                                                                         ACCEPTED
                                                                    07-14-00388-CR
                                                        SEVENTH COURT OF APPEALS
                                                                 AMARILLO, TEXAS
                                                               3/17/2015 4:55:53 PM
                                                                  Vivian Long, Clerk



                 NO. 07-14-388-CR
                                                 FILED IN
       IN THE COURT OF APPEALS FOR7th COURT OF APPEALS
                                            AMARILLO, TEXAS
                                                   March 16, 2015
THE SEVENTH SUPREME JUDICIAL              3/17/2015 4:55:53 PM
                                               VIVIAN LONG
                                                  CLERK
      DISTRICT OF TEXAS
             AT AMARILLO, TEXAS
                  ***************

           ERIC HERNANDEZ
                   APPELLANT,
                        v.

         THE STATE OF TEXAS
                    APPELLEE.
                    ***************
   APPEAL FROM CAUSE NUMBER 67,846-A FROM THE
  47th JUDICIAL DISTRICT COURT OF POTTER COUNTY,
        THE HONORABLE DAN SCHAAP PRESIDING
                  ***************

  BRIEF FOR THE APPELLANT
                  ***************
                                John Bennett
                                Post Office Box 19144
                                Amarillo, Texas 79114
                                Telephone: (806) 282-4455
                                Facsimile: (806) 398-1988
                                State Bar No. 00785691
                                AppealsAttorney@gmail.com
                                Attorney for the Appellant

   THE APPELLANT REQUESTS ORAL ARGUMENT
             IDENTITY OF PARTIES AND COUNSEL

1.   Appellant

     Eric Hernandez

     Trial Counsel:       John Terry (State Bar No. 20872700)
                          301 South Polk Street, Suite 630
                          Amarillo, Texas 79101
                          Telephone: (806) 371-8999

     Appellate Counsel:   John Bennett (State Bar No. 19799300)
                          P.O. Box 19144
                          Amarillo, Texas 79114
                          Telephone: (806) 282-4455

2.   Appellee

     The State of Texas

     Trial Counsel:       Audrey Mink (State Bar No. 24060286)
                          Potter County District Attorney’s Office
                          501 S. Fillmore, Suite 5-A
                          Amarillo, Texas 79101
                          Telephone: (806) 379-2325

     Appellate Counsel:   Jack Owen (State Bar No. 15369200)
                          Katherine Levy (State Bar No. 12266480)
                          Potter County District Attorney’s Office
                          501 S. Fillmore, Suite 5-A
                          Amarillo, Texas 79101
                          Telephone: (806) 379-2325




                                2
                                      TABLE OF CONTENTS

Identity of Parties and Counsel.............................................................................2

Index of Authorities ..............................................................................................5

Statement of the Case............................................................................................8

Statement Regarding Oral Argument ...................................................................8

Issue Presented......................................................................................................8


               Did the trial court use the proper standard of review in
         ruling on the appellant’s motion to suppress?


Statement of Facts.................................................................................................8

Summary of the Argument..................................................................................15

Argument ............................................................................................................15

         I.     a.     The Propriety of this Claim ..........................................................15

                b.     Analysis of the Claim’s Propriety ................................................... 16

         II.           Standard of Review ..........................................................................17

         III.          The Level of Harm Required............................................................17

         IV.           Constitutional Law of Traffic Stops .................................................17

         V.     a.     Burden of Proof ................................................................................18

                b.     Analysis of Evidence and Preservation of Error
                       Relating to the Burden of Proof ....................................................19

         VI.           Analysis of this Case under the Law of Traffic
                       Stops and the Applicable Burden of Proof ....................................21


                                                           3
Prayer ..................................................................................................................24

Certificate of Compliance ...................................................................................25

Certificate of Service ..........................................................................................25

Appendix................................................................................... following page 25

                                                     consisting of:

         Exhibit A .................................................................Judgment & Sentence

         Exhibit B ............................................. Pages from the Reporter’s Record
                                                                       of the Suppression Hearing




                                                             4
                                   INDEX OF AUTHORITIES

Constitutional Provision

U.S. CONST., amend. IV (West supp. 2014).....................................................17


Cases

Aldridge v. State, 2013 WL 3461694 (Alas.Ct.App. 2013)
      (not designated for publication)................................................................23

Amador v. State, 221 S.W.3d 666 (Tex.Crim.App. 2007)....................... 17,19,21

Amador-Gonzalez v. United States, 391 F.2d 308 (5th Cir. 1968)......................23

Ford v. State, 158 S.W.3d 488 (Tex.Crim.App. 2005) ................................ 17,20

Holloway v. State, 1998 WL 675876 (Tex. App. – Amarillo,
     October 1, 1998, pet. ref’d) (not designed for publication) ............... 19-20

Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 137
     L.Ed.2d 41 (1997).....................................................................................17

Montanez v. State, 195 S.W.3d 101 (Tex.Crim.App. 2006)...............................16

Sieffert v. State, 290 S.W.3d 478 (Tex.App. – Amarillo 2009
       2009, no pet.) ............................................................................................18

Smith v. State, 789 S.W.2d 350 (Tex.App. – Amarillo 1990,
      pet. ref’d) ..................................................................................................24

State v. Dixon, 206 S.W.3d 587 (Tex.Crim.App. 2006)............................... 23-24

State v. Gray, 158 S.W.3d 465 (Tex.Crim.App. 2005) ................................ 18,20

State v. Ross, 32 S.W.3d 853 (Tex.Crim.App. 2000)................................... 18,20

Swearingen v. State, 143 S.W.3d 808 (Tex.Crim.App. 2004) ...........................17


                                                          5
Turrubiate v. State, 399 S.W.3d 147 (Tex.Crim.App. 2013).............................21

Ex parte Wilson, 602 S.W.2d 902 (Tex.Crim.App. 1980) ........................... 19-20

Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135
     L.Ed.2d 89 (1996).....................................................................................22

Young v. State, 283 S.W.3d 854 (Tex.Crim.App), cert. denied,
     558 U.S. 1093, 130 S.Ct. 1015, 175 L.Ed.2d 622 (2009) .................. 18-21


Rules

TEX. R. APP. P. 33.1.................................................................................... 16,20

TEX. R. APP. P. 38.1............................................................................................7

TEX. R. APP. P. 44.2(a).....................................................................................17




                                                        6
                              NO. 07-14-388-CR

                 IN THE COURT OF APPEALS FOR

THE SEVENTH SUPREME JUDICIAL
      DISTRICT OF TEXAS
                        AT AMARILLO, TEXAS
                               ***************

                      ERIC HERNANDEZ
                                 APPELLANT,
                                        v.

                   THE STATE OF TEXAS
                                  APPELLEE.
                           ***************
          APPEAL FROM CAUSE NUMBER 67,846-A FROM THE
         47th JUDICIAL DISTRICT COURT OF POTTER COUNTY,
               THE HONORABLE DAN SCHAAP PRESIDING
                               ***************

         BRIEF FOR THE APPELLANT
                               ***************




TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

      COMES NOW Eric Hernandez, appellant, and submits this Brief under

TEX. R. APP. P. 38.1, requesting a new trial in this cause.


                                        7
                       STATEMENT OF THE CASE

      After his motion to suppress was overruled, the appellant pled guilty to a

charge of possession of methamphetamine. The trial court accepted the plea

agreement and sentenced him to 18 years’ imprisonment and a fine of $500.

(Clerk’s Record (CR), v. 1, p. 73) (Exhibit A to this Brief).



           STATEMENT REGARDING ORAL ARGUMENT

      Since the issue involved is unusual, the appellant requests oral argument.



                             ISSUE PRESENTED

      Did the trial court use the proper standard of review in ruling on the

appellant’s motion to suppress?



                          STATEMENT OF FACTS

      The appellant moved to suppress the results of a search, which occurred

when the vehicle he was driving was pulled over. Among other things, the

motion argued that the stop was a “pretext” one. (CR, v. 1, p. 17). But the

prosecutor noted that one of the matters raised in the motion was whether the

initial traffic stop was justified. (Reporter’s Record (RR), p. 6).




                                         8
      At a hearing on the motion the appellant testified he had been with both

the mother of his daughter and a man named Francisco Reyes on the night in

question. At some point that evening, Mr. Reyes drove off in his pickup with

the appellant as a passenger. (RR, p. 54). The appellant testified the headlights

and taillights were on at that time. (RR, p. 55). Mr. Reyes drove to a location in

Amarillo and got out, leaving the keys in the ignition, evidently giving the

appellant permission to drive the pickup. The appellant testified he did not turn

off the taillights – he walked around the pickup twice to check, and the taillights

were already on and stayed on during the entire time he drove the vehicle that

evening. (RR, p. 56). The appellant admitted on the stand, though, that he did

not have a valid driver’s license or proof of the pickup’s insurance at that time.

(RR, p. 57).

      The officer who eventually stopped the pickup testified that after dark that

evening he was sitting in his parked patrol car doing paperwork. (RR, p. 11,

13). The pickup the appellant was driving passed the patrol car, and the officer

testified the pickup’s headlights – i.e., running lights or parking lights – were on,

but no taillights were lit. (RR, p. 12). Newer model cars have headlights called

daytime running lights that are always on when the vehicle is being operated,

but the officer did not know if the 1997 pickup the appellant was driving had

this feature. (RR, p. 28, 31, 33).


                                         9
      The officer followed the pickup with his own lights off; “I was attempting

to see if he – if the problem was going to correct itself and it didn't. And I

followed it for a couple of turns,” and then:

      the brake lights were activated, and he stayed on them until when he let
      off of them, all the lights were on. So I don't know if he knew I was
      behind him or he just finally turned them on with the switch.

(RR, p. 12). The officer agreed with the statement that the appellant “hit his

brakes and at that time somehow the taillights started working.” (RR, p. 32-3).

In response to defense counsel’s question, the pickup’s taillights came on before

the video began:

      Q.      So let me see if I understand just for summary here. You saw no
      taillights and then somehow once the video was running, miraculously
      the taillights were working. Does that pretty well cover it?

      A.       They were working when the video came on, yes.

(RR, v. 40).

      The officer then followed the pickup for what he thought was “three turns

and two blocks.” (RR, p. 13). Since not operating taillights while driving at

night is an offense, he decided to stop the pickup. (RR, p. 14). He turned on his

overhead lights, which also activated the patrol car’s camera, “backdated” for

thirty seconds. (RR, p. 14). The officer testified that the pickup’s taillights

came on before the video began, (RR, p. 27), so those lights were on for at least

the thirty seconds before the officer activated his overhead lights. (RR, p. 14).



                                         10
      The video was entered into evidence as State’s Exhibit 15 and partly

played at the hearing. (RR, p. 23). It shows that when the officer activated his

overhead lights, the appellant stopped. But it also shows that the area the officer

chose for the stop was not particularly well lit – a bright streetlight shines in the

vicinity but is partly obscured by a tree. Nor do the streets along which the

officer followed the appellant appear less safe or more advantageous for a stop

than the area through which the officer followed the pickup.

      The officer testified the pickup’s registration label was altered; its number

was changed so the registration appeared to be current. (RR, p. 18). After

pleasantries, he asked the appellant for identification.       (RR, v. 14).     The

appellant took out his wallet and held it on his lap, which the officer testified is

“normal.” (RR, v. 15). Initially the appellant handed the officer a picture of a

child; he fumbled through his wallet, and the officer saw an ID card among the

contents, but the appellant did not hand the card to the officer, which made the

officer suspicious – the officer felt the appellant was “trying to hide his ID from

me.” (RR, p. 16). The appellant testified the ID was issued by his employer so

the appellant can, among other things, cash checks. (RR, p. 58).

      The officer stated the appellant did not “bring his wallet up to me” –

instead the appellant kept his hands in his lap, “like he was trying to hide

something, be it a weapon or…” (RR, p. 17). The appellant testified that at that


                                         11
time he was stalling for fear of going to jail, since he had no valid driver’s

license. (RR, p. 58). He could not bring his wallet upwards from his lap, he

testified, because the wallet was chained to a loop on his trousers, like one used

by a biker or trucker – “it only goes so far because of the chain.” (RR, p. 58-9).

      Due to the possibility of a weapon, the officer asked the appellant to step

out. The officer then asked and received consent to search the appellant’s

pocket, where he found methamphetamine. The officer therefore arrested the

appellant for possession of a controlled substance. (RR, p. 20-1, 38). A vehicle

inventory revealed, among other things, more methamphetamine and a glass

smoking pipe. (RR, p. 22).

      When asked why he was concerned that the appellant might have a

weapon or might present a threat, the officer answered that when he questioned

the appellant before removing him from the pickup, the appellant could not tell

him who owned the pickup:

      He stuttered. Like he didn't produce the answer immediately. And
      through my experience, if you borrow somebody's truck, you are going
      to know who you borrowed. And he didn't – he wouldn't tell me who he
      borrowed the truck from … Which is indicative to most illegal activity if
      they're not in their truck.

(RR, p. 25). But on the video the appellant can be heard twice answering clearly

– and quickly in response to the officer’s inquiry – that the truck belonged to

Francisco Reyes. (State’s Exhibit 15, at 23:15:51 and 23:16:03).


                                         12
      Throughout the testimony the fact that the stop was warrantless was clear:

the officer stopped the pickup the appellant was driving because, he stated, the

pickup’s taillights were off; the stop was due to that violation. (RR, p. 14). The

officer did not know at that time that the appellant had no driver’s license, did

not know that the registration had been altered, and was unaware of the

methamphetamine in the appellant’s pocket and elsewhere in the pickup. (RR,

p. 35-6). Nothing suggested a warrant was issued.

      The mother of the appellant’s daughter then testified that a friend named

Francisco owns the pickup. She saw Francisco drive it that evening after dark

with the appellant as a passenger. The pickup’s taillights were on. (RR, p. 43-

47). When the brake lights went off, the taillights were still on. (RR, p. 47).

      At closing argument, defense counsel argued that the evidence calls into

question the officer’s testimony. The trial court agreed this creates an issue.

(RR, p. 68) (Exhibit B to this Brief). But the trial court placed the burden on the

appellant to disprove the officer’s allegation that the taillights were initially off:

      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 … 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.

(RR, p. 69) (emphases added) (Exhibit B). The defense specifically contested

this placement of the burden:



                                          13
      Basically, that he has to have objective – articulable, objective reasons
      for the stop. And our position is that the video renders it a question of
      the officer's word. We have two other people who say those lights were
      on and we saw them.

(RR, p. 70) (Exhibit B). But the trial court simply rejected this, and suggested

that the appellant could have a jury decide the issue:

      of course, you know, you’re probably entitled to have a jury to make a
      decision about any of that. But at this point, I’m not going to grant the
      Motion to Suppress.

(RR, p. 71) (Exhibit B). The trial court took copies of case law submitted by

each side, stating that “if upon review of those, I come to a different conclusion,

I will certainly advise y’all, but I don't think that's going to be the situation.”

(RR, p. 72).

      The appellant later accepted the State’s plea offer and was sentenced

accordingly, but the certification of appeal recites that because matters were

raised by written motion and ruled on beforehand – and had not been waived or

withdrawn – the appellant still enjoyed the right of appeal. (CR, v. 1, p. 57).

This was also stated in the plea bargain papers, (CR, v. 1, p. 60), and by the

prosecutor at the plea hearing: “It is part of our agreement that he will preserve

his appellate right on the issues raised at the Motion to Suppress.” (RR, plea

hearing, p. 11).




                                         14
                    SUMMARY OF THE ARGUMENT

      The appellant respectfully urges that the trial court assigned an improper

burden when evaluating the motion to suppress and the evidence adduced.

Instead of judging the witnesses’ credibility and drawing inferences in order to

decide whether the officer had reasonable suspicion in order to stop the pickup,

the trial court explicitly took the officer’s testimony “at face value” and required

the appellant to produce proof showing that the officer’s statements were false.

Since the law requires the State to prove that the stop was reasonable under the

totality of the circumstances, the trial court did not actually evaluate this, and

appellant’s guilty plea should be vacated and the cause remanded.



                                 ARGUMENT

     Did the trial court use the proper standard of review in ruling on the
motion to suppress?

I.    a.     The Propriety of this Claim

      To preserve a complaint for appellate review, the complaining party must

have made a proper “timely request, objection or motion,” stating “the grounds

for the ruling that the complaining party sought from the trial court with

sufficient specificity” to “make the trial court aware of the complaint…” And

the trial court must have ruled on the matter “either expressly or implicitly,” or



                                        15
refused to do so. TEX. R. APP. P. 33.1(a). “The record must sufficiently reflect

that the trial court ruled adversely on a motion,” but a “trial court’s ruling on a

matter need not be expressly stated if its actions or other statements otherwise

unquestionably indicate a ruling.” Montanez v. State, 195 S.W.3d 101, 104

(Tex.Crim.App. 2006).


      b.     Analysis of the Claim’s Propriety

      The appellant filed a written motion to suppress arguing that the stop was

improper. (CR, v. 1, p. 17-18). After hearing the evidence, the trial court stated

that at that point, “I’m not going to grant the Motion to Suppress.” (RR, p. 72).

Although the trial court left open the possibility that its decision could change

after reading the case law, no further action on the appellant’s part was

necessary: “if upon review of those, I come to a different conclusion, I will

certainly advise y’all, but I don’t think that’s going to be the situation.” (RR, p.

72). And in the certification of appeal, the trial court made clear its conclusion –

as did the State – that an adverse ruling on the suppression matter had been

made. (CR, v. 1, p. 57, 60; RR, plea hearing, p. 11). Even if the ruling was not

expressly stated, which it seems to have been, “its actions or other statements

otherwise unquestionably indicate a ruling.” Montanez, 195 S.W.3d at 104.

The matter was therefore properly preserved for review.



                                        16
II.    Standard of Review

       Whether a lower court used the applicable standard of review is reviewed

de novo. Swearingen v. State, 143 S.W.3d 808, 810 (Tex.Crim. App. 2004).


III.   The Level of Harm Required

       Claims of improper searches are constitutional in nature. U.S. CONST.,

amend. IV (West supp. 2014). “If the appellate record in a criminal case reveals

constitutional error that is subject to harmless error review,” the conviction must

be reversed unless the court “determines beyond a reasonable doubt that the

error did not contribute to the conviction…” TEX. R. APP. P. 44.2(a).


IV.    Constitutional Law of Traffic Stops

       The reasonableness of a traffic stop, as any Fourth Amendment matter, is

evaluated by balancing “the public interest and the individual's right to personal

security free from arbitrary interference by law officers.” Maryland v. Wilson,

519 U.S. 408, 411, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997). “An officer conducts

a lawful temporary detention when he has reasonable suspicion to believe that

an individual is violating the law.”      Ford v. State, 158 S.W.3d 488, 492

(Tex.Crim.App. 2005).       Once the burden is shifted, the State must prove

reasonableness “under the totality of the circumstances.” Amador v. State, 221

S.W.3d 666, 672 (Tex.Crim.App. 2007). The “burden is on the State to elicit


                                        17
testimony showing sufficient facts to create a reasonable suspicion.” Sieffert v.

State, 290 S.W.3d 478, 484 (Tex.App. – Amarillo 2009, no pet.).

      And an officer’s own evaluation of what constitutes “reasonable

suspicion” is by no means the end of the matter. In evaluating a claim of

reasonable suspicion the trial court is “the sole trier of fact and judge of

credibility” and is “not compelled to believe” officers’ testimony, “even if

uncontroverted, based on credibility and demeanor.” State v. Ross, 32 S.W.3d

853, 857 (Tex.Crim.App. 2000). The trial court’s proper evaluation of the

testimony is the key to appellate analysis: “the judge may believe or disbelieve

all or any part of a witness’s testimony, even if that testimony is not

controverted,” because “it is the trial court that observes first hand the demeanor

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

read an impersonal record.” State v. Gray, 158 S.W.3d 465, 466-7 (Tex.Crim.

App. 2005).


V.    a.      Burden of Proof

      Where a defendant attempts to suppress evidence due to what is claimed

to be an illegal arrest, he bears the “initial burden of proof … to rebut the

presumption” that the officer’s conduct was proper, which he may satisfy by

“establishing that he was arrested without a warrant.” Young v. State, 283



                                        18
S.W.3d 854, 872 (Tex.Crim.App) (emphasis added), cert. denied, 558 U.S.

1093, 130 S.Ct. 1015, 175 L.Ed.2d 622 (2009). The “burden then shifts to the

State to prove that the search or seizure was nonetheless reasonable under the

totality of the circumstances.” Amador, 221 S.W.3d at 672.


      b.     Analysis of Evidence and Preservation of Error
             Relating to the Burden of Proof

      The appellant must “establish” that the arrest was warrantless. In Young,

whether a warrant existed was uncertain; the officer testified he was searching

for a car, which he found at a house with the appellant. When ordered outside,

“the appellant was uncooperative, and he was arrested.” Id. at 872. But

      the appellant failed to offer evidence that the arrest was warrantless. He
      could have done so easily by asking Officer Hodge if the arrest was
      made pursuant to a warrant. The appellant, however, failed to do so.
      Therefore, we must presume proper conduct, and the burden never
      shifted to the State to produce evidence of a warrant or, alternatively, to
      prove the reasonableness of the arrest.

Id.   Yet where the fact of a warrantless arrest is obvious, that matter is

established; “Any ultimate fact may be established by circumstantial evidence

from which the jury” or presumably the trial court sitting as factfinder “may

draw reasonable inferences.” Holloway v. State, 1998 WL 675876, at *2 (Tex.

App. – Amarillo, October 1, 1998, pet. ref’d) (not designed for publication),

citing Ex parte Wilson, 602 S.W.2d 902, 905 (Tex.Crim.App. 1980).




                                          19
      Since here, unlike in Young, the fact that the stop was made without a

warrant was obvious, and particularly since the State elicited this testimony and

did not contest the matter, the lack of a warrant was properly established.

Holloway, 1998 WL 675876, at *2; Wilson, 602 S.W.2d at 905.

      And despite the clear lack of a warrant, which should have shifted the

burden to the State, the trial court placed the burden on the appellant to disprove

the officer’s allegation; the trial court explicitly accepted the latter at face value:

      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 … 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.

(RR, p. 69) (emphases added). Thus the trial court did not evaluate the officer’s

credibility under Ross and did not take into account the controverting testimony

– although such contradiction is not required anyway under Gray – and thus did

not judge whether the officer had reasonable suspicion under Ford to stop the

appellant. And the defense argued that such a burden was improper:

      Basically, that he has to have objective – articulable, objective reasons
      for the stop. And our position is that the video renders it a question of
      the officer's word. We have two other people who say those lights were
      on and we saw them.

(RR, p. 70). But the trial court simply suggested that this would be relevant in

front of a jury. (RR, p. 71). The matter was therefore properly preserved for

review. Rule 33.1(a), supra.



                                          20
VI.   Analysis of this Case under the Law of Traffic Stops
      and the Applicable Burden of Proof

      The appellant does not contend that, had the trial court used the proper

standard of review of the evidence, its conclusions should not stand here.

“Almost total deference is given to the trial court’s implied findings, especially

those based on an evaluation of witness credibility and demeanor.” Turrubiate

v. State, 399 S.W.3d 147, 150 (Tex.Crim.App. 2013).

      But there’s the rub. The trial court’s conclusion was not made based on

an evaluation of witness credibility and demeanor so as to judge whether the

State met its burden of showing the officer had reasonable suspicion to make the

stop under the totality of the circumstances, as Young and Amador require.

Instead the trial court explicitly accepted the officer’s testimony at face value

and required the appellant to disprove the allegation.

      And had the trial court evaluated all the controverted testimony under the

proper standard, it might conceivably have granted the appellant’s motion. This

negates any suggestion of harmlessness beyond a reasonable doubt under Rule

44.1(a). At very best the officer’s memory was partly inaccurate – he testified

the appellant did not say who owned the pickup. This is belied by the video,

which reveals that the appellant clearly and truthfully stated the vehicle belongs

to “Francisco Reyes.” (RR, p. 25; State’s Exhibit 15, at 23:15:51 and 23:16:03).



                                        21
       The officer’s testimony is also odd in another respect. He stated that the

taillights were initially off, but that they came on before the camera began taping

the incident, while the appellant was “riding” the pickup’s brake lights. This is

plausible.   The officer testified he followed the pickup when he says the

taillights were off, “attempting to see if he – if the problem was going to correct

itself and it didn’t.” Yet the problem was then corrected, as he further testified;

the taillights were turned on while the brake lights were on, so the taillights

stayed on when the brake was no longer used. (RR, p. 12). And the officer still

followed the pickup for at least thirty seconds after the taillights were turned on,

then decided to make the stop despite that the correction of the sole traffic

violation he alleged. (RR, p. 13-14).

       This is curious.   On the one hand, the appellant’s written motion to

suppress, while arguably inartfully drawn, contends that the stop was a “pretext”

one.   (CR, v. 1, p. 17).     The doctrine of pretext stops under the Fourth

Amendment has largely been rendered defunct by rulings that “the constitutional

reasonableness of traffic stops” does not depend “on the actual motivations of

the individual officers listed” – the proper basis for complaint of intentional

discrimination in applying the law “is the Equal Protection Clause, not the

Fourth Amendment.” Whren v. United States, 517 U.S. 806, 813, 116 S.Ct.

1769, 135 L.Ed.2d 89 (1996).


                                        22
      On the other hand, the delay in making the stop is relevant to the officer’s

credibility. In State v. Dixon, 206 S.W.3d 587 (Tex.Crim.App. 2006), a delay

was noted between observation of a traffic offense and the resulting stop

“diminishes the credibility of” the officers’ “claim that they stopped him for an

unlawful turn.” In granting the suppression motion and entering findings of fact

“relating to the time and distance the police followed the driver,” the trial court

“was in effect saying, ‘If you really thought the driver had committed a traffic

offense, then why did you wait so long before pulling him over?’” Id. at 591.

      In a recent Alaska case, in contrast, an officer testified he stopped the

defendant “as soon as it was practical to do so. He explained at some length

why he was unable to stop” the defendant “right after he saw the traffic

violation.” Aldridge v. State, 2013 WL 3461694, at *3 (Alas.Ct.App. 2013) (not

designated for publication). And in an older case the Fifth Circuit noted that

although a delayed traffic stop “is not necessarily improper, and at times may be

good police practice,” Amador-Gonzalez v. United States, 391 F.2d 308, 314 (5th

Cir. 1968), the officer making the stop should be prepared to explain the delay:

      every time there is a delay in making the arrest and there is a search
      made as incidental to the arrest, the law enforcement officers take the
      risk that they will be charged with using the arrest as a mere pretext for
      the search.

Id.



                                         23
      Here the officer’s admission of waiting to stop the pickup, combined with

a lack of explanation for and a lack of impediment to making the stop earlier,

plus the fact that the area in which he actually made the stop was no more

favorable than the places he could have earlier stopped the appellant, is relevant

to whether he had reasonable suspicion to make the stop in the first place. When

the doctrine of pretext stops was more viable, this Court noted that the theory

may apply to “traffic violations by officers who … have delayed the stop until

long after observing the traffic infractions.” Smith v. State, 789 S.W.2d 350,

352 (Tex.App. – Amarillo 1990, pet. ref’d). Under Smith and Dixon, these facts

affect the reasonableness of the stop and the officer’s credibility in claiming that

the pickup’s taillights were off.

      But the trial court considered neither the contested fact of the taillights’

operation, nor the delay, nor any other factors in the appellant’s favor. The trial

court felt the officer’s testimony was to be taken at face value and that the

appellant bore the burden of proving him wrong, despite having established that

no warrant existed.



                                    PRAYER

      For the reason stated, the appellant prays the Court vacate his plea and

order a new trial, or order all relief the Court may deem appropriate.


                                        24
                                         Respectfully submitted,

                                         /s/ JOHN BENNETT
                                         John Bennett
                                         Post Office Box 19144
                                         Amarillo, Texas 79114
                                         Telephone: (806) 282-4455
                                         Facsimile: (806) 398-1988
                                         AppealsAttorney@gmail.com
                                         State Bar No. 00785691
                                         Attorney for the Appellant




                   CERTIFICATE OF COMPLIANCE

      I hereby certify that this entire Brief contains 4,848 words.

                                         /s/ JOHN BENNETT
                                         John Bennett




                      CERTIFICATE OF SERVICE

      This is to certify that a true and correct copy of the above was served by

personal delivery, on Jack Owen, Esq. and Kathy Levy, Esq., Assistant Potter

County District Attorneys, at 501 S. Fillmore, Amarillo, TX 79101, on March

16, 2015, and another by email to them at jackowen@co.potter.tx.us.

                                         /s/ JOHN BENNETT
                                         John Bennett


                                        25
   APPENDIX

      Exhibit A

JUDGMENT & SENTENCE
                                            CASE No. 67,846-A                      COUNT
                                                 INCIDENT NO./TRN: 9157882320 AOOI
THE STATE OF TEXAS                                                   §            IN THE 47TH DISTRICT
                                                                     §
v.                                                                   §            COURT
ERICK HERNANDEZ                                                                   POTTER COUNTY, TEXAS
STATE ID NO.: TX04311946                                             §
        JUDGMENT OF CONVICTION BY COURT — WATVER OF JURY TRIAL
                                                                      Date Judgment
Judge Presiding:        HON.DANSCHAAP                                 Entered:                   10/20/2014
                                                                      Attorney for
Attorney for State:     AUDREY MINK                                   Defendant:                JOHN TERRY
Offense for which Defendant Convicted:
POSSESSION OF CONTROLLED SUBSTANCE, ENHANCED
Charging Instrument:                                                Statute for Offense:
INDICTMENT                                                          481.115[d] Health and Safety Code
Date of Offense:
9/22/2013
Degree of Offense:                                                  Plea to Offense:                      Findings on Deadly Weapon:
2ND DEGREE FELONY                                                   GUILTY                                N/A
Terms of Plea Bargain:
EIGHTEEN (18) YEARS TDCJ-ID, $500 FINE, CODIS SAMPLE
Plea to 1st Enhancement                                        Plea to 2nd Enhancement/Habitual
Paragraph:                            TRUE                     Paragraph:                                    N/A
Findings on 1st Enhancement                                    Findings on 2nd
Paragraph:                            TRUE                     Enhancement/Habitual Paragraph:                N/A

Date Sentence Imposed:       10/20/2014                        Date Sentence to Commence:          10/20/2014
Punishment and Place         EIGHTEENU8) YEARS INSTITUTIONAL DIVISION, TDCJ
of Confinement:
                                        THIS SENTENCE SHALL RUN CONCURRENTLY.

          SENTENCE OF CONFINEMENT SUSPENDED, DEFENDANT PLACED ON COMMUNITY SUPERVISION FOR N/A                                        .
Fine:             Court Costs:            Restitution:  Restitution Payable to:
$500
                      as per attached bill              $N/A                 D VICTIM (see below) D AGENCY/AGENT (see below)
                      of cost
Sex Offender Registration Requirements do not apply to the Defendant. TEX CODE CRDM. PROC. chapter 6g
The age of the victim at the time of the offense was N/A .                                                                         O
                If Defendant is to serve sentence in TDCJ, enter incarceration periods in chronological order.
                From 9/22/2013 to 10/20/2014            From           to              From         to
Time            From        to                From         to                 From        to
Credited:
                If Defendant is to serve sentence in county jail or is given credit toward fine and costs,     dbeldSO            irrr*_
                 N/A DAYS          NOTES: N/A
All pertinent information, names and assessments indicated above are incorporated into the language of the judgment below by reference. • ^
          This cause was called for trial in Potter County, Texas. The State appeared by her Assistant District Attorney.
          Cmin«^l/ Waiver of Counsel (select one)                                                                              —:
£3 Defendant appeared in person with Counsel.                                                                    rn
D Defendant knowingly, intelligently, and voluntarily waived the right to representation by counsel inbimtang in <5d3n court: ~n
          Both parties announced ready for trial. Defendant waived the right of trial by jury and enterBl the plea inoicated above.
The Court then admonished Defendant as required by law. It appeared to the Court that Defendant wW men tally competently
stand trial, made the plea freely and voluntarily, and was aware of the consequences of this plea. The Court received the plea and




                                         67846        976554                                Page 1 of 2
entered it of record. Having heard the evidence submitted, the Court found Defendant guilty of the offense indicated above. In the
presence of Defendant, the Court pronounced sentence against Defendant.
          The Court FINDS Defendant committed the above offense and ORDERS, ADJUDGES AND DECREES that Defendant is
GUILTY of the above offense. The Court FINDS the Presentence Investigation, if so ordered, was done according to the applicable
provisions of TEX. CODE CRIM. PROG. art. 42.12 § 9.
          The Court ORDERS Defendant punished as indicated above. The Court ORDERS Defendant to pay all fines, court costs, and
restitution as indicated as per attached bill of cost.
          Punishment Options (select one)
 H Confinement in State Jail or Institutional Division. The Court ORDERS the authorized agent of the State of Texas or the
Sheriff of this County to take, safely convey, and deliver Defendant to the Director, Institutional Division, TDCJ* The Court
ORDERS Defendant to be confined for the period and in the manner indicated above. The Court ORDERS Defendant remanded to the
custody of the Sheriff of this county until the Sheriff can obey the directions of this sentence. The Court ORDERS that upon release
from confinement, Defendant proceed immediately to the Potter County District Clerk. Once there, the Court ORDERS Defendant to
pay, or make arrangements to pay, any remaining unpaid fines, court costs, and restitution as ordered by the Court as per attached
bill of costs.
D County Jail—Confinement / Confinement in Lieu of Payment. The Court ORDERS Defendant immediately committed to
the custody of the Sheriff of Potter County, Texas on the date the sentence is to commence. Defendant shall be confined in the Potter
County Jail for the period indicated above. The Court ORDERS that upon release from confinement, Defendant shall proceed
immediately to the Potter County District Clerk, Once there, the Court ORDERS Defendant to pay, or make arrangements to pay,
any remaining unpaid fines, court costs, and restitution as ordered by the Court as per attached bill of costs.
D Fine Only Payment, The punishment assessed against Defendant is for a FINE ONLY. The Court ORDERS Defendant to proceed
immediately to the Office of the Potter County District Clerk. Once there, the Court ORDERS Defendant to pay or make
arrangements to pay all fines and court costs as ordered by the Court in this cause as per attached Bill of Cost.
          Execution / Suspension of Sentence (select one)
13 The Court ORDERS Defendant's sentence EXECUTED.
D The Court ORDERS Defendant's sentence of confinement SUSPENDED. The Court ORDERS Defendant placed on community
supervision for the adjudged period (above) so long as Defendant abides by and does not violate the terms and conditions of
community supervision. The order setting forth the terms and conditions of community supervision is incorporated into this
judgment by reference.
          The Court ORDERS that Defendant is given credit noted above on this sentence for the time spent incarcerated.
                   Furthermore, the following special findings or orders apply;
DEFENDANT IS ORDERED TO PROVIDE
                             3E CODIS SAMPI

Signed and entered on the               tt      day of




Clerk:



                                                               THE STATE OF TEXAS                     X        Cause Mo.
                                                                                                      X

                                                                                         2- x


                                                                                                     Signature of Bailiff,
                                                                                                     Acting for the Court, who took
                                                                                                     the thumbprint immediately to
                                                                                                     the left hereof on this

                                                                                                                            .day of

                                                                          Thumbprint

                                                                                                                             74

                                       67846                                           Page 2 of 2
           Exhibit B

PAGES FROM REPORTER’S RECORD
  OF THE SUPPRESSION HEARING
                                                                                 68


11:09AM    1   earlier.   And you don't really have evidence about this
11:09AM    2   particular truck or whether this is even possible or
11:09AM    3   not.
11:09AM    4                    MR. TERRY:    No.   And it's not referenced
11:09AM    5 in his report anywhere either.
11:09AM    6                    THE COURT:    I -- I -- I understand that

11:09AM    7 his report is -- is probably -- and I haven't seen the
11:09AM    8 report, but I would presume it's not detailed and/or is
11:09AM    9 it intended to be detailed to differentiate between
11:09AM   10 observing what he sees on the front versus the back and
11:09AM   11   e x p l a i n i n g that for purposes of your cross-examination

11:09AM   12 of h i m .
11:09AM   13                    MR. TERRY:    Your Honor, I would posit to

11:09AM   14 the Court, there's a reason we have in-car video.            And

11:09AM   15 if in-car video doesn't match, that brings into question
11:09AM   16 the --
11:09AM   17                    THE COURT:    W e l l , I know it -- it creates

11:09AM   18 an issue, Mr. Terry.       It does create an issue.      But,

11:09AM   19 again, he's very clearly testified that he followed the
11:09AM   20 vehicle for a w h i l e to observe what was going on.        And
11:09AM   21 we also know that it kicks back and how that happens, I
11:09AM   22 don't really know, but it goes and captures some t i m e ,
11:10AM   23 you know, backwards from when the lights are i n i t i a t e d ,
11:10AM   24 but it doesn't capture five-minutes worth.           It captures
11:10AM   25 30-seconds worth.
                                                                                 69


11:10AM         1                  MR. TERRY:   W e l l , Ms. Mink asked if it
11:10AM         2 was possible there was a short when she cross-examined
11:10AM         3 him.   One of the things that the video shows is those
11 : 1 0AM      4 lights kept working.    That's a l l .
11: 10AM        5                  THE COURT:   You know, I -- again, I think
11:10AM         6 that's just speculation there and I wouldn't consider it
11: 10AM        7 anything besides speculation. But I think I have to
11:10AM         8 take the officer's observations at face value, absent
11:10AM         9 evidence that this vehicle could not have done what the
1 1 : 1 0AM    10 officer surmised it did because of what he observed.
11:1 0AM       11 And his surmise in that regard is that the headlight
1 1 : 1 0AM    12 switch was not engaged and that it had its front beams
11: 11AM       13 on because it was turned on and it was running with
11: 11AM       14 those as we have seen vehicles coming down the road in
11: 11AM       15 the m i d d l e of the day with their headlights on.   We call
               16 them headlights because that's what we see.       And those
11: 11AM       17 lights are automatic. No one has to, quote, unquote,
               18 turn them on.   And so that's sort of where it boils down
11: 11AM       19 to me -- for me here is, is do we have evidence that
11: 11AM       20 what the officer is suggesting is not possible?
11 :11AM       21                 MR. TERRY:    Well --
11 : 11AM      22                 THE COURT:    I don't hear the evidence
11: 11AM       23 that says it's not possible.      I'm going to have to take
11-.11AM       24 what he says at face value.     And that means that I think
1 1 : 1 1 AM   25 he had a reasonable basis to make the stop and I think
                                                                               70


               1   your client consented to the search.
11: 11AM       2                  MR. TERRY:   Okay.     I would -- without
               3 going through everything -- and I would simply submit
11: 11AM       4 some cases to the Court.
11: 11AM       5                  THE COURT:   Oh, and I w i l l certainly take
11: 11AM       6 your cases into consideration.        I mean, they probably
               7 don't address my specific concerns about the evidence.
11:12AM        8                  MR. TERRY:   They do not.    But the cases
11 :12AM       9 are -- let me just say it for the record.       Florida
1 1 : 1 2AM   10 versus Royer.
11:12AM       11                  THE COURT:   I'm familiar with it.
1 1 : 1 2AM   12                  MR. TERRY:   Baldwin versus State.
11:12AM       13                  THE COURT:   Not so.
1 1 : 1 2AM   14                  MR. TERRY:   Wade versus State.
1 1 : 1 2AM   15 McQuarters versus State.
11:12AM       16                  THE COURT:   And -- and -- and -- is that
1 1 : 1 2AM   17 the -- and what is the gist of those cases?
1 1 : 1 2AM   18                  MR. TERRY:   Basically, that he has to
1 1 : 1 2AM   19 have objective -- articulable, objective reasons for the
1 1 : 1 2AM   20 stop.    And our position is that the video renders it a
11:12AM       21   question of the officer's word.     We have two other
1 1 : 1 2AM   22 people who say those l i g h t s were on and we saw them.
11:12AM       23 And consequently, the video -- there's a reason for
11: 12AM      24 that.   And that's why when sometimes officers'
11: 12AM      25 testimonies don't match what happens, we go with what
                                                                                  71


11:12AM      1   our lying eyes say.
11:12AM      2                  THE COURT:   Well -- and -- and -- and, of
11:12AM      3 course, you know, you're probably entitled to have a
11:13AM      4 jury to make a decision about any of that.          But at this
11:13AM      5 point, I'm not going to grant the Motion to Suppress.
11:13AM      6                  MR. TERRY:   I understand. And there's
11:1 SAM     7 one other case I'm submitting.
11:1 SAM     8                  THE COURT:   Okay.
11 :1 SAM    9                  MR. TERRY:   Smirl, which was --
11 :1 SAM   10                  THE COURT:   Spell that.
11 :1 SAM   11                  MR. TERRY:   S-M-I-R-L.
11:1 SAM    12                 THE COURT:    Okay.
11:1 SAM    13                  MR. TERRY:   Versus State.      It was decided
11:1 SAM    14 October 13th of 2014, here in the 7th Court of Appeals.
11:1 SAM    15                 THE COURT:    Hot off the presses.

11:1 SAM    16                  MR. TERRY:   Yeah.   And it's i n c l u d e d .
11:1 SAM    17 And I have copies of all three of these cases for
11:1 SAM    18 Ms. Mink.
11:1 SAM    19                 THE COURT:    Okay.   And does it basically
11:1 SAM    20 stand for the same proposition?
11:1 SAM    21                 MR. TERRY:    Pretty much.      Let me -- on
11:1 SAM    22 Smirl, the specific language to stop and temporarily
11:1 SAM    23 detain a person, an officer must have specific,
11:1 SAM    24 articulable facts that would lead him to reasonably
11:1 SAM    25 conclude that a person is, has been or w i l l be engaged
