Opinion filed March 21, 2019




                                     In The


        Eleventh Court of Appeals
                                  __________

                               No. 11-17-00079-CR
                                   __________

                        JOE JOHN VERA, Appellant
                                        V.
                     THE STATE OF TEXAS, Appellee


                    On Appeal from the 132nd District Court
                            Scurry County, Texas
                         Trial Court Cause No. 10445


                     MEMORANDUM OPINION
      The jury convicted Appellant of the third-degree felony offense of driving
while intoxicated. After the jury found the enhancement paragraph contained in the
indictment to be true, it assessed Appellant’s punishment at confinement for fifteen
years in the Institutional Division of the Texas Department of Criminal Justice and
a fine of $5,000. Appellant brings two issues on appeal primarily challenging the
trial court’s ruling on his motion to suppress. We affirm.
                                   Background Facts
      On April 24, 2016, Snyder Police Officer Miguel Guerrero pulled Appellant
over after Officer Guerrero observed that the right brake light of Appellant’s vehicle
was not working. Officer Guerrero had also observed Appellant driving with a
continuously displayed left-turn signal even though Appellant did not change lanes
or make a left turn. Officer Guerrero turned his vehicle around and made contact
with Appellant in a Dairy Queen parking lot where Appellant had parked his vehicle.
When Officer Guerrero first contacted Appellant, Appellant had already turned off
his vehicle and stepped outside.
      Officer Guerrero informed Appellant that he was being stopped “because [his]
right brake lamp [was] out.”        During this initial encounter, Officer Guerrero
noticed that Appellant had slurred speech and glassy, bloodshot eyes. When
Officer Guerrero asked Appellant to sign the citation, Officer Guerrero leaned in and
smelled “the odor of an alcoholic beverage on [Appellant’s] breath and on
[Appellant’s] person.”
      Officer Guerrero asked Appellant whether Appellant had been drinking, and
Appellant responded that he had had “one or two beers” earlier that day. Based on
these observations, Officer Guerrero conducted field sobriety tests on Appellant.
After Appellant completed the tests, Officer Guerrero determined that Appellant was
intoxicated. Officer Guerrero subsequently arrested Appellant for the offense of
driving while intoxicated.
      After the arrest, Appellant consented in writing to have a sample of his blood
drawn for testing. The results of the blood test later confirmed that Appellant was
legally intoxicated at the time of the offense. Specifically, Appellant’s blood alcohol


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content was 0.152 grams of alcohol per 100 milliliters of blood—nearly twice the
legal limit of 0.08. See TEX. PENAL CODE ANN. § 49.01(2)(B) (West 2011).
      Appellant subsequently filed a motion to suppress “all evidence seized as a
result of illegal acts by the state.” At the outset of the hearing on the motion to
suppress, the trial court asked Appellant’s trial counsel for clarification about what
exactly Appellant was alleging in his motion to suppress. Trial counsel admitted
that his motion was “somewhat global in nature,” but specified that Appellant’s
motion “mainly focuse[d] on the issue of the initial stop in the first place.” Trial
counsel further explained: “Our position is that the stop was illegal and . . . that it
was not done with probable cause.” Trial counsel stated that Appellant’s motion
centered “essentially on an issue about a right brake light not working properly on
the vehicle in question.” As set out below, Appellant presented evidence at the
hearing on the motion to suppress that the brake lights on his vehicle were
functioning properly at the time of his encounter with Officer Guerrero. The trial
court denied Appellant’s motion to suppress, and the case proceeded to trial.
                                       Analysis
      In his first issue, Appellant contends that the trial court erred when it denied
his motion to suppress. Appellant asserts that his initial detention for driving with
an inoperable brake light was unlawful because “the evidence shows [that
Appellant’s] light could not have been out.” Additionally, Appellant argues that his
detention was unlawful “because it was unnecessarily prolonged without sufficient
cause.”
      We review a trial court’s ruling on a motion to suppress for an abuse of
discretion. Martinez v. State, 348 S.W.3d 919, 922 (Tex. Crim. App. 2011). In
reviewing a ruling on a motion to suppress, we apply a bifurcated standard of
review. Brodnex v. State, 485 S.W.3d 432, 436 (Tex. Crim. App. 2016); Martinez,


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348 S.W.3d at 922–23. We afford almost total deference to the trial court’s
determination of historical facts, and of mixed questions of law and fact that turn on
the weight or credibility of the evidence. Brodnex, 485 S.W.3d at 436; Martinez,
348 S.W.3d at 922–23. We review de novo the trial court’s determination of pure
questions of law, and mixed questions of law and fact that do not depend on
credibility determinations. Brodnex, 485 S.W.3d at 436; Martinez, 348 S.W.3d at
923.
       When, as in this case, there are no written findings of fact in the record, we
uphold the trial court’s ruling on any theory of law applicable to the case and
presume the trial court made implicit findings of fact in support of its ruling so long
as those findings are supported by the record. State v. Ross, 32 S.W.3d 853, 855–56
(Tex. Crim. App. 2000). We view a trial court’s ruling on a motion to suppress in
the light most favorable to the trial court’s decision. Wiede v. State, 214 S.W.3d 17,
24 (Tex. Crim. App. 2007). At a suppression hearing, the trial court is the sole judge
of the credibility of the witnesses and is free to believe or disbelieve any or all of the
evidence presented. See id. at 24–25. If supported by the record, a trial court’s
ruling on a motion to suppress will not be overturned. Mount v. State, 217 S.W.3d
716, 724 (Tex. App.—Houston [14th Dist.] 2007, no pet.).
       At the suppression hearing, Officer Guerrero testified that he witnessed
Appellant driving his vehicle in the far right lane, with his left-turn signal on for
“about three to four blocks” without turning. During this time, Officer Guerrero and
Appellant were driving in opposite directions. Officer Guerrero testified that, after
he passed Appellant on the road, he noticed in his rearview mirror that Appellant’s
right brake light did not work when the other brake light came on. As a result,
Officer Guerrero made a U-turn to initiate a traffic stop because of the defective
brake light. Apart from his testimony of what he saw in his rearview mirror,


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Officer Guerrero could not point to any other evidence to establish that Appellant’s
right brake light was not working.
       Appellant, Appellant’s wife (Monica Capetillo), and Appellant’s mother-in-
law (Rebecca Capetillo) also testified at the hearing on the motion to suppress.
Collectively, they refuted the allegation that the right brake light of Appellant’s
vehicle was not working. Specifically, Appellant testified that the right brake light
of his vehicle was working properly around the time of the initial stop, and that, if it
was not, his vehicle would have alerted him to any defective lights. He further stated
that shortly after he was released from jail, he checked the brake lights, including
the one in question, and determined that it worked properly.            Appellant also
introduced several photographs of his vehicle, which were taken a week before the
suppression hearing, that showed the brake lights on the vehicle were functioning
properly. Appellant also testified that no repairs had been made to the vehicle since
his arrest.
       Additionally, Monica testified that when she went to go pick up the vehicle
(along with her mother) the day after Appellant’s arrest, she first checked the brake
lights and determined that “[e]verything was working.” Monica also stated that she
was not aware of any problems with the electrical and brake-light systems of the
vehicle, and she confirmed that the brake lights were not repaired subsequent to
Appellant’s arrest. Further, Rebecca testified that when she followed behind Monica
after they picked up the vehicle, she did not notice anything that suggested that the
brake lights were defective. On cross-examination, Rebecca stated that, although
both she and Monica had phones capable of taking pictures, neither she nor Monica
took pictures of the brake lights.
       An officer may make a warrantless traffic stop if the reasonable-suspicion
standard is satisfied. Jaganathan v. State, 479 S.W.3d 244, 247 (Tex. Crim. App.


                                           5
2015). Reasonable suspicion exists if the officer has “specific articulable facts that,
when combined with rational inferences from those facts, would lead him to
reasonably suspect that a particular person has engaged or is (or soon will be)
engaging in criminal activity.” Id. (quoting Abney v. State, 394 S.W.3d 542, 548
(Tex. Crim. App. 2013)). The likelihood of criminal activity required for reasonable
suspicion need not rise to the level required for probable cause. State v. Kerwick,
393 S.W.3d 270, 273–74 (Tex. Crim. App. 2013).             The reasonable-suspicion
standard requires only “some minimal level of objective justification” for the stop.
Hamal v. State, 390 S.W.3d 302, 306 (Tex. Crim. App. 2012) (quoting Foster v.
State, 326 S.W.3d 609, 614 (Tex. Crim. App. 2010)).
       A person traveling on a public roadway with defective “stoplamps” commits
a traffic offense in violation of Section 547.323 of the Texas Transportation
Code. See TEX. TRANSP. CODE ANN. § 547.323 (West 2011). The legality of a
traffic stop based on reasonable suspicion does not depend upon a showing that an
actual offense was committed; it is sufficient to show that the officer reasonably
believed that an offense was in progress. Fernandez v. State, 306 S.W.3d 354, 357
(Tex. App.—Fort Worth 2010, no pet.). Therefore, to determine whether the stop
was supported by reasonable suspicion, we must decide if the evidence at the hearing
reveals sufficient facts to show that a reasonable officer would have developed
suspicion that Appellant’s brake light was defective. See Martinez, 348 S.W.3d at
923.
       Officer Guerrero testified that he observed Appellant operating his vehicle
with a defective brake light. The trial court implicitly found that Officer Guerrero
believed he observed Appellant commit a traffic violation because of a defective
brake light. This determination was one of historical fact based upon an assessment
of Officer Guerrero’s credibility. As such, it is a matter on which the trial court is


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afforded almost complete deference. See Crain v. State, 315 S.W.3d 43, 48 (Tex.
Crim. App. 2010). Irrespective of Appellant’s evidence to the contrary regarding
the functionality of the brake light, Officer Guerrero’s testimony supports the trial
court’s implicit determination. It was within the trial court’s discretion to believe
Officer Guerrero’s testimony and disbelieve Appellant’s, Monica’s, and Rebecca’s
testimony. See Wiede, 214 S.W.3d at 24–25. Accordingly, the trial court did not
abuse its discretion in overruling Appellant’s motion to suppress concerning
Officer Guerrero’s observation of a traffic violation.
      Appellant additionally contends that, even if the initial stop of Appellant for
driving with an inoperable brake light was lawful, Officer Guerrero’s extension of
the stop to determine whether Appellant was intoxicated was unlawful. Specifically,
Appellant argues that Officer Guerrero lacked reasonable suspicion to extend the
stop and administer field sobriety tests. Appellant argues that “everything learned
after the officer gave [Appellant] the ticket was improper, and should have been
suppressed.” However, Appellant did not present this contention at the hearing on
the motion to suppress. As noted previously, while Appellant filed a written motion
to suppress that was global in nature, he stated at the outset of the hearing that he
was only challenging Officer Guerrero’s basis for initiating the traffic stop. No
evidence was presented at the hearing on the motion to suppress concerning a
complaint by Appellant about the duration of the traffic stop. Furthermore, the
suppression matter was not relitigated at trial. See O’Hara v. State, 27 S.W.3d 548,
551 (Tex. Crim. App. 2000).
      A pretrial motion to suppress evidence is “nothing more than a specialized
objection to the admissibility of that evidence.” See Black v. State, 362 S.W.3d 626,
633 (Tex. Crim. App. 2012) (quoting Galitz v. State, 617 S.W.2d 949, 952 n.10 (Tex.
Crim. App. 1981)). A party’s objection must state the grounds for ruling with


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“sufficient specificity to make the trial court aware of the complaint, unless the
specific grounds were apparent from the context.”           TEX. R. APP. P. 33.1.
Accordingly, Appellant did not preserve his complaint about the duration of the stop
for appellate review. See Martinez v. State, 17 S.W.3d 677, 683 (Tex. Crim. App.
2000) (applying the requirements of Rule 33.1 to a motion to suppress); see also
Martinez v. State, 91 S.W.3d 331, 336 (Tex. Crim. App. 2002) (An appellate court
usually may not reverse a trial court’s ruling on any theory or basis that might have
been applicable to the case, but was not raised at trial). We overrule Appellant’s
first issue.
       In his second issue, Appellant contends that the State failed to prove that his
consent to a blood draw was valid. Appellant asserts that, “because any consent
given was not properly obtained,” the State “should not be allowed” to “use the
evidence obtained from his blood against him.” Appellant’s argument that his
consent was invalid, and thus any evidence resulting from it should not have been
allowed, is premised on his argument that Officer Guerrero’s conduct was unlawful.
According to Appellant, because there is no “sufficient break in the chain of events”
to remove the taint of Officer Guerrero’s improper detainment of Appellant,
Appellant’s subsequent consent was invalid. However, we have already determined
that the trial court did not err by determining that Officer Guerrero lawfully
conducted a traffic stop and that Appellant waived any complaint regarding the
duration of the traffic stop.
       Appellant likewise did not challenge his consent to the blood draw either in
his motion to suppress, during the suppression hearing, or at trial. Furthermore,
Appellant did not object to evidence related to the blood draw or the results from it.
Because Appellant is now raising this complaint for the first time on appeal, we




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conclude that Appellant has failed to preserve this issue for appellate review. See
TEX. R. APP. P. 33.1. We overrule Appellant’s second issue.
                                         This Court’s Ruling
        We affirm the judgment of the trial court.




                                                           JOHN M. BAILEY
                                                           CHIEF JUSTICE


March 21, 2019
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.1

Willson, J., not participating.




        1
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.


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