                                   NO. 07-05-0429-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL A

                               NOVEMBER 30, 2007
                         ______________________________

                          LESLIE LEANN SEAT, APPELLANT

                                            V.

                         THE STATE OF TEXAS, APPELLEE
                       _________________________________

        FROM THE COUNTY COURT AT LAW NO. 1 OF LUBBOCK COUNTY;

             NO. 2004-487,057; HONORABLE L. B. RUSTY LADD, JUDGE
                       _______________________________


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                               MEMORANDUM OPINION


      Following the denial of her motion to suppress evidence, appellant Leslie Leann

Seat entered a guilty plea, conditioned on her right to appeal, to the misdemeanor offense

of driving while intoxicated. Appellant’s sole contention on appeal is that the trial court

erred by denying her motion to suppress evidence when the officer failed to establish, by

specific and articulable facts, his reasonable suspicion that appellant committed a traffic

violation or that appellant was, had been, or soon would be engaged in criminal activity.

We affirm.
                                     Factual Background


       Texas Department of Public Safety Sergeant1 Mitchell J. Jones was traveling south

on IH-27 near mile marker 2 in the City of Lubbock just after 2:00 a.m. on December 20,

2003. A red Ford Mustang, also traveling south on IH-27, approached his patrol car from

the rear. To him, it appeared the Mustang’s driver had the car’s “high beams on, on

bright.” He said the lights were “extremely bright making it difficult for me to see.” Because

he suspected a violation of Traffic Code section 547.333(c)(2),2 Sergeant Jones stopped

the Mustang.


       When Sergeant Jones talked with the Mustang’s driver, appellant, she explained

that the car’s fog lights were on, not its high beam headlights. Jones concluded his

suspicion of a traffic code violation had been mistaken. Based on the strong odor of an

alcoholic beverage emitting from the passenger compartment of the Mustang, and

appellant’s slurred speech, however, Jones detained her further, leading eventually to her

arrest and the instant prosecution.



       1
         Sergeant Jones was a DPS trooper at the time of his stop of appellant, but a
sergeant at the time of the hearing on her motion to suppress. He was the only witness
at the hearing.
       2
           See Tex. Transp. Code Ann. § 547.333 (Vernon 1999), stating:

               (c) A person who operates a vehicle on a roadway or shoulder
               shall select a distribution of light or composite beam that is
               aimed and emits light sufficient to reveal a person or vehicle at
               a safe distance ahead of the vehicle, except that: . . . (2) an
               operator approaching a vehicle from the rear within 300 feet
               may not select the uppermost distribution of light.


                                               2
                                           Issue


       By her sole issue on appeal, appellant contends that the trial court erred in failing

to suppress the evidence against her as it was the product of an unreasonable seizure in

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

section nine of the Texas Constitution.


                                          Analysis


Standard of Review


       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.Crim.App. 1999). 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 (Tex.Crim.App. 1999). In a suppression hearing the trial court 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, 855-56 (Tex.Crim.App. 2000).


       Accordingly, when reviewing an appeal from the trial court's denial of 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. Crim. App. 1997). 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.Crim.App. 1998) (citing

Guzman, 955 S.W.2d at 89)). Additionally, the trial court’s determination of whether the


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facts give rise to reasonable suspicion is reviewed de novo on appeal. Loesch v. State,

958 S.W.2d 830, 832 (Tex.Crim.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; Singleton v. State, 91 S.W.3d 342, 347 (Tex.App.–Texarkana 2002, no pet.).


Standard for Traffic Stop


        It was the State's burden at the suppression hearing to show Sergeant Jones had

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

about to do so before he made the warrantless stop. Richardson v. State, 39 S.W.3d 634,

638 (Tex.App.–Amarillo 2000, no pet.). That determination is based on the totality of the

circumstances. We must look at all of the facts together to make the reasonable suspicion

determination. Loesch, 958 S.W.2d at 832.


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

U.S. 411, 101 S.Ct. 690, 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; see Ford v. State, 158 S.W.3d 488, 492 (Tex.Crim.App. 2005)

(“[r]easonable suspicion exists if the officer has specific, articulable facts that, when

combined with rational inferences from those facts, would lead him to reasonably conclude


                                            4
that a particular person actually is, has been, or soon will be engaged in criminal activity”).

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, 1244, 35 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.Crim.App. 1995)


Application of Standard


      Appellant notes she has no quarrel with the notion that Sergeant Jones may have

believed she was operating her vehicle in violation of the traffic code. But she contends

his testimony provided the trial court no specific, articulable facts on which to assess the

objective reasonableness of his opinion. Accordingly, she argues, the State has failed to

shoulder its burden to demonstrate the sergeant had a reasonable suspicion to believe she

was, or soon would be, violating the law.


       Appellant likens Jones’s testimony to that in Ford, 158 S.W.3d at 493, in which the

officer testified at the suppression hearing that he was directly behind the defendant’s

vehicle on the highway, and saw it was “following too close” behind another vehicle. The

court held the officer’s testimony presented the trial court with only a conclusory statement




                                              5
that the defendant was violating a traffic law,3 finding “an absence of any facts allowing an

appellate court to determine the circumstances upon which the officer could reasonably

conclude that Ford actually was, had been, or soon would have been engaged in criminal

activity.” Id. (internal citation omitted).


       Here, Sergeant Jones testified he suspected appellant was in violation of the traffic

law providing that “an operator approaching a vehicle from the rear within 300 feet may not

select the uppermost distribution of light.” Tex. Transp. Code Ann. § 547.333(c)(2) (Vernon

1999). Like that of the officer in Ford, Jones’s testimony establishes the vantage point

from which he made the observations supporting his suspicion. Jones said he was

traveling south on IH-27 and appellant’s vehicle approached him from behind. But, unlike

the testimony in Ford, Jones’s testimony contains facts reasonably supporting his suspicion

that appellant was approaching his vehicle from the rear within 300 feet while using her

car’s high beam headlights. It was, as noted, just after 2:00 a.m. His testimony showed

he observed her lights in his car’s mirrors. He said the lights “were extremely bright making

it difficult for me to see.” The comparison with the officer’s unsupported conclusion in Ford

might be appropriate if Sergeant Jones merely had said appellant’s “high beam lights were

on.” His description of the extreme brightness of the lights as they appeared in his mirrors

and the effect on his vision, though short, contains objective facts, allowing the trial court,

and this court, to evaluate the reasonableness of Jones’s conclusion.


       3
         Statute requires that a vehicle’s operator, when following another vehicle, “maintain
an assured clear distance between the two vehicles so that, considering the speed of the
vehicles, traffic, and the conditions of the highway, the operator can safely stop without
colliding with the preceding vehicle or veering into another vehicle, object, or person on or
near the highway.” Tex. Transp. Code Ann. § 545.062(a) (Vernon 1999).

                                              6
       Sergeant Jones’s testimony also distinguishes this record from that reviewed by this

court in Hernandez v. State, 13 S.W.3d 492 (Tex.App.–Amarillo 2000), rev’d on other

grounds, 60 S.W.3d 106 (Tex.Crim.App. 2001), on which appellant also relies. We said

the record there contained no evidence that the vehicle in question failed to dim its lights

when approaching another vehicle from the rear. Id. at 506. We pointed out also that the

record did not even show the position of the officer with respect to the vehicle. Id. Under

those circumstances, we found the officer’s scant testimony that he stopped the vehicle

“for driving with its lights on bright” inadequate to support the stop. Id. at 503. The

testimony here provides the objective facts absent from the record in Hernandez.


       Appellant further argues that Sergeant Jones’s testimony provided no objective basis

for a belief appellant’s vehicle was within 300 feet of his when he observed its bright lights.

We disagree. We know from his testimony that appellant’s Mustang was close enough to

Jones that her fog lights made it difficult for him to see. Too, as appellant acknowledges,

the fact the sergeant performed a traffic stop shows appellant’s vehicle eventually passed

his. The sergeant responded negatively to a question asking whether “when this vehicle

approached you from behind, did you ever see the type of beam change?” Appellant would

have us infer from this testimony that Jones formed the belief she was in violation of the

statute but then did not observe her vehicle again until it passed him. To the contrary, we

find that consideration of all of the facts together permits the reasonable inference that

Jones’s observations included those made near the statutory distance even if appellant’s

vehicle was further away when he first noticed it.




                                              7
       Viewing the evidence in the light most favorable to the court’s ruling, Ballard, 987

S.W.2d at 891, we hold the court did not abuse its discretion by finding reasonable

suspicion to support the traffic stop. Accordingly, the trial court did not err by overruling

appellant's motion to suppress. Appellant’s issue is overruled and the judgment of the trial

court is affirmed.




                                                 James T. Campbell
                                                      Justice




Do not publish.




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