John Andrew Hernandez v. State

• Court: Court of Appeals of Texas
• Decided: March 8, 2021
• Docket: 07-20-00061-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-20-00061-CR

JOHN ANDREW HERNANDEZ, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 286th District Court Hockley County, Texas Trial Court No. 17129237, Honorable Pat Phelan, Presiding

March 8, 2021 MEMORANDUM OPINION Before QUINN, C.J., and PARKER and DOSS, JJ.

Appellant, John Andrew Hernandez, appeals his conviction for possessing a

controlled substance. The substance was discovered in the vehicle he drove after being

stopped for a traffic infraction and consenting to its search. The legitimacy of the stop

was first addressed in a hearing upon his motion to suppress evidence. The trial court

denied the motion, which eventually resulted in his being tried and convicted by a jury.

The issues before us concern the legitimacy of the stop, the allegedly prolonged nature

of the detention, and the trial court’s refusal to submit an article 38.23 instruction. We

affirm. Issue One –Initial Stop

Appellant initiates his appellate attack by questioning the validity of the initial stop.

Allegedly, the record contains no evidence indicating that the state trooper who conducted

the stop had probable cause to believe that a crime had occurred. We overrule the issue.

Law enforcement officers are justified in stopping a vehicle when an officer has

reasonable suspicion to believe that a traffic violation occurred. Lerma v. State, 543

S.W.3d 184, 190 (Tex. Crim. App. 2018). Here, the trooper who conducted the stop

testified that “[w]hile traveling eastbound [on a four-lane highway], I noticed a tan SUV in

front of me and the vehicle was operating with an expired registration.” That is, “[t]he

tags, the license plates were expired.” Thus, she “conducted a traffic stop” of the vehicle.

It happened to be driven by appellant. No one questions that it is a traffic offense to

operate a motor vehicle with an expired registration on the public highways of Texas. See

TEX. TRANSP. CODE ANN. § 502.472 (West 2013) (stating that a person commits an offense

by operating a motor vehicle that has not been registered). Thus, the record contains

evidence illustrating that the trooper had reasonable suspicion to believe a traffic violation

occurred, justifying the initial stop.

Appellant, however, argues that the video taken of the stop by the trooper’s dash

camera belies the trooper’s assertion that she noticed appellant’s vehicle had expired

license tags before deciding to stop him. This is purportedly so because it illustrates that

1) appellant passed the trooper while travelling in the opposite direction; 2) of the four

lanes on the highway they travelled, two inside lanes and a grass median separated

appellant’s vehicle from that of the trooper; 3) both appeared to be travelling with the flow

of traffic as they passed each other; 4) the speed limit was 75 mph; and 5) mere seconds

2 (8 to 10) lapsed between the time appellant’s vehicle can first be seen in the video and

the trooper changes lanes, crosses the median, and gives chase.

Truly, the video leaves one in awe of the trooper’s visual acuity and reaction

prowess given the distance involved and very nominal time between appellant’s car first

coming in view and the trooper doing that needed to check the status of the “tags” or

license plates of appellant’s SUV and discover them to be expired. Yet, these attributes

did not undergo testing by appellant. He did not ask her such things as 1) when she first

saw appellant’s license plates; 2) whether her vision allowed her to see the vehicle before

its image was close enough to be captured on film; 3) how she fed the information seen

into whatever mechanism/computer she used to determine the legitimacy of a vehicle’s

registration; 4) how quickly the mechanism/computer responds with the requisite

information; or 5) when she engaged her emergency lights or otherwise signaled for

appellant to stop. Nor was this information captured on the video. Answers to such

questions may have gone far to discredit or contradict the trooper’s testimony about

seeing appellant’s SUV travelling with expired tags and, consequently, deciding to

conduct a traffic stop. But, they were not asked, which meant that the trial court, as fact-

finder, was free to credit or believe her testimony for purposes of denying the motion to

suppress.

It may be that indisputable physical evidence, such as a video, may supersede or

nullify the value of an officer’s personal testimony. See, e.g., Carmouche v. State, 10

S.W.3d 323, 332 (Tex. Crim. App. 2000) (wherein the Court of Criminal Appeals stated

that it need not defer to the trial court’s resolution of historical fact because its decision

was not dependent upon evaluation of credibility and a video presented indisputable

visual evidence contradicting essential portions of Williams’s testimony). Yet, we do not 3 have that “indisputable” physical evidence but rather a video capturing only certain

scenes of an unfolding event. At best, it is evidence which one could use to question the

trooper’s credibility; yet, it fails to establish that the trooper could not have determined

appellant’s registration had expired when she initiated the stop. So, it is not enough to

allow us to ignore our obligation to generally defer to the trial court’s resolution of

credibility issues and historical fact, despite whatever skepticism we may have. See

Delafuente v. State, 414 S.W.3d 173, 177 (Tex. Crim. App. 2013) (describing the

bifurcated standard of review requiring appellate courts to give almost total deference to

a trial judge’s findings of historical fact and credibility determinations supported by the

record).

Issue Two –Prolonged Detention

Next, appellant contends that suppression should have been granted because the

initial detention was unduly prolonged. We overrule the issue.

Returning to Lerma, we note that a “traffic stop made for the purpose of

investigating a traffic violation must be reasonably related to that purpose and may not

be prolonged beyond the time to complete the tasks associated with the traffic stop.”

Lerma, 543 S.W.3d at 190. During that stop, though, the officer may request certain

information from a driver, such as the driver’s license, vehicle registration, and proof of

insurance, and run a computer check on it. Id. So too may the officer ask drivers and

passengers about matters unrelated to the purpose of the stop, so long as the questioning

does not measurably extend the duration of the stop. Id. Among the questions that can

be asked is one seeking consent to search. Sieffert v. State, 290 S.W.3d 478, 484 (Tex.

App.—Amarillo 2009, no pet.). Yet, the stop may not last longer than necessary to

effectuate the stop’s purpose, Lerma, 543 S.W.3d at 193, unless, of course, the officer 4 encounters articulable facts providing justification to prolong the stop while resolving the

purpose of the initial detention.

The dash camera video reveals that once the trooper stopped appellant, she

informed him of the reason for doing so and invited him to sit in the patrol car. He

acceded. While in the car and during the period in which she attempted to run a computer

check on the information given by appellant, the trooper began asking if he had

contraband. Such was permissible. Hammons v. State, No. 13-15-00419-CR, 2017 Tex.

App. LEXIS 387, at *4–5 (Tex. App.—Corpus Christi Jan. 19, 2017, pet. ref’d) (mem. op.,

not designated for publication) (stating that once a traffic stop is completed, an officer

may ask the occupants of the vehicle whether they possess contraband and may further

request consent to search without having reasonable suspicion).1 Upon his denial, she

asked for and received consent to search. Such was permissible, as well. At that point,

and because she was alone, she extended the detention to obtain assistance in the

search from other law enforcement officials. None were immediately available. More

importantly, appellant did not revoke his consent as they waited for another trooper to

arrive. Rather, he told the trooper he thought he would be arrested and, when asked why,

volunteered that he had cocaine in the vehicle.

The time that lapsed between the trooper initiating the stop and appellant’s

acquiescence to the search was slightly over six minutes, and she had yet to complete

the initial computer check or issue a ticket. Within twelve minutes of initiating the stop,

the officer was told by appellant that he had cocaine in the vehicle. This too occurred

1 The purpose of the stop had yet to be completed at bar when the trooper questioned appellant

about having contraband and soliciting consent to search. Yet, it follows that if a law enforcement officer can ask those very questions immediately after the purpose of the stop is completed, he may ask them before the purpose of the stop is completed. 5 while the two waited for another officer to arrive to assist in the search to which appellant

consented and before she issued a traffic citation. Given these circumstances, we cannot

say that the trial court abused its discretion in rejecting appellant’s argument that the stop

was unduly prolonged before appellant confessed to possessing drugs.

Issue Three – Article 38.23 Instruction

In his final issue, appellant contends that he was entitled to an instruction under

article 38.23 of the Texas Code of Criminal Procedure. We overrule the issue.

The article provides:

In any case where the legal evidence raises an issue hereunder, 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 disregard any such evidence so obtained.

TEX. CODE CRIM. PROC. ANN. art. 38.23(a) (West 2018). Here, appellant contends that 1)

the trooper admitted to becoming aware of the expired registration upon running the

vehicle’s license plates; 2) “there was a disputed fact issue concerning whether she [the

trooper] gained . . . probable cause [to stop] prior to her initiating the traffic stop”; and 3)

“[t]he jury should have been allowed to resolve this issue.” So, the fact issue for purposes

of the article 38.23 instruction concerned when and how the trooper gained probable

cause, or when and how she became aware of the expired registration status. This

generally comports with what he urged below.

There, he explained to the court that he was entitled to the instruction because:

Specifically, Trooper Moroles testified that during direct examination that she had pulled over [appellant] because she observed an infraction of the expired registration on . . . my client’s vehicle. On cross-examination she admitted that she never saw that. What happened is she ran the license plate and based on the reading of what she got back on the license plate registration she pulled him over 6 for that reason. And I believe that creates a factual dispute as to whether she had any probable cause to detain [appellant] from the beginning, and that’s my objection.

(Emphasis added). In other words, she allegedly contradicted herself by first saying she

“observed an infraction of the expired registration” but later admitted that she “pulled him

over for” discovering the expired registration “based on the reading of what she got

back on the license plate registration.” (Emphasis added). Indeed, her initial testimony

consisted of stating that: “I observed a tan SUV operating with an expired registration

tag and conducted a traffic stop on that vehicle.” (Emphasis added). On cross-

examination, she conceded that she did not see “this [registration] sticker in front of the

car when [she was] behind the vehicle.” Rather, she discovered the expired registration

when she “ran the license plate on the vehicle and it came back on our mobile CAD as

being expired.” To that, we add the initial content of the dash camera video and the time

that lapsed between appellant’s vehicle becoming visible and the trooper’s decision to u-

turn across the divided highway and initiate the stop. That purportedly created the factual

dispute about whether she had any probable cause to detain “from the beginning.”

Yet, there is no evidence placing in dispute the fact that the vehicle’s registration

was expired, and appellant does not contend that such evidence appeared of record. The

debate concerns when and how the trooper discovered that. Yet, how she discovered it

(i.e., seeing an expired tag on the windshield versus reading the return from her computer)

is unimportant if she nonetheless had the requisite information about the registration

being expired before initiating the stop.

Indeed, if she had the information and no evidence contradicts that, then it really

does not matter how she obtained it. And, appellant attempts to find a material issue of

7 fact in that by interjecting the video and its depiction of a nominal time lapse between the

trooper first encountering appellant’s vehicle and the initiating of the stop. Though that

video depicts the lapse of a brief period, it does not affirmatively illustrate that the trooper

could not have obtained the requisite information within the time span. It contains nothing

suggesting that her visual acumen, her reaction time, and the speed of her computer were

such as to prevent her from acquiring it. Indeed, the video was not focused on her or the

computer but rather the unfolding scenes in front of the windshield. Nor does it depict

when she first signaled appellant to stop. That could have occurred anywhere between

1) the point she made a u-turn to 2) her coming upon him as he attempted to turn left off

the highway, which was about a minute.2 And, we know of no authority barring a trooper

from deciding to simply follow someone, even hastily, without reasonable suspicion or

probable cause justifying that decision.

Nor does the record illustrate whether appellant was turning left off the highway for

personal reasons or because the trooper had signaled for him to stop. That too we are

left to guess at.

We note the foregoing because one is entitled to an article 38.23 instruction when

1) the evidence presented to the jury raises an issue of fact; 2) the evidence on that fact

must be affirmatively contested; and 3) the contested factual issue is material to the

lawfulness of the challenged conduct used to obtain the evidence. Madden v. State, 242

S.W.3d 504, 510 (Tex. Crim. App. 2007). Again, the purported underlying material fact

issue is when the trooper discovered the expired registration and, therefore, had basis to

stop appellant; was that before or after she initiated the stop? And, irrespective of whether

2Not until the trooper is stopping behind appellant can the reflection of her emergency lights be seen on the rear of appellant’s SUV. 8 she discovered it by looking at a tag on the windshield of the car as it passed or by running

license plates, the manner is immaterial without evidence that neither mode could have

been done before she directed appellant to stop. The video does not affirmatively

illustrate that such knowledge could not have come by either mode. At best, it leaves one

to wonder or speculate whether she could or could not have acquired the information

through either mode within the period between first seeing appellant and ultimately

signaling for him to stop. But, as we said in Henry v. State, No. 07-18-00179-CR, 2018

Tex. App. LEXIS 9659 (Tex. App.—Amarillo Nov. 27, 2018, pet. ref’d) (mem. op., not

designated for publication), “[s]peculation . . . does not equal evidence affirmatively

contesting the officer’s testimony.” Id. at *6.

Article 38.23 requires evidence affirmatively creating a dispute on a material issue

of fact. We lack that here. Indeed, this is a case illustrating the importance of defense

counsel asking not only questions but also the right ones to flesh out what actually

happened. Those questions were not asked; nor was the missing information provided

through other means. Consequently, appellant did not establish that the trial court had

an obligation to submit the instruction on the purported fact issue involved, i.e., when the

officer garnered the information about appellant’s expired vehicle registration.

Accordingly, we affirm the judgment of the trial court.

Brian Quinn Chief Justice

Do not publish.