COURT OF A PPEAL S EI GHTH D I STRI CT OF TEX AS ELPASO, TEXAS

RI CHARD NEAL

MCDUFF , Appellant,

v. THE STATE OF TEXAS, Appellee

. § § § § § § No. 08-10-00104- CR

Appea l from 271st District Court of Wise County , Texas (TC # CR15047)

O P I N I O N Richard Nea l McDuff appea ls from a conviction of felony driving while intox icated. A jury found Appellant g uilty and assessed his punishment at a fine of $5,000 and imprisonment for eig ht y ear s. We affirm. F ACTUAL SUMMA RY On October 14, 2008, Roy ce Gastinea u I I I , who is a police office r employ ed by the City of Dec atur, was on p atrol in Dec atur when he saw a vehicle driven by Appellant. Gastinea u enter ed the license plate n u m b er i n t o the MBT computer terminal in his patrol car and lear ned that the regi s t ra t i o n had expired in November of 2007. Consequently , Gastinea u initiated a traff

ic stop. Gastinea u approa ched the vehicle and observe d t h at Appellant display ed signs of intox ication including bloodshot and watery ey es. Gastinea u co u ld smell the odor of an alcoholic bevera g e in the vehicle and he found two open container s. At Gastinea u’s reque st, Appellant exit ed the vehicle. Gastinea u could smell the odor an alcoholic bever ag e on Appellant’s brea th and Appellant admitted that he had consumed two beer s ear lier in the evening

. Gastinea u administered three field sobriety tests, the horizontal g aze ny stag mus test, the walk-a nd-turn, an d the one-le g stand. Appellant’sperf

ormanc e of eac h test indicated intox ication. Ba sed on his training and experience , Gastinea u conclude d that Appellant had lost the normal use of his mental and phy sical fac ulties and he place d him under ar

rest for driving while intox icated. Prior to trial, Appellant filed a motion to suppress alleg ing that the State had not offe red any evidenc e during discovery to verify that the vehicle reg istration was expired at the time of the traff ic stop. The trial court did not conduct a pretria l evidentiar y hear ing on th e m o t i o n but overr uled it afte r hear ing the arg um en t s o f co u n sel. At trial, Appellant reur g ed his motion to suppress when Gastinea u testified about running the license plates throug h the MBT computer terminal in the patrol

car . Appellant also raise d a hea rsay objection to Gastinea

u’s testimony

reg arding the re sult of the vehicle reg istration chec k. The trial court overr uled the objection and g rante d Appellant’s reque st for a running objection to Gastinea u’s testimony

and the e vidence seized. MOTION TO S UP P RESS I n his sole issue, Appellant conte n d s that the trial court err ed by deny ing his motion to suppress beca

use the a rre sting off

icer did not have author ity

to stop the vehicle. Appellant arg ues t h at the State failed to offe r proof, other than Gastinea u’s hear say statement, that the veh i cl e’ s reg istration had expired. Standard of Review We revie w the trial court’s ruling on a motion to suppress for abuse of discretion. Shepherd v. Stat e , 273 S

. W .3d 681, 684 (Tex.Crim.App. 2008). At a suppression hear ing, the trial judge is the sole trier of fac t and judge of cre dibilit y of the witnesses and the weig ht t o b e gi v en to their testimony

. St. George v. State , 237 S.W .3d 720, 725 (Tex.Crim.App. 2007). As such, the trial judge may choose to acc ept or reje ct any or all of the testimony offe red. Amador v. State , 221 S.W .3d 666, 673 (Tex.Crim.App. 2007); Peralta v. State , --- S.W .3d

--- -, 2010 WL 4851388 (Tex.App.--El Paso2010, no pet.). We g ive almost total defe renc e to a trial court’s express or implied deter mination of historical fac ts and revie w de novo the court’s application of the law of sear ch and seizure to those fact s . Shepherd , 273 S.W .3d at 684. When, as here , the trial court makes no expli cit finding s of fac t, all evidenc e is viewed in the light most favor able to the trial court’s ruling

. Torres v. State , 182 S.W .3d 899, 902 (Tex.Crim.App. 2005). Briefing Deficienc

y I n this issue, Appellant relies on both the Four th Amendment and Article I , Section 9 of the Texas Constit ution but he does no t i n cl u d e arg ument or authority explaining how the protec tion provided by the Texas Constit ution differ s from the prot ec t ion provided by the United States Constit ution. State and fe dera l constitutional claims should be arg ued in separ ate g rounds, with separ ate substantive analy sis or arg ument prov i d ed fo r ea ch g round. Muniz v. State , 851 S.W .2d 2 3 8 , 2 5 1

- 5 2 ( T e x. Cr im.App. 1993); Heitman v. State , 815 S.W .2d 681, 690-91 n. 23 (Tex.Crim.A p p . 1991). Be cause Appellant has inadequa tely briefe d th e portion of the issue rela ted to Article I , Section 9, nothing is prese nted for our re v i ew. See Muniz , 851 S.W .2d at 251-52; T E X .R.A P P .P. 38.1(I ). Our a

naly sis is t here fore restric ted to the Four th Amendment. The Reporter’s Re cord The trial court did not conduct an evidentiar y pretria l hear ing on the motion to suppress but denied the motion afte r hear ing arg ument. The parties relitig ated the suppression issue at trial and the court overr

uled Appellant’s objections af t er h ear ing the evidenc e. I n revie wing a trial court’s ruling on a motion to suppress, we g ener ally co n s ider only evidenc e adduce d at the suppression hear ing, since t he ruling i s g ener ally based on tha t evidenc e, rather than evidenc e int roduce d later in the trial. Gutierrez v. State , 221 S.W .3d 680, 687 (Tex.Crim.App. 2007). I f the suppression issue

was relitig ated at trial, howeve r, we consider the trial evidenc e as well. See Gutierrez , 221 S.W .3dat 687; Rachal v. State , 917 S.W .2d 799, 809 (Tex.Crim.App. 1996). There fore , we will consider

the trial testimony

in our ana ly sis.

Reasonablene

ss of the Traf

fic Stop The Transportation C ode provides that a per son commits an offense if the per son opera tes

a passeng er car on a public high wa y t h at d o es not display two license plates (1) assig ned by the depar tment for that period or (2) validated by a reg istration insignia issued by the depa rtment that establishes the vehicle is reg istered for the reg istration period. T E X .T R A N S P .C O D E AN N . § 502.404 (West Supp. 2010). I f a police office r observe s a person committing a traff ic violation, the office r may arr est the per son without a warr ant. T E X .T R A N S P .C O D E AN N . §543.001 (West 1999). When a police office r signa ls that a driver should stop a moving vehicle, and in response , the driver actua lly stops the vehi cl e, t h en the driver and all passeng ers inside the vehicle have been seized under the Four

th A mendment. Arizona v

. Johnson , 555 U.S. 323, 129 S.C t. 781, 784, 788, 172 L .Ed.2d 694 (2009); Berke mer v. McCarty , 468 U.S. 420, 436-37, 104 S.Ct

. 3138, 3148, 82 L .Ed.2d 317 (1984). Conseque ntly , the traf fic stop must be rea sonable. U.S. C O N S T . A M E N D . I V; T E X . C O N S T . art. I , § 9; Francis v. State , 922 S.W .2d 176, 178 (Tex.Crim.App. 1996). A ro u t i n e traff ic stop closely rese mbles an investiga tive detention. Zervos v. State , 15 S.W .3d 146, 150 (Tex.App.--Te x arka

na 2000, pet. ref

’d), citing Berke mer , 468 U.S. at 436-37, 104 S.Ct

. at 3148. I t ty pically involves only a s h o rt , i n vestig ative detention, as opposed to a custodial arr est. See Berke mer , 468 U.S. at 436-37, 104 S

. C t. at 3148. We analy ze the validity of the stop under the principles applicable to an investiga tive detention or Terry stop. See Martinez v. State , 236 S.W .3d 1 361, 369 (Tex.App.--F ort Worth 2007, pet. di sm’d untimely filed) ; P er a l ta , --- S.W .3d

--- -, 2010 WL 4851388 at *6.

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. 1An office r conducts a lawful tempora ry d et en t ion when he has rea sonable suspicion to

believe that an individual is violating the law. Ford v. State , 158 S.W .3d 488, 492 (Tex.Crim.App. 2005). Reasonable suspicion exis ts if the office r has specific , articula ble fac ts that, when combined with rational inferenc es from those fac ts, wo u l d l ea d him to rea sonably conclude that a particular person actually is, has been, or soon wil l be eng ag ed in cr iminal activity

. Id. This is an objective standard that disreg ards any subjective intent of the office r making the stop and looks solely to whether an objective basis for the stop exis ts. Id. A rea sonable-suspicion deter mination is made by considering the totality

of the c ircumstance s. Id. at 492-93. Offic er Gastinea

u testified that he stopped the vehicle Appellant was driving afte r rec eiving information provided by his on-boar d computer terminal that the vehicle reg istration had expired in November of 2007. Appellant arg ues t hat t he S t at e failed to prove that Appellant had committed

a traff ic violation beca

use it did not offe r any evidenc e to substantiate Gastinea u’s hear say testimony reg arding the expired reg istration. But the State is not require d to prove that the defe ndant actua lly violated a particula

r statute in orde r to e stablish rea sonable suspicion or probable cause . McQ uarters

v. State , 58 S.W .3d 250, 255 (Tex.App.--F ort Worth 2001, pet. ref ’d). The State is only require d to elicit testimony that the office r k n ew sufficie nt fac ts to rea sonably suspect that the defe ndant had violated a t ra ff

i c l aw . McQ uarters , 58 S.W .3d at 255. Hea rsay is g ener ally admissible in a suppression hear ing. See Granados v. S t a t e , 85 S.W .3d 217, 227 (Tex.Crim.App. 2002); T E X .R.E V I D . 104(a)

. Even if the State could not rely on hear say to establish rea sonable suspicion,

an office r’s testimony reg arding a vehicle reg istration chec k, like testimony reg arding a driver ’s license chec k, is admissible under the public rec ords exception. T E X .R.E V I D . 803(8); see Nieschwietz v. State , No. 04-05-00520- CR, 2006 WL 1684739 at *6 (Tex.App.--San Antonio 2006, Nov. 8, 2006, pet. ref

’d)( office r’s testimony reg arding drive r ’ s li c e n s e c h e c k admissible under publicrec ords exception); Price v. State , No

. 0 8 -0 1-00073-CR, 2002 WL 471343 at *6-7 (Tex.App.--

El Paso Marc h 28, 2002, pet. ref ’d)( not desig nated for publication)(of fice r’s testimony reg arding driver’ s license chec k on computer was admissible under public rec ords exception); see also Smith v. Stat e , 895 S.W .2d 449, 455 (Tex.App.--Da llas 1995, pet. ref’d)( defe ndant’s drivi n g rec ord and order suspending driver’ s license a re a dmissibl e under public rec ords exception); Tanner v. State , 875 S.W .2d 8, 9-10 (Tex.App.--Houston [1st Dist.] 1994, pet. ref ’d)( same). F u

r ther, the information provided to an office r by a computer return can by i t s el f s u p p o rt a deter mination of rea sonable suspicion. See Kelly v. State , 721 S.W .2d 586, 587 (Tex.App.--Houston [1st Dist.] 1986, no pet.)(of fice r had rea sonable suspicion to stop vehicle wher e he ran vehicle’ s license plates on

co m puter in patrol car and rec eived err oneous information that the vehicle had been repor ted as stolen). The initial stop of the vehicle was rea sonable beca use the evidenc e established that Gastinea u had rea sonable suspicion to believe that Appellant was opera ting the vehicle in violation of Section 502.404 of the Tr ansportation Code. The trial court did not er r by deny ing Appellant’s motion to suppress. We overr ule the sole issue on appea l and aff irm the judgme nt of the trial court.

May 11, 2011 ANN CRAWFORD McCL URE, J ustice Be fore Chew, C.J ., McClure, a nd Rivera, JJ

. (Do Not Publish)