                               Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION
                                         No. 04-13-00143-CR

                                        Jesus Angel GARCIA,
                                              Appellant

                                                 v.
                                             The State of
                                        The STATE of Texas,
                                              Appellee

                      From the County Court at Law No. 2, Bexar County, Texas
                                      Trial Court No. 348009
                               Honorable Jason Wolff, Judge Presiding

Opinion by:       Karen Angelini, Justice

Sitting:          Karen Angelini, Justice
                  Marialyn Barnard, Justice
                  Rebeca C. Martinez, Justice

Delivered and Filed: March 12, 2014

AFFIRMED

           Jesus Angel Garcia appeals his conviction for driving while intoxicated. In one issue,

Garcia argues he received ineffective assistance of counsel because his trial counsel failed to file

a motion to suppress evidence obtained from an unlawful traffic stop. We affirm.

                                            TRIAL TESTIMONY

           Evidence obtained by Officer Colt Arnold during a traffic stop led to Garcia’s arrest and

conviction for driving while intoxicated. Garcia’s argument on appeal is based on portions of

Officer Arnold’s trial testimony. On direct examination, Officer Arnold testified that, on the
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occasion in question, he was traveling northbound on North New Braunfels at 1:38 a.m. when he

saw the vehicle Garcia was driving. Officer Arnold noticed the temporary tag on Garcia’s vehicle

and “ran the plate.” He explained that if the car had been recently purchased, it would have had a

tag that said “Texas Buyer” on the top, and that this tag would have had the vehicle identification

number and the buyer’s name and address. He further explained that there is another kind of tag,

called a demonstration tag, which is used for test drives when a dealer is trying to sell a car.

According to Officer Arnold, a demonstration tag—which has zeros for the vehicle identification

number and zeros for the year and make of the vehicle—is not registered to a specific vehicle; a

demonstration tag is a generic tag that is used on multiple vehicles for a short amount of time for

test drives. Officer Arnold testified that when he ran a check on the tag on Garcia’s vehicle, it

came back as a demonstration tag, meaning it was for test drives. And, based on Officer Arnold’s

training and experience, he knew that nobody should be doing a test drive in the middle of the

night. Further, Officer Arnold knew it was common practice for people to steal cars and put

temporary tags on them to avoid detection by law enforcement. Based on the time of night, the

demonstration tag, and the common practice of putting these types of tags on stolen vehicles,

Officer Arnold conducted an investigative stop of Garcia’s vehicle. On cross-examination, Officer

Arnold confirmed that his attention was drawn to Garcia’s vehicle based on its “paper tag,” which

turned out to be a demonstration tag. Officer Arnold also stated that having an improper

demonstration tag on a vehicle was a registration violation.

                            INEFFECTIVE ASSISTANCE OF COUNSEL

       To establish ineffective assistance of counsel, a defendant must show by a preponderance

of the evidence that (1) his trial counsel’s performance was deficient, and (2) the deficient

performance prejudiced him to such a degree as to deprive him of a fair trial. Strickland v.

Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App.
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1999). To meet the first prong of the Strickland standard, the defendant must show that counsel’s

performance fell below an objective standard of reasonableness and must rebut the presumption

that counsel’s trial decisions were based on sound trial strategy. Thompson v. State, 9 S.W.3d 808,

812-14 (Tex. Crim. App. 1999). Any allegations of ineffectiveness must be firmly founded in the

record. Id. at 814. To establish the second prong of Strickland, the defendant must show prejudice,

that is, a reasonable probability that but for counsel’s unprofessional errors, the result of the

proceeding would have been different. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).

A “reasonable probability” is one sufficient to undermine confidence in the outcome. Id.

          Where the defendant claims counsel was ineffective for failing to urge a motion to

suppress, he must prove that the motion to suppress would have been granted. Jackson v. State,

973 S.W.2d 954, 957 (Tex. Crim. App. 1998); Wert v. State, 383 S.W.3d 747, 753 (Tex. App.—

Houston [14th Dist.] 2012, no pet.). The defendant has the burden of developing facts and details

to defeat the presumption of proper police conduct. Jackson, 973 S.W.3d at 957; Wert, 383 S.W.3d

at 753.

                                      REASONABLE SUSPICION

          Generally, a police officer may stop and briefly detain a person for investigative purposes

on less information than is constitutionally required for probable cause to arrest. Terry v. Ohio,

392 U.S. 1 (1968); Foster v. State, 326 S.W.3d 609, 613 (Tex. Crim. App. 2010). To do so,

however, the officer must be able to articulate something more than an “inchoate and

unparticularized suspicion or ‘hunch’.” Terry, 392 U.S. at 21; Foster, 326 S.W.3d at 613. The

officer must point to specific and articulable facts which, taken together with rational inferences

from those facts, reasonably warrant the intrusion. Terry, 392 U.S. at 27; Foster, 326 S.W.3d at

613. In other words, the officer must have reasonable suspicion that some crime was, or is about



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to be committed, before he may make an investigative stop. State v. Duran, 396 S.W.3d 563, 568

(Tex. Crim. App. 2013); Francis v. State, 922 S.W.2d 176, 178 (Tex. Crim. App. 1996).

       “The possibility of an innocent explanation does not deprive the officer of the capacity to

entertain reasonable suspicion of criminal conduct.” Woods v. State, 956 S.W.2d 33, 37-38 (Tex.

Crim. App. 1997) (holding that the “as consistent with innocent activity as with criminal activity”

construct was no longer a viable test for determining reasonable suspicion). The reasonableness of

an investigative stop must be examined in terms of the totality of the circumstances. Id. at 38;

Carroll v. State, 56 S.W.3d 644, 650 (Tex. App.—Waco 2001, pet. ref’d).

                                           DISCUSSION

       Garcia contends he was denied effective assistance of counsel when trial counsel failed to

pursue a pre-trial motion to suppress evidence that was obtained as a result of the traffic stop.

Specifically, Garcia argues that his traffic stop was unlawful because Officer Arnold was mistaken

about the law governing the use of temporary dealer tags. “An officer’s mistake about the law, or

about the legal significance of undisputed facts, even if eminently reasonable, cannot serve to

provide probable cause or reasonable suspicion.” Robinson v. State, 377 S.W.3d 712, 722 (Tex.

Crim. App. 2012) (emphasis in original); see Abney v. State, 394 S.W.3d 542, 550 (Tex. Crim.

App. 2013).

       Garcia’s contention is that, although Officer Arnold believed a temporary tag was only for

test drives, Texas Transportation Code section 503.062(b)(2) also permits a dealer to allow a

customer to temporarily operate a “loaner” vehicle with such a tag while the customer’s vehicle is

being repaired. See TEX. TRANSP. CODE § 503.062(b)(2) (West 2013). Thus, according to Garcia,

Officer Arnold was mistaken in his belief that a vehicle with a temporary tag can never be driven

lawfully in the middle of the night. Garcia argues this mistake about the law means that Officer



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Arnold had no reasonable suspicion to initiate the traffic stop. Garcia further argues that the use of

a temporary tag was entirely consistent with innocent, lawful behavior.

       Under section 503.067(b) of the Texas Transportation Code, “[a] person may not operate

a vehicle that displays an unauthorized temporary tag.” TEX. TRANSP. CODE ANN. § 503.067(b)

(West 2013). And, although section 503.062(b)(2) allows “a customer to operate a vehicle

temporarily while the customer’s vehicle is being repaired,” see TEX. TRANSP. CODE

§ 503.062(b)(2), section 503.0626(a) mandates the development of a secure, real-time database of

information on vehicles to which dealers have affixed temporary tags. See TEX. TRANSP. CODE

§ 503.0626(a) (West 2013). This database allows law enforcement agencies to use the vehicle-

specific number assigned to and displayed on a tag to obtain information about the dealer that

owns the vehicle. See TEX. TRANSP. CODE § 503.0626(b) (West 2013). Further, the Texas

Administrative Code explicitly requires dealer tags on “loaner” vehicles to reflect vehicle-specific

information, including a vehicle-specific number from the database, the year and make of the

vehicle, the vehicle identification number, and the date of the tag’s expiration. See 43 TEX. ADMIN.

CODE § 215.154(b-4),(j) (2014) (Tex. Dept. of Motor Vehicles, Motor Vehicle Distribution).

       The evidence fails to establish that Officer Arnold was mistaken about the law. In his

testimony, Officer Arnold explained two types of temporary tags (buyer tags and demonstration

tags), but he did not say that these were the only types of temporary tags that could be affixed to a

vehicle. And, if Garcia’s vehicle was a “loaner” vehicle as Garcia now suggests, the tag on his

vehicle should have contained some vehicle-specific information under the relevant statutory and

administrative provisions. See TEX. TRANSP. CODE § 503.0626(a),(b); 43 TEX. ADMIN. CODE

§ 215.154(b-4),(j). Nevertheless, the evidence shows the tag on Garcia’s vehicle was generic in

nature. The evidence further shows that when Officer Arnold ran a check on the tag on Garcia’s

vehicle, it came back as a demonstration tag, meaning it was for test drives.
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       The State emphasizes that Officer Arnold testified not only that he believed there was a

registration violation, but also that he knew from experience that it is common practice for vehicle

thieves to steal cars and place demonstration tags on them to avoid detection. The State argues that

given the totality of the circumstances—the time of night, the demonstration tags, and the officer’s

training and experience—Officer Arnold had reasonable suspicion to make an investigative stop.

We agree with the State.

       After examining the totality of the circumstances, we conclude that Officer Arnold had

reasonable suspicion to justify stopping Garcia for investigative purposes. Therefore, even if

Garcia’s counsel had pursued a motion to suppress the evidence obtained from the traffic stop,

Garcia has failed to prove that the motion would have been granted. Accordingly, we do not find

ineffective assistance of counsel, and we affirm the trial court’s judgment.

                                                  Karen Angelini, Justice

Do not publish




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