Opinion
No. 09-05-479 CR
Submitted on May 11, 2006.
Opinion Delivered May 24, 2006. DO NOT PUBLISH.
On Appeal from the County Court at Law No. 3, Montgomery County, Texas, Trial Cause No. 04-194607. Affirmed.
Before McKEITHEN, C.J., KREGER and HORTON, JJ.
MEMORANDUM OPINION
The State brings this appeal from the trial court's order granting the motion to suppress filed by appellee Harvey Lee Headley, Sr. See Tex. Code Crim. Proc. Ann. § 44.01(a)(5) (Vernon Supp. 2005). We affirm. At the hearing on the motion to suppress, Trooper Paul Kohleffel testified that while on duty in East Montgomery County, he stopped a vehicle "for an unclean license plate." See Tex. Transp. Code Ann. § 502.409 (Vernon Supp. 2005). The vehicle, in which Headley was a passenger, was pulling a flatbed trailer. Trooper Kohleffel testified that the dirty license plate was on the trailer. Trooper Kohleffel described the license plate as "covered in grime[,]" "very dirty[,]" and "not readable from behind the vehicle." According to Trooper Kohleffel, only three of the six digits on the trailer's license plate were legible. Upon closer viewing of the license plate after the stop, Trooper Kohleffel could read the license plate. After stopping the vehicle, Trooper Kohleffel spoke with the driver and explained to the driver why he stopped him. While speaking with the driver, Trooper Kohleffel noticed that "he seemed extremely, or unusually nervous in regards to the fact that he was being stopped for a minor violation." The driver denied having a criminal history. However, upon checking for warrants, Trooper Kohleffel learned that the driver did have a criminal history that included a narcotics offense. After speaking with the driver, Trooper Kohleffel approached Headley and identified himself. According to Trooper Kohleffel, Headley seemed nervous. Headley denied having any criminal history. Upon checking Headley's driver's license, Trooper Kohleffel learned that Headley had previously been arrested. Trooper Kohleffel testified that Headley owned the vehicle, and both occupants of the vehicle consented to a search. Upon searching the vehicle, Trooper Kohleffel found a marijuana cigarette, and Headley admitted the cigarette belonged to him. Trooper Kohleffel's vehicle was equipped with a video camera, but he did not preserve the film of the stop involving Headley. According to Trooper Kohleffel, at the time of Headley's arrest, the Department of Public Safety only preserved films of stops for driving while intoxicated. The trial court commented, "[y]ou ought to have saved that video for today's hearing." Trooper Kohleffel also had a thirty-five-millimeter camera with him, but he testified that he did not take photographs because the Department of Public Safety lacked funding to photograph all of its evidence. Upon learning that Trooper Kohleffel did not photograph the license plate, the trial court commented, "How much does a picture cost? You can get them for nineteen cents at Wal-Mart." At the conclusion of the hearing, the trial court granted Headley's motion to suppress and offered the following commentary:
And it's like when I went down to get my pick-up license renewed one time. They told me I had to have a new license plate. And I said, "Well, why? I have had these on this truck ten years or more. Nothing wrong with this license." "Well, it's lost its reflective value." I said, "What does that mean?" "Well, that the license plate comes with a reflective value so it can be seen." And I said, "Well, if they can't see my vehicle going down the road and have to depend on my license plate for reflective value, we're all in trouble." But that was the government's position so that I would have to take off my old and put on a new one for the reflective value. . . . I don't understand the government sometimes. Let's make new license plates because the reflective value is lost. Well, if they can't see the truck the reflective value is not going to help you.The trial judge also criticized Trooper Kohleffel's method of approaching the vehicle and opined that, for safety reasons, he should inform the vehicle's occupants that his video camera is on. The trial court entered an order granting the motion to suppress without filing findings of fact and conclusions of law. The State then filed this appeal. We review the trial court's ruling on a motion to suppress for abuse of discretion. Long v. State, 823 S.W.2d 259, 277 (Tex.Crim.App. 1991). At a suppression hearing, the trial court is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given to their testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000) (citing State v. Ballard, 987 S.W.2d 889, 891 (Tex.Crim.App. 1999)); see also Wood v. State, 18 S.W.3d 642, 646 (Tex.Crim.App. 2000). "Accordingly, the judge may believe or disbelieve all or any part of a witness's testimony, even if that testimony is not controverted." Ross, 32 S.W.3d at 855 (footnote omitted). We afford almost total deference to the trial court's determination of the historical facts that depend on credibility and demeanor, but we review de novo the trial court's application of the law to the facts if the resolution of those ultimate questions does not turn on evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). When, as here, the trial court does not file findings of fact and conclusions of law, "we view the evidence in the light most favorable to the trial court's ruling and assume that the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record." Ross, 32 S.W.3d at 855 (citing Carmouche v. State, 10 S.W.3d 323, 328 (Tex.Crim.App. 2000)); see also Brooks v. State, 76 S.W.3d 426, 430 (Tex.App.-Houston [14th Dist.] 2002, no pet.). We must affirm the trial court's decision if it is correct on any theory of law applicable to the case. Ross, 32 S.W.3d at 856 (citing Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App. 1990)). In this case, the trial court could have disbelieved all or part of Trooper Kohleffel's uncontroverted testimony based upon his credibility and demeanor. See Ross, 32 S.W.3d at 857. Contrary to the State's assertion, the trial judge's statements regarding the renewal of his own vehicle's license do not necessarily indicate that his decision was based upon an interpretation of the scope of section 502.409 of the Texas Transportation Code. See Ross, 32 S.W.3d at 855 ("[W]e view the evidence in the light most favorable to the trial court's ruling and assume that the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record."); Tex. Transp. Code Ann. § 502.409 (Vernon Supp. 2005). The trial court did not abuse its discretion in granting the motion to suppress. We overrule the State's sole issue and affirm the judgment of the trial court.
Before the hearing began, the trial court admonished Trooper Kohleffel for chewing gum in the courthouse and failing to say "excuse me" when he walked in front of people. The trial judge then said, "make sure your attitude is right. . . . And so far it hasn't been." The trial judge also asked Trooper Kohleffel for the name and telephone number of his supervisor and expressed the intention to contact his supervisor.
The State argues the appropriate standard of review for this case is de novo because "[t]he dispositive testimony by Trooper Kohleffel is uncontroverted[,]" and "[t]here is no indication in the record that the trial court disbelieved the testimony of Trooper Kohleffel." We disagree. See State v. Ross, 32 S.W.3d 853, 856 (Tex.Crim.App. 2000) (When the only evidence presented at the hearing on a motion to suppress is the testimony of the arresting officer and the trial court grants the motion without explanation, "there is not necessarily a `concrete' set of facts that can be implied from such a ruling." The trial court may have disbelieved the officer, in which case the scenario involves a mixed question of law and fact. Therefore, the proper standard of review under Guzman is "almost total deference" to the trial court's ruling.). Furthermore, the trial court's comments regarding Trooper Kohleffel's stated reasons for not photographing the evidence or preserving the videotape of the stop indicate the trial court may have disbelieved Trooper Kohleffel.