Summary
In Aguilar, a narcotics investigator was working highway interdiction when he observed the defendant's vehicle with an unsecured rear paper license plate that "was flapping in the air;" he could not read any numbers or letters or the state of origin on the temporary plate.
Summary of this case from Broadway v. StateOpinion
No. 05-15-00535-CR
04-27-2016
GILBERTO GONZALEZ AGUILAR, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 15th Judicial District Court Grayson County, Texas
Trial Court Cause No. 065226
MEMORANDUM OPINION
Before Justices Francis, Lang-Miers, and Myers
Opinion by Justice Myers
Appellant Gilberto Gonzalez Aguilar filed a pretrial motion to suppress challenging the stop of his vehicle as having been made without reasonable suspicion, probable cause, or exigent circumstances. After the trial court denied the motion, appellant pleaded guilty to the charged offense, possessing with the intent to distribute 400 grams or more of a controlled substance, methamphetamine. He elected to have a jury determine his punishment, and the jury assessed punishment at life imprisonment and a $250,000 fine. In two issues, appellant contends the trial court erred by denying the motion to suppress and that the sentence is disproportionate and constitutes cruel and unusual punishment. We affirm.
DISCUSSION
I. Motion to Suppress
In his first issue, appellant argues that the trial court erred and abused its discretion by denying appellant's motion to suppress because the officer who conducted the stop, Deputy Mark Haning of the Grayson County Sheriff's Office, did not have reasonable suspicion, probable cause, or exigent circumstances to stop the vehicle driven by appellant.
Deputy Haning, a narcotics investigator with the Grayson County Sheriff's office since 2008, testified that he was working highway interdiction on November 19, 2014. That afternoon, at approximately 12:37 p.m., Deputy Haning observed a blue Nissan passenger car traveling northbound on Highway 75 with an unsecured rear paper tag that the deputy could not read because it "was flapping in the air." The temporary tag on the rear of the vehicle was a "buyer's tag."
Deputy Haning testified that he conducted a traffic stop of appellant because he could not read the vehicle's rear license plate. The deputy believed the driver of the vehicle was violating section 504.945 of the Texas Transportation Code because the license plate was attached or displayed in a manner that distorted visibility. Deputy Haning testified that he could not read any numbers or letters or the state of origin on the tag. Officers searched the vehicle after obtaining appellant's consent and found three large sealed bags that contained a large quantity of methamphetamine—approximately seven pounds, according to the deputy's testimony. The trial court ultimately denied the motion to suppress.
We review a trial court's ruling on a motion to suppress evidence for abuse of discretion, using a bifurcated standard. See Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010); Guzman v. State, 955 S.W.2d 85, 88-89 (Tex. Crim. App. 1997). We give almost total deference to a trial court's determination of historical facts, and we review de novo the trial court's application of the law. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002); Guzman, 955 S.W.2d at 88-89. Where, as here, the trial court did not make explicit findings of historical facts, we review the evidence in a light most favorable to the trial court's ruling and assume the trial court made implicit findings of fact supported in the record. Carmouche v. State, 10 S.W.3d 323, 327-28 (Tex. Crim. App. 2000). The trial court is the sole judge of the credibility of the witnesses and their testimony. Maxwell, 73 S.W.3d at 281. Additionally, where, as in this case, the record does not reflect the trial court's legal theory for denying the motion to suppress evidence, the ruling must be affirmed if it is reasonably supported by the record and can be upheld on any valid theory of law applicable to the case. State v. Steelman, 93 S.W.3d 102, 107 (Tex. Crim. App. 2002); Romero v. State, 800 S.W.2d 539, 543-544 (Tex. Crim. App. 1990).
An officer may lawfully stop and reasonably detain a person for a traffic violation. Garcia v. State, 827 S.W.2d 937, 944 (Tex. Crim. App. 1992); see also Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011). A stop is justified if the officer has specific articulable facts that, when combined with rational inferences from those facts, would give the officer a reasonable suspicion that the driver has engaged in criminal activity. Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001). This standard is an objective one; so long as there is an objective basis for the stop, the subjective intent of the officer conducting the stop is irrelevant. Id. The reasonable suspicion determination is made by considering the totality of the circumstances. Id.
Section 504.945(a)(7) of the Transportation Code, titled "Wrong, Fictitious, Altered, or Obscured License Plate," provides in part as follows:
A person commits an offense if the person attaches to or displays on a motor vehicle a license plate that: . . . (7) has a coating, covering, protective substance, or other material that: (A) distorts angular visibility or detectability; (B) alters or obscures one-half or more of the name of the state in which the vehicle is registered; or (C) alters or obscures the letters or numbers of the license plate number or the color of the plate.TEX. TRANS. CODE ANN. § 504.945(a)(7). Appellant contends there is no evidence that a coating, covering, protective substance, or other material actually distorted the angular visibility or detectability of the temporary tag on his vehicle, and that, according to Deputy Haning's testimony, the wind raised the tag so that a portion of it was not legible. Appellant also argues that the deputy unreasonably relied on appellant's alleged violation of section 504.945(a)(7) of the Transportation Code "in effectuating his pretextual traffic stop of [a]ppellant."
The State concedes Deputy Haning may have "cited the wrong section of the law which governed the display of the appellant's paper tag," but argues the deputy was nonetheless correct in detaining appellant because the number on the tag was not legible. The State calls our attention to section 503.069 of the Transportation Code, titled "Display of License Plates and Tags," which provides that "[a] license plate, other than an in-transit license plate, or a temporary tag issued under this chapter shall be displayed in accordance with commission rules." Id. § 503.069(a). "Commission" is defined as meaning the board of the Texas Department of Motor Vehicles. Id. § 503.001(2).
Chapter 215 of the Texas Administrative Code is promulgated by the Texas Department of Motor Vehicles pursuant to its authority under several Texas statutes, including Chapter 503 of the Texas Transportation Code. See 43 Tex. Admin. Code § 215.151 (2016) (Texas Dep't of Motor Vehicles, Temporary Tags, General Use Requirements, and Prohibitions). Section 215.151 of the Texas Administrative Code, titled "Temporary Tags, General Use Requirements, and Prohibitions," requires as follows: "All temporary tags shall be displayed in the rear license plate display area of the vehicle. The tag must be secured to the vehicle so that the entire tag is visible and legible." Id. § 215.151(a). "An illegible temporary tag gives rise to the reasonable suspicion that the driver of the vehicle is displaying a tag that does not comply with commission rules in violation of Texas Transportation Code section 503.069." Pabst v. State, 466 S.W.3d 902, 906 (Tex. App.—Houston [14th Dist.] 2015, no pet.). Thus, the trial court could have concluded that Deputy Haning was authorized to stop appellant's vehicle. As for appellant's suggestion that this was a "pretextual" traffic stop, we note that when, as in this case, the officer makes a valid traffic stop, the existence of another motive for the stop is irrelevant because the prohibition against pretextual stops has been abandoned in Texas. See Garcia, 827 S.W.2d at 944; Graves v. State, No. 05-10-01151-CR, 2011 WL 3795553, at *1 (Tex. App.—Dallas Aug. 25, 2011, no pet.) (mem. op., not designated for publication) (citing Garcia). We conclude the trial court did not abuse its discretion by denying appellant's motion to suppress, and we overrule appellant's first issue.
Like the court in Pabst, we express no opinion on whether the Administrative Code requires a temporary tag to be legible at any particular distance because the evidence in this case supports the reasonable inference that the tag was not legible at any distance. See Pabst, 466 S.W.3d at 906.
II. Cruel and Unusual Punishment
In his second issue, appellant contends the trial court erred by denying his request for a new trial because his sentence—life imprisonment and a $250,000 fine—is disproportionate and constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution.
To preserve error for appellate review, the record must show that appellant made a timely request, objection, or motion. See TEX. R. APP. P. 33.1(a)(1). Constitutional rights, including the right to be free from cruel and unusual punishment, may be waived. Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996). Appellant did not object when he was sentenced—nor did his motion for new trial raise the complaint--that his sentence was disproportionate and constituted cruel and unusual punishment. Therefore, he did not preserve the issue for appellate review. See Castaneda v. State, 135 S.W.3d 719, 723 (Tex. App.—Dallas 2003, no pet.); Taylor v. State, No. 05-15-00567-CR, 2015 WL 7720483, at *1 (Tex. App.—Dallas Nov. 25, 2015, pet. filed) (mem. op., not designated for publication).
In his April 22, 2015 motion for new trial, appellant did not contend the sentence was disproportionate or that it constituted cruel and unusual punishment. He argued only that the verdict was contrary to the law and evidence and that the trial court had the discretion to grant a new trial in the interests of justice. We also note that defense counsel repeatedly argued during his closing statement at the punishment hearing that a life sentence should not be imposed, but he never objected to the sentence on the grounds his raises in this appeal. --------
Furthermore, we note that punishment assessed within the statutory range for an offense is neither excessive nor unconstitutionally cruel or unusual. Kirk v. State, 949 S.W.2d 769, 772 (Tex. App.—Dallas 1997, pet. ref'd); see also Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984) (sentence will not be disturbed on appeal if it is within statutory range of punishment); Taylor, 2015 WL 7720483, at *1. The punishment range for the offense of possession with intent to deliver 400 grams or more of methamphetamine is imprisonment for life or for a term of not more than 99 years or less than 15 years, and a fine not to exceed $250,000. See TEX. HEALTH & SAFETY CODE ANN. § 481.112(f). Appellant's sentence of life imprisonment and a $250,000 fine is within the allowable statutory range. We overrule appellant's issue.
We affirm the trial court's judgment.
/Lana Myers/
LANA MYERS
JUSTICE Do Not Publish
TEX. R. APP. P. 47
150535F.U05
JUDGMENT
On Appeal from the 15th Judicial District Court, Grayson County, Texas
Trial Court Cause No. 065226.
Opinion delivered by Justice Myers. Justices Francis and Lang-Miers participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 27th day of April, 2016.