          IN THE COURT OF CRIMINAL APPEALS
                      OF TEXAS
                                       NO. PD-1035-11

                                  THE STATE OF TEXAS

                                               v.

                              ALVARO MAZUCA, Appellant

            ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                 FROM THE EIGHTH COURT OF APPEALS
                            EL PASO COUNTY

               M EYERS, J., filed a dissenting opinion.

                            DISSENTING OPINION

       The result fashioned by the majority opens the door for police to ignore the

probable cause requirement and make traffic stops without adequate grounds for doing so.

The majority’s analysis of the weight of the Brown factors may be correct, but the result

discounts the trial court’s findings as to the credibility of the officers.

       A reviewing court should “afford almost total deference to the trial court’s rulings

on questions of historical fact and on application of law to fact questions that turn upon

credibility and demeanor . . . .” Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App.
                                                                       Mazuca Dissent - Page 2

1997); see Keehn v. State, 279 S.W.3d 330, 334 (Tex. Crim. App. 2009). The majority

fails to give proper deference to the trial court’s rulings, in particular the following:

       2. The trial court having heard the testimony and having evaluated the demeanor of
       the witnesses finds that Officer Chavez’s testimony that he had a reasonable belief
       that Transportation Code 547.322 had been violated to not be credible.

       3. The trial court having heard the testimony and having evaluated the demeanor of
       the witnesses finds that Officer Chavez did not have a reasonable belief that the
       yellow Mustang had white lights to the rear.

       7. The trial court finds that [the] yellow Mustang’s tail lights emitted red light on
       December 11, 2008.

       11. The trial court having evaluated the credibility of the witnesses finds that there
       was no other reason for the detain[ment] of the vehicle other than the white lights
       to the rear.

       16. The trial court finds that Alvaro Mazuca had not been suspected of any crime
       or wrong doing when he was questioned by Officer Chavez.

Based on these findings of fact, the trial court made the following conclusions of law:

       1. The driver of the Mustang did not violate Section 547.322 of the Transportation
       Code on December 11, 2008.

       2. The Police Officers did not have probable cause or reasonable suspicion to
       perform a traffic stop on that date.

       3. The arrest warrants of the Defendant did not purge the taint of the illegal stop
       due to the flagrancy of the police action, the close temporal proximity and the fact
       that no Miranda warnings were read.

       In weighing the purpose and flagrancy of the police conduct under Brown, the

majority reasons that the court’s application of the law to the facts in determining that the

police action was flagrant was not supported by evidence on the record. Maj. op. at 25-26.
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However, there is no evidence indicating that the officers were justified to make the stop

because the taillights emitted red light, rather than only white light. See Dissent (Johnson,

J.) at 2-3 (discussing application of Texas Transportation Code § 547.322). The color

photograph of the vehicle’s taillights that was provided to the trial court showed that the

taillights were in compliance with the law. The officer testified to the contrary, thus

lending support of the trial court’s determination that the testimony was not credible and

that the officers’s conduct was flagrant. The trial court’s determination was supported by

the record and involved an evaluation of the credibility of the officers. Thus, the

appropriate action of the reviewing court is to defer to the trial court.

       Although the majority accepts the trial court’s conclusions, maj. op. at 24, it comes

to a contrary decision by determining that the taint of the illegal stop was attenuated by

the discovery of the appellee’s arrest warrants. If I had the majority, I would also give

deference to the trial court’s findings when considering the flagrancy of the police action

and conclude that the taint of the illegal detention supports suppression of the drugs.

       Furthermore, the practical effect of the majority’s holding is to encourage police

officers to unlawfully stop motorists in the hope that an arrest warrant will be discovered

in the process. A law enforcement officer may lawfully stop a motorist only when the

officer has probable cause to believe that a traffic violation has occurred. Walter v. State,

28 S.W.3d 538, 542 (Tex. Crim. App. 2000) (citing Whren v. United States, 517 U.S. 806,

810 (1996)). As determined by the trial court and supported by the record, the officers
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here had neither probable cause nor reasonable suspicion to believe that the driver

violated section 547.322. Accordingly, the stop was illegal and the evidence seized was

rightfully suppressed by the trial court. I agree with the outcome of the court of appeals,

and respectfully dissent.

                                                  Meyers, J.

Filed: May 23, 2012

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