                                 NO. 07-03-0241-CR

                            IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                      PANEL E

                                FEBRUARY 24, 2004

                         ______________________________


                   RAFAEL HERNANDEZ GONZALES, APPELLANT

                                          V.

                         THE STATE OF TEXAS, APPELLEE


                       _________________________________

                 FROM THE COUNTY COURT OF YOAKUM COUNTY;

                  NO. 9278; HONORABLE KELLY G. MOORE, JUDGE

                        _______________________________

Before QUINN and REAVIS, JJ. and BOYD, S.J.1


                              MEMORANDUM OPINION


          Following the denial of his motion to suppress evidence, appellant Rafael

Hernandez Gonzales entered a guilty plea conditioned upon his right to appeal the trial



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      John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by
assignment.
court’s ruling to driving while intoxicated. The trial court then found appellant guilty and

assessed as punishment a sentence of 120 days confinement, probated for 180 days, and

a $600 fine. With three issues, appellant contends the trial court: (1) erred in overruling

his motion to suppress evidence obtained in violation of his right against unreasonable

search and seizure under both state and federal constitutions; and (2) was required to

exclude that evidence in accordance with the exclusionary rules of the federal constitution

and article 38.23 of the Texas Code of Criminal Procedure. (Vernon 2003). We affirm.


       Kinley Powell is a certified peace officer and a deputy with the Yoakum County

Sheriff’s Department. Early on the morning of June 9, 2002, Powell was sitting in his patrol

car on the side of a county road when he observed in his side-view mirror lights from an

approaching car. The car appeared to be drifting toward his car. Indeed, Powell remarked

to his passenger, a reserve deputy sheriff, it looked like the car might hit them. Powell was

concerned a driver at that time of the morning might not be paying attention or might have

fallen asleep behind the wheel. He considered the situation to be dangerous until the

driver moved his car into the other lane and went around him. Powell watched as the car

turned onto an intersecting county road. He then “hesitated to turn in behind it so that [he]

could see the license plate without any light shining on it.” At that point, Powell observed

the car’s rear license plate light was not working. Powell followed the car a short distance

to “observe any other driving behavior,” then activated his emergency lights. The driver of

the car did not immediately stop, but rather turned onto another county road, where he

finally pulled over. When Powell approached the car, he identified appellant as the driver.

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Detecting the strong smell of alcohol on appellant’s breath, Powell contacted the

Department of Public Safety and requested a trooper be dispatched to assist him with the

stop. Trooper Lance Malloy responded to the scene, conducted a series of field sobriety

tests on appellant, administered a portable breath test, concluded appellant was

intoxicated, and arrested him.


       By his first two issues, appellant contends the trial court erred in failing to suppress

the evidence against him as it was the product of an unreasonable search and seizure in

violation of the Fourth Amendment of the United States Constitution and article one,

section nine of the Texas Constitution. Appellant maintains by his third issue that the

exclusionary rules under state and federal law required the trial court to exclude the

evidence because it was the result of an illegal search and seizure. See Segura v. United

States, 468 U.S. 796, 804, 104 S.Ct. 3380, 3385, 82 L.Ed.2d 599, 608 (1984), and Tex.

Code Crim. Proc. Ann. art. 38.23. With each issue, we disagree.


       A trial court's ruling on a motion to suppress is reviewed for abuse of discretion.

Oles v. State, 993 S.W.2d 103, 106 (Tex.Cr.App. 1999). When reviewing an appeal from

the trial court's denial of a motion to suppress, great deference is afforded to the trial

court's decision on mixed questions of law and fact that turn on an evaluation of credibility

and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Cr.App. 1997). An appellate

court must view the evidence in the light most favorable to the court's ruling. State v.

Ballard, 987 S.W.2d 889, 891 (Tex.Cr.App. 1999). In a suppression hearing the trial court


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is the sole judge of the credibility of the witnesses and the weight to be given their

testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex.Cr.App. 2000). However, for mixed

questions of law and fact which do not fall within this category, an appellate court may

conduct a de novo review of the trial court's ruling. Hernandez v. State, 957 S.W.2d 851,

852 (Tex.Cr.App. 1998) (citing Guzman, 955 S.W.2d at 89). In other words de novo review

applies when the facts are undisputed.        State v. Jennings, 958 S.W.2d 930, 932

(Tex.App.–Amarillo 1997, no pet.). Additionally, questions involving reasonable suspicion

and probable cause should be reviewed de novo on appeal. See Loesch v. State, 958

S.W.2d 830, 832 (Tex.Cr.App. 1997). Finally, if the trial court’s decision is correct on any

theory of law applicable to the case, we will uphold that decision. Ross, 32 S.W.3d at 855-

56.


       It is undisputed that Powell did not have a warrant either to search appellant's car

or to arrest him. Thus, it was the State's burden at the suppression hearing to show Powell

had at least a reasonable suspicion that appellant had either committed an offense or was

about to do so before he made the stop. That determination is based upon the totality of

the circumstances, and there is no requirement that a particular statute be violated to give

rise to reasonable suspicion. Texas Dept. of Public Safety v. Bell, 11 S.W.3d 282, 284

(Tex.App.–San Antonio 1999, no pet.).


       An investigatory stop of a vehicle or person by the police does not violate the Fourth

Amendment if articulable facts support a reasonable suspicion that the vehicle or person


                                             4
stopped has been or is involved in criminal activity. United States v. Cortez, 449 U.S. 411,

421-22, 101 S. Ct. 690, 697, 66 L.Ed.2d 621 (1981). A reasonable suspicion exists if a

reasonable person in the position of the officer making the stop, with the training and

experience of the officer, and with the knowledge possessed by the officer, could suspect

that the vehicle or person stopped has been or is connected to criminal activity. Cortez,

449 U.S. at 421-22. The subjective thoughts and intentions of the officer making the stop

are not determinative of whether articulable facts support a reasonable suspicion. Whren

v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 1774, 135 L.Ed. 2d 89 (1996).

Rather, the Fourth Amendment's concern with reasonableness allows certain actions to

be taken in certain circumstances, whatever the subjective intent of the officers involved.

Id. at 814. The standard used to measure the conduct of police under the Texas

Constitution is, like its federal counterpart, an objective one. Crittenden v. State, 899

S.W.2d 668, 673-74 (Tex.Cr.App. 1995)


       In this case, at the time Powell observed appellant’s vehicle, he believed the car’s

rear license plate light was not working. Failure to have a light that illuminates the rear

license plate is a traffic violation. See Tex. Trans. Code Ann. §§ 542.301(a) & 547.322(f)

(Vernon 1999); State v. McCall, 929 S.W.2d 601, 603 (Tex.App.–San Antonio 1996, no

pet.). Thus, under the circumstances presented to Powell at the precise moment appellant

drove past his patrol car, the deputy had, not only reasonable suspicion, but also, probable

cause to believe he was witnessing a violation of the law. Foster v. State, 814 S.W.2d 874,

878 (Tex.App.–Beaumont 1991, pet. ref’d). What is more, even assuming the license plate

                                             5
light turned out, in fact, to be operational, the stop still would have been valid. This is so

because, at the time he decided to initiate the stop, Powell had a reasonable suspicion or

probable cause that a real violation had occurred. Cf. Kennedy v. State, 847 S.W.2d 635,

636 (Tex.App.–Tyler 1993, no pet.), citing Vicknair v. State, 751 S.W.2d 180 (Tex.Cr.App.

1986) (for proposition that even if the officer acts in good faith, if the stop is based upon

actions that do not constitute an offense, then the stop is unlawful).


       Furthermore, because we may affirm on any theory of law applicable to the case,

we may also look to see whether the articulated facts about which Powell testified would,

in light of his experience and personal knowledge, together with inferences from those

facts, warrant a reasonable person to believe any traffic violation had occurred. Singleton

v. State, 91 S.W.3d 342, 347 (Tex.App.–Texarkana 2002, no pet.) (Emphasis added). In

the context of this case, we note that a person commits the offense of reckless driving if

he drives a vehicle in wilful or wanton disregard for the safety of persons or property. Tex.

Trans. Code Ann. § 545.401(a). While Powell averred he did not consider appellant’s

veering toward him to be a violation of the law, he did believe it was dangerous. Indeed,

Powell was so concerned appellant might hit his car that he alerted the reserve deputy who

was with him to that possibility. Thus, based upon the totality of the circumstances,

Powell’s specific, articulable facts, in light of his experience and personal knowledge,

together with inferences from those facts, were sufficient to support the trial court’s finding

of reasonable suspicion that a traffic violation, specifically, reckless driving, had occurred.

Singleton, 91 S.W.3d at 347-48. Thus, the trial court did not err in overruling appellant’s

                                              6
motion to suppress or in failing to exclude the challenged evidence on the basis it was

obtained in violation of law. Appellant’s three issues are overruled.


      Accordingly, the judgment of the trial court is affirmed.



                                         Don H. Reavis
                                           Justice


Do not publish.




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