Affirmed and Opinion Filed February 3, 2015




                                          S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-13-01496-CR

                         DEBORAH AILEEN JOHNSON, Appellant

                                                 V.

                              THE STATE OF TEXAS, Appellee

                       On Appeal from the County Court at Law No. 5
                                   Collin County, Texas
                           Trial Court Cause No. 005-84064-2012

                              MEMORANDUM OPINION
                            Before Justices Bridges, Lang, and Evans
                                    Opinion by Justice Lang

       Deborah Aileen Johnson was charged with driving while intoxicated following a traffic

stop for a broken tail lamp that emitted a white, rather than red, light. She filed a motion to

suppress evidence, asserting the stop was illegal and violated her constitutional and statutory

rights. After the trial court denied her motion, she pleaded guilty and was assessed a 180-day

sentence, suspended for twenty months, and a $500 fine. In a single issue, Johnson asserts the

trial court reversibly erred in denying her motion to suppress. We decide against Johnson on her

issue and affirm.

                                       I. BACKGROUND

       Johnson was stopped pursuant to Texas Transportation Code section 547.322 which

requires, in relevant part, that a car’s tail lamp “emit a red light plainly visible at a distance of
1,000 feet from the rear of the vehicle.” See TEX. TRANSP. CODE ANN. § 547.322 (West 2011).

At the hearing on the motion to suppress, Princeton police officer Frankie Pell, Jr. testified he

was on the side of the road when Johnson drove by him. He noticed Johnson’s car had a

“busted” tail lamp that was “displaying” a white light instead of a red light and “was just

damaged to the point that it was not in compliance with the law.” Pell’s in-car camera was

activated and recorded Johnson as she drove by Pell and continued driving. The recording, which

was admitted into evidence, reflects Johnson’s left tail lamp was broken and was emitting a

white light. When asked on cross-examination whether “there’s still red light in the tail light,”

Pell responded, “[i]t’s possible.” However, Pell had no “independent recollection” of how much

red light “was being emitted.”

        Johnson’s sister, Patricia Shaw, testified she was responsible for driving Johnson’s car

home after Johnson was arrested. Shaw went to pick up Johnson’s car with her former mother-

in-law, Jane Cox, who also testified as to the damage to the tail lamp. Cox observed the damage

as she followed Shaw back home. According to Cox, both of Johnson’s tail lights emitted a red

light at the time.

        Johnson’s investigator, Billy Meeks, testified he was asked to “remove[] a portion of the

[left] tail light” from Johnson’s car “similar to the damage that was done to the vehicle prior to

[him] ever seeing the vehicle.” He began by taking a picture of the tail lamp “fully assembled

and [without] the damage that was created.” Then, he reconstructed the broken tail lamp based

on what Shaw “remembered the damage[] being” on the night Johnson was stopped. Meeks

testified he took pictures of Johnson’s car with the reconstructed broken lamp from “20 feet out

to from 1,000 feet to show the display of the lights as they were with the damage that was

described.” He then broke the lamp a second time, creating “a greater amount of damage than

what [was] originally identified.”   Pictures of this damage were also taken. The pictures were

                                               –2–
admitted into evidence, and according to Meeks, in both instances, the tail lamp still displayed a

red light. 1 Pell agreed that a picture of the tail lamp reconstructed by Meeks reflected the

damage to Johnson’s tail lamp when she was stopped.

           Relying on Vicknair v. State, 751 S.W.2d 180 (Tex. Crim. App. 1986), and Gaines v.

State, No. 04-00-00050-CR, 2001 WL 99630 (Tex. App.—San Antonio Feb. 7, 2001, pet. ref’d),

Johnson argued in closing to the trial court that, to be “defective under the law,” the tail lamp had

to be damaged to the point it emitted no red light. Because the witnesses testified Johnson’s

broken tail lamp emitted red, Johnson contended it was “not defective under the law,” and all

evidence obtained following the stop needed to be suppressed. In denying Johnson’s motion, the

trial court made the following relevant findings:

           •Officer Pell testified the tail lamp glowed white, rather than red.

           •Officer Pell activated his in-car video system when he first observed Defendant’s
           broken tail lamp.

           •The video system recorded Defendant’s operation of her vehicle up to the stop
           and throughout the roadside investigation and arrest.

           •The video recording clearly shows Defendant’s tail lamp glowing white, rather
           than red.

           •Officer Pell was a credible witness and his testimony is believable.

           •Defense witnesses Billy Meeks, Patricia Shaw and Jane Cox were not credible
           witnesses. Their testimony pertained to hypothetical recreations of the broken tail
           lamp in question; the testimony did not deal directly with Defendant’s tail lamp as
           it was observed by Officer Pell.

The trial court also made the following relevant conclusions:

           •Officer Pell had reasonable suspicion, given the totality of the circumstances in
           light of his experience and training, that the Defendant was committing a traffic
           offense when he observed Defendant’s broken tail lamp.



   1
       Copies of these pictures are included in the exhibit file of the reporter’s record. However, the copies are black and white.



                                                                       –3–
          •Defendant’s broken tail lamp was a violation of the Texas Transportation Code
          §546.322(d).

          •The Defendant’s case is distinguished from Vicknair v. State and Gaines v. State
          because Defendant’s tail lamp was not merely “fractured” as in those cases;
          rather, Defendant’s tail lamp was completely “busted” according to Officer Pell’s
          testimony and Defense’s own witnesses.

          •The actions of the Princeton Police Department did not violate the constitutional
          . . . rights of the Defendant under the Fourth . . . or Fourteenth Amendments to the
          United States Constitution, or Article 1, Section 9 of the Texas Constitution. 2


                                           II. SUPPRESSION OF EVIDENCE

          In arguing the trial court erred in denying her motion to suppress, Johnson challenges

several of the trial court’s findings, but concludes “[t]he trial court’s decision in this case comes

down to [the] factual finding [that] ‘the video clearly shows Defendant’s tail lamp glowing

white, rather than red.’” Johnson asserts the quality of the video is poor and notes Pell “admitted

[as] much,” specifically testifying that “[a]fter I catch up to [Johnson’s car] and I have all my

lights and bright lights on for safety reasons, it’s not as easy to see that one [tail lamp] is red and

one’s white as it is as she passes by as I’m parked on the side of the road.” Johnson argues that,

“[b]ecause an evaluation of video footage does not ‘pivot on an evaluation of credibility and

demeanor’ - this Court may exercise its own independent judgment as to what weight should

have been given to the video footage vis-à-vis [the] indisputable evidence” that the tail lamp

emitted both a red and white light, Pell “adopted” the picture of the reconstructed broken tail

lamp “as an accurate re-creation of the damage he personally observed,” a “significant portion of

red lens remain[ed],” and Pell was credible. Johnson asserts that, “reviewed in this appropriate

fashion, the record fails to support the trial court’s finding that the taillight did not exhibit a red


     2
       Addressing additional allegations in Johnson’s motion to suppress, the trial court also concluded the actions of the Princeton Police
Department did not violate Johnson’s rights under the Fifth and Sixth Amendments of the United States Constitution, Article 1, sections 10 and
19 of the Texas Constitution, or Article 38.23 of the Texas Code of Criminal Procedure. Johnson does not complain of these rulings in this
Court.



                                                                    –4–
light at 1000 feet and the conclusion that Pell’s actions did not violate her constitutional rights

under the Fourth and Fourteenth Amendments to the United States Constitution. 3

                                                          A. Applicable Law

           The purpose of the Fourth Amendment to the United States Constitution is to “safeguard

an individual’s legitimate expectation of privacy from unreasonable governmental intrusions.”

See Richardson v. State, 865 S.W.2d 944, 948 (Tex. Crim. App. 1993); see also Berger v. New

York, 388 U.S. 41, 53 (1967). The Fourth Amendment, applicable to the states by the Due

Process Clause of the Fourteenth Amendment, does not forbid all searches and seizures,

however, just unreasonable ones. United States v. Sharpe, 470 U.S. 675, 682 (1985); Amador v.

State, 275 S.W.3d 872, 878 (Tex. Crim. App. 2009). For Fourth Amendment purposes, a traffic

stop is a seizure and must be reasonable to be lawful. See Vasquez v. State, 324 S.W.3d 912, 919

(Tex. App.—2010, pet. ref’d); see also Delaware v. Prouse, 440 U.S. 648, 653-54 (1979). The

State bears the burden of demonstrating the reasonableness of the traffic stop. See Ford v. State,

158 S.W.3d 488, 492 (Tex. Crim. App. 2005). A traffic stop is lawful if the law enforcement

officer has a reasonable basis for suspecting the driver has committed a traffic violation. See

Arizona v. Johnson, 555 U.S. 323, 327 (2009); Garcia v. State, 827 S.W.2d 937, 944 (Tex. Crim.

App. 1992).

           It is a misdemeanor offense in Texas to operate a vehicle not equipped with tail lamps

which emit red light plainly visible at a distance of 1,000 feet from the rear of the vehicle. See

TEX. TRANSP. CODE ANN. §§ 547.004, 547.322. No traffic violation occurs, however, if a

fracture in a tail light allows white light to emit so long as the tail light continues to emit a red

light for 1,000 feet. See Vicknair, 751 S.W.2d at 189.

     3
       Johnson also relies on article 1, section 9 of the Texas Constitution. However, she does not argue the Texas Constitution provides greater
protection than the United States Constitution. Accordingly, we limit our analysis to the United States Constitution. See Johnson v. State, 853
S.W.2d 527, 533 (Tex. Crim. App. 1992).



                                                                     –5–
                                        B. Standard of Review

       An appellate court reviews a trial court’s ruling on a motion to suppress under a

bifurcated standard. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). First, the

appellate court affords almost complete deference to the trial court’s determination of historical

facts, because the trial court, as the sole judge of the credibility of the witnesses and weight to

give their testimony, is free to believe all or part of the testimony. Id.   Second, the appellate

court reviews the trial court’s application of the law of search and seizure to the facts de novo.

Id. The trial court’s ruling will be upheld if it is “reasonably supported by the record and correct

under any theory of law applicable to the case.” Id. at 447-48 (quoting State v. Dixon, 206

S.W.3d. 587, 590 (Tex. Crim. App. 2006)). When, as here, the trial court makes explicit findings

of fact, the appellate court reviews the evidence in the light most favorable to the trial court’s

ruling to determine whether the evidence supports those factual findings. Id.

                                    C. Application of Law to Facts

       Although Johnson contends the poor quality of the video recording renders it unreliable

in light of Pell’s testimony that the tail lamp emitted both a red and white light and was only

partially damaged with a “significant portion of red lens remaining,” we conclude the recording

is of sufficient quality to support the trial court’s finding that the “recording clearly shows

Defendant’s tail lamp glowing white, rather than red.” The recording, though grainy, reflects the

white light of headlights of oncoming traffic, the green light of a traffic signal, the yellow and

white lane markers on the road, and the red light of Johnson’s intact right tail lamp. Moreover,

although Johnson relies on portions of Pell’s testimony seemingly suggesting the tail lamp might

not have been damaged “to the point that it was not in compliance with the law,” in reviewing

the evidence adduced at the suppression hearing, we view the evidence in the light most

favorable to the trial court’s ruling. Id. That evidence included, in addition to the video

                                                –6–
recording, Pell’s testimony that Johnson’s car had a “busted” tail lamp that “display[ed]” a white

light rather than a red light. As Johnson acknowledges, the trial court found Pell to be a credible

witness. As such, we defer to the trial court’s finding that “Pell testified the tail lamp glowed

white rather than red.” See id.

        On the record before us, we conclude the trial court’s findings are supported by the

evidence. Because it is a misdemeanor offense to operate a car with tail lamps that fail to emit a

red light at a distance of 1,000 feet from the rear of the car, we further conclude the trial court

properly determined Pell had a reasonable suspicion that Johnson had committed a traffic

violation and Pell’s actions did not violate Johnsons’ rights under the Fourth and Fourteenth

amendments. We decide Johnson’s sole issue against her.

                                      III. CONCLUSION

       Having decided Johnson’s sole issue against her, we affirm the trial court’s judgment.




                                                     /Douglas S. Lang/
                                                     DOUGLAS S. LANG
                                                     JUSTICE



Do Not Publish
TEX. R. APP. P. 47

131496F.U05




                                               –7–
                                       S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

DEBORAH AILEEN JOHNSON, Appellant                  On Appeal from the County Court at Law
                                                   No. 5, Collin County, Texas
No. 05-13-01496-CR        V.                       Trial Court Cause No. 005-84064-2012.
                                                   Opinion delivered by Justice Lang. Justices
THE STATE OF TEXAS, Appellee                       Bridges and Evans participating.

       Based on the Court’s opinion of this date, we AFFIRM the trial court’s judgment.


Judgment entered this 3rd day of February, 2015.




                                             –8–
