Opinion filed May 9, 2019




                                      In The


        Eleventh Court of Appeals
                                   __________

                             No. 11-17-00134-CR
                                 __________

                   ERIC JAMES FREEMAN, Appellant
                                         V.
                     THE STATE OF TEXAS, Appellee


                    On Appeal from the 104th District Court
                            Taylor County, Texas
                        Trial Court Cause No. 20115B


                     MEMORANDUM OPINION
      The jury convicted Eric James Freeman of the second-degree felony offense
of possession of methamphetamine and, upon Appellant’s plea of true to the
enhancement allegation, assessed his punishment at confinement for ten years. The
trial court sentenced Appellant in accordance with the jury’s verdict. In two issues
on appeal, Appellant asserts a sufficiency-of-the-evidence complaint and argues that
the trial court abused its discretion when it denied his motion to suppress evidence.
We affirm.
      Before trial, Appellant filed a motion to suppress evidence—including, among
other things, 1.45 grams of methamphetamine—obtained incident to the traffic stop.
The trial court held a hearing on Appellant’s motion to suppress.
      At the hearing, Mary Guitar, an officer with the Abilene Police Department,
testified for the State. The State also presented the dashcam video of the traffic stop.
      Officer Guitar explained that, at roughly 2:25 a.m. on the day of the offense,
she was sitting in her patrol vehicle at a red light at the intersection of Willis and
South 1st in Abilene. Shortly thereafter, she saw Appellant drive through a green
light at the intersection. When Appellant drove past her, Officer Guitar saw that one
of the passenger side taillights of Appellant’s vehicle was emitting a white light.
Officer Guitar testified that, from where she was, the white light of that taillight
overpowered the red light of that same taillight and that she could not see any of the
red light from that taillight. She testified that the Texas Transportation Code
provides that vehicles must be equipped with a red taillight that is visible at 1,000
feet. She believed that the taillight was broken because it did not have a complete
lens cover.
      After the light facing Officer Guitar changed to green, Officer Guitar turned
at the intersection and activated her emergency lights. Appellant drove into a motel
parking lot. Officer Guitar also drove into the parking lot, exited her vehicle, and
approached Appellant’s vehicle. She told Appellant that she stopped him because
there was a “busted taillight” on his vehicle. At the hearing on the motion,
Officer Guitar clarified the reason for the stop and testified that she actually initiated
the traffic stop on the basis of how much “the white light [wa]s overpowering the
red light of the lens.” Appellant told Officer Guitar that he did not have a driver’s
license and that he did not have registration documents for his vehicle.
      Officer Guitar asked Appellant to exit his vehicle. After Officer Guitar
performed several field sobriety tests on Appellant, she arrested him for DWI.
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During a subsequent search of the vehicle that Appellant was driving, Officer Guitar
found methamphetamine. Ultimately, Officer Guitar did not cite Appellant for a
defective taillight.
       On cross-examination, Appellant’s counsel asked Officer Guitar about the
appearance of the taillights as seen in the dashcam video. The dashcam video
contains the entire traffic stop. Appellant’s counsel appeared to suggest that, based
on certain portions of the video, the taillight that Officer Guitar perceived to be
defective was functional because a red light was visible. Officer Guitar conceded
that, at various points in the video, the taillight did appear to emit some red light.
However, she explained that the taillight appeared to emit a white light “in person.”
She also said that the taillight, as shown in the video, appeared a “brighter” red than
the other taillights.
       Appellant’s counsel also insisted, based on certain portions of the dashcam
video, that the taillights all appeared to have red lenses. Officer Guitar agreed, based
on the portions of the video that she was shown, that they “all look[ed] red.” But
Officer Guitar clarified that “[t]here was tape on that far right” taillight. She
explained the problem with tape on a taillight: “Well, if they’re trying to cover up
the red portion or if, say, the red portion -- the lens is broken, sometimes they’ll use
red cellophane to cover it to mimic the lens, and if it blows off, it will still expose
that white light.”
       We note that Appellant’s vehicle was equipped with at least four taillights.
Appellant’s counsel elicited testimony from Officer Guitar that, besides that taillight
that she observed, at least two of Appellant’s taillights were functional.
       After the trial court heard the evidence, it partially denied Appellant's motion
to suppress. The trial court concluded that Officer Guitar had reasonable suspicion
that Appellant committed a traffic violation.


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      At trial, Officer Guitar testified as the State’s sole witness. Officer Guitar
again testified that she pulled Appellant over for a traffic violation and arrested him
for DWI.
      Another Abilene Police Officer, who had arrived on the scene, searched
Appellant’s person and found a “scale” in his pocket. Officer Guitar testified that a
scale is sometimes associated with narcotic activities.       In Appellant’s wallet,
Officer Guitar found $300. Officer Guitar and the other officer also searched the
vehicle that Appellant was driving; Appellant did not own the vehicle. When they
searched it, they found a white crystal-like substance in a plastic bag underneath the
driver’s seat. The substance was methamphetamine in the amount of 1.45 grams.
Officer Guitar also found empty plastic bags in the vehicle; the bags matched the
plastic bag that contained the methamphetamine found in the vehicle.
      Appellant raises two issues on appeal. In his first issue, Appellant argues that
the trial court abused its discretion when it denied his motion to suppress because
Officer Guitar did not have reasonable suspicion to stop Appellant for a traffic
violation. In his second issue, Appellant contends that the evidence was insufficient
for a jury to have concluded beyond a reasonable doubt that Appellant was legally
detained for a traffic violation. See TEX. CODE CRIM. PROC. ANN. art. 38.23 (West
2018). Appellant categorizes his second issue as a sufficiency-of-the-evidence issue.
However, the sufficiency of the evidence to support a jury’s resolution of an
instruction under Article 38.23(a) is not reviewable on appeal. Holmes v. State, 248
S.W.3d 194, 200 (Tex. Crim. App. 2008) (jury’s decision regarding an Article 38.23
factual dispute is unreviewable); Hanks v. State, 137 S.W.3d 668, 671–72 (Tex.
Crim. App. 2004) (factual sufficiency review is not appropriate with respect to jury’s
resolution of admissibility of evidence under Article 38.23 instruction). To the
extent that Appellant’s complaint is one of sufficiency of the evidence for his


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conviction of possession of methamphetamine, we first address that complaint and
then review his complaint about the legality of the traffic stop.
      We review a challenge to the sufficiency of the evidence under the standard
of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323
S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–89
(Tex. App.—Eastland 2010, pet. ref’d). Under the Jackson standard, we review all
the evidence in the light most favorable to the verdict and determine whether any
rational trier of fact could have found the essential elements of the offense beyond a
reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638
(Tex. Crim. App. 2010). When we conduct a sufficiency review, we consider all the
evidence admitted at trial, including pieces of evidence that may have been
improperly admitted. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App.
2013); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to
the factfinder’s role as the sole judge of the witnesses’ credibility and the weight
their testimony is to be afforded. Brooks, 323 S.W.3d at 899. This standard accounts
for the factfinder’s duty to resolve conflicts in the testimony, to weigh the evidence,
and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443
U.S. at 319; Clayton, 235 S.W.3d at 778. When the record supports conflicting
inferences, we presume that the factfinder resolved the conflicts in favor of the
verdict, and we defer to that determination. Jackson, 443 U.S. at 326; Clayton, 235
S.W.3d at 778. Intent may also be inferred from circumstantial evidence, such as
acts, words, and the conduct of an appellant. Guevara v. State, 152 S.W.3d 45, 50
(Tex. Crim. App. 2004).
      We believe that the independent facts and circumstances in this case justify
the jury’s conclusion that Appellant had possession of the methamphetamine and
that he knew the substance was methamphetamine. Although Appellant did not own
the vehicle, Appellant was in sole possession of the vehicle where the
                                          5
methamphetamine was found, and Appellant had received prior traffic citations
while driving the vehicle. The jury could have therefore inferred that Appellant
commonly drove it.      Appellant also possessed a scale of the type commonly
associated with narcotics, and he had $300 on his person. Further, during the search
of the vehicle, the officers found empty plastic bags that matched the plastic bag in
which the methamphetamine was found. To the extent that Appellant raises a
sufficiency-of-the-evidence complaint, we overrule it.
      Next, we address the legality of the traffic stop. As we explained above,
Appellant claims that the trial court erred when it denied his motion to suppress. He
also claims that the jury could not have concluded beyond a reasonable doubt that
the traffic stop was legal (this challenge is rooted in the jury’s implied finding, per
the Article 38.23 instruction given in this case, that the traffic stop was legal).
Although both complaints concern the same issue—whether Officer Guitar had
reasonable suspicion to detain Appellant for a traffic violation—we will not review
the jury’s implied findings under Article 38.23(a); instead, we will solely determine
whether the trial court erred when it denied Appellant’s motion to suppress. See
Appleby v. State, No. 11-17-00038-CR, 2018 WL 849692, at *2 (Tex. App.—
Eastland Feb. 8, 2018, no pet.) (mem. op., not designated for publication) (an
Article 38.23 issue is not reviewable for factual sufficiency) (citing Hanks v. State,
137 S.W.3d 668, 672 (Tex. Crim. App. 2004)).
      We review a trial court’s ruling on a motion to suppress for an abuse of
discretion. Martinez v. State, 348 S.W.3d 919, 922 (Tex. Crim. App. 2011). When
we review a ruling on a motion to suppress, we apply a bifurcated standard of review.
Brodnex v. State, 485 S.W.3d 432, 436 (Tex. Crim. App. 2016). We afford almost
total deference to the trial court’s determination of historical facts and of mixed
questions of law and fact that turn on the weight or credibility of the evidence. Id.;
Martinez, 348 S.W.3d at 922–23. We review de novo the trial court’s determination
                                          6
of pure questions of law and mixed questions of law and fact that do not depend on
credibility determinations. Brodnex, 485 S.W.3d at 436. When the trial court makes
express findings of fact, we first determine whether the evidence, when viewed in
the light most favorable to the trial court’s ruling, supports those findings.
Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). “We uphold the
trial court’s ruling if it is supported by the record and correct under any theory of
law applicable to the case.” State v. Iduarte, 268 S.W.3d 544, 548 (Tex. Crim. App.
2008).
      A traffic stop is a seizure and must be reasonable under both the United States
and Texas Constitutions. See Davis v. State, 947 S.W.2d 240, 245 (Tex. Crim. App.
1997). “There need only be an objective basis for the stop; the subjective intent of
the officer conducting the stop is irrelevant.” State v. Clark, 315 S.W.3d 561, 564
(Tex. App.—Eastland 2010, no pet.); see Garcia v. State, 43 S.W.3d 527, 530 (Tex.
Crim. App. 2001). A violation of a traffic law sufficiently justifies initial detainment
during a traffic stop. McVickers v. State, 874 S.W.2d 662, 664 (Tex. Crim. App.
1993).
      Appellant raises several arguments to support his position that Officer Guitar
had no reasonable suspicion to detain him for a traffic violation. First, Appellant
contends that Officer Guitar had no reasonable suspicion to detain him for a traffic
violation because his vehicle was equipped in compliance with Section 547.322(d)
of the Transportation Code—the provision that Officer Guitar relied on to stop
Appellant. Section 547.322(d) contains this provision: “A taillamp shall emit a red
light plainly visible at a distance of 1,000 feet from the rear of the vehicle.” TEX.
TRANSP. CODE ANN. § 547.322(d) (West 2011).                 According to Appellant,
Section 547.322(a), which provides, in relevant part, that “a motor vehicle . . . shall
be equipped with at least two taillamps,” id. § 547.322(a), only requires, in the case
of a vehicle with at least four taillights—like Appellant’s—that “at least” two of the
                                           7
four taillights project red light visible from 1,000 feet. Appellant therefore claims
that, even if one of his taillights was defective, he had “at least” two taillights that
had red lights that were visible from 1,000 feet.
      The issue is whether the requirement that “[a] taillamp shall emit a red light
plainly visible at a distance of 1,000 feet from the rear of the vehicle” applies to all
taillights on a vehicle or only to the two minimum taillights required by law under
Section 547.322(a). This is a matter of statutory construction.
      “The starting point in any statutory construction analysis is the plain language
of the statute in question.” Ex parte Whiteside, 12 S.W.3d 819, 821 (Tex. Crim.
App. 2000). “When a statute is clear and unambiguous, we should apply the plain
meaning of its words, unless that plain meaning leads to absurd results.” Id.
      We believe the statute is unambiguous. Montes v. State, No. 08-13-00060-
CR, 2015 WL 737988, at *2 (Tex. App.—El Paso Feb. 20, 2015, no pet.) (not
designated for publication). Section 547.322(a) provides that all motor vehicles,
except those made before 1960, shall be equipped with at least two “taillamps.”
TRANSP. § 547.322(a). “A taillamp shall emit a red light plainly visible at a distance
of 1,000 feet . . . .” Id. § 547.322(d). The shift from the plural “taillamps” in
subsection (a) to the singular “[a] taillamp” in subsection (d) indicates that the
legislature contemplated the existence of multiple “taillamps” on a vehicle and
prescribed that each individual taillamp would be subject to the Transportation Code
requirement. Because the statute is subject to only one interpretation, our legal
analysis concludes there.
      Next, Appellant argues that Officer Guitar did not have reasonable suspicion
to detain him for a violation of Section 547.322(d) because Officer Guitar testified,
based on her perception of certain portions of the dashcam video, that the allegedly
defective taillight was only a “brighter” red than the other taillights on Appellant’s


                                           8
vehicle. Appellant claims that having a taillight that is a “brighter” red than the other
taillights is not a violation of Section 547.322(d).
      A traffic violation occurs under Section 547.322(d) if a cracked taillight emits
white light that renders the red light of that same taillight not visible from 1,000 feet
away. See Crain v. State, No. 08-02-00103-CR, 2003 WL 1386942, at *3 (Tex.
App.—El Paso Mar. 20, 2003, no pet.) (mem. op., not designated for publication).
No traffic violation occurs, however, if a fracture in a taillight allows white light to
emit, so long as the taillight continues to emit the requisite red light for 1,000 feet.
See Vicknair v. State, 751 S.W.2d 180, 189–90 (Tex. Crim. App. 1986) (op. on
reh’g).
      When Officer Guitar was shown select portions of the dashcam video, she
testified that the allegedly defective taillight emitted a brighter red light than the
other taillights. However, Officer Guitar also testified that the dashcam video
differed from what she observed “in person.” Officer Guitar stated that she saw “in
person” that the white light of one of Appellant’s vehicle’s taillights overpowered
the red light of that same taillight and that she could not see any of the red light from
that taillight. She testified that the Texas Transportation Code requires a vehicle to
have a visible red taillight at 1,000 feet.
      We agree with Appellant that a taillight that merely emits a brighter red light
is not a violation of the statute. However, Officer Guitar’s in-person observations,
as she perceived them, are sufficient to establish a violation of Section 547.322(d).
Whether Officer Guitar was mistaken in her observations is the subject of
Appellant’s next argument.
      In his next and final argument, Appellant claims that Officer Guitar did not
have reasonable suspicion to detain him for a traffic violation because her
observations, on the day of the offense, were factually incorrect. Specifically,
Appellant argues that, to the extent that Officer Guitar testified that the taillight on
                                              9
the vehicle that he was driving was cracked and was emitting a white light that
overpowered the red light of that taillight, those observations were incorrect because
(1) the dashcam video clearly shows that Appellant’s taillights were red and intact
and (2) Officer Guitar clarified on cross-examination that the lens of the allegedly
defective taillight was not broken and only emitted a brighter red light. Appellant
therefore claims that the trial court erred when it relied on Officer Guitar’s in-person
observations to conclude that Appellant had a defective taillight. In order to address
Appellant’s contention, we must describe the appearance of the taillights as they are
shown in the dashcam video.
       The dashcam video begins as Officer Guitar sat in her vehicle at the red light.
About forty seconds into the video, Appellant can be seen driving through the
intersection; the vehicle that Appellant was driving is only visible for a few seconds
as he proceeded through the intersection. The video reflects that, as Appellant drove
through the intersection, the taillights on the back of the vehicle were only partially
visible. The taillights that are visible on the video appear to be red. The video then
depicts that Officer Guitar waited for the light to change to green before she turned
to follow Appellant. As she waited for the light to change before turning, Appellant
drove through the intersection and out of the range of the dashcam for at least nine
seconds. Importantly, Officer Guitar testified that it was at this point that she saw
the defective taillight.
       After the light changed to green, as depicted on the video, Officer Guitar
turned and followed Appellant. When she turned, Appellant’s vehicle again became
visible on the dashcam video—as he was about to turn into the hotel parking lot. We
note that, at this point in the video, it is difficult to determine the color and condition
of the taillights on Appellant’s vehicle. All the taillights on his vehicle appear white
(but we note that the record reflects that Officer Guitar’s headlights apparently
distorted the appearance of the taillights at certain instances on the dashcam video).
                                            10
As Officer Guitar drove closer, she activated the emergency lights on her vehicle.
Appellant turned into the hotel parking lot, and Officer Guitar followed him. As she
turned into the parking lot, the dashcam video shows a clear view of all the taillights
on Appellant’s vehicle. Yet, Officer Guitar’s vehicle lights again seem to distort the
color of the taillights. However, all of the taillights on Appellant’s vehicle appear
to emit some red light. Next, Officer Guitar parked directly behind Appellant. She
approached the vehicle and spoke with Appellant; this encounter led to his arrest.
At a point later in the video, a clear view of Appellant’s four taillights reflects that
all of Appellant’s vehicle taillights appear intact and emit some red light.
      It is difficult for this court to determine whether the taillight at issue failed to
emit a red light at 1,000 feet, given that the point in time at which Officer Guitar
perceived the traffic infraction is not shown on the dashcam video. However, we
can say that the taillight at issue, as reflected on the dashcam video, did not appear
to be cracked. We are mindful, though, that “there is a difference between what an
officer sees during an ongoing event and what we see when reviewing a video.”
Jaganathan v. State, 479 S.W.3d 244, 248 (Tex. Crim. App. 2015). In any event,
the issue is not whether Appellant committed a traffic violation; rather, the issue is
whether Officer Guitar had reasonable suspicion that Appellant had committed one.
See id. at 247.
      An officer’s reasonable suspicion may be validly based on articulable facts
that are ultimately shown to be inaccurate or false. See Williams v. State, 621 S.W.2d
613, 615 (Tex. Crim. App. [Panel Op.] 1981); Kelly v. State, 721 S.W.2d 586, 587
(Tex. App.—Houston [1st Dist.] 1986, no pet.); see also Illinois v. Wardlow, 528
U.S. 119, 126 (2000) (explaining that the reasonable suspicion standard “accepts the
risk that officers may stop innocent people”).         A mistake about the facts, if
reasonable, will not vitiate an officer’s actions in hindsight so long as his actions
were lawful under the facts as he reasonably, albeit mistakenly, perceived them to
                                           11
be. Robinson v. State, 377 S.W.3d 712, 720–21 (Tex. Crim. App. 2012); Parson v.
State, 392 S.W.3d 809, 817 (Tex. App.—Eastland 2012, pet. ref’d). Even if
Officer Guitar was mistaken, we conclude that Officer Guitar’s mistake was
reasonable. See State v. Torrez, 490 S.W.3d 279, 283–85 (Tex. App.—Fort Worth
2016, pet. ref’d); Trevino v. State, No. 03-14-00009-CR, No. 03-14-00010-CR, 2016
WL 463658, at *5–8 (Tex. App.—Austin Feb 5, 2016, pet. ref’d) (mem. op., not
designated for publication). The traffic stop, as Officer Guitar perceived it, was
lawful. Therefore, the trial court did not err when it denied Appellant’s motion to
suppress. We overrule Appellant’s first and second issues.
        We affirm the judgment of the trial court.




                                                           JIM R. WRIGHT
                                                           SENIOR CHIEF JUSTICE


May 9, 2019
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.1

Willson, J., not participating.




        1
          Jim R. Wright, Senior Chief Justice (retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.

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