ACCEPTED 08-17-00175-CR 08-17-00175-CR EIGHTH COURT OF APPEALS EL PASO, TEXAS 5/29/2018 11:19 PM DENISE PACHECO CLERK
NO. 08-17-00175-CR FILED IN 8th COURT OF APPEALS IN THE EL PASO, TEXAS COURT OF APPEALS 5/29/2018 11:19:14 PM EIGHTH DISTRICT OF TEXAS DENISE PACHECO ___________________________________________________ Clerk
THE STATE OF TEXAS, Appellant,
v.
JESUS TABARES, Appellee.
On Appeal from Cause No. 20140C13890 In the County Criminal Court No. 4 of El Paso County, Texas
APPELLANT’S BRIEF Oral Argument is Waived
EL PASO COUNTY PUBLIC DEFENDER’S OFFICE
Attorneys for the Appellee JAIME GÁNDARA, Chief Public Defender
Octavio A Dominguez Assistant Public Defender State Bar No. 24075582 500 E. San Antonio, Room 501 El Paso, Texas 79901 (915)546-8185 Ext. 3528 FAX (915) 546-8186 NAMES OF PARTIES AND COUNSEL
Pursuant to Texas Rules of Appellate Procedure, Rule 38.1(a), Appellant
offers the following names of all parties, trial and appellate counsel:
1. Defendant/Appellee JESUS TABARES was represented at the trial stage by
Octavio A Dominguez and Yajaira Halm, El Paso County Assistant Public
Defender’s, 500 E. San Antonio, Suite 501, El Paso, TX, 79901.
2. The State of Texas was represented at the trial stage by Ghalib A. Serang and
David J. Nunez, Assistant District Attorneys, 500 E. San Antonio, Suite 201,
El Paso, TX 79901.
3. The Trial Court Judge was Judge JESUS HERRERA presiding for Judge of
the County Criminal Court No. 4, 500 E. San Antonio, Suite 702, El Paso, TX
79901.
4. Currently at the appellate stage, Mr. Tabares, is represented by Jaime
Gándara, El Paso County Public Defender and Octavio A Dominguez,
Assistant Public Defender, El Paso County Public Defender’s Office, 500 E.
San Antonio, Suite 501, El Paso, TX 79901.
5. At the Appellate stage, the State is represented by District Attorney, Jaime
Esparza and Raquel Lopez, Assistant District Attorney, Appellate Division,
500 E. San Antonio, Suite 201, El Paso, TX 79901.
ii TABLE OF CONTENTS
Names of Parties and Counsel ii
Table of Contents iii
Table of Authorities iv
Statement of the Case 1
Reply to Issues Presented 2
Statement of Facts 3
Summary of the Argument 8
Argument 9
Prayer for Relief 22
Certificate of Service 23
Certificate of Compliance 23
iii TABLE OF AUTHORITIES
Criminal Court of Appeals Cases
Brezeale v. State, 683 S.W.2d 446 (Tex. Crim. App. 1984)……………………...11
Carmouche v. State, 10S.W.3d 323 (Tex. Crim. App. 2000……………………...10
Carter v. State, 3 309 S.W.3d 31 (Tex. Crim. App. 2010)……………………….15
Castro v. State, 227 S.W.3d 737 (Tex. Crim. App. 2007)………………………..11
Garcia v. State, 827 S.W.2d 937 (Tex. Crim. App. 1992)………………………..11
Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997)……………..…..9, 10, 11
Hardin v. State, 471 S.W.2d 60 (Tex. Crim. App. 1971)……………..………........9
McCloud v. State, 527 S.W.2d 885 (Tex. Crim. App. 1975)……………………...10
Miller v. State, 393, S.W.3d 255 (Tex. Crim. App. 2012)………………………..13
Romero v. State, 800 S.W.2d 539 (Tex. Crim. App. 1990)…….............………9, 10
State v. Duran, 396 S.W.3d 563 (Tex. Crim. App. 2013)………………...12, 14, 18
State v. Ross, 32 S.W.3d 853 (Tex. Crim. App. 2000)……………………..9, 10, 17
State v. Steelman, 93 S.W.3d 102 (Tex. Crim. App. 2002)………..….….…….…..9
State v. Weaver, 349 S.W.3d 521 (Tex. Crim. App. 2011)………….……11, 19, 21
Walter v. State, 28 S.W.3d 538 (Tex. Crim. App. 2000)………………………….12
Woods v. State, 956 S.W.2d 33 (Tex. Crim. App. 1997)……….…………………11
Court of Appeal Cases
Burke v. State, 27 S.W.3d 651 (Tex. App.--Waco 2000)………………………9, 10
Robuck v. State, 40 S.W.3d 650 (Tex. App.--San Antonio 2001)………….............9
iv State v. Gendron, 2015 Tex. App. LEXIS 1334, 2015 WL 632215 (Tex. App—El Paso 2015……………………………………………………………………...15, 17
State v. Vasquez, No. 08-13-00079-CR, 2015 Tex. App. LEXIS 2543 (Tex. App.-- El Paso 2015)………...………………………………………………..14, 17, 20, 21
Young v. State, 133 S.W.3d 839 (Tex. App.--El Paso 2004)…………...........……11
United States Supreme Court Cases
Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)……………. …11
Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996)….12
v STATEMENT OF THE CASE
The State of Texas (hereinafter “the State”) charged Jesus Tabares
(hereinafter “Tabares”) with Driving While Intoxicated in a one-count information.
(CR: 6).1 Tabares pled not guilty to that charge. (CR: 38). On June 13, 2017,
Tabares filed his Motion to Suppress Evidence. (CR: 53-56). The trial court heard
and granted Tabares’ Motion to Suppress on July 14, 2017. (CR: 58-59, 81);
(RR:1, 38). The State’s Notice of Appeal was filed on July 27, 2017. (CR: 77).
1 In this Brief, “CR” refers to the Clerk’s Record, which is followed by page number. “RR” refers to the Reporter’s Record, and is followed by the volume number, then page number. “SX” refers to the State’s exhibits, also numbered. "DX" refers to Defense exhibits. 1 REPLY TO ISSUES PRESENTED FOR REVIEW
1) THE TRIAL COURT CORRECTLY RULED THAT SGT. VAN VALEN’S TESTIMONY WAS NOT CREDIBLE AND THUS SGT. VAN VALEN LACKED REASONABLE SUSPICION TO CONDUCT A TRAFFIC STOP BASED ON THE NO-HEADLIGHTS VIOLATION
2) THE TRIAL COURT CORRECTLY RULED THAT SGT. VAN VALEN’S TESTIMONY WAS NOT CREDIBLE AND THUS SGT. VAN VALEN LACKED REASONABLE SUSPICION TO CONDUCT A TRAFFIC STOP BASED ON OTHER ALLEGED VIOLATIONS
2 STATEMENT OF FACTS
On December 21, 2014, El Paso Police Sergeant John Van Valen (“Van
Valen”), while in the course of patrol, pulled over Tabares’ vehicle at the 1600
block of North Zaragosa in El Paso, Texas. (RR:7-9); (CR:8). Following the stop,
Tabares was arrested for allegedly driving while intoxicated with a blood alcohol
concentrate of 0.15 or more. (CR:8-9).
On January 9, 2015, the Office of the El Paso County Public Defender was
appointed to represent Tabares on the matter. (CR:11-13). On March 19, 2015,
Tabares was arraigned. (CR:34). On June 13, 2017, Tabares filed both a motion
to suppress confession or statements and a motion to suppress evidence, asking the
court to exclude the State’s evidence on the grounds that it was obtained
unlawfully because Tabares was pulled over without probable cause and without a
warrant. (CR:48-52; 53-56).
The matter was heard on July 17, 2017, by Judge Jesus Herrera of El Paso
County Criminal Court Number 4. (CR:58). The State called Van Valen to testify
as to the stop and also introduced dash cam video from the patrol car.2 (RR:7-11).
2 For efficiency purposes the Defense will adopt the State’s citation nomenclature. Citation to the dashcam video will be by the real-time timestamps reflected in the upper, right-hand corner of the dash-camera video admitted into evidence. See State’s Exhibit 1 (“SX1”). 3 Van Valen testified he pulled over Tabares for three alleged traffic
violations: (1) not having his taillights on, (2) not having his headlights on, and (3)
making several lane changes without signaling. (RR:17-18). Van Valen testified
that in the course of his stop, and prior to Van Valen activating his lights and siren,
Tabares’ vehicle did not have its tail lights or headlights activated. (RR:15). He
later identified a point during the stop where he alleged that Tabares activated both
his taillights and headlights. (RR:15-16; 20-22). In regards to the violations for not
signaling lane changes, Van Valen clarified that the failure to signal violations
occurred when Tabares’ vehicle allegedly drifted into the center turn lane without
signaling, then drifted to the right, back to the left most northbound lane, again
allegedly without signaling. (RR:19)
In response to questioning from defense counsel, Van Valen acknowledged
that he is trained to observe and record relevant details of a stop in his police report
and, if charges follow, in the complaint affidavit. (RR: 24-25). Van Valen agreed
that if a driver were to turn on his lights halfway through a traffic stop, that it
would be relevant information to include in a traffic stop. (RR:25-26). After taking
a moment to review his report and complaint affidavit, Van Valen admitted that he
did not include that relevant observation in his report or complaint affidavit.
(RR:27-28).
4 In response to questioning from the judge, Van Valen testified that at all
times, he was behind Tabares’ vehicle driving Northbound on Zaragoza; Tabares’
vehicle never passed Van Valen’s and Tabares was not speeding. (RR:34-35). Van
Valen stated that he first noticed that Tabares’ lights were allegedly not on when
Tabares was traveling in the center lane, ahead and to the left, and later when he
saw that there was no illumination on the roadway. (RR:36). He acknowledged he
was at least half a block in distance from the vehicle at the time. (RR:36). He
stated that the video did not capture all of his observations of Tabares’ vehicle,
even though it starts thirty seconds before Van Valen activated his lights and siren.
(RR:34-35). He indicated that in those more than thirty seconds that he followed
Tabares’ vehicle, they travelled for at least half a block. (RR35-36).
He acknowledged that someone driving at 5:00 am without tail lights or
headlights would be driving in an unsafe manner. (RR:29). He identified other
vehicles on the road at the same time travelling southbound. 3 He admitted that
despite the alleged threat to other vehicles on the road, he waited at least thirty
seconds to turn on his lights and siren to pull Tabares’ vehicle over. (RR:31).
The dash cam introduced into evidence by the State provides a clear view of
the stop. Tabares can be seen driving northbound on Zaragoza, with Van Valen
3 The State conceded that there were other vehicles in the vicinity and that driving without taillights or headlights on could be unsafe for other vehicles. (RR:30-31). 5 several car lengths behind him. See SX1 at 05:05:27-5:05:50. Van Valen is at least
half a block away from Tabares’ vehicle at the outset. See SX1 at 05:05:27. At the
location where the stop occurred, Zaragoza is a 5 lane street, with two streets each
running north and south, and a center dividing lane reserved for left hand turns.
See generally SX1 at 05:06:05-05:06:10. Tabares is driving in the left-most
northbound lane. See generally SX1.
Van Valen follows Tabares approximately thirty seconds before activating
his sirens. See SX1 at 05:05:27-5:05:55. In that time, Tabares’ vehicle does not
change lanes. See SX1 at 05:05:27-5:05:55. Tabares remains in the left-most
northbound lane for the entirety of the relevant time. See SX1 at 05:05:27-5:05:55.
At some point during the stop, Tabares’ vehicle safely drifts within its own lane.
See SX1 at 05:05:37-05:05:40.
Tabares’ tail lights become more clearly illuminated as Van Valen closes the
distance between the vehicles when Tabares engages and then disengages the
brakes of his vehicle.4 See SX1 at 05:05:43-05:05:51.
Van Valen activates his siren. See SX1 at 05:05:55. Tabares first signals a
right lane change but then changes his mind and signals and turns left, first into the
4 The State conceded that at this point in the video, the taillights “are more illuminated now” than they were “two seconds ago.” (RR:21); SX1:05:05:40-05:05:44). Van Valen testified that the image of the video depicting the moment he testified corresponded to Tabares turning on the tail lights and that defense counsel questioned regarding the engagement of Tabares’ vehicle’s brake lights was “distorted” and that it was “hard for [him] to tell] because [i]t looks like one continuous bar . . . on the back of the trunk.” (RR:22-24); (SX1 at 05:05:41-05:05:47). 6 center turn lane and then into an Auto Zone parking lot. See SX1 at 05:05:57-
05:06:08. As the car turns into the parking lot, Tabares’ headlights and tail lights
are clearly on. (RR:22-24); (SX1 at 05:06:28).
Following testimony by Van Valen and the presentation of the evidence, the
trial court issued the following pronouncement on the motion:
These are [the] Court’s finds of fact. That the defendant was stopped on or about the 21st of December, 2014, at approximately 05:05. Five o’clock in the morning. That the defendant was stopped pursuant to an allegation made that lights – headlights or taillights – were noticeably off on the vehicle that the defendant was driving, northbound on Zaragoza Boulevard, in El Paso County, Texas. After the conclusion of the evidence, these are the findings – conclusions of law, rather. Oh, no. Findings of fact. I find it very, very difficult to put all my eggs in the basket of the credibility of this sergeant, police sergeant. … I’m going to grant the motion to suppress. Quite frankly, I find the credibility of this police officer in question. Court taking notice of the video involved, and the discrepancy between what is obviously on the video and what is on the affidavit, and what he states and his lack of – or inability to explain how he was able to see the headlights being on or off at the distance that, at least from what I could see on the video, was likely, possible. Therefore, I’m going to grant the motion to suppress. I don’t think there was sufficient cause to stop. (RR:37-38).
7 SUMMARY OF THE ARGUMENT
1. The evidence supports the trial court’s conclusion that Sgt. Van Valen lacked
reasonable suspicion in conducting a traffic stop of Tabares.
2. The evidence and the record show that the trial court found the testimony of Sgt.
Van Valen lacked credibility in regards to all parts of his testimony.
3. Specifically, the trial court found that Sgt. Van Valen’s testimony was contrary
to what was depicted in the video evidence played at the Motion to Suppress.
4. The trial court determined that Sgt. Van Valen’s testimony in particular about
the headlights was so contrary to the video evidence that it called into question Sgt.
Van Valen’s credibility in regards to the other alleged violations.
5. The trial court is due near total deference in its evaluation of the credibility and
demeanor of Sgt. Van Valen.
6. Based on the record and the evidence, this court should affirm the trial
court’s ruling granting Tabares’ Motion to Suppress the basis of the traffic stop.
8 ARGUMENT
1. RESTATEMENT OF FIRST ISSUE: THE TRIAL COURT CORRECTLY RULED THAT SGT. VAN VALEN’S TESTIMONY WAS NOT CREDIBLE AND THUS SGT. VAN VALEN LACKED REASONABLE SUSPICION TO CONDUCT A TRAFFIC STOP BASED ON THE NO-HEADLIGHTS VIOLATION
a. Standard of Review
Generally speaking, the rulings of a trial court are presumed to be correct
and the appellant must affirmatively show the existence of error. Hardin v. State,
471 S.W.2d 60, 63 (Tex. Crim. App. 1971). A trial court’s rulings on a motion to
suppress evidence are analyzed using a bifurcated standard of review. State v.
Steelman, 93 S.W.3d 102, 107 (Tex. Crim. App. 2002) (citing Romero v. State, 800
S.W.2d 539, 543-44 (Tex. Crim. App. 1990)); State v. Ross, 32 S.W.3d 853, 856
(Tex. Crim. App. 2000); Robuck v. State, 40 S.W.3d 650, 654 (Tex. App.--San
Antonio 2001, pet. ref’d); Burke v. State, 27 S.W.3d 651, 654 (Tex. App.--Waco
2000, pet. ref’d). In Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997),
the Court of Criminal Appeals identified three different types of appellate issues to
identify the proper standard of review: (1) “historical facts that the record supports
especially when the trial court’s fact findings are based on an evaluation of
credibility and demeanor;” (2) “application of law to facts, also known as mixed
questions of law and fact, the ultimate resolution of those questions turns on an
9 evaluation of credibility and demeanor;” and (3) “mixed questions of law and fact
not falling within [the second] category.”
Guzman instructs appellate courts to give deference to the trial court’s
determination, expressed or implied, of historical facts, if supported by the record,
and generally will review de novo the court’s application of the law to the facts.
Ross, 32 S.W.3d at 856; Carmouche v. State, 10S.W.3d 323, 329 (Tex. Crim. App.
2000); Burke, 27 S.W.3d at 654. The trial court’s legal ruling will be upheld if it is
correct on any theory of the law applicable to the case, even if the trial court gives
the wrong reason for its opinion. Romero, 800 S.W.2d at 543. The same amount of
deference applies to a trial court’s rulings on “mixed questions of law and fact,” if
the resolution of those ultimate questions turns on an evaluation of credibility and
demeanor. Guzman, 955 S.W.2d at 89; Ross, 32 S.W.3d at 856.
An appellate court is not required to give deference to the legal ruling of the
trial court and is not bound by an improper legal ruling. These “mixed questions of
law and fact not falling within [the second] category” are entitled to de novo
review and is limited to questions of law or mixed questions of law and fact that do
not depend upon the determinations of credibility and demeanor. Guzman, 955
S.W.2d at 89.
A reviewing court must indulge every presumption in favor of the regularity
of the procedures in the trial court. McCloud v. State, 527 S.W.2d 885, 887 (Tex.
10 Crim. App. 1975). Appellate courts should view the evidence in the light most
favorable to the trial court’s ruling. Guzman, 955 S.W.2d at 89 (internal citation
omitted). “The winning side is afforded the ‘strongest legitimate view of the
evidence’ as well as all reasonable inferences that can be derived from it.” State v.
Duran, 396 S.W.3d 563, 570 (Tex. Crim. App. 2013), quoting State v. Weaver, 349
S.W.3d 521, 525 (Tex. Crim. App. 2011). Thus, absence of direct proof of their
falsity, the trial court recitations in the records are binding. Brezeale v. State, 683
S.W.2d 446, 450 (Tex. Crim. App. 1984) (opinion on rehearing).
b. Application
Because Tabares was stopped without a warrant and without his consent, the
State had the burden of proving the reasonableness of the stop. See Castro v. State,
227 S.W.3d 737, 741 (Tex. Crim. App. 2007); Young v. State, 133 S.W.3d 839,
841 (Tex. App.--El Paso 2004, no pet.). A police officer is justified in detaining a
motorist when, based on the totality of the circumstances, the officer has specific
articulable facts, together with rational inferences from those facts, that lead him to
conclude that the motorist is, has been, or soon will be engaged in criminal
activity. See Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889
(1968); Woods v. State, 956 S.W.2d 33, 38 (Tex. Crim. App. 1997). An officer
may lawfully stop and detain a person for a traffic violation that the officer
witnesses. See Garcia v. State, 827 S.W.2d 937, 944 (Tex. Crim. App. 1992). The
11 decision to stop an automobile is reasonable when an officer has probable cause to
believe that a traffic violation has occurred. Whren v. United States, 517 U.S. 806,
810, 116 S.Ct. 1769, 1772, 135 L.Ed.2d 89 (1996); Walter v. State, 28 S.W.3d 538,
542 (Tex. Crim. App. 2000).
The trial court ruled that Van Valen lacked reasonable suspicion to stop
Tabares because it found that Van Valen was not credible. As previously
discussed, the trial court’s credibility assessment would typically be, and is,
entitled to near total deference. However, the State insists that the trial court is not
entitled to deference on its rulings for two reasons. It argues that “to the extent that
the trial court based its ruling on a determination of fact that Sgt. Van Valen did
not observe Tabares’ failure to display his headlights, such a determination is
unsupported by the record in two respects[:]” 1) Van Valen provided a basis for his
observation (residual illumination on the road) and 2) the video corroborates Van
Valen’s testimony that Tabares’ vehicle did not have its head lights on prior to
initiation of the traffic stop. App.’s Brief at 12-13. Consequently, the State argues,
that traffic violation alone was sufficient to establish reasonable suspicion to pull
Tabares over. In brief, the State’s argument simply boils down to its insistence that
the video indisputably corroborates Van Valen’s version of events and thus the
Court should apply a de novo standard of review.
12 The State cherry picks legal holdings without explaining how the facts in
those cases support the circumstances in this case. See App.’s Brief 11-12. In fact,
several of the cases cited by the State actually support the position that the trial
court’s ruling is due near total deference. In Duran, the trial court granted a motion
to suppress for the defendant that turned on a credibility issue where the trial courts
conclusion was, apparently, in contradiction to what the State insisted was depicted
in the video evidence. Duran, 396 S.W.3d at 568. The State appealed and the
appeals court reversed the trial court. Id. The Criminal Court of Appeals, however,
sided with the trial court and ruled that the “same deferential standard of review
‘applies to a trial court’s determination of historical facts [even] when that
determination is based on a videotape recording admitted into evidence at a
suppression hearing.’” Id. at 570. It further held that “[a]lthough appellate courts
may review de novo ‘indisputable visual evidence’ contained in a videotape, the
appellate court must defer to the trial judge’s factual findings on whether a witness
actually saw what was depicted on a videotape or heard what was said . . . .” Id. at
570-71 (citations omitted). It distinguished Miller v. State, 393, S.W.3d 255 (Tex.
Crim. App. 2012)5 by stating that in that case, the trial judge’s findings “were
contradicted by [recorded] events” that did not involve an evaluation of
credibility.” Id. at 573. In other words, de novo review of the trial court’s
5 Also cited in support without discussion by State. See App.’s Brief 11-12. 13 application of the law to the historical facts is permissible only if the facts are not
dependent upon determinations of credibility and demeanor of the involved
witness.
Another case cited by the State without discussion is instructive on how this
Court has dealt with credibility assessments related to video evidence of the stop. 6
See State v. Vasquez, No. 08-13-00079-CR, 2015 Tex. App. LEXIS 2543 (Tex.
App.--El Paso 2015, pet. ref’d) (not designated for publication). In Vasquez, the
State again argued that the trial court’s findings were not entitled to almost total
deference in its ruling. Id. at *7. In Vasquez, an officer had pulled over a
motorcyclist for purportedly driving in a manner that the officer, through his
training and experience, identified with intoxicated driving, including driving on
the shoulder, weaving in the lane and operating the motorcycle with only one hand.
Id. at *1-3. A video recording was introduced at the hearing that disproved some of
the officer’s observations, specifically that the motorcycle never entered the
shoulder of the road. Id. at *3. Based on that inconsistency, the trial court found the
officer’s testimony not credible, holding that “[t]he video does not confirm, and
may actually refute, the [officer’s] claims.” Id. at *5. The trial court granted the
motion to suppress and the State appealed. Id.
6 See App.’s Brief 11-12. 14 On appeal, this Court ruled that the correct standard of review was near total
deference because “the recording does not indisputably contradict the trial court’s
findings . . . .” Id. at *11. The Court reasoned that the trial court was justified in
finding the officer’s testimony not credible because
the video recording contradicted some of the events he claimed justified stopping [the defendant], and the recording does not indisputably negate the trial court’s findings. Thus, the trial court reasonably could have disbelieved, and was entitled to disbelieve, the portion of [the officer’s] testimony that, based on his experience, he had a reasonable suspicion [the defendant] was intoxicated. Because we are not in a better position than the trial court to assess factual issues turning on credibility, and because the record supports rather than indisputably negates the trial court’s factual findings, we defer to the trial court’s resolution of this issue.
Id. at *8.
Case after case supports the proposition that the trial court’s ruling should be
entitled to near total deference. See Carter v. State, 3 309 S.W.3d 31, 40 (Tex.
Crim. App. 2010) (providing that “a trial court’s determination of historical facts
based on a videotape recording is still reviewed under a deferential standard”);
State v. Gendron, 2015 Tex. App. LEXIS 1334, 2015 WL 632215, at *7-10 (same,
discussing the law). In Gendron, another case decided by this Court, the arresting
officer testified that he pulled over the defendant motorist after observing the
motorist swerving from lane to lane at least five times over a two mile distance and
that other drivers were placed in danger. Gendron, 2015 Tex. App. LEXIS 1334 at
15 *3-4. In the course of cross examination and following the playing of the dash cam
recording of the stop, the officer acknowledged that the motorist only crossed lanes
“once or twice” rather than the five times he had testified earlier and conceded that
traffic was light and that at some points the motorist was not endangering anyone.
Id. at *4-5. The trial court ruled that at most it noticed slight weaving within a lane,
and not even the crossing of lanes “once or twice” that the officer had
compromised on. Id. at *6. The court also found that the video did not support the
officer’s testimony regarding the danger the motorist placed other drivers in
because traffic was light. Id. Because the trial court found the dash cam did not
support the officer’s claims, and in fact contradicted them, it found his testimony
not credible and granted the motion to suppress based on lack of reasonable
suspicion. Id. The trial court was upheld on appeal. See id. at *16, 18.
Similarly in this case, the trial court reviewed the video multiple times and
even questioned Van Valen directly to assess for itself how Van Valen could have
seen the lack of headlight illumination of Tabares’ vehicle. (RR:33-36). In
response to the trial court’s questioning, Van Valen stated he knew Tabares’
headlights were off “by the lack of illumination on the roadway,” even though Van
Valen admitted that throughout the time he was aware of Tabares’ vehicle, Van
Valen was behind Tabares’ vehicle, his own vehicle was never passed by Tabares
on the road, and Van Valen was at least half a block length in distance. (RR:36).
16 The trial court clearly did not find Van Valen’s answer satisfactory because it was
the very last question posed to Van Valen and the trial court promptly ruled in
favor of Tabares. (RR:36-38). Moreover, Van Valen acknowledged that he did not
include in his complaint affidavit the relevant fact that Tabares allegedly turned on
his headlights in the course of the stop. (RR:27-28).
In a motion to suppress hearing, 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.
Ross, 32 S.W.3d at 855. Because the trial court observes first-hand the demeanor
and appearance of a witness, as opposed to an appellate court which can only read
an impersonal record, the judge may believe or disbelieve all or any part of a
witness’s testimony, even uncontroverted. Id. Here, it is clear that the trial court
disbelieved Van Valen’s testimony. Because the State’s appellate issue involves
the trial court’s application of the law to the facts, and it turns on an evaluation of
the credibility and demeanor of Van Valen--whether Van Valen could have
observed the headlights on from his position on the road—the trial court is entitled
to near total deference of its ruling. As in Duran, as in Vasquez, and as in Gendron,
this Court should uphold the trial court’s ruling.
17 2. RESTATEMENT OF SECOND ISSUE: THE TRIAL COURT CORRECTLY RULED THAT SGT. VAN VALEN’S TESTIMONY WAS NOT CREDIBLE AND THUS SGT. VAN VALEN LACKED REASONABLE SUSPICION TO CONDUCT A TRAFFIC STOP BASED ON OTHER ALLEGED VIOLATIONS
In its second point of error, the State doubles down on its argument that the
video indisputably supports Van Valen’s testimony and argues that even if the trial
court did not believe Van Valen as to whether or not Tabares’ headlights were
activated, Van Valen was still authorized to pull over Tabares for the other
offenses cited in his complaint affidavit: lack of tail lights and failing to signal
when allegedly changing lanes. App.’s Brief at 21-25.
The State runs into the same legal principle as it did on its first point of
error. The trial court is entitled to near total deference in regards to facts that turns
on its credibility assessment. The trial court clearly found Van Valen’s testimony
in regards to the alleged lack of headlight violation was so untrustworthy, that it
disbelieved the officer’s claims related to the other offenses. Although the trial
court’s facts and findings and conclusions of law did not explicitly address the
other violations, the trial court was clear that it found it “very, very difficult to put
all my eggs in the basket of the credibility” of Van Valen. (RR:38).
The trial court implicitly discredited Van Valen’s alleged observations in
regards to the other alleged offenses when it made its ruling. See Weaver, 349
18 S.W.3d at 525 (upholding a suppression ruling on the basis of an implicit factual
finding). Van Valen clearly identified the reasons for his stop both in direct
examination and in cross. See (RR:8, 17-19). The questioning from both the State’s
prosecutor and defense counsel touched on all three alleged violations. 7 In regards
to the tail lights, during the course of the State’s direct examination, the trial court
commented that Tabares’ taillights “seem to be on.” (RR;14). When defense
counsel asked if Tabares could possibly be engaging the brake, and thus
illuminating the brake lights at the point where Van Valen testified Tabares turned
on his lights, see (RR:15), Van Valen testified that the video was “distorted” and
that it was “hard for [him] to tell] because [i]t looks like one continuous bar . . . on
the back of the trunk.” (RR:22-24); (SX1 at 05:05:41-05:05:47). Regardless, Van
Valen acknowledged that both the headlights and taillights were activated and
working properly by the time Tabares’ vehicle came to a stop. (RR:24). The trial
court could have reasonably inferred that Tabares’ taillights were activated
throughout the entire stop when it discredited Van Valen’s testimony in regards to
the headlights. See Golleher v. Herrera, 651 S.W.2d 329, 333 (Tex.App.--Amarillo
1983, no pet.) (where witness agreed that the taillights could not be turned on
7 In response to the State’s prosecutor asking what violations he saw Tabares commit, Van Valen answer, “What I observed is that the vehicle wasn’t operating with its headlamps or tail lamps, and that it was changing lanes without signaling.” (RR:8). In response to defense counsel summarizing his earlier testimony and seeking clarification, Van Valen agreed that he pulled over Tabares for lack of taillights, lack of headlights, and failure to In regards to the violations for not signaling lane changes, Van Valen clarified that the failure to signal violations occurred when Tabares’ vehicle allegedly drifted into the center turn lane without signaling, then drifted to the right, back to the left most northbound lane, again allegedly without signaling. (RR:17-19) 19 without turning on the headlights, testimony that the taillights were burning
provided a basis for a reasonable inference that the headlights were also on).
In regards to the alleged lane changing without signaling, Van Valen
testified both in direct and cross to specific portions of the video showing the
alleged violations. (RR: 15, 32-33; SX1 at 05:05:37-05:05:40). Van Valen
acknowledged that during that portion of the video, the vehicle was difficult to see
in the video. (RR:12) (stating that “[t]he vehicle is still ahead of me, but it’s dark
because of the no taillights.”). In response to questioning from the trial court, Van
Valen reiterated that Tabares was first observed in the center lane to his left.
(RR:36).
The trial court clearly knew that both the taillights and alleged lane changing
without signaling were issues of contention and alleged reasons for the traffic stop.
The trial court implicitly found those allegations not credible. It should not allow
the State to have another bite of the apple as to the credibility of Van Valen simply
because it disagrees with the trial court’s reasonable conclusion. As this Court
stated in Vasquez, “trial courts are vested with the function of determining
historical facts; the fortuity of a video should not entitle the loser, whoever that
may be, to a de novo review by three, or nine, more sets of eyes.” Vasquez, 2015
Tex. App. LEXIS 2543 at *9. The trial court already determined that Van Valen’s
testimony in particular about the headlights was so contrary to the video evidence 20 that it called into question his credibility in regards to the other alleged violations.
Thus, under Weaver, this Court should uphold the trial court’s implicit finding of
fact in regards to the alleged lack of taillights and alleged lane changing without
signaling.
CONCLUSION
The trial court is due near total deference in its evaluation of the credibility
and demeanor of Sgt. Van Valen when he testified at the hearing for Tabares’
motion to suppress. Contrary to the State’s position, the trial court did address and
rule on all of the alleged traffic violations. The trial court reviewed the video
multiple times and listened to Sgt. Van Valen’s testimony, even posing its own
questions to the officer to give him an opportunity to address the trial court’s
concerns about what Sgt. Van Valen testified to and what was depicted in the
video.
Contrary to the State’s insistence, the video evidence does not corroborate
Sgt. Van Valen’s testimony. After carefully reviewing the video evidence multiple
times and listening to the testimony of Sgt. Van Valen, the trial court explicitly
ruled that Sgt. Van Valen was not a credible witness in regards to his justifications
for initiating a traffic stop of Tabares. In fact, the trial court determined that Sgt.
Van Valen’s testimony in particular about the headlights was so contrary to the
21 video evidence that it called into question Sgt. Van Valen’s credibility in regards to
the other alleged violations.
The record and the evidence supports the trial court’s conclusion that Sgt.
Van Valen lacked reasonable suspicion in conducting a traffic stop of Tabares.
Thus, this Court should affirm the trial court’s ruling granting Tabares’ motion to
suppress the basis of the traffic stop.
PRAYER FOR RELIEF
Mr. Tabares prays that this Court affirm the Motion to Suppress granted by
the Honorable Judge Jesus Herrera, El Paso County Criminal Court Number 4.
EL PASO COUNTY PUBLIC DEFENDER
BY:/s/ Octavio A Dominguez OCTAVIO A DOMINGUEZ ASSISTANT PUBLIC DEFENDER State Bar No. 24075582 500 E. San Antonio, Room 501 El Paso, Texas 79901 odominguez@epcounty.com (915) 546-8185, x 3528 Fax: 915-546-8186
22 CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the fore-going Brief for the Appellant was sent by e-mail using the E-serve system to the District Attorney’s Office, 500 E. San Antonio Room 201, El Paso, Texas 79901 and mailed to the Appellant JESUS TABARES on this the 30th day of May, 2018.
BY:/s/ Octavio A Dominguez OCTAVIO A DOMINGUEZ
CERTIFICATE OF COMPLIANCE
Undersigned counsel herein states that the computer generated word count is 5806 and as such this document is in compliance with the Texas Rules of Appellate Procedure.