### IN THE TENTH COURT OF APPEALS No. 10
- 19
- 00307
- CR THE STATE OF TEXAS , Appellant v. ZACHARY JONES , Appellee

From the 12th District Court Walker County, Texas Trial Court No. 29062

MEMORANDUM OPINION
The State appeals from the trial court’s order granting Zachary Jones’s motion to
suppress. We reverse and remand

. Background Facts Deputy Ryan Dowdy, with the Walker County Sheriff’s Office, testified at the hearing on the motion to suppress that on June 6, 2018, he conducted a traffic stop based on his observation of a defective license plate lamp. Deputy Dowdy explained that theState v. Jones Page 2

vehicle had two license plate lamps; one of the lamps was in w orking order, and one was
not. Deputy Dowdy also observed the vehicle “swaying” from side to side in the la ne ; however, he initiated the traffic stop based on the defective license plate lamp. During the stop, Deputy Dowdy determined that Jones could poss ibl y be
intoxicated so he called for a city police officer to c ome to the scene to investigate

. Jones

was arrested and charged with the offense of driving while intoxicated third offense of more. He filed a motion to suppress the evidence obtained durin g and after the detention. The trial court granted the motion to suppress.
M OTION TO S UPPRESS In the sole issue on appeal, the State contends that the trial court erred in granting the motion to suppress. A trial court's ruling on a motion to suppress is reviewed on appeal for abuse of discretion. State v. Cortez , 543 S.W.3d 198, 203 (Tex. Crim. App. 2018). The record is viewed in the light most favorable to the trial court's determination, and a trial court's ruling should be reversed only if it is arbi trary, unreasonable, or outside the
zone of reasonable disagreement. Id

. We give almost total deference to the trial court's rulings on (1) questions of historical fact, even if the trial court's determination of those
facts was not based on an evaluation of credibility and demeanor; and (2) application

- of

l aw - to

- fact questions that turn on an evaluation of credibility and demeanor. Amador v.
State , 221 S.W.3d 666, 673 (Tex. Crim. App. 2007); Richardson v. State , 494 S.W.3d 302, 304 (Tex. App.

— Waco 2015 , no pet. ) . But when application

- of

- law

- to

- fact questi ons do notState v. Jones Page 3

turn on the credibility and demeanor of the witnesses, such as the determination of reasonable suspicion, we review the trial court's ruling on those questions de novo. Hereford v. State , 3 39 S.W.3d 111, 118 (Tex. Crim. App. 2011); Carmouche v. State , 10 S.W.3d 323, 328 (Tex. Crim. App. 2000). If the trial court makes findings of fact, as it did here, we determine whether the evidence supports those findings. Richardson v. State , 494 S.W.3 d
at 304. We then review the trial court's legal rulin gs de novo unless the findings are dispositive. Id

. We will sustain the trial court's decision if we conclude that the decision is correct under any applicable theory of law. State v. Cortez , 543 S. W.3d at 203.
The Fourth Amendment to the United States Constitution as well as Article I, Section 9 of the Texas Constitution protect against unreasonable searches and seizures conducted by the government. U.S. C ONST . amend. IV; T EX
. C ONST . art. I, § 9. F or Fourth Amendment purposes, a traffic stop is a seizure and must be reasonable to be lawful. Chung v. State , 475 S.W.3d 378, 383 (Tex. App.

— Waco 2014 , pet. ref’d )

. An officer conducts a lawful temporary detention when he has a reasona ble suspicion to believe that a person is violating the law. Derichsweiler v. State , 348 S.W.3d 906, 914 (Tex. Crim. App.), cert. denied , 565 U.S. 840, 132 S.Ct. 150, 181 L.Ed.2d 67 (2011); State v. Varley , 501 S.W.3d 273, 278 (Tex. App.

— Fort Worth 2016 , pet ref’d )

. Th e State does not have to establish with absolute certainty that a crime has occurred but must elicit testimony of sufficient facts to create a reasonable suspicion of a traffic violation. State v. Varley , 501
S.W.3d at 278. The reasonableness of the off ic er's suspicion is gleaned only fromState v. Jones Page 4

information known to the officer at the time of the detention. See Crain v. State , 315 S.W.3d 43, 52

- 53 (Tex. Crim. App. 2010) ; State v. Varley , 501 S.W.3d at 278. The standard is purely objective and does not take int o account the officer's subjective intent. State v. Varley , 501
S.W.3d at 278. Section 547.322 provides in part that: (f) A taillamp or a separate lamp shall be constructed and mounted to emit a white light that: (1) illuminates the rear license plate; a nd (2) makes the plate clearly legible at a distance of 50 feet from the rear. (g) A taillamp, including a separate lamp used to illuminate a rear license plate, must emit a light when a headlamp or auxiliary driving lamp is lighted.
T EX
. T RANSP
. C ODE A NN . § 547.322 (f) (g) (West 2011). In its findings of fact and conclusions of law, the trial court found that the only reason for the stop was that one license plate lamp was not illuminating. The trial court
concluded that a traffic violation does not occur when a vehicle’s headlamp is lighted and simultaneously one of the vehicle’s license plate lamps is emitting a light

. The trial court
further found that Deputy Dowdy was not reasonable in his belief that a traffic violation
had occ urred was occurring or was about to occur and that Deputy Dowdy did not have reasonable trustworthy information sufficient to warrant a reasonable belief that Jones was committing or committed an offense.State v. Jones Page 5

Deputy Dowdy testified that it was a violation of § 547.322 (g) to have a license plate lamp that was not in working order. The trial court found that it was not a violation
of § 547.322 if t he license plate is illuminated by one lamp. The case before us is similar
to that in State v. Varley , 501 S.W .3d 273, 278 (Tex. App.

— Fort Worth 2016 , pet ref’d ) . In State v. Varley , the police officer observed that a brake light on the rear of the vehicle was not working and initiated a traffic stop. State v. Varley , 501 S.W.3d at 276. The officer
testified the statute require s two working brake lights and that he did not consider the brake light in the center of the rear cab window because it was not affixed to the rear of
the vehicle. See T EX
. T RANSP
. C ODE A NN . § 547.323 (West 2011). The trial court found that
there was no r easonable suspicion to stop the defendant because there was a second stop lamp on the vehicle. The trial court noted that the cab could be the rear of the vehicle.
The Fort Worth Court of Appeals found that the defendant did not violate § 547.323
because he had at least one brake light mounted on the rear of his vehicle and two brake lights overall. State v. Varley , 501 S.W.3d at 279. However, the Court held that under
Hei en v. North Caro lina , the officer’s mistake of law was reasonable. Id at 283. Th e court reversed the trial court’s order granting the motion to suppress. Id

. Assuming without deciding that Jones did not commit a traffic violation, pursuant
to He i e n v. North Carolina there was no violation of the Fourth Amendment if it was
reasonabl e for the officer to suspect that the conduct was illegal. Hei en v. North Carolina , 574 U.S. 54, 6 6 (2014). Under Heien , if Deputy Dowdy’s mistake of law wa s reasonable,State v. Jones Page 6

then the trial cour t erred in granting the motion to suppress. See Hei en v. North Car olina , 574 U.S. at 67

. Like the statue in question in Heien , no court has determined whether it is an offense under § 547.322 (g) to have a license plate lamp that was not in working order even though the license plate was illuminated by another licens e plate lamp. Because § 547.322 (f) requires a separate lamp, singular, to illuminate the license plate so that it is legible from a distance of 50 feet , but § 547.322 (g) requir es a separate licen s e plate lamp to illuminate when the headlamps are lighted , w e find that the mistake of law by Deputy Dowdy , if any was made, was reasonable. Therefore, pursuant to Heien we find that the trial court erred by granting the motion to suppress. See State v. Varley , 501 S.W.3d at 283. We sustain the State’s sole i ssue on appeal.
C ONCLUSION
We reverse the trial court’s order granting Jones’s motion to suppress and remand
to the trial court for further proceedings consistent with this opinion.

J OHN E. NEILL Justice Before Chief Justice Gray, Justice Dav is, and Justice Neill Reversed and remanded Opinion delivered and filed September 9, 2020 Do not publish [CR25]