      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                              444444444444444444444444444
                                ON MOTION FOR REHEARING
                              444444444444444444444444444



                                       NO. 03-99-00815-CR



                                   The State of Texas, Appellant

                                                 v.

                                  Thomas Jarod Nash, Appellee




     FROM THE DISTRICT COURT OF MILAM COUNTY, 20TH JUDICIAL DISTRICT
        NO. 20,041-CR, HONORABLE CHARLES E. LANCE, JUDGE PRESIDING




                 We withdraw our original opinion and judgment issued July 27, 2000 and substitute

the following.

                 After being stopped for a window tint violation, Thomas Jarod Nash was indicted for

possession of a controlled substance. See Tex. Health & Safety Code Ann. § 481.115(c) (West Supp.

2000). Nash filed a motion to suppress the evidence obtained after the search of his vehicle following

the stop. The trial court granted the motion to suppress and the State appeals. See Tex. Code Crim.

Proc. Ann. art. 44.01(a)(5) (West Supp. 2000). We reverse.
                                       Factual Background

               On August 20, 1999, at approximately 10:30 p.m., Department of Public Safety

Troopers Morgan and Del Bosque stopped Nash because they believed his car window tint was too

dark. See Tex. Transp. Code Ann. § 547.613(a)(2) (West 1999). The troopers confirmed the

window tint violated section 547.613 by testing the windows with a tint meter. According to the

testimony, the tint on Nash’s windows failed to comply with the statutory requirements. In addition,

they discovered that Nash was driving without a license and that his vehicle inspection sticker had

expired. Trooper Morgan recognized Nash’s passenger, Omar Clark, whom he had previously

arrested for possession of a controlled substance. After a warrants check, the troopers learned that

Clark had outstanding warrants for his arrest in Dallas County.

               Almost immediately after the stop, Nash exited the vehicle and was patted down by

Trooper Morgan.1 While Trooper Morgan talked with Nash, Trooper Bosque tested the tint with

the tint meter. Trooper Morgan asked if there were drugs in the car and asked for consent to search

the vehicle. Trooper Morgan testified that Nash consented to the search. Nash testified that he did

not remember if he consented. Upon searching Nash’s vehicle, the troopers found cocaine under the

back seat and arrested Nash for possession. Nash moved for suppression of the evidence obtained

from the search. The trial court granted the motion, dismissed the case and discharged Nash. The

State did not request written findings of fact and conclusions of law. On appeal, the State argues only

that the search was valid based on consent.


   1
     The stop and search of Nash, his passenger and his vehicle were captured on videotape which
the State introduced at the suppression hearing and which we have reviewed on appeal.

                                                  2
                                              Discussion

Standard of Review

             In reviewing a ruling on a motion to suppress, we are required to give almost total

deference to a trial court’s determination of historical facts that the record supports, especially when

the trial court’s fact findings are based on an evaluation of credibility and demeanor. Guzman v. State,

955 S.W.2d 85, 89 (Tex. Crim. App. 1997); see also Carmouche v. State, 10 S.W.3d 323, 327 (Tex.

Crim. App. 2000). With mixed questions of law and fact which turn an evaluation of credibility and

demeanor, we should also defer to the trial court’s ruling. Guzman, 955 S.W.2d at 89. However,

we review de novo the application of the law to the facts which do not turn on questions of credibility

and demeanor. Id.

             We set out in full the trial court’s findings of fact and conclusions of law as orally stated

on the record:


       The Court finds that the night of August 20th, 1999 was a hot summer night in Milam
       County, Texas.

       The Court finds that the air conditioner in the Defendant’s automobile was
       inoperative.

       The Court finds that the windows in the Defendant’s automobile were at least half
       way down prior to the stop, search and arrest in question.

       The Court finds that the window tint on the windows of the Defendant’s automobile
       complied with applicable state law as evidenced by State Exhibit 1, a photograph of
       the Defendant’s car and the seal of compliance affixed to the Defendant’s car
       windows. That is additionally, buttressed by Trooper Chandler’s testimony that there
       was no obvious illegal window tinting on July 30th, 1999.

       The Court finds that the arresting officer, Jimmy Morgan, had one prior arrest and
       one prior unfruitful stop of Omar Clark, the passenger in the Defendant’s automobile.

                                                   3
       The Court finds that Trooper Jimmy Morgan recognized Omar Clark as a passenger
       in the Defendant’s automobile and confirmed his recognition by driving up beside the
       Defendant’s automobile on the highway and having a stoplight focused on the
       Defendant Omar Clark.

       The Court finds that immediately after the identification of Omar Clark was
       confirmed, Trooper Jimmy Morgan stopped the Defendant’s automobile, searched the
       Defendant, his automobile and his passenger.

       The Court concludes as a matter of law that the stopping of the Defendant was a
       pretexted stop. That the reason given for the stop, that is the illegal window tint, was
       a subterfuge.

       The Court finds there was no probable cause to stop the Defendant.

       The Court finds that any consent given by the Defendant was a mere acquiescence to
       authority, was not an informed consent.

       Therefore, the Court rules that all evidence obtained from the unlawful stop and
       subsequent search and arrest is inadmissible in evidence and the Motion to Suppress
       is granted.


             According to the stated findings and conclusions, the trial court granted Nash’s motion

to suppress because the initial stop was a “pretext” stop, and because the subsequent search of Nash’s

vehicle was not based on voluntary consent, but rather was an acquiescence to a claim of lawful

authority. We begin with an analysis of the stop.


Stop of Nash’s Vehicle

             If an officer has reason to suspect that “criminal activity may be afoot,” something less

than probable cause is needed for an investigatory stop. Terry v. Ohio, 392 U.S. 1, 30 (1968);

McVickers v. State, 874 S.W.2d 662, 664 (Tex. Crim. App. 1993) (officer may lawfully stop and

detain a person for a traffic violation); see also Garcia v. State, 827 S.W.2d 937, 944 (Tex. Crim.


                                                  4
App. 1992) (as long as an actual violation occurs, police are free to enforce laws and detain a person

for that violation, regardless of usual practices or subjective reasons); Howard v. State, 888 S.W.2d

166, 172 (Tex. App.—Waco 1994, pet. ref’d) (stop is lawful if officer has reasonable suspicion of

a traffic violation either on the automobile or by one of the automobile’s occupants). “Something less

than probable cause” is defined as reasonable suspicion. See Davis v. State, 947 S.W.2d 240, 244

(Tex. Crim. App. 1997). Reasonable suspicion requires “that there is something out of the ordinary

occurring and some indication that the unusual activity is related to crime.” Viveros v. State, 828

S.W.2d 2, 4 (Tex. Crim. App. 1992) (citing Garza v. State, 771 S.W.2d 549, 558 (Tex. Crim. App.

1989)). The articulated facts that support a temporary detention must be taken as a whole, and the

reasonable suspicion formed based on the “totality of the circumstances.” Woods v. State, 956

S.W.2d 33, 38 (Tex. Crim. App. 1997); see also United States v. Cortez, 449 U.S. 411, 417 (1981).

If the officer develops a reasonable suspicion that the motorist is engaged in, or soon will engage in

criminal activity, he may continue to detain him for investigation unrelated to the initial traffic stop.

See Davis, 947 S.W.2d 245.

              Failure of window tint to meet certain light transmission and luminous reflectance is a

misdemeanor for which a violator may be arrested without a warrant. See Tex. Transp. Code Ann.

§§ 547.613(a), 543.001 (West 1999). It is well settled that a traffic violation committed in an

officer’s presence authorizes an initial stop. Armitage v. State, 637 S.W.2d 936, 939 (Tex. Crim.

App. 1982); see also United States v. Castillo, 76 F.3d 1114, 1117 (10th Cir. 1996) (officer stopped

driver for window tint violation and subsequent consent search revealed controlled substance).




                                                   5
             Under Guzman, we must accord almost total deference to the following facts:

(1) Nash’s car windows were tinted; (2) the windows contained a sticker indicating compliance with

state law; and (3) there was no obvious illegal window tint on July 30, 1999. We review de novo the

following legal determinations: (1) Nash’s window tint complied with state law; (2) the stop was a

pretext stop; and (3) no probable cause existed to stop Nash.


             1. Window Tint Complies with State Law

             The trial court concluded that Nash’s window tint complied with state law. While

compliance with state law may be a relevant consideration, the central issue in this case is whether

the troopers had reasonable suspicion to stop Nash’s vehicle. This question turns on what the

troopers knew at the time they decided to make the stop. Both Trooper Morgan and Trooper

Bosque testified that they observed Nash’s car from across an intersection and suspected the window

tint was too dark. To confirm their suspicions, they pulled beside Nash’s car and shined a light into

the windows, further confirming their suspicions that the tint was too dark. The troopers then

stopped the vehicle.

             The trial court based its legal conclusion that the windows complied with state law on

the presence of a compliance sticker on the windows and the testimony of Trooper Chandler, who

had previously stopped Nash. In response to questioning, Trooper Chandler agreed that if a car has

an obviously illegal window tint he would issue a citation. 2 The State presented evidence that



   2
     Trooper Chandler also testified that he did not “know if the car had tint on it that night,” that
he did not remember anything about the windows on Nash’s car, and that he did not remember
observing a window tint violation.

                                                  6
compliance stickers on tinted windows are often unreliable. Moreover, even without such evidence,

the presence of a compliance sticker does not establish the legality of the tint. Accepting the trial

court’s historical fact findings, we conclude compliance with state law is not supported by the record.

Accordingly, we reject the trial court’s conclusion that the tint complied with state law.


              2. Pretext Stop

              The trial court concluded that the troopers’ stop of Nash was an invalid pretext stop.

A pretextual seizure is one effectuated for an ulterior motive. Crittenden v. State, 899 S.W.2d 668,

671 (Tex. Crim. App. 1995). Under the objective approach towards claims of a pretextual seizure,

a seizing officer’s subjective motivation in effectuating a seizure is deemed irrelevant to the

determination of whether the seizure was reasonable. Id. As pointed out by the court of criminal

appeals, this approach is “nothing more than the complete abandonment of any sort of pretext

doctrine.” Id. An objectively valid traffic stop is not unlawful just because the detaining officers had

some ulterior motive for making it. Id. at 674. Because the officer’s subjective intent in effectuating

the seizure is irrelevant, it did not constitute an illegal pretext. Id. at 671.

              As set out above, the officers had an objective basis for making the stop. Any subjective

motivation for making the stop is not relevant. Accordingly, we reject the trial court’s conclusion

of law that the stop was an illegal pretext stop.


              3. Probable Cause to Stop

              The trial court concluded that the troopers did not have probable cause to stop Nash.

Reasonable suspicion, not probable cause, is required for a traffic stop. See McVickers, 874 S.W.2d


                                                    7
at 664. Accepting the trial court’s findings as true, they do not lead to the conclusion that as a matter

of law the troopers did not have reasonable suspicion to stop Nash’s vehicle on the night of August

20, 1999, for a possible window tint violation. Troopers Morgan and Bosque testified that, based

upon their observations, the window tint looked too dark. The trial court findings do not rebut their

testimony. The trial court’s findings are matters which were not known to Troopers Morgan and

Bosque at the time of the stop. Accordingly, we conclude that the troopers had reasonable suspicion

to stop Nash. We must now determine whether the troopers’ warrantless search violated Nash’s

Fourth Amendment rights.


Search of Nash’s Vehicle

              The trial court concluded that Nash did not voluntarily consent to the search but rather

reacted to a show of authority. The State argues only that the search was valid based on Nash’s

consent to search. Our review then is limited to determining if the State’s search of Nash’s vehicle

was a permissible, consensual search.        See State v. Aguirre, 5 S.W.3d. 911, 913-14 (Tex.

App.—Houston [14th Dist.] 1999, no pet.).

              Consent to search is one of the well-established exceptions to the constitutional

requirements of both a warrant and probable cause. Carmouche, 10 S.W.3d at 331 (citing

Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973)). Consent to search satisfies the Fourth

Amendment if the consent is voluntary. Carmouche, 10 S.W.3d at 331 (citing Ohio v. Robinette, 519

U.S. 33, 40 (1996)). The consent must not be coerced, by explicit or implicit means, by implied

threat or covert force. Carmouche, 10 S.W.3d at 331 (citing Schneckloth, 412 U.S. at 228)). The

consent must be positive and unequivocal. Allridge v. State, 850 S.W.2d 471, 493 (Tex. Crim. App.

                                                   8
1991). Consent is not established by “showing no more than acquiescence to a claim of lawful

authority.” Carmouche, 10 S.W.3d at 331 (citing Bumper v. North Carolina, 391 U.S. 543, 548-49

(1968)). The State must show by clear and convincing evidence that the consent was freely given.

Carmouche, 10 S.W.3d at 331. Whether consent is voluntary is a question of fact to be determined

from the totality of the circumstances. Schneckloth, 412 U.S. at 227.

             According to Nash’s testimony, he was uncertain whether he gave consent for the

search. Trooper Morgan testified that Nash consented to the search. While we are generally bound

by the trial court’ s historical factual determinations, especially those based on credibility and

demeanor, we are not so bound with the presence of a videotape. See Carmouche, 10 S.W.3d at 332.

The videotape shows that once Trooper Morgan stopped Nash, Nash stepped out of the car and

Morgan frisked him. Within minutes after Trooper Morgan stopped Nash, Trooper Morgan asked

Nash if he could search the car. Nash responded: “Yes, sir.” The videotape presents indisputable

visual evidence supporting Trooper Morgan’s testimony, contradicting Nash’s equivocal testimony

and the trial court’s ruling. We cannot ignore the videotape evidence simply because Nash’s

testimony may, by itself, be read to support the trial court’s ruling. See Carmouche, 10 S.W.3d at

332.

             Trooper Morgan’s request to search the vehicle came within the first few minutes of the

stop. The troopers showed no display of force and did not coerce Nash into complying with the

request. Carmouche, 10 S.W.3d 332-33 (consent given by defendant while surrounded by four

officers with his back to a car is not voluntary); see also LaDuke v. Nelson, 762 F.2d 1318, 1329-30

(9th Cir. 1985) (consent by Hispanic farm workers was mere acquiescence to lawful authority where


                                                 9
search was accompanied by substantial show of force). Only Trooper Morgan had contact with Nash

when asking for consent to search the car. Trooper Bosque was testing the window tint when

Morgan asked Nash for consent to search. The troopers did not represent that they had a search

warrant.   See Bumper, 391 U.S. at 548-49.           Nash responded immediately, positively and

unequivocally to the request. See Allridge, 850 S.W.2d at 493. Viewing the totality of the

circumstances, we conclude that the State satisfied its burden of showing by clear and convincing

evidence that Nash voluntarily consented to the search of his vehicle.


                                           Conclusion

             We conclude that the initial stop of Nash’s vehicle was based on reasonable suspicion

and was a valid stop. The subsequent search of Nash’s vehicle was a permissible search pursuant to

Nash’s voluntary consent. Accordingly, we sustain the State’s issue on appeal, reverse the trial

court’s ruling on the motion to suppress and its dismissal of the case, and remand the cause to the

trial court. We overrule Nash’s motion for rehearing.




                                              Jan P. Patterson, Justice

Before Justices Jones, Yeakel and Patterson

Reversed and Remanded

Filed: September 14, 2000

Do Not Publish

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