Larry Donnail Appleby v. The State of Texas Appeal from County Court at Law of Taylor County (memorandum opinion)

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Opinion filed February 8, 2017 In The Eleventh Court of Appeals __________ No. 11-17-00038-CR __________ LARRY DONNAIL APPLEBY, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the County Court at Law Taylor County, Texas Trial Court Cause Number 1-1326-15 MEMORANDUM OPINION The jury found Larry Donnail Appleby guilty of possession of marihuana in an amount of two ounces or less, a Class B misdemeanor.1 The trial court assessed his punishment at confinement for thirty days, suspension of his driver’s license for 180 days, and a $500 fine. On appeal, Appellant asserts a sufficiency-of-theevidence complaint and complains that the trial court abused its discretion when it denied his motion to suppress evidence. We affirm. 1 TEX. HEALTH & SAFETY CODE ANN. § 481.121(b)(1) (West 2017). I. Evidence at Trial Brady Hogue, an Abilene police officer, testified that as he passed Appellant’s vehicle, he could not see Appellant’s rear license plate, so he turned around and followed Appellant. As Officer Hogue followed Appellant’s vehicle, he observed that the vehicle did not have a functioning light on the rear license plate, so he stopped Appellant. Appellant did not produce his driver’s license but gave his name and date of birth to Officer Hogue. Officer Hogue then returned to his patrol vehicle to verify Appellant’s identity. Because of the limited information that Appellant provided to Officer Hogue and because Appellant had described a route of travel through a neighborhood known for narcotics trafficking, Officer Hogue also called a canine unit and began to write out a citation for failure to illuminate the license plate. When the canine unit arrived and alerted to the driver’s side of the vehicle, Officer Hogue asked Appellant and the passenger to exit Appellant’s vehicle. Officer Hogue told Appellant that the canine unit had alerted on the vehicle. Appellant put his hands in his pockets, and when asked to remove his hands, Appellant had in his right hand a bag of a green leafy substance that Officer Hogue believed was marihuana. Appellant handed over the bag of marihuana to Officer Hogue. The State admitted the bag into evidence as State’s Exhibit No. 2. The marihuana weighed 15.2 grams. The State also introduced into evidence the dash-cam video from Officer Hogue’s patrol vehicle. The traffic stop had lasted approximately fifteen minutes when the canine unit arrived at the scene. II. Analysis Appellant asserts a sufficiency-of-the-evidence complaint in his first issue. In his second issue, he complains that the trial court abused its discretion when it denied his motion to suppress because he was detained for an unreasonable amount of time. In both his first and second issues, Appellant also complained that Officer Hogue lacked reasonable suspicion to detain him. 2 A. Issue One (sufficiency of the evidence): The State adduced sufficient evidence for a rational jury to find beyond a reasonable doubt that Appellant possessed marihuana. In his first issue, Appellant asserts that the evidence was legally insufficient to show that Officer Hogue had reasonable suspicion to stop Appellant’s vehicle. Appellant asserts that this is a sufficiency-of-the-evidence issue; however, it is actually a challenge to the legality of the traffic stop. The State responds that Officer Hogue had reasonable suspicion to stop Appellant because he reasonably believed that a traffic violation was in progress. To the extent that Appellant’s complaint is one of sufficiency of the evidence for his conviction of possession of marihuana, we first address that complaint and then review his complaint about the legality of the traffic stop. We review a sufficiency-of-the-evidence complaint under the standard of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–89 (Tex. App.—Eastland 2010, pet. ref’d). Under the Jackson standard, we examine all the evidence in the light most favorable to the verdict and determine whether, based on that evidence and any reasonable inferences from it, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). The trier of fact may believe all, some, or none of a witness’s testimony because the factfinder is the sole judge of the weight and credibility of the witness. Sharp v. State, 707 S.W.2d. 611, 614 (Tex. Crim. App. 1986); Isham v. State, 258 S.W.3d 244, 248 (Tex. App.—Eastland 2008, pet. ref’d). We defer to the trier of fact’s resolution of any conflicting inferences raised in the evidence and presume that the trier of fact resolved such conflicts in favor of the verdict. Jackson, 443 U.S. at 326; Brooks, 323 S.W.3d at 894; Clayton v. State, 235 S.W.3d 772, 778 (Tex. 3 Crim. App. 2007). We review all the evidence regardless if Appellant asserts it was illegally obtained. See Clayton, 235 S.W.3d at 778. The State charged Appellant by information with possession of marihuana, a Class B misdemeanor. HEALTH & SAFETY § 481.121(a), (b)(1). A person commits the offense of Class B possession of marihuana if he knowingly possesses or controls a usable amount of marihuana in an amount of two ounces or less. Id. The State adduced evidence that Appellant gave Officer Hogue a bag of a substance that tested positive for marihuana and weighed 15.2 grams, which is less than two ounces. As a result, the State adduced sufficient evidence for a rational jury to find beyond a reasonable doubt that Appellant knowingly possessed marihuana in an amount of two ounces or less. We overrule Appellant’s sufficiency-of-the-evidence complaint. B. Issue One and Issue Two (reasonable suspicion): Officer Hogue had reasonable suspicion to stop Appellant for failure to have his vehicle’s license plate properly illuminated. As part of his first and second issues, Appellant asserts that Officer Hogue lacked reasonable suspicion to stop him for a nonfunctioning license plate light because the video evidence showed an illuminated license plate. Appellant asserts that the police seized marihuana as a result of this illegal traffic stop and that that evidence should have been suppressed. Appellant asserts that legally and factually insufficient evidence existed to support that Officer Hogue had reasonable suspicion to stop him. Under Article 38.23(a), “[n]o evidence obtained by an officer . . . in violation of any provisions of the Constitution or laws . . . shall be admitted in evidence against the accused” at trial. TEX. CODE CRIM. PROC. ANN. art. 38.23(a) (West 2005). “When evidence presented before the jury raises a question of whether the fruits of a police-initiated search or arrest were illegally obtained, ‘the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall 4 disregard any such evidence so obtained.’” Robinson v. State, 377 S.W.3d 712, 719 (Tex. Crim. App. 2012) (quoting CRIM. PROC. art. 38.23(a)). A jury’s guilty verdict necessarily means that it resolved the factual dispute against the defendant and found that essential evidence was not obtained in violation of state and federal law. Hanks v. State, 104 S.W.3d 695, 703 (Tex. App.—El Paso 2003), aff'’d, 137 S.W.3d 668 (Tex. Crim. App. 2004) (citing Pierce v. State, 32 S.W.3d 247, 253 (Tex. Crim. App. 2000)). “[F]actual-sufficiency review is appropriate only as to the sufficiency of the state’s proof as to elements of the offense. Such a review is not appropriate as to the admissibility of evidence when such a question is submitted to the jury pursuant to Article 38.23(a).” Hanks v. State, 137 S.W.3d 668, 672 (Tex. Crim. App. 2004). In this case, the trial court gave an Article 38.23 instruction, and the jury’s implicit rejection of Appellant’s factual dispute, if any, is not reviewable for factual sufficiency by this court. Id. However, the jury’s determination of the factual dispute does not supplant or render moot the trial court’s ruling on the admissibility of the evidence. Pierce, 32 S.W.3d at 253. Consequently, we may review the trial court’s denial of Appellant’s motion to suppress. We understand Appellant’s argument to be that, but for the traffic stop, the police would not have known or discovered the bag of marihuana on his person. We review a trial court’s ruling on a motion to suppress under a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). We must affirm the trial court’s ruling if it is correct under any theory of law applicable to the case. State v. Copeland, 501 S.W.3d 610, 613 (Tex. Crim. App. 2016); Romero v. State, 800 S.W.2d 539, 543–44 (Tex. Crim. App. 1990). We give great deference to the trial court’s findings of historical facts if the record supports them. Guzman v. State, 955 S.W.2d 85, 87 (Tex. Crim. App. 1997). Because the trial court is the exclusive factfinder, appellate courts review evidence adduced at the suppression 5 hearing in the light most favorable to the trial court’s ruling. Carmouche, 10 S.W.3d at 328. We also give deference to the trial court’s rulings on mixed questions of law and fact when those rulings turn on an evaluation of credibility and demeanor. Guzman, 955 S.W.2d at 87. Where such rulings do not turn on an evaluation of credibility and demeanor, we review the trial court’s actions de novo. Id. A traffic stop is a seizure and must be reasonable under both the United States and Texas Constitutions. Davis v. State, 947 S.W.2d 240, 245 (Tex. Crim. App. 1997). “There need only be an objective basis for the stop; the subjective intent of the officer conducting the stop is irrelevant.” State v. Clark, 315 S.W.3d 561, 564 (Tex. App.—Eastland 2010, no pet.); see Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001). Violation of a traffic law sufficiently justifies initial detainment during a traffic stop. McVickers v. State, 874 S.W.2d 662, 664 (Tex. Crim. App. 1993). In Texas, a vehicle violates Section 547.322(f) if the vehicle’s rear license plate is not illuminated and legible from a minimum of fifty feet. TEX. TRANSP. CODE ANN. § 547.322 (f) (West 2011). A violation of a traffic code provides a valid basis for a traffic stop. McVickers, 874 S.W.2d at 664; Gracia v. State, No. 14-1500106-CR, 2016 WL 3965108, at *2 (Tex. App.—Houston [14th Dist.] July 21, 2016, pet. ref’d) (mem. op., not designated for publication). A police officer may stop a vehicle if the illumination of the license plate does not properly illuminate the plate so that it can be seen from a distance of fifty feet. See Dominy-Gatz v. State, No. 05-15-01194-CR, 2016 WL 7321435, at *1, 8 (Tex. App.—Dallas Dec. 16, 2016, pet. ref’d) (mem. op., not designated for publication). Appellant asserts that the stop was illegal because the light was working. We note that the proper inquiry is whether Officer Hogue had reasonable suspicion to think the light was not working when he stopped Appellant. See Jaganathan v. State, 479 S.W.3d 244, 247 (Tex. Crim. App. 2015) (“The question in this case is not 6 whether appellant was guilty of the traffic offense but whether the trooper had a reasonable suspicion that she was.”); see also State v. Torrez, 490 S.W.3d 279, 285 (Tex. App.—Fort Worth 2016, pet. ref’d). At the hearing on the motion to suppress, Officer Hogue testified that he noticed Appellant’s vehicle had a light that did not appear to illuminate the license plate. The State offered video evidence to show that Appellant’s license plate light was not functioning. The trial court heard Officer Hogue’s testimony and reviewed the video evidence. At the end of the hearing, the trial court determined that the illumination of the license plate by a light on the vehicle was a fact question. The trial court then found that the vehicle’s license plate was reflective but that the vehicle’s light did not properly illuminate the license plate. The trial court noted that the evidence at the beginning of the video corroborated Officer Hogue’s testimony that the vehicle’s light did not properly illuminate the license plate. The trial court found evidence to support Officer Hogue’s observation that Appellant drove without his license plate being properly visible for the required distance. Therefore, Officer Hogue provided “objective, articulable facts supporting a reasonable suspicion to stop appellant for a traffic violation.” See Gracia, 2016 WL 3965108, at *2. In addition, we also note that Officer Hogue did not need proof that the light did not work to have reasonable suspicion to stop Appellant. See id. at *2 (concluding that officer’s testimony that he observed a traffic violation provided reasonable suspicion to initiate a traffic stop). We overrule those parts of Appellant’s first and second issues in which Appellant asserted that Officer Hogue lacked reasonable suspicion to stop Appellant. C. Issue Two (length of stop): The length of the traffic stop was not unreasonable. In the remainder of his second issue, Appellant contends that the trial court abused its discretion when it denied his motion to suppress because the traffic stop lasted an unreasonable amount of time. 7 We note that the duration of a detention is reasonable when, under the totality of the circumstances, it lasts no longer than is necessary to effectuate the purpose of the stop. Ohio v. Robinette, 519 U.S. 33, 39 (1996); Florida v. Royer, 460 U.S. 491, 500 (1983). The reasonableness of the duration of the stop depends on whether it was necessary to detain the defendant and whether the officer diligently pursued a means of investigation likely to quickly confirm or dispel any suspicion. Love v. State, 252 S.W.3d 684, 687 (Tex. App.—Texarkana 2008, pet. ref’d); Belcher v. State, 244 S.W.3d 531, 539 (Tex. App.—Fort Worth 2007, no pet.). Generally, once a “computer check [has been] completed and the officer knows that this driver has a currently valid license, no outstanding warrants, and the car is not stolen,” the trafficstop investigation is fully resolved. Kothe v. State, 152 S.W.3d 54, 63–64 (Tex. Crim. App. 2004); see Hart v. State, 235 S.W.3d 858, 861 (Tex. App.—Eastland 2007, pet. dism’d). However, police officers who have reasonable suspicion to believe the person has violated the law need no additional justification for a canine sniff that occurs during a lawful traffic stop. 1979 Pontiac Automobile v. State, 988 S.W.2d 241, 244 (Tex. App.—Eastland 1998, no pet.); see United States v. Place, 462 U.S. 696, 707 (1983); Crockett v. State, 803 S.W.2d 308, 310 n.5, 311 (Tex. Crim. App. 1991). In this case, Appellant failed to present his driver’s license but gave Officer Hogue his name and birthdate. Officer Hogue had to verify Appellant’s identity and information in the police database. The canine unit arrived on the scene before Officer Hogue had completed the traffic investigation. Before Officer Hogue completed his traffic stop and prepared the traffic citation, the canine unit alerted on the driver’s side of the vehicle for drugs. Officer Hogue’s traffic-stop investigation was not resolved when the canine unit arrived and began its open-air sniff. And, because Officer Hogue had reasonable suspicion to stop Appellant for a traffic violation and to detain him to verify his identity and driver’s license information, 8 Officer Hogue did not unreasonably prolong the traffic stop, which had lasted approximately fifteen minutes prior to the arrival of the canine unit. We overrule the remainder of Appellant’s second issue. III. This Court’s Ruling We affirm the judgment of the trial court. MIKE WILLSON JUSTICE February 8, 2018 Do not publish. See TEX. R. APP. P. 47.2(b) Panel consists of: Willson, J., Bailey, J., and Wright, S.C.J.2 2 Jim. R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland, sitting by assignment. 9

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