                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH


                                  NO. 2-07-135-CR


LUIS JESUS DE-LOS-SANTOS, JR.                                    APPELLANT

                                              V.

THE STATE OF TEXAS                                                     STATE

                                          ------------

            FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY

                                          ------------

               MEMORANDUM OPINION 1
  ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

                                          ------------

      Pursuant to Texas Rule of Appellate Procedure 50, we withdraw our

November 1, 2007 opinion and judgment and substitute the following. See T EX.

R. A PP. P. 50. We write to address appellant Luis Jesus De-Los-Santos’s claim

on petition for discretionary review that we erroneously gave too much

deference to the findings and conclusions made by the trial court after the


      1
          … See T EX. R. A PP. P. 47.4.
suppression hearing in light of the purportedly contrary evidence on the video

tape of the stop. On original submission, we ordered that the video tape of the

stop be forwarded to this court. We received it and reviewed it. But De-Los-

Santos argues on petition for discretionary review that a seperate “enhanced

video” of the stop prepared by a defense expert (Defendant’s Exhibit 1)

purportedly shows that the rear license plate lights on De-Los-Santos’s vehicle

were clearly working properly.2     Consequently, on petition for discretionary

review ordered this additional video forwarded to us. We have reviewed it, and

it is identical to the video of the stop introduced by the State, State’s Exhibit

1. To the extent any enhancement techniques were utilized in or presented to

the trial court, none are present or observable on Defendant’s Exhibit 1.

Accordingly, our opinion, as set forth below, remains unchanged.

                                  I. INTRODUCTION

      Appellant Luis Jesus De-Los-Santos appeals his conviction for driving

while intoxicated with a child passenger under the age of fifteen. In one issue,

De-Los-Santos challenges the trial court’s denial of his motion to suppress. We

will affirm.




      2
          … No video or DVD was included in the record filed with this court.

                                         2
                   II. F ACTUAL AND P ROCEDURAL B ACKGROUND

      On the night of May 19, 2006, Officer Patrick McFerrin was stopped at

a stop sign while on traffic patrol when he observed a vehicle drive past him

with one of its two rear license plate tag lights not working. Believing that a

traffic violation was being committed, Officer McFerrin pulled over the vehicle

and made contact with De-Los-Santos, the driver. Because Officer McFerrin

detected the odor of alcohol coming from De-Los-Santos, Officer McFerrin

administered field sobriety tests, all of which De-Los-Santos failed. Officer

McFerrin then arrested De-Los-Santos for driving while intoxicated (DWI).

      After arresting De-Los-Santos, Officer McFerrin allowed Shay Wylie, who

was a passenger and the vehicle’s owner, to drive the vehicle home. Because

two of the vehicle’s passengers were toddlers, the State indicted De-Los-Santos

for DWI with a child passenger under the age of fifteen.

      De-Los-Santos filed a motion to suppress. The motion argued that the

trial court should suppress all of the evidence obtained during the traffic stop

because the stop constituted an unlawful, warrantless search based on neither

probable cause nor reasonable suspicion. The trial court heard the testimony

of three witnesses at the suppression hearing.          First, Officer McFerrin

unwaveringly testified that one of the two tag lights was not working when he

initiated the traffic stop. Second, Wylie testified that both of the rear license

                                       3
plate tag lights were operating correctly before and after the stop. Third, a

videographer, who studied the recording made by the camera on board Officer

McFerrin’s cruiser, testified that both of the license plate tag lights were on

while Wylie drove the car away after the arrest.

      Based on this testimony, the trial court found that Officer McFerrin had

reasonable suspicion to initiate the traffic stop, and the trial court signed a

written order denying the motion to suppress. De-Los-Santos subsequently

pleaded guilty and gave notice of his intent to appeal the denial of the motion

to suppress. Upon De-Los-Santos’s request, the trial court made findings of

fact and conclusions of law. De-Los-Santos now appeals.

                             III. S TANDARD OF R EVIEW

      We review a trial court’s ruling on a motion to suppress evidence under

a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327

(Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App.

1997). In reviewing the trial court’s decision, we do not engage in our own

factual review.   Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App.

1990); Best v. State, 118 S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, no

pet.). The trial court is the sole trier of fact and 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. Crim. App. 2000); State v. Ballard, 987 S.W.2d 889,

                                         4
891 (Tex. Crim. App. 1999). Therefore, we give almost total deference to the

trial court’s rulings on (1) questions of historical fact, even if the trial court’s

determination of those facts was not based on an evaluation of credibility and

demeanor, and (2) application-of-law-to-fact questions that turn on an

evaluation of credibility and demeanor. Montanez v. State, 195 S.W.3d 101,

108–09 (Tex. Crim. App. 2006); Johnson v. State, 68 S.W.3d 644, 652–53

(Tex. Crim. App. 2002); State v. Ballman, 157 S.W.3d 65, 68 (Tex. App.—Fort

Worth 2004, pet. ref’d). But when the trial court’s rulings do not turn on the

credibility and demeanor of the witnesses, we review de novo a trial court’s

rulings on mixed questions of law and fact. Estrada v. State, 154 S.W.3d 604,

607 (Tex. Crim. App. 2005); Johnson, 68 S.W.3d at 652–53.

      Stated another way, when reviewing the trial court’s ruling on a motion

to suppress, we must view the evidence in the light most favorable to the trial

court’s ruling. State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006).

When the trial court makes explicit fact findings, we determine whether the

evidence, when viewed in the light most favorable to the trial court’s ruling,

supports those fact findings. Id. at 818–19. We then review the trial court’s

legal ruling de novo unless its explicit fact findings that are supported by the

record are also dispositive of the legal ruling. Id. at 819.




                                         5
IV. T HE C ONSTITUTIONALITY OF THE T RAFFIC S TOP U NDER THE F OURTH A MENDMENT

      In his sole issue, De-Los-Santos contends that the trial court improperly

denied his motion to suppress because Officer McFerrin’s initial stop violated

the Fourth Amendment.        Specifically, De-Los-Santos argues that because

Officer McFerrin only had a brief opportunity to view the rear license plate tag

lights and because he did not take any steps to verify the traffic violation before

stopping De-Los-Santos, Officer McFerrin’s suspicion was not formed from

inferences based on articulable facts but was rather based on a mere hunch.

Therefore, because a stop based on a hunch rather than articulable facts

violates the Fourth Amendment, De-Los-Santos concludes that his constitutional

rights were violated—a violation which the trial court should have cured by

granting his motion to suppress evidence seized as a result of the stop. See

Williams v. State, 621 S.W.2d 609, 612 (Tex. Crim. App. 1981) (panel op.).

      A. The Requirements of a Constitutional Traffic Stop




                                        6
      The Fourth Amendment3 protects against unreasonable searches and

seizures. U.S. C ONST. amend. IV. To suppress evidence because of an alleged

Fourth Amendment violation, the defendant bears the initial burden of producing

evidence that rebuts the presumption of proper police conduct. Torres v. State,

182 S.W.3d 899, 902 (Tex. Crim. App. 2005); Ford v. State, 158 S.W.3d 488,

492 (Tex. Crim. App. 2005). A defendant satisfies this burden by establishing

that a search or seizure occurred without a warrant. Torres, 182 S.W.3d at

902; Ford, 158 S.W.3d at 492. Once the defendant has made this showing,

the burden of proof shifts to the State, which is then required to establish that

the government agent conducted the search or seizure pursuant to a warrant

or that the agent acted reasonably. Torres, 182 S.W.3d at 902; Ford, 158

S.W.3d at 492.

      The Supreme Court has held that a detention is reasonable under the

Fourth Amendment if the government agent reasonably suspects a person of




      3
        … Where, as in this case, the appellant has not separately briefed state
and federal constitutional claims, we assume that the appellant claims no
greater protection under the state constitution than that provided by the federal
constitution. Varnes v. State, 63 S.W.3d 824, 829 (Tex. App.—Houston
[14th Dist.] 2001, no pet.). Therefore, we will analyze De-Los-Santos’s claim
solely under the Fourth Amendment of the United States Constitution, following
guidelines set by United States Supreme Court in interpreting the Fourth
Amendment. See State v. Guzman, 959 S.W.2d 631, 633 (Tex. Crim. App.
1998).

                                       7
engaging in criminal activity.4 Terry v. Ohio, 392 U.S. 1, 22, 88 S. Ct. 1868,

1880 (1968); Carmouche, 10 S.W.3d at 328. Reasonable suspicion exists

when, based on the totality of the circumstances, the officer has specific,

articulable facts that when combined with rational inferences from those facts,

would lead the officer to reasonably conclude that a particular person is, has

been, or soon will be engaged in criminal activity.      Ford, 158 S.W.3d at

492–93. This is an objective standard that disregards any subjective intent of

the officer making the stop and looks solely to whether an objective basis for

the stop exists. Id. at 492.

      Therefore, in stopping vehicles for an investigative detention based on a

traffic violation, the State need not prove that the detainee actually committed

a traffic violation. Drago v. State, 553 S.W.2d 375, 377 (Tex. Crim. App.

1977); Manyou v. State, No. 05-05-00161-CR, 2006 WL 2664281, at *4

(Tex. App.—Dallas Sept. 18, 2006, pet. ref’d) (not designated for publication).

The State must only show that the officer reasonably suspected that the driver

was committing a traffic violation. Woods, 956 S.W.2d at 36; Manyou, 2006



      4
       … Because a routine traffic stop typically involves only a short,
investigative detention, as opposed to a custodial arrest, we analyze traffic
stops under the principles developed for investigative detentions set forth in
Terry v. Ohio. 392 U.S. at 22, 88 S. Ct. at 1880; see Berkemer v. McCarty,
468 U.S. 420, 104 S. Ct. 3138 (1984); Martinez v. State, 236 S.W.3d 361,
369 (Tex. App.—Fort Worth 2007, no pet.).

                                       8
WL 2664281, at *4; Barrington v. State, No. 02-06-00215-CR, 2007 WL

495174, at *2 (Tex. App.—Fort Worth, Feb. 15, 2007, no pet.) (mem. op.)

(not designated for publication). If the State establishes reasonable suspicion,

then the stop does not violate the Fourth Amendment even if, upon further

investigation, it is discovered that no traffic violation actually occurred. See

Drago, 553 S.W.2d at 377; Manyou, 2006 WL 2664281, at *4.

      B. De-Los-Santos’s Traffic Stop Comported with the Fourth
         Amendment

      Because it is undisputed that Officer McFerrin did not have a warrant

when he pulled over De-Los-Santos, we look to the State’s burden in showing

the reasonableness of Officer McFerrin’s detention of De-Los-Santos.            See

Torres, 182 S.W.3d at 902; Ford, 158 S.W.3d at 492.

      De-Los-Santos argues that Officer McFerrin did not have reasonable

suspicion to initiate the traffic stop because he did not verify his belief that one

of the two license plate tag lights was out. The issue here, however, is not

whether De-Los-Santos committed a traffic violation; rather, the issue is

whether Officer McFerrin had reasonable suspicion to stop De-Los-Santos for

a traffic offense.    See Drago, 553 S.W .2d at 377; Manyou, 2006 WL

2664281, at *4.




                                         9
      Officer McFerrin testified that, as De-Los-Santos passed him, he noticed

that one of the vehicle’s tag light was not working. Officer McFerrin never

wavered on the accuracy of his initial observation that the tag light was non-

operational.   Furthermore, De-Los-Santos did not elicit any testimony that

Officer McFerrin was acting on pretext.

      In addition to Officer McFerrin, the trial court heard testimony from Wylie,

(the owner of the vehicle, a passenger at the time of the stop, and a friend of

De-Los-Santos for almost a decade) that no one had ever before informed her

of the faulty tag light. Wylie also testified that during the stop, she briefly

stepped out of the vehicle and, from a “real quick” observation, thought that

the disputed tag light was working. Wylie finally testified that both lights were

working when she arrived home after the arrest.

      Finally, the trial court heard testimony of a videographer hired by the

defense who had enhanced the cruiser video. The expert testified that in his

opinion the license plate tag light was working at the time of the stop. The

expert wavered, however, during cross-examination and admitted that he was

not 100% sure that the light was working when De-Los-Santos passed Officer

McFerrin. The trial court also viewed the videotape of the detention recorded




                                       10
by Officer McFerrin’s patrol car’s video camera. We likewise have review that

tape. 5

          Because during a suppression hearing the trial court is the sole judge of

the credibility of the witnesses and the weight of their testimony, the trial court

could have determined that Officer McFerrin’s testimony was more credible

than Wylie’s and the videographer’s. Ross, 32 S.W.3d at 855; Ballard, 987

S.W.2d at 891.         Furthermore, the trial court explicitly found that Officer

McFerrin observed the vehicle driven by De-Los-Santos traveling in violation of

the Texas Transportation Code by failing to have the license plate clearly

illuminated and that the officer, therefore, had reasonable suspicion that a

traffic offense was occurring when he initiated the traffic stop.6

          De-Los-Santos relies on the Kimball case to argue that Officer McFerrin

should have done more, such as turning off his headlights, to verify that one of



          5
        … The video does not show whether one of De-Los-Santos’s license
plate tag lights was out or not; the headlights from Officer McFarrin’s patrol car
so thoroughly illuminate the back of De-Los-Santos’s vehicle that this fact
cannot be ascertained from the video.
          6
        … Specifically, the trial court found that “[o]n May 19, 2006, at or
around 9:00 p.m., Officer Patrick McFer[r]in . . . observed a brown Chevy
Blazer traveling with no license plate tag-light.” The trial court noted, “[u]pon
conclusion of the hearing, this Court overruled [De-Los-Santos’s] motion to
suppress, finding by clear and convincing evidence that the officer had
reasonable suspicion that a traffic offense was occurring when he initiated the
traffic stop.”

                                          11
the license plate tag lights was not working. Kimball v. State, No. 06-03-

00236-CR, 2004 WL 2715392, at *1 (Tex. App.—Texarkana 2004, no pet.)

(mem. op.) (not designated for publication). This argument, however, overlooks

our standard of review of the trial court’s ruling. Because the trial court made

an explicit finding of fact that the license plate tag light was not working at the

time Officer McFerrin initiated the stop, our review is limited to determining

whether the evidence, when viewed in the light most favorable to the trial

court’s ruling, supports that finding. Kelly, 204 S.W.3d at 818. Because it

does, we cannot say that the trial court erred by denying De-Los-Santos’s

motion to suppress. We therefore overrule De-Los-Santos’s sole issue.




                                 V. C ONCLUSION

      Having overruled De-Los-Santos’s sole issue, we affirm the trial court’s

judgment.




                                                         PER CURIAM

PANEL F:     WALKER, J.; CAYCE, C.J.; and MCCOY, J.

DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)

DELIVERED: April 17, 2008




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