COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

EFRAIN CALLEROS, JR. , Appellant ,

v. THE STATE OF TEXAS , Appellee. § § § § § § No. 08

- 13

- 00 022

- C R

Appeal from the County Court at Law No. 1 of El Paso County , Texas (TC# 20100C11327 )

O P I N I O N Efrain Calleros, Jr. appeals the trial court’s judgment convicting him of misdemeanor
DWI

. See T EX .P ENAL C ODE A NN
. § 49.04 (West Supp. 2014). In one issue, Calleros argues the trial court improperly denied his motion to suppress because the police had no legitimate basis to stop him

. We affirm

.

FACTUAL AND PROCEDURAL BACKGROUND While on patrol in the early morning hours of August 7, 2010, DPS Trooper Oscar Hernandez observed Calleros driving a n oncoming vehicle without a front license plate. Knowing that vehicles registered in Texas must display front and rear license plate s , Hernandez turned around to initiate a traffic stop

. 1 Only after stopping Calleros did Hernandez notice a valid,

1 See Act of May 23, 1995 , 74th Leg., R.S., ch. 16 5 , § 1, 1995 T EX .G EN .L AWS 1025, 1523 (former T EX .T RANSP .C ODE2

temporary buyer’s tag affixed to the vehicle where a rear license plate would h ave been displayed. Hernandez knew it was permissible for a vehicle recently purchased in Texas to display a temporary buyer’ s tag instead of two license plates, and he acknowledged that i f he had seen the tag he would not have stopped Calleros. 2 But Hernandez did not see the tag while pursuing Calleros because of what he described as Calleros’s “ridiculous” and “evasive” driving behavior. In any event, upon stopping Calleros, Hernandez proceeded to question Calleros , which led to Calleros’s arr est for DWI

. After he was charged with DWI, Calleros moved to suppress the evidence obtained during his encounter with Hernandez on the basis, among others, that the traffic stop was unlawful because it “was made without any reasonable suspicion that he w as engaged in criminal activity

. ” At the hearing, Calleros informed the trial court several times that the scope of his motion concerned the “stop alone.” He arg ued Hernandez’s decision to stop him was not sup ported by reasonable suspicion because Hernan dez ascertained “he had one license plate, which is not a violation, which is legal.” Swayed by this argument, the trial court granted the motion. The Stated moved for reconsideration, Calleros objected , 3 and the trial court held a hea ring on the matter. At the hea ring, the trial court announced it had erred in granting the motion. Consequently, the trial court signed an order granting the State’s motion for reconsideration and

A NN
. § 502.404 (West Supp. 2011)(r edesignated as T EX .T RANSP .C ODE A NN
. § 502.473 ) (“A person commits an offense if the person operates on a public highway a during a registration period a passenger car or commercial motor vehicle that does not display two license plates, at the front and rear of the vehicle

. . . .”).

2 See T EX .T RANSP .C ODE A NN
. § 50 3

. 063 (a) , (b)(West Supp. 201 4 )(“ a dealer shall issue to a person who buy s a vehicle one temporary buyer’ s tag for the vehicl e . . . the buyer’ s tag is valid for the operation of the vehicle until the earlier of

. . . the date on w hich the vehicle is registered

. . . or . . . the 60th day after the date of purchase

. )

.
3 In his written response to the State’s motion to reconsider, Calleros asserted the trial court lacked jurisdiction to reconsider its ruling

. In his brief, however, Calleros concedes “ Texas case law gives the trial court authority to do what Judge Herrera did.”3

denying Calleros’s motion to suppress . Calleros requeste d, and the trial court issued, finding s of fact and conclusions of law. Especially pertinent here, the trial court found : (6) Trooper Hernandez

. . . observed a vehicle traveling northbound with no front license plate. This is a traffic offense. Trooper Hernandez activated his unit and proceeded to conduct a stop of defendant’s vehicle based on no front license plate.

. . . (7) The Court believed that the trooper genuinely thought he had observed a traffic violation.

. . . (10) While Trooper Hernandez subsequently determined that the vehicle had a temporary license tag on the rear of said vehicle, he had not initially made that observation, and his stop was predicated simply on not having observ ed a front l icense plate

. Based on its findings, the trial court concluded: (1) It is a traffic violation for an indi vidual to operate a motor vehicle with no front license plate. (2) This was the trooper’s good faith belief that he had observed a traffic violatio n and it wasn’t readily apparent to him that there was in fact a temporary license tag on the Defendant’s vehicle until he had pulled it over

. Calleros subsequently entered into a plea agreement , pled guilty, and received three days’
confinement in the co unty jail. REASONABLE SUSPICION
Th e issue in this case is whether Hernandez had reasonable suspicion to believe C alleros violated Texas law by operating a vehicle without a front license plate . Calleros asserts Hernandez lacked reasonable suspicion to stop him on that basis because Hernandez subsequently determined he was operating a vehicle displaying a valid, temporary buyer’s tag, and Hernandez
therefore did not have a reasonable suspicion that any criminal co nduct was occurring. Calleros4

thus argues the trial court abused its discretion in denying his motion to suppress. W e disagree. Applicable Law A traffic stop const itutes a seizure for purposes of the Fourth Amendment and therefore must be supported by re asonable suspicion that an in dividual was committing or had committed a traffic violation

. Davis v. State , 947 S.W. 2d 240, 242

- 45 (Tex.Crim.App. 1997)(citing and discussing Terry v. Ohio , 392 U.S. 1, 19

- 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968) for this proposition)

. “ Reasonable suspicion exists if the officer has specific, articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably conclude that a particular person actually is, has been, or soo n will be engaged in criminal activity. ” Castro v.
State , 227 S.W.3d 737, 741 (Tex.Crim.App. 2007)

. In determining whether a police officer had reasonable suspicion to initiate a traffic stop, courts must consider the totality of the circumstances and lo ok solely to whether there was an objective basis for the stop. Id

. Standard of Review
I n reviewing the trial court’s ruling on a motion to suppress, we use a bifurcated standard of review to evaluate the totality of the circumstances and determine wheth er reasonable suspicion exists. Abney v. State , 394 S.W.3d 542, 547 (Tex.Crim. App. 2013) . Under that bifurcated standard, we give almost total deference to the trial court’s determination of historical facts supported by the record, but we consider de no vo the trial court’ s application of the law to facts not turning on credibility and demeanor. Id . Further, we employ a similar bifurcated standard w hen,

as here , the trial court makes findings of fact and conclusions of law. First, we determine whether the evidence, when viewed in the li ght most favorable to the court’s ruling, supports its findings.
Id at 548. Second, we review the trial court’s legal ruling de novo unless its explicit fact findings5

supported by the record are also dispositive of the legal ruling. Abney , 394 S.W.3d at 548.
Discussion Under the totality of the circumstances , Hernandez had an objective basis to stop Calleros because he reasonably suspected Calleros was violating the statutory requirement that a vehicle have both a front and rear license plate . It is undisputed that Calleros’s vehicle had no front license plate. When Herna n dez passed Calleros , he was moving in the opposite direction and did not have the opportunity to notice the valid, temporary dealer tag affixed to rear of Calleros’s
vehicle . Nor did Hernandez notice the tag when he turned around and pursued Calleros. It was dark, and Calleros was driving in a “ridiculous” and “evasive” behavior. Only after stopping Calleros did Hernandez ascertain he had not violated any traffic law

. But t he possibility that there was no violation, and the subsequent determination that there was n ot, does not mean Hernandez’s initial suspicion was unreasonable. His observations , although incomplete, were sufficien t to give rise to a reasonable suspicion that Calleros ’s vehicle did not comply with state law

. Accordingly, Hernandez had a legitimate basis to stop Calleros. See Kelly v. State , 331 S.W.3d 541, 549 (Tex.App.

- - Hous ton [14th Dist.] 2011, pet. ref’d)(con cluding S heriff’ s deputy had reasonable suspicion, based on absence of front license plate on appellant’ s vehicle, to stop appellant for traffic violation); Goudeau v. State , 209 S.W .3d 713, 715

- 18 (Tex.App.

- - Houston [14th Dist.] 2006, no pet.) (concluding police officer had reasonable suspicion, based on absence of front license plate on appellant’s vehicle, to stop appellant for traffic violation, even though, upon stopping vehicle, officer noticed a rear license plate labeled as “antique automobile”); Fos ter v. State , 814 S.W.2d 874, 87 6, 87 8 (Tex.App.

-- Beaumont 1991, pet. ref’d), ab rogated on other grounds by Geesa v. State , 820 S.W.2d 154 (Tex.Crim.App. 1991)( concluding police officer had6

probable cause, based on absence of rear license plate on appellan t’s vehicle, to stop appellant for traffic violation, even though, upon stopping vehicle, officer noticed valid temporary license plate
not initially visible because of tinted back window ). Calleros argues there was no objective basis justifying the stop o nce Hernandez realized he had not committed a traffic violation

. 4 In support of his argument, Calleros cites three cases for the proposition that Hernandez did not have reasonable suspicion to stop him because the supposed traffic infraction forming the b asis for the stop in fact was not a violation of state law

. See State v. Dixon , 206 S.W.3d 587 , 590

- 91 (Tex.Crim.App. 2006)( concluding stop was invalid where the trial court found d efendant did not commit the two all eged traffic violations); State v. Huddleston , 164 S.W.3d 711 , 713

- 14 (Tex.App.

- - Austin 2005, no pet.) (concluding officer lacked reasonable suspicion to believe appellant violated traffic law when he observed appellant’ s vehicle

cross a fog line without endangering any other cars ); U.S. v. Lopez

- Valdez , 178 F.3d 282, 288

- 89 (5 th Cir. 1999) ( concluding officer lacked probable cause to stop appellant for displaying cracked taillight because displaying a cracked taillight was not a traffic violation ). Calleros’s reliance on these cases is mispla ced. I n each of them , the specific, articulable facts revealed that the alleged infractions upon which the vehicles were stopped were not based in law. In other words, the objective review of the record demonstrated that the arresting officer in each of these cases did not observe a violation of any applicable statute or ordinance before

4 Calleros also co ntends that, because there was no objective basis justifying the stop, Hernandez was not authorized to detain him further. An investigatory stop is reasonable if t he initial stop is justified and the scope of the investigation is reasonably related to the circumstances that justified the interference in the first place. Terry , 392 U.S. at 19

- 20, 88 S.Ct. at 1879

. But Calleros never complained in the trial court about the scope of Hernandez’s investigation

. Indeed, as noted above, Calleros informed the t rial court that his motion to suppress concerned only whether the investigatory stop was justified . And, in his brief, Calleros acknowledges that “the hearing was limited to the legality of the traffic stop

. . . .” Thus, to the extent Calleros is arguin g Hernandez’s investigation exceeded the scope of the traffic stop, he waived this argument by failing to raise it first in the trial court. See T EX .R.A PP .P. 33.1 ( To present a complaint for appellate review, the record must show that the complaint was made to the trial court by a timely request, objection, or motion ).7

initiating the traffic stop

. Here, by contrast, an objective review of the record establishes that driving without a front license plate is a violation of the law and that Hernandez had reasonable suspicion to believe Calleros was violating this law when he observed Calleros pass him. In other words, Hernandez observed a traffic violation before stop ping Calleros

. Based on the foregoing , we conclude the trial court did not err in denying Calleros’s motion to suppress the evidence. Calleros’s issue is overruled. CONCLUSION The trial court’s judgment is affirmed

.

November 2 1, 2014 YVONNE T. RODRIGUEZ, Justice Before McClure, C.J., Rodriguez, J., and Larsen, Senior Judge Larsen, Senior Judge (Sitting by assignment)