THE STATE OF TEXAS v. ROBERT PEREZ--Appeal from 117th District Court of Nueces County

NUMBER 13-05-761-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

THE STATE OF TEXAS  , Appellant,

v.

ROBERT PEREZ, Appellee.

On appeal from the 117th District Court

of Nueces County, Texas.

  MEMORANDUM OPINION[1]

Before Chief Justice Valdez and Justices Rodriguez and Castillo

Memorandum Opinion by Justice Castillo

Appellee Robert Perez was indicted for the offense of possession of marihuana.[2] The trial court granted Perez's motion to suppress. The State appeals.[3] By one point of error, the State asserts that the trial court abused its discretion in suppressing evidence obtained after a valid traffic stop made on objective grounds even if the officer had a subjective motive for the stop. We affirm.

I. Background

Perez filed a motion seeking to suppress the marihuana obtained after a search incident to a traffic stop. He asserted as grounds that the warrantless stop was made without probable cause or reasonable suspicion. The trial court convened a hearing. The sole witness to testify was Officer Rusty Young of the Tri-County Narcotics Task Force ("TCNTF"). After the defense stipulated to his qualifications as a certified peace officer, Officer Young testified that, in that capacity, his primary duty was to work on drug cases but he had authority to enforce State laws and was familiar with the Texas Transportation Code.

Officer Young further testified that, on June 21, 2004, he received a request to assist other TCNTF officers who were maintaining surveillance on Perez's blue Ford Ranger pickup for possible possession of a large quantity of marihuana. In a marked unit, Officer Young followed Perez when Perez entered the highway at approximately 7:00 p.m. He observed Perez traveling westbound on SPID and following too closely behind another vehicle, in the middle lane of the three lane roadway. At the time, traffic was moderate to heavy. Officer Young used the "two-second rule"[4] to verify his observations and determined that Perez was probably one second or less behind the other vehicle. As the officer followed Perez, he noticed Perez "would not back off" the other vehicle. Officer Young determined that, if the vehicle in front of Perez's vehicle were to abruptly stop, Perez could not stop in time to avoid a collision nor could Perez move from his lane because of traffic on either side of his lane. Officer Young allowed Perez an opportunity to correct the traffic violation, but Perez did not do so. Officer Young activated the emergency lights on the unit to stop Perez for following too closely which, he testified, was a violation of the Texas Transportation Code.

On cross-examination, Officer Young acknowledged that other task force agents doing surveillance on Perez that day relayed information that Perez's blue Ford Ranger may contain drugs. He testified he was not on traffic duty that day and he appeared when called by fellow agents conducting the surveillance on Perez. Officer Young also testified he had probable cause to stop based on Perez's following a vehicle too closely. Officer Young further testified as follows:

Q. So in other words, you were basically in the vicinity of Mr. Perez because of his suspected involvement with drugs?

A. That's correct.

Officer Young further testified that Perez did not have his driver's license or proof of insurance. On redirect examination, he testified that, regarding issuing traffic citations, he had the discretion "to stop them, write them a citation, or release them" or issue a warning. In this case, he did not recall whether he issued citations.

The trial court granted the motion to suppress without entering findings of fact or conclusions of law or stating a basis for its decision. The State maintains that Officer Young's testimony was sufficient to establish a validly objective traffic stop even if he had a subjective motive for the stop. The State asserts that the officer provided specific articulable facts to justify his reasonable suspicion for the traffic stop. Perez counters that the trial court chose to disbelieve the officer's testimony that a traffic violation in fact occurred.

II. Standard of Review

The job of an appellate court in cases such as the one before us is to review the decision of the lower court for an abuse of discretion. State v. Dixon, PD-0077-05, 2006 Tex. Crim. App. LEXIS 363, *6 7 (Tex. Crim. App., February 15, 2006). We view the record in the light most favorable to the trial court's conclusion and reverse the judgment only if it is outside the zone of reasonable disagreement. Id. at 7. We will sustain the lower court's ruling if it is reasonably supported by the record and is correct on any theory of law applicable to the case. Id. (citing Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990)). We give almost total deference to a trial court's express or implied determination of historical facts and review de novo the court's application of the law of search and seizure to those facts. Id. (citing State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000), Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000), and Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)).[5] Because the trial court was in a better position to evaluate the credibility and demeanor of the witness, we view the evidence in the light most favorable to the trial court's decision to grant the motion to suppress. See Ross, 32 S.W.3d at 855. Although the trial court deserves deference even when credibility is not in issue, deference is especially appropriate when credibility is involved. Kelly v. State, 163 S.W.3d 722, 727 (Tex. Crim. App. 2005). In short, the factfinder is empowered, on the basis of credibility and demeanor evaluations, to completely disregard a witness's testimony, even if that testimony is uncontroverted. Id.; Wyatt v. State, 23 S.W.3d 18, 23 (Tex. Crim. App. 2000). The trial court is free to believe or disbelieve any or all parts of a witness's testimony. Dewberry v. State, 4 S.W.3d 735, 747 (Tex. Crim. App. 1999).

III. Discussion

We must determine whether we may uphold a trial court's decision to suppress evidence as within its discretion, instead of de novo, because the trial court might have disbelieved some or all of the State's uncontroverted evidence. See Ross, 32 S.W.3d at 854. In this case, we see two possible theories upon which the trial court's ruling may rest. Either the testimony of the officer was credible, but the facts established by that testimony do not constitute probable cause (or reasonable suspicion for the stop) or the trial court did not find the testimony of the agent to be credible. We conclude that Officer Young's testimony, if believed, added up to reasonable suspicion for the stop and probable cause for the eventual arrest.[6] Accordingly, we will not presume that the trial court impliedly found that the facts simply did not add up to reasonable suspicion or probable cause because to do so would be to presume error. See id. The trial court, however, was free to disbelieve all of the officer's testimony. Id. As the sole trier of facts and judge of credibility, the trial court was not compelled to believe the officer's testimony, even if uncontroverted, based on credibility and demeanor. Id. Because the evidence, if believed, would compel a denial of the motion to suppress, the record supports the second theory that the trial court did not find the officer's testimony to be credible based on demeanor, appearance, and tone.[7] Id. "Given the absence of any factual findings, the appellate presumption of the regularity of a trial court's judgment, and which party had the burden of proof, the trial court's implied factual findings were dispositive of the ultimate constitutional question of probable cause." Id. at 857 (citing Villarreal v.State, 935 S.W.2d 134, 140 (Tex. Crim. App. 1996)). We conclude that this case falls within the second category of review under Guzman and apply the "almost total deference" standard of review. We conclude that the trial court was within its discretion in disbelieving the testimony of the officer and granting the motion to suppress. Id.

IV. Conclusion

We conclude that the trial court could have reasonably granted the motion to suppress on the theory that it disbelieved the uncontroverted testimony before it. See Ross, 32 S.W.3d at 854. We overrule the State's sole point of error and affirm.

ERRLINDA CASTILLO

Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed

this 8th day of June, 2006.

[1]See Tex. R. App. P. 47.2, 47.4.

[2]The indictment alleged that, on or about June 21, 2004, Perez knowingly and intentionally possessed a usable quantity of marihuana in an amount of fifty pounds or less but more than five pounds. See Tex. Health & Safety Code _481.121 (Vernon 2003).

[3]See Tex. Code Crim. Proc. Ann. art. 44.01(a)(5) (Vernon Supp. 2005).

[4]Officer Young testified that two seconds is "usually a good round figure for somebody that's following another vehicle." He also testified that as the speed increases the following distance must also increase.

[5] Under Guzman, the relevant standard of review depends on the type of question presented. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We must afford almost total deference to the trial court's determination of the historical facts that are supported by the record, especially where the determination is based on an evaluation of credibility and demeanor. Id. We also afford almost total deference to the trial court's application of the law to the facts, where the application turns on an evaluation of credibility and demeanor. Id. Where the application of the law to the facts does not revolve around an evaluation of credibility and demeanor, we review the issue de novo. Id. However, in such a case we still afford deference to the trial court's determination of the subsidiary fact questions. Id.

[6]In order to detain an individual, an officer must have reasonable suspicion that the individual is or was involved in some sort of criminal activity. Johnson v. State, 658 S.W.2d 623, 626 (Tex. Crim. App. 1983). In situations involving anonymous tips, for example, a police officer's prior knowledge, experience, and corroboration of the details may be considered to aid the determination of reasonable suspicion. Alabama v. White, 496 U.S. 325, 331 32 (1990); see Davis v. Texas, 989 S.W.2d 859, 864 (Tex. App.BAustin 1999, pet. ref'd).

[7]The nature of demeanor and credibility is not such that it would readily appear in the record. State v. Ross, 32 S.W.3d 853, 857 (Tex. Crim. App. 2000). Demeanor and credibility assessments are based in large part on visual and audio observations and are not usually found in the record. Id. A presence or absence of contradiction or inconsistency in the record is not therefore dispositive. Id.