                             NUMBER 13-18-00180-CR

                             COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI – EDINBURG

JOSE MARVIN VILLALTA,                                                          Appellant,

                                             v.

THE STATE OF TEXAS,                                                             Appellee.


               On appeal from the County Court at Law No. 5
                     of Montgomery County, Texas.



                        MEMORANDUM OPINION
   Before Chief Justice Contreras and Justices Longoria and Perkes
              Memorandum Opinion by Justice Longoria

       A jury found appellant Jose Marvin Villalta guilty of driving while intoxicated (DWI),

enhanced to a class-A misdemeanor by a prior DWI conviction. See TEX. PENAL CODE

§§ 49.04, 49.09(a) (West, Westlaw through 2017 1st C.S.). By one issue, Villalta argues

the trial court erred by failing to grant his motion to suppress. We affirm.
                                          I. BACKGROUND 1

         On January 17, 2017, Trooper Ben Polansky of the Texas Highway Patrol was

transporting an individual he had just arrested when he spotted Villalta driving his truck

erratically down the highway. According to Trooper Polansky, Villalta was “swerving all

over the road,” nearly driving on the grass, and going back and forth between the lanes.

Trooper Polansky pulled Villalta over and administered several standardized sobriety

tests; Villalta performed some of the tests but refused to perform several others. Trooper

Polansky observed that Villalta smelled of alcohol, his eyes were red and glassy, and he

had “a [sic] expression to his face” that indicated he had been drinking. Based on these

observations, Trooper Polansky arrested Villalta and obtained a blood warrant to retrieve

a sample of Villalta’s blood. The lab result indicated that Villalta’s blood-alcohol level was

0.243.

         Trooper Polansky’s patrol vehicle had a dashcam that could record video both in

front of the car and inside the car. The dashcam was actively recording as Trooper

Polansky followed Villalta and subsequently pulled him over. Villalta filed a motion to

suppress, arguing the dashcam footage proved he was pulled over without reasonable

suspicion. More specifically, Villalta argued that the video contradicts Trooper Polansky’s

testimony because the video does not clearly show Villalta swerving between lanes or

nearly driving on the grass. The trial court denied the motion to suppress.

         When asked at trial about the discrepancy between his testimony and the dashcam

footage, Trooper Polansky explained that the distance between his car and Villalta’s truck



         This case is before this Court on transfer from the Ninth Court of Appeals in Beaumont pursuant
         1

to a docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001
(West, Westlaw through 2017 1st C.S.).
                                                   2
made it hard to see on the video what Trooper Polansky saw in person. More importantly,

Trooper Polansky averred that because he was transporting an arrested individual, he

had the interior camera recording inside his car. When he began following Villalta, the

exterior camera began recording in front of his vehicle. However, according to Trooper

Polansky, “[w]hen you turn on the interior camera it’s harder to see what’s going on in

both cameras.” When both interior and exterior cameras are recording, half of the

recording shows the interior camera view and the other half shows the exterior camera

view. This makes “everything smaller so you can’t really see,” and the video becomes

“grainy” and less clear. Thus, Trooper Polansky testified that he saw things that are not

clearly depicted in the video, such as Villalta swerving erratically. Villalta’s driving was

“so dangerous on the roadway” that Trooper Polansky made an exception and pulled him

over, even though Trooper Polansky testified he normally does not stop vehicles when

he is transporting an arrested individual.

       The jury found Villalta guilty of DWI.       See id. § 49.04.     The jury assessed

punishment at 120 days’ confinement in the Montgomery County Jail and a $1,000 fine.

The trial court pronounced the sentence as assessed by the jury. This appeal ensued.

                                  II. MOTION TO SUPPRESS

       In his sole issue, Villalta argues that the trial court erred by failing to grant his

motion to suppress.

A. Standard of Review and Applicable Law

       In reviewing a trial court’s ruling on a motion to suppress, we employ a bifurcated

standard, giving almost total deference to a trial court’s determination of historic facts and

mixed questions of law and fact that rely upon the credibility of a witness, but we apply a

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de novo standard of review to pure questions of law and mixed questions that do not

depend on credibility determinations. See State v. Kerwick, 393 S.W.3d 270, 273 (Tex.

Crim. App. 2013). The record is reviewed in the light most favorable to the trial court’s

determination, and the judgment will be reversed only if it is arbitrary, unreasonable, or

“outside the zone of reasonable disagreement.” State v. Dixon, 206 S.W.3d 587, 590

(Tex. Crim. App. 2006).

       Ordinarily, a police officer may not conduct a seizure and search of a
       suspect without probable cause that a crime has been committed. An
       exception to the requirement of probable cause allows the police to make a
       Terry stop and briefly detain a person for investigative purposes if the officer
       has a reasonable suspicion supported by articulable facts that criminal
       activity may be afoot, even if the officer lacks probable cause. Reasonable
       suspicion is a less demanding standard than probable cause, but the officer
       still must be able to articulate something better than an inchoate suspicion
       or hunch.

In re A.T.H., 106 S.W.3d 338, 343 (Tex. App.—Austin 2003, no pet.) (internal citations

and quotation marks omitted); see Derichsweiler v. State, 348 S.W.3d 906, 916 (Tex.

Crim. App. 2011) (observing that the reasonable suspicion standard is much lower than

the probable cause standard because a “brief investigatory detention constitutes a

significantly lesser intrusion upon the privacy and integrity of the person” compared to an

arrest); see also Terry v. Ohio, 392 U.S. 1, 19 (1968).

B. Discussion

       Villalta argues that Trooper Polansky lacked reasonable suspicion to pull him over.

Villalta concedes that if he were “driving the way described by Trooper Polansky, [Villalta]

would have no remedy available.”          But, as Villalta points out, Trooper Polansky

acknowledged during the trial that the video recording from the dashcam does not show

Villalta committing any discernible traffic violations or any visible indications of

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intoxication. Thus, Villalta argues that the trial court erred in failing to grant his motion to

suppress because the video actively contradicted Trooper Polansky’s testimony. See

Carmouche v. State, 10 S.W.3d 323, 332 (Tex. Crim. App. 2000) (concluding that the

videotape evidence was not “an evaluation of credibility and demeanor” that the trial court

could credit because the videotape “present[ed] indisputable evidence contradicting

essential portions” of the police officer’s testimony concerning whether the defendant

gave his consent to a search).

       However, the Texas Court of Criminal Appeals has addressed a similar argument

before. See Jaganathan v. State, 479 S.W.3d 244, 248 (Tex. Crim. App. 2015). The

Fourteenth Court of Appeals in Houston concluded that the record did not support a

finding of reasonable suspicion because the video evidence contradicted the officer’s

testimony and failed to distinctly show a traffic violation. See id. But the court of criminal

appeals observed that

       there is a difference between what an officer sees during an ongoing event
       and what we see when reviewing a video. After watching the video many
       times, with the ability to stop the action and enlarge the image, we can say
       with some degree of confidence which cars were where, who was going
       faster than whom, and how the events transpired. Even with that ability,
       though, our view of the events does not exactly coincide with that of the
       court of appeals. We would be much closer to knowing what the officer
       observed if we were to view the video only one time, from start to finish,
       without stopping. But even then, we might not focus on what the officer
       focused on at the time of the stop.

       Sometimes it will be obvious that otherwise illegal conduct is justified by
       surrounding circumstances. But a defense would matter only if the facts
       establishing it were so obvious that an objective officer viewing the situation
       would be unreasonable in failing to realize that the person's conduct was
       allowed by law. “A determination that reasonable suspicion exists . . . need
       not rule out the possibility of innocent conduct.” United States v. Arvizu, 534
       U.S. 266, 277 (2002). The reasonable suspicion standard “accepts the risk
       that officers may stop innocent people.” Illinois v. Wardlow, 528 U.S. 119,

                                               5
       125 (2000). The mere possibility that an act is justified will not negate
       reasonable suspicion.

Id. at 248. The Court ultimately reversed, finding that the record supported reasonable

suspicion even though the video evidence did not directly support the officer’s testimony.

See id. We find the analysis in Jaganathan informative.

       The present case is unlike Carmouche where the video evidence clearly

contradicted the officer’s testimony. See Carmouche, 10 S.W.3d at 332. In Carmouche,

the officer testified that the defendant raised his arms in a display of consent in response

to the officer’s request to search; however, the video showed the defendant raised his

hands above his head only because he was surrounded by four police officers that

instructed him to do so. See id. On the other hand, Villalta was pulled over because

Trooper Polansky testified that he saw him driving erratically; according to Trooper

Polansky, he saw Villalta nearly drive on the grass and he saw him swerve between

multiple lanes various times. Trooper Polansky’s testimony lists specific, articulable facts

that would support a finding of reasonable suspicion. See In re A.T.H., 106 S.W.3d at

343. And while the video evidence does not directly corroborate Trooper Polansky’s

testimony, the video does not directly disprove or contradict his testimony either. Cf.

Carmouche, 10 S.W.3d at 332. We have reviewed the video; because of the size and

quality of the video, it is not particularly informative. While we cannot make out any

discernible erratic behavior in the video, we also cannot say that the video contradicts

Trooper Polansky’s testimony concerning Villalta’s driving, unlike in Carmouche where

the video specifically contradicted the officer’s testimony regarding the defendant’s

allegedly voluntary consent. See id.



                                             6
       The trial court could have reasonably credited Trooper Polansky’s testimony over

the video recording, recognizing that “there is a difference between what an officer sees

during an ongoing event and what we see when reviewing a video.” Jaganathan, 479

S.W.3d at 248; see Dixon, 206 S.W. 3d at 590; see also Winward v. State, No 09-17-

00149-CR, 2019 WL 575954, at *3 (Tex. App.—Beaumont Feb. 13, 2019, pet. filed)

(mem. op., not designated for publication) (observing that the trial court could reasonably

resolve any discrepancies between an officer’s testimony and dashcam footage in favor

of the officer’s testimony “[b]ecause the trooper was in a better position in the patrol car

that differed from the camera’s”). The trial court did not err in denying Villalta’s motion to

suppress. See Kerwick, 393 S.W.3d at 273. We overrule Villalta’s sole issue.

                                             III. CONCLUSION

       We affirm the judgment of the trial court. 2

                                                                 NORA L. LONGORIA
                                                                 Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
18th day of April, 2019.




       2   All pending motions, if any, are dismissed as moot.
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