Eleobardo Cruz-Cervantes v. State

Opinion issued January 19, 2012 In The Court of Appeals For The First District of Texas ———————————— NO. 01-11-00167-CR ——————————— Eleobardo Cruz-Cervantes, Appellant V. State of Texas, Appellee On Appeal from the 262nd Judicial District Harris County, Texas Trial Court Case No. 1285183 MEMORANDUM OPINION Appellant Eleobardo Cruz-Cervantes pleaded guilty to possession with intent to deliver cocaine weighing between four and 200 grams, and he was sentenced to imprisonment for eight years. See Tex. Health & Safety Code Ann. §§ 481.102(3)(D), 481.115(a), (d) (West 2010) (establishing offense). In his sole issue, Cruz-Cervantes argues that the trial court abused its discretion when it denied his motion to suppress evidence gathered by police after a traffic stop. Because the evidence presented in the suppression hearing supported the trial court’s finding that the police had probable cause, we affirm the judgment of the trial court. Background Two Houston Police Department patrol officers stopped Cruz-Cervantes as he was pulling his pickup truck into a cantina parking lot. According to their offense report, the officers stopped Cruz-Cervantes because his driver’s-side taillight was emitting white light, in violation of state law. When Cruz-Cervantes could not provide a driver’s license upon request, one of the officers had Cruz-Cervantes walk to the rear to show him the taillight. The officer then arrested Cruz-Cervantes for driving without a license and conducted an inventory of the truck. He discovered 56 grams of cocaine on the floorboard between the front seats. Cruz-Cervantes was charged with knowingly possessing cocaine with intent to deliver. Cruz-Cervantes filed a motion to suppress all of the evidence obtained from the pickup truck, including the cocaine. The trial court held a hearing on the motion. The two patrol officers testified that when they first noticed Cruz-Cervantes’s truck, they could see only white light and no red light emanating from the taillight from their position between 200 and 500 feet away. One of the officers testified that, upon closer examination, it appeared that the taillight had a hole around the bulb. The officers admitted on cross-examination, however, that their offense report did not describe the damage to the taillight. At the hearing, Cruz-Cervantes testified that the taillight looked “a little white” but was otherwise “fine” and “intact.” Defense counsel attempted to introduce a photograph of Cruz-Cervantes’s truck showing that the taillight was red, but the court refused to admit the photograph on the State’s objection that it was not properly authenticated. The court denied the motion to suppress, finding that the officers had probable cause to search the truck. Cruz-Cervantes subsequently pleaded guilty and brought this appeal. Analysis Cruz-Cervantes argues that the trial court erred in denying his motion to suppress because the trial court unreasonably concluded that the taillight emitted only white light. The more reasonable conclusion, he argues, is that the taillight emitted both red and white light, which is not a violation under the Transportation Code, and therefore the traffic stop leading to the arrest and seizure was unlawful. The State argues that the testimony given at the hearing permitted the trial court to conclude that the taillight emitted only visible white light, and therefore the trial court did not abuse its discretion. The Code of Criminal Procedure prohibits admission of unlawfully obtained evidence. See Tex. Code Crim. Proc. Ann. art. 38.23(a) (West 2005); see also State v. Johnson, 939 S.W.2d 586, 588 (Tex. Crim. App. 1996). In reviewing the trial court’s ruling on a motion to suppress evidence, we apply a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). We give almost total deference to the trial court’s determination of historical facts that depend on credibility, while we conduct a de novo review of the trial court’s application of the law to those facts. Carmouche, 10 S.W.3d at 327. In a hearing on a motion to suppress, 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). “This is so because it is the trial court that observes first hand the demeanor and appearance of a witness, as opposed to an appellate court which can only read an impersonal record.” Id. We must sustain the trial court’s ruling if it is reasonably supported by the record evidence and is correct under any theory of law applicable to the case. Id. at 855–56. A traffic stop is a detention and, therefore, must be reasonable. Davis v. State, 947 S.W.2d 240, 244 (Tex. Crim. App. 1997); Magana v. State, 177 S.W.3d 670, 673 (Tex. App—Houston [1st Dist.] 2005, no pet.). The decision to stop an automobile is reasonable when the police have probable cause to believe that a traffic violation has occurred. Whren v. United States, 517 U.S. 806, 810, 116 S. Ct. 1769, 1772 (1996); Walter v. State, 28 S.W.3d 538, 542 (Tex. Crim. App. 2000). The alleged traffic violation in this case is that Cruz-Cervantes’s taillight emitted only white light. See Tex. Transp. Code Ann. § 547.322(d) (West 2011) (“A taillamp shall emit a red light plainly visible at a distance of 1,000 feet from the rear of the vehicle.”). If the taillight emitted red light visible from 1,000 feet, even if mixed with white light, then Cruz-Cervantes did not violate the Transportation Code and the officers did not have probable cause to stop him. See Vicknair v. State, 751 S.W.2d 180, 187 (Tex. Crim. App. 1988) (op. on rehearing) (“Since no one testified that appellant’s car failed to emit a visible red light, there was no basis at all to justify the original detention.”); cf. Tex. Dep’t Pub. Safety v. Hindman, 989 S.W.2d 28, 32 (Tex. App.—Fort Worth 1998, no pet.) (distinguishing Vicknair). We do not make this factual determination for ourselves, and we must defer to the trial court’s implicit finding that the officers saw only white light if this finding is reasonable. See Hereford v. State, 339 S.W.3d 111, 117–18 (Tex. Crim. App. 2011). The officers testified that when they spotted Cruz-Cervantes’s truck from 200 to 500 feet away, they saw the taillight emitting only white light and no red light. Only Cruz-Cervantes testified that the taillight was “fine” and “intact.” Although defense counsel attempted to introduce a photograph of Cruz-Cervantes’s truck to show the color and condition of the taillight, the court refused to admit the photograph for lack of authentication, and we presume that the trial judge disregarded it. See Garza v. State, 126 S.W.3d 79, 83 (Tex. Crim. App. 2004). On this record, the trial judge could have reasonably resolved the conflicting testimony in favor of the State, and we accordingly sustain the court’s denial of the motion to suppress. See Ross, 32 S.W.3d at 855–56. We overrule Cruz-Cervantes’s sole issue. Conclusion We affirm the judgment of the trial court. Michael Massengale Justice Panel consists of Justices Jennings, Massengale, and Huddle. Do not publish. Tex. R. App. P. 47.2(b).