. As in Duran, as in Vasquez, and as in Gendron,

this Court should uphold the trial court’s ruling.




                                          17
2. RESTATEMENT OF SECOND ISSUE:        THE TRIAL COURT
CORRECTLY RULED THAT SGT. VAN VALEN’S TESTIMONY WAS NOT
CREDIBLE AND THUS SGT. VAN VALEN LACKED REASONABLE
SUSPICION TO CONDUCT A TRAFFIC STOP BASED ON OTHER
ALLEGED VIOLATIONS

      In its second point of error, the State doubles down on its argument that the

video indisputably supports Van Valen’s testimony and argues that even if the trial

court did not believe Van Valen as to whether or not Tabares’ headlights were

activated, Van Valen was still authorized to pull over Tabares for the other

offenses cited in his complaint affidavit: lack of tail lights and failing to signal

when allegedly changing lanes. App.’s Brief at 21-25.


      The State runs into the same legal principle as it did on its first point of

error. The trial court is entitled to near total deference in regards to facts that turns

on its credibility assessment. The trial court clearly found Van Valen’s testimony

in regards to the alleged lack of headlight violation was so untrustworthy, that it

disbelieved the officer’s claims related to the other offenses. Although the trial

court’s facts and findings and conclusions of law did not explicitly address the

other violations, the trial court was clear that it found it “very, very difficult to put

all my eggs in the basket of the credibility” of Van Valen. (RR:38).


      The trial court implicitly discredited Van Valen’s alleged observations in

regards to the other alleged offenses when it made its ruling. See Weaver, 349


                                          18
S.W.3d at 525 (upholding a suppression ruling on the basis of an implicit factual

finding). Van Valen clearly identified the reasons for his stop both in direct

examination and in cross. See (RR:8, 17-19). The questioning from both the State’s

prosecutor and defense counsel touched on all three alleged violations. 7 In regards

to the tail lights, during the course of the State’s direct examination, the trial court

commented that Tabares’ taillights “seem to be on.” (RR;14). When defense

counsel asked if Tabares could possibly be engaging the brake, and thus

illuminating the brake lights at the point where Van Valen testified Tabares turned

on his lights, see (RR:15), Van Valen testified that the video was “distorted” and

that it was “hard for [him] to tell] because [i]t looks like one continuous bar . . . on

the back of the trunk.” (RR:22-24); (SX1 at 05:05:41-05:05:47). Regardless, Van

Valen acknowledged that both the headlights and taillights were activated and

working properly by the time Tabares’ vehicle came to a stop. (RR:24). The trial

court could have reasonably inferred that Tabares’ taillights were activated

throughout the entire stop when it discredited Van Valen’s testimony in regards to

the headlights. See Golleher v. Herrera, 651 S.W.2d 329, 333 (Tex.App.--Amarillo

1983, no pet.) (where witness agreed that the taillights could not be turned on


7
  In response to the State’s prosecutor asking what violations he saw Tabares commit, Van Valen answer, “What I
observed is that the vehicle wasn’t operating with its headlamps or tail lamps, and that it was changing lanes without
signaling.” (RR:8). In response to defense counsel summarizing his earlier testimony and seeking clarification, Van
Valen agreed that he pulled over Tabares for lack of taillights, lack of headlights, and failure to In regards to the
violations for not signaling lane changes, Van Valen clarified that the failure to signal violations occurred when
Tabares’ vehicle allegedly drifted into the center turn lane without signaling, then drifted to the right, back to the left
most northbound lane, again allegedly without signaling. (RR:17-19)
                                                           19
without turning on the headlights, testimony that the taillights were burning

provided a basis for a reasonable inference that the headlights were also on).


       In regards to the alleged lane changing without signaling, Van Valen

testified both in direct and cross to specific portions of the video showing the

alleged violations. (RR: 15, 32-33; SX1 at 05:05:37-05:05:40). Van Valen

acknowledged that during that portion of the video, the vehicle was difficult to see

in the video. (RR:12) (stating that “[t]he vehicle is still ahead of me, but it’s dark

because of the no taillights.”). In response to questioning from the trial court, Van

Valen reiterated that Tabares was first observed in the center lane to his left.

(RR:36).


      The trial court clearly knew that both the taillights and alleged lane changing

without signaling were issues of contention and alleged reasons for the traffic stop.

The trial court implicitly found those allegations not credible. It should not allow

the State to have another bite of the apple as to the credibility of Van Valen simply

because it disagrees with the trial court’s reasonable conclusion. As this Court

stated in Vasquez, “trial courts are vested with the function of determining

historical facts; the fortuity of a video should not entitle the loser, whoever that

may be, to a de novo review by three, or nine, more sets of eyes.” Vasquez, 2015

Tex. App. LEXIS 2543 at *9. The trial court already determined that Van Valen’s

testimony in particular about the headlights was so contrary to the video evidence
                                        20
that it called into question his credibility in regards to the other alleged violations.

Thus, under Weaver, this Court should uphold the trial court’s implicit finding of

fact in regards to the alleged lack of taillights and alleged lane changing without

signaling.


                                      CONCLUSION

         The trial court is due near total deference in its evaluation of the credibility

and demeanor of Sgt. Van Valen when he testified at the hearing for Tabares’

motion to suppress. Contrary to the State’s position, the trial court did address and

rule on all of the alleged traffic violations. The trial court reviewed the video

multiple times and listened to Sgt. Van Valen’s testimony, even posing its own

questions to the officer to give him an opportunity to address the trial court’s

concerns about what Sgt. Van Valen testified to and what was depicted in the

video.

         Contrary to the State’s insistence, the video evidence does not corroborate

Sgt. Van Valen’s testimony. After carefully reviewing the video evidence multiple

times and listening to the testimony of Sgt. Van Valen, the trial court explicitly

ruled that Sgt. Van Valen was not a credible witness in regards to his justifications

for initiating a traffic stop of Tabares. In fact, the trial court determined that Sgt.

Van Valen’s testimony in particular about the headlights was so contrary to the


                                            21
video evidence that it called into question Sgt. Van Valen’s credibility in regards to

the other alleged violations.

      The record and the evidence supports the trial court’s conclusion that Sgt.

Van Valen lacked reasonable suspicion in conducting a traffic stop of Tabares.

Thus, this Court should affirm the trial court’s ruling granting Tabares’ motion to

suppress the basis of the traffic stop.

                                PRAYER FOR RELIEF

      Mr. Tabares prays that this Court affirm the Motion to Suppress granted by

the Honorable Judge Jesus Herrera, El Paso County Criminal Court Number 4.



                                   EL PASO COUNTY PUBLIC DEFENDER

                                BY:/s/ Octavio A Dominguez
                                      OCTAVIO A DOMINGUEZ
                                     ASSISTANT PUBLIC DEFENDER
                                     State Bar No. 24075582
                                     500 E. San Antonio, Room 501
                                     El Paso, Texas 79901
                                     odominguez@epcounty.com
                                     (915) 546-8185, x 3528
                                     Fax: 915-546-8186




                                          22
                         CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the fore-going Brief for the
Appellant was sent by e-mail using the E-serve system to the District Attorney’s
Office, 500 E. San Antonio Room 201, El Paso, Texas 79901 and mailed to the
Appellant JESUS TABARES on this the 30th day of May, 2018.


                                 BY:/s/ Octavio A Dominguez
                                       OCTAVIO A DOMINGUEZ

                     CERTIFICATE OF COMPLIANCE

      Undersigned counsel herein states that the computer generated word count is
5806 and as such this document is in compliance with the Texas Rules of
Appellate Procedure.



                                  BY:/s/ Octavio A Dominguez
                                        OCTAVIO A DOMINGUEZ




                                         23
