                                                                                ACCEPTED
                                                                           07-14-00388-CR
                                                              SEVENTH COURT OF APPEALS
                                                                        AMARILLO, TEXAS
                                                                     5/28/2015 12:02:27 PM
                                                                          Vivian Long, Clerk


                        NO. 07-14-00388-CR
                                                 STATE REQUESTS
                                                 ORAL ARGUMENT
                                                         FILED IN
                                                  7th COURT OF APPEALS
                                               ONLY IF   APPELLANT
                                                      AMARILLO,  TEXAS
                                             REQUESTS    ARGUMENT
                                                  5/28/2015 12:02:27 PM
                                                        VIVIAN LONG
                             IN THE                        CLERK


                       COURT OF APPEALS

                            FOR THE

             SEVENTH JUDICIAL DISTRICT OF TEXAS

                        AMARILLO, TEXAS
******************************************************************
                        ERIC HERNANDEZ,
                                        APPELLANT,

                               VS.

                      THE STATE OF TEXAS,
                                         APPELLEE
******************************************************************
           ON APPEAL FROM THE 47TH DISTRICT COURT
                        CAUSE NO. 67,846-A
                     POTTER COUNTY, TEXAS
               HONORABLE DAN SCHAAP, PRESIDING
******************************************************************
                          STATE’S BRIEF
******************************************************************
                              RANDALL SIMS, DISTRICT ATTORNEY

                              JOHN L. OWEN, SBN 15369200
                              ASSISTANT DISTRICT ATTORNEY
                              501 S. FILLMORE, SUITE 5A
                              AMARILLO, TEXAS 79101
                              (806) 379-2325
                              jackowen@co.potter.tx.us
                              ATTORNEYS FOR THE STATE
                         TABLE OF CONTENTS

                                                                          PAGE


TABLE OF CONTENTS…………………………………………………………i

LIST OF AUTHORITIES…………………………………………………….... ii

THE CASE IN BRIEF…………………………………………………………...…1

STATEMENT OF THE CASE…………………………………………………….2

STATE’S RESPONSIVE POINT ……………………………………………… 3
    (ADDRESED TO APPELLANT’S SOLE “ISSUE PRESENTED”)

          Upon the evidence before it, the trial court had the discretion to deny
    appellant’s suppression motion.



FACT STATEMENT ……………………………………………                                             4

RESPONSIVE POINT RESTATED…………………………………                                       7

CONCLUSION AND PRAYER……………………………………………                                       13

CERTIFICATE OF SERVICE……………………………………………                                       14

CERTIFICATE OF COMPLIANCE…………………………………………… 14




                                       i
                                        LIST OF AUTHORITIES


                                                                                                                   Page

Cases

Delijevic v. State, 323 S.W.3d 606, 608 (Tex.App. - - Amarillo 2010, no pet.) 12
Garcia v. State, 43 S.W.2d 527, 530 (Tex.Crim.App. 2001) ........................... 11
Hughes v. State, 334 S.W.3d 379, 383 (Tex.App. - - Amarillo 2011, no pet.) 10, 12
Montgomery v. State, 810 S.W.2d. 391-92 (Tex.Crim.App. 1991 .................. 10
State v. Dixon 206 S.W.3d 587 590 (Tex.Crim.App. 2006) ............................ 10
State v. Patterson, 291 S.W.3d 121, 123 (Tex.App. - - Amarillo 2009, no pet.) 11
State v. Story, 445 S.W.3d 729, 732 (Tex.Crim.App. 2014) ........................... 10
Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App. 1990) ......................... 10
Valtierra v. State, 310 S.W.3d 442, 447 (Tex.Crim.App. 2010) ........................... 10
Whren v.United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 1772, 135 L.Ed.2d
89 (1996) .............................................................................................................. 11


Statutes

Tex. Health & Safety Code. Ann. Sec. 481.115 (d)(West 2010) ............................ 2




                                                            ii
                             NOS. 07-14-00388-CR
                                   IN THE

                             COURT OF APPEALS

                                   FOR THE

                 SEVENTH JUDICIAL DISTRICT OF TEXAS

                        AMARILLO, TEXAS
******************************************************************
                        ERIC HERNANDEZ,
                             Appellant,

                                VS.
                      THE STATE OF TEXAS,
                             Appellee.
******************************************************************
TO THE HONORABLE COURT OF APPEALS:

      COMES NOW the State of Texas, appellee in the above entitled and

numbered appeal, and submits its brief in response to the brief of appellant, Eric

Hernandez. Appellant was convicted in the 47TH Judicial District Court of Potter

County, Texas of possessing four or more, but less than two hundred, grams of a

controlled substance, methamphetamine, enhanced by a previous felony

conviction.

                             THE CASE IN BRIEF

      THE CHARGE                     POSS. C/S, >4 GM. <200 GM, ENH.
      THE PLEA                       GUILTY
      VERDICT                        GUILTY
      PUNISHMENT (COURT )            18 YEARS TDCJ-ID



                                        1
                          STATEMENT OF THE CASE

      Appellant bring this appeal from his conviction of possessing four or more,

but less than two hundred, grams of a controlled substance, methamphetamine. See

Tex. Health & Safety Code Ann. Sec. 481.115 (d)(West 2010). He here complains

of the trial court’s methodology in evaluating the evidence at the suppression

hearing.


      The Potter County grand jury on April 30, 2014 indicted appellant for the

offense, which was alleged to have occurred on or about September 22, 2013. CR:

13. Included in the indictment was a punishment-enhancing allegation appellant

had previously been convicted of a felony. Aided by counsel, appellant filed a

motion to suppress as evidence the contraband made the subject of the prosecution.

CR: 17. Following an adverse ruling on his suppression motion, and pursuant to a

bargained punishment recommendation, appellant on October 20, 2014 pled guilty

to the indicted offense; appellant reserved his right to appeal the trial court’s order

denying his suppression motion. CR: 73. Accepting the plea bargain, the court

found appellant guilty as alleged, assessed his punishment at eighteen (18) years

imprisonment, and imposed sentence accordingly. CR: 73.


      Appellant timely, on October 27, 2014, filed a notice of appeal. CR: 68.




                                           2
                     STATE’S RESPONSIVE POINT
         (ADDRESSED TO APPELLANT’S SOLE “ISSUE PRESENTED”)

      Upon the evidence before it, the trial court had the discretion to deny
appellant’s suppression motion.




                                          3
                               FACT STATEMENT
      The methamphetamine which was the subject of the prosecution was seized

in a traffic stop of appellant. Appellant filed a motion to suppress that evidence.

CR: 17. Alleged in the motion were that the traffic stop was unreasonable and a

pretext, and that the pat-down search of appellant was not warranted by reasonable

suspicion he was armed. At the hearing on the motion, the arresting officer,

appellant’s girlfriend, and appellant himself testified.


      Amarillo police officer Ricky Mathews testified that the night of September

22, 2013 he noticed a 1997 Chevrolet being driven in the 400 block of Prospect

Street with the taillights not on. RR: 11-12. In his patrol car, Matthews followed

the pickup two blocks, through three turns. RR: 12, 13. As Matthews followed, the

pickup driver applied the brake to activate the brake lights; after the driver stopped

braking, the taillights were on. RR: 12. Matthews then effected a traffic stop. RR:

14.


      The driver, appellant, was the pickup’s sole occupant. RR: 15. The

registration sticker on the pickup windshield was altered to appear current, though

the registration in fact had expired. Appellant could not immediately find his

identification when Matthews asked for it. RR: 16. From the way appellant had

positioned his leg, Matthews suspected appellant was concealing a weapon; those

circumstances prompted Matthews to have appellant exit the pickup. RR: 17.

                                           4
           Matthews directed appellant to walk to the front of the patrol car. Appellant

consented to Matthew’s frisking of him for weapons RR: 20. In the pat-down,

Matthews found a baggie of suspected methamphetamine. RR: 20.

           The patrol car’s in-car video recorded from a point thirty seconds before the

overhead lights were engaged, Matthews testified. The video recording was played

for the court; throughout the entire recording leading to the stop, the pickup’s

taillights were on. RR: 14, 24, 27. The pickup’s headlights shone from when

Matthews first observed the pickup. CR: 12, 40.                                  When a driver turns on a

vehicle’s headlights, the taillights also come on, Matthews acknowledged. RR: 29.

But, he noted, light will emit from the headlights of vehicles equipped with

running lights whenever the engine is running, when the headlights have not been

turned on; in that circumstance, the taillights will not be on. CR: 26-27. Matthews

perceived that appellant rode the brake to give the appearance the tail lights were

on, until he engaged the switch to turn on the headlights and taillights. RR: 34-35.


           Appellant’s girlfriend Jenna Ortiz (“Jenna”) testified in support of the

suppression motion. According to Jenna, appellant came to her residence in the

pickup with Francisco Reyes, the pickup’s owner. RR: 43, 44. When Francisco and

appellant left in the pickup, with Francisco driving, the taillights were on.1 RR 46.



1
    Specifically, “all necessary lights were on, “Jenna emphasized. RR: 46, 47, 48.

                                                             5
           Testifying in his own behalf, appellant recounted the events of the evening

in question. After leaving Jenna’s house, he and Francisco went to “the slots 2i” on

Amarillo Boulevard, near the intersection of Western Street, appellant related. RR:

55. Francisco went inside the slots, leaving the pickup with appellant. RR: 55.

Before leaving the area in the pickup, he did a “walk around” the pickup, as was

his practice, to ensure the lights were functioning, appellant stated; the taillights

were on. RR: 55. Appellant acknowledged he had consented to officer Matthews’

searching his pocket. RR: 58. He asserted, though, that he was unaware he could

withhold consent. RR: 60.


           Insofar as the record reflects, no findings of fact and conclusions of law

were requested or entered.




2
    What “the slots” is was not developed in the record; this writer presumes it is a gaming establishment.

                                                           6
                        STATE’S RESPONSIVE POINT
                  (ADDRESSED TO APPELLANT’S SOLE “ISSUE
                       PRESENTED”)(RESTATED)

      Upon the evidence before it, the trial court had the discretion to deny
appellant’s suppression motion.



      I.     The Trial Judge’s Remarks Underlying Appellant’s Complaint Here

      At the close of evidence on the suppression motion, the court entertained the

parties’ argument. Relevant to appellant’s grievance on appeal, the trial judge

interjected as follows:


             . . . But I think I have to take the officer’s observations at face value,

             absent evidence that this vehicle could not have done what the officer

             surmised it did because of what he observed. And his surmise in that

             regard is that the headlight switch was not engaged and that it had its

             front beams on because it was turned on and it was running with those

             as we have seen vehicles coming down the road in the middle of the

             day with their headlights on. We call them headlights because that’s

             what we see. And those lights are automatic. No one has to, quote,

             unquote, turn them on. And so that’s sort of where it boils down to me

             - - for me here is, is do we have evidence that what the officer is

             suggesting is not possible?


                                           7
             MR. TERRY [appellant’s trial counsel]: Well - -


             THE COURT: I don’t hear the evidence that says it’s not possible.

             I’m going to have to take what he says at face value. And that means

             that I think he had a reasonable basis to make the stop and I think your

             client consented to the search.


The judge’s expressions highlighted above are the core of appellant’s appeal.




                               II.    Appellant’s Complaint

      Appellant centers his appeal on the trial court’s evaluation of the evidence

relating to the reasonableness, or not, of the traffic stop itself. He does not contest

the legality of the pat-down search yielding the contraband.


      As the State understands appellant’s argument, he is not contending that the

trial court arrived at the wrong conclusion about the traffic stop’s reasonableness.

Rather, he condemns as flawed the process by which the court made its ruling.

Brief for the Appellant, p. 21. Specifically, appellant sees the court as having

disregarded its obligation to evaluate all witnesses’ credibility, instead accepting

the officer’s testimony “at face value.” Had the court required the State to prove

the reasonableness of the traffic stop, instead of in effect requiring him to disprove


                                          8
reasonableness, the court conceivably would have granted the suppression motion,

appellant proposes. Brief for the Appellant, p. 21.


         Appellant acknowledges the plausibility of officer Matthew’s suspicion

appellant was riding the pickup’s brake, as he turned on the lights to conceal the

traffic infraction. Brief for the Appellant, p. 22. But, Matthews’ delay in stopping

appellant after following him undermines that officer’s credibility, appellant urges.

Brief for the Appellant, p. 23. Appellant faults the court for allegedly not giving

due consideration to the evidence countervailing against Matthews’ testimony. He

asks that the conviction be vacated and a new trial ordered. Brief for the Appellant,

p. 24.




                          III.   Summary of the State’s Response

         Appellant takes the judge’s isolated comments out of context. Seen from the

record as a whole is that the court chose to believe officer Matthews’ testimony

and discount the contrary evidence; that was the court’s prerogative.




                                          9
                              IV.    Argument and Authority

                                 A. Standard of Review


   An appellate court should review a trial court’s ruling on a motion to suppress

for an abuse of discretion. State v. Story, 445 S.W.3d 729, 732 (Tex.Crim.App.

2014); State v. Dixon, 206 S.W.3d 587, 590 (Tex.Crim.App. 2006). The record

should be viewed in the light most favorable to the trial court’s determination, and

the judgment should be reversed only if it is arbitrary, unreasonable, or ‘outside the

zone of reasonable disagreement.’ Story, 445 S.W.3d at 732, citing Montgomery

v. State, 810 S.W.2d 372, 391-92 (Tex.Crim.App. 1991). The reviewing court

should uphold the judgment if it is correct on some theory of law applicable to the

case, even if the trial judge made the judgment for a wrong reason. Story, 445

S.W.3d at 732, citing Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.

1990). The trial judge is the sole trier of fact and judge of the credibility of any

witnesses’ testimony and the weight to be assigned to that testimony. Hughes v.

State, 334 S.W.3d 379, 383 (Tex.App. - - Amarillo 2011, no pet.) citing Valtierra

v. State, 310 S.W.3d 442, 447 (Tex.Crim.App. 2010). Because the trial court is the

sole trier of fact, the appellate court should give almost total deference to the trial

court’s determination of historical facts. Story, 445 S.W.3d at 732, citing State v.

Dixon, supra, 206 S.W.3d at 590. The trial court’s application of the law to those

facts is reviewed de novo.

                                          10
                   B. The Trial Court Did Not Abuse its Discretion
                          in Denying the Suppression Motion


      A traffic violation can constitute a reasonable basis for a detention. State v.

Patterson, 291 S.W.3d 121, 123 (Tex.App. - - Amarillo 2009, no pet.), citing

Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 1772, 135 L.Ed.2d

89 (1996). Further, reasonable suspicion for the stop does not require absolute

certainty an offense was committed. Garcia v. State, 43 S.W.3d 527, 530

(Tex.Crim.App. 2001).


      In his colloquy with appellant’s trial counsel as counsel was concluding his

argument on the stop’s legality, the judge revealed his thoughts on the proper

evaluation of the evidence. Appellant portrays the remarks highlighted above as

signifying the judge’s belief he was constrained to believe the officer’s testimony.

Appellant’s interpretation is not well-taken.


      In total context, the judge’s commentary is properly seen as an explanation

of how he was weighing the witnesses’ credibility. In the State’s view, the judge’s

explanatory remarks can be paraphrased as follows:


             - officer Matthews was unwavering in his testimony the pickup’s

                taillights were not on when appellant passed by his position;


                                          11
            - unknown was whether the 1997 Chevrolet pickup was equipped

                with running headlights which would shine even when the

                taillights were not on - - therefore, any inference the taillights

                necessarily were on because the headlights were on would be

                speculative; and,

            - officer Matthews was more credible as a witness on that issue than

                was appellant or Jenna.


      RR: 67-69.

      By his remarks, the judge communicated only that he chose to believe

officer Matthews’ description of the traffic infraction made the basis of the stop.

Such was authorized under the evidence here, and was not an abuse of discretion.

See and compare Hughes v. State, supra, 334 S.W.3d at 384 (at suppression

hearing, officer testified that the accused while driving made a wide turn, but the

accused testified he did not make a wide turn; in upholding the trial court’s denial

of suppression, the appellate court would not second guess the trial court about a

matter turning on witness credibility); and, Delijevic v. State, 323 S.W.3d 606,

608 (Tex.App. - - Amarillo 2010, no pet.)(reasonable minds could have concluded

that driver committed traffic violations in the officer’s presence; denial of the

suppression motion was upheld).


                                          12
      By his “Issue Presented,” appellant advances no persuasive reason to disturb

the judgment of conviction. The Court should decide the issue in favor of the trial

court’s judgment.




                        CONCLUSION AND PRAYER

      WHEREFORE, the State prays that the judgment and sentence be affirmed.


                                                   Respectfully submitted,


                                                   RANDALL SIMS
                                                   District Attorney
                                                   Potter County, Texas



                                                   __/s/ John L. Owen___

                                                   John L. Owen
                                                   Assistant District Attorney
                                                   Potter County Courts Bldg.
                                                   Suite 5A
                                                   501 S. Fillmore
                                                   Amarillo, Texas 79101
                                                   (806) 379-2325
                                                   FAX (806) 379-2823
                                                   SBN 15369200
                                                   jackowen@co.potter.tx.us

                                                   Attorneys for the State




                                        13
                            CERTIFICATE OF SERVICE

      I hereby certify that on this 2th day of May, 2015, a true copy of the

foregoing State’s brief was served on appellant’s attorney, John Bennett, at P.O.

Box 19144, Amarillo, Texas 79114, by email and by depositing the same in the

United States Mail, postage prepaid.



                                                 __/s/ John L. Owen______
                                                 Assistant District Attorney



                     CERTIFICATE OF COMPLIANCE

      In accordance with Tex.R.App.P. 9.4 (i)(3), I hereby certify that the

foregoing brief contains, as reflected in the computer program word count, 2,611

words. That count includes words in portions of the brief which, under the Rule,

are excluded from the prescribed word limit.



                                                 __/s/ John L. Owen___
                                                 Assistant District Attorney




                                        14
