Opinion
PD-0424-19
09-15-2022
LARRY THOMAS CHAMBERS, Appellant v. THE STATE OF TEXAS
Richardson, J., delivered the opinion of the Court in which Hervey, Yeary, Newell, Walker, Slaughter, and McClure, JJ., joined. Keel, J., concurred.
ON STATE'S MOTION FOR REHEARING
OPINION
RICHARDSON, J.
We deny the State's motion for rehearing, but address the State's argument that Appellant was not entitled to an Article 38.23 instruction because none of the factual disputes he relies upon were "material." The State hones in on the third requirement- materiality-for Article 38.23 analysis. The State claims three other reasons justified pulling Appellant over: (1) the license plate was not properly illuminated; (2) the license plate letters and numbers were obscured or altered; and (3) the license plate was expired. None of these reasons impact the materiality of the contested issue of the displayed license plate. Contrary to the State's assertions in its brief to the Court of Appeals, its brief to this Court, and its motion for rehearing, the illumination and readability issues were affirmatively contested by evidence presented at trial. The third reason-the expired tag- is immaterial for deciding the Article 38.23 jury instruction in this case. The officer who conducted the stop testified he could not see the tag at all, and therefore, would not have been able to base the traffic stop on the expired tag. Thus, Appellant was entitled to an Article 38.23 instruction.
See Wilson v. State, 311 S.W.3d 452, 471 (Tex. Crim. App. 2010) (denying a motion for rehearing while addressing one of the grounds for the rehearing).
A defendant is entitled to an Article 38.23 jury instruction if: (1) the evidence heard by the jury must raise an issue of fact; (2) the evidence on that fact must be affirmatively contested; and (3) that contested fact issue must be material to the lawfulness of the challenged conduct in obtaining the evidence. See TEX. CODE CRIM. PROC. art. 38.23; Chambers v. State, No. PD-0424-19, at *3 (Tex. Crim. App. Apr. 6, 2022).
Chambers v. State, No. PD-0424-19, at *3 (Tex. Crim. App. Apr. 6, 2022) (reversing and remanding to the court of appeals for harm analysis).
Procedural history
A Williamson county jury found Appellant guilty of possession of a controlled substance. Appellant alleged a number of errors including an erroneous denial of his request for an Article 38.23 jury instruction. The Sixth Court of Appeals affirmed the conviction and Appellant filed a petition for discretionary review in this Court. We unanimously reversed the Court of Appeals, holding that Appellant was entitled to an Article 38.23 jury instruction because there existed a factual dispute regarding the officer's credibility, as well as a conflict between the officer's trial testimony, photographs, and the officer's dashcam video. We remanded for a harm analysis. The State then filed a motion for rehearing.
The Texas Supreme Court transferred this case from the Third Court of Appeals to the Sixth Court of Appeals, pursuant to its docket equalization efforts.
The illumination of the license plate
First, the State argues that the alleged lack of a properly illuminated plate constituted an additional, uncontested reason that the officer could have pulled Appellant over. But there was disputed testimony of the existence of the license plate light, and the first time the State specifically cited Tex. Transp. Code § 547.322 ("Taillamps Required") was in its brief on discretionary review. The State's brief filed at the Sixth Court of Appeals noted:
TEX. TRANSP. CODE § 547.322(f) states:
A taillamp or a separate lamp shall be constructed and mounted to emit a white light that:
(1) illuminates the rear license plate; and
(2) makes the plate clearly legible at a distance of 50 feet from the rear.
The evidence was also uncontested that Appellant's vehicle did have a faded, expired, temporary plate displayed in a location that was not illuminated.
State's Br. at 31, Chambers v. State, No. 06-18-00090-CR (Tex. App.-Texarkana Mar. 29, 2019) rev'd and remanded, No. PD-0424-19 (Tex. Crim. App. April 6, 2022).
On discretionary review, the State again wrote:
The evidence was also uncontested that Appellant's vehicle did have a faded, expired, temporary plate displayed in a location that was not illuminated.
Furthermore, due to the fact that the plate on Appellant's vehicle was not illuminated and was a non-reflective paper plate, and further due to the nighttime glare, the paper tag is not visible in the dash-cam recording taken at the time when Connell elected to stop Appellant.
State's Br. on Discretionary Review at 9, 11-12.
In its motion for rehearing, the State wrote:
[T]he dashboard camera video presented was of poor quality and 'does not show much of anything with clarity.'
While this Honorable Court has noted a contested issue of fact in regards to the officer's reasonable belief that Appellant's vehicle lacked a front license plate, there was no affirmative contested issue of material fact in regards to the proper illumination of Appellant's license plate.
State's Mot. Reh'g at 7, 9. The State asserts that there was an issue regarding the front license plate and ambiguously cites to "Chambers, 2022 WL 1021270 at *4-5" and "7 RR 12026" in support of either the front license plate being contested or the illumination issue being uncontested. Regarding any issues involving the "front license plate," we can only assume this was a typographical error and the State was actually referring to the rear license plate. The front license plate was never mentioned in our prior opinion nor in the opinion of the court below. Neither was it raised in any briefs before this Court nor the Court of Appeals. Finally, the front license plate is never discussed anywhere in the record.
Upon a thorough review of the record, we find that the officer's testimony in front of the jury combined with the dashcam video, bodycam video, and still photographs create a contested issue regarding whether Appellant violated section 547.322(f) by failing to have a white light to illuminate his license plate. The officer testified six times in his direct examination, in front of the jury, that he pulled Appellant over because he did not see a license plate at all:
• "From what I could see from my vantage point, it did not appear that there was a license plate attached to the rear of it." (7 RR 83).
• "That's where I noticed the vehicle and from my vantage point, it did not appear that they had a license plate displayed to the rear of the vehicle." (7RR 87).
• "I notified [dispatch] that I did not believe - I did not see a license plate displayed on it, . . . [I] specifically notated that I did not have a license plate to give [dispatch] because I did not see one, ...." (7 RR 87).
• "[W]hat caught my attention was the fact that I did not believe that there was a license plate displayed to the rear of the vehicle, ...." (7 RR 92).
• Testimony while reviewing the dash-cam video:
Q: Pausing the video at 48 seconds in, and I was going to ask you, Sergeant Connell, at this point, had you been looking for the license plate on the rear of that vehicle?
A: Yes.
Q: Were you able to see one?
A: I did not see one, no.(7 RR 96).
• "I believed that he failed to properly display a rear license plate to his vehicle, which is an arrestable offense." (7 RR 103).
Additionally, in support of its assertion that the non-illumination of the plate was "uncontested," the State cites to "7 RR 120-26." The State also confusingly cites to "Chambers, 2022 WL 1021270 at *4-5" (our prior opinion) in their attempt to support that assertion. Our opinion never stated the illumination issue was uncontested; in fact, it made no mention at all of the illumination dispute now raised on rehearing. Also, the record citation ("7 RR 120-26") taken in context with the State's exhibits actually supports the opposite contention-the plate was legally illuminated. On cross-examination, the officer stated:
State's Mot. Reh'g at 9.
Q: If I remember your testimony, you said that you didn't see a white light on the back of the pickup; is that correct? Is that your testimony?
A: I don't recall one.
Q. So is there a difference between "I don't recall" and "I didn't see one" in your mind?
A: In my mind, I did not see one.
(7 RR 122).
Following this exchange, Appellant's trial counsel paused the dashcam video (State's Ex. 3) while the brake-lights of Appellant's vehicle were not on and asked the following:
Q: Okay. What I want to direct your attention to, the - this part, which is right before he makes the turn. And I'll - if I could, Judge, I'm going to walk up to the display.
The Court: That's fine.
The Reporter: Could you speak up, Mr. Stark, a little bit?
Q: Yes.
Q: What I seem to see right here is I seem to see a white light under the red lights on this pickup. Do you recall seeing that?
A: I don't recall seeing that, sir.
Q: Let's go to his body cam. (State's Exhibit No. 3 is stopped)
Q: Do you recall looking at it once the pickup was stopped at the scene before you arrested him?
A: Do I recall what, sir?
Q: Do you recall looking at the pickup and whether or not there was a lighted -- light on the - the plate whenever you stopped him?
A: I don't recall seeing one on there.
Q: Go to 1:55. (State's Exhibit No. 5 is played)
Q. What are we looking at right there? Right there. Pause it. (State's Exhibit No. 5 is paused)
Q: What are we looking at right there?
A: Looks like the rear of the vehicle.
Q: Your body camera -- What I see is I see some red lights where the taillights are. They're not on brake lights, but they are illuminated red and then a white light under it. Does that appear to be what it is?
A: It's pretty blurry, sir. I can't really tell from this point.
(7 RR 125-26).
This testimony contradicts the dashcam video. The dashcam video shows the presence of an illuminated light, separate from the taillight and brake light, located above the license plate, which is permitted under section 547.322(f). And the still photographs introduced by the State show what appears to be a light fixture on top of the license plate in the same location that was illuminating the license plate in the dashcam. Consistent with the dashcam video and still-picture exhibits, State's Ex. 5-the detaining officer's bodycam footage-shows a white light, separate from the red colored tail lights, illuminating the paper license plate. The positioning of the illumination source in both the bodycam and dashcam videos is completely consistent with the light fixture seen in the State's still-picture exhibits.
The white light is most noticeable during 00:29-00:34 at State's Ex 3. As Appellant's vehicle is turning in the turnaround lane, police dashcam video shows a separate white light illuminating the license plate of the truck. Dashcam footage at timestamp 00:32 shows the light on the license plate is independent of any other light source as the truck is outside the glare of the police car's headlights. Furthermore, State's Ex. 5 at timestamp 00:03 (the officer's bodycam footage) shows a separate white light shining down on the license plate.
State's Ex. 6 & 7. Upon State's Motion for Rehearing, the Court has obtained the original still-pictures in color, which show the light color and are clearer than the photocopies originally forwarded to us.
State's Ex. 5-confirming the presence of a license plate and its illumination-was never mentioned by the State's brief to the Court of Appeals, nor by the Court of Appeals in their opinion. It is not impossible that the white light visible in the area of the license plate right under the red tail lights might have been an artifact or from a different light source. However, the white color and confined area of the illumination remain consistent across two videos at different times, from different perspectives, and while the vehicle is constantly moving causing the environmental lighting to constantly change. The dashcam video also shows the white illumination while Appellant's vehicle is turning under an underpass and outside of the police vehicle's headlights. The truck's environment at this point would have reduced the chances of other light sources influencing what is seen in the very small area of the license plate. The photo showing the illumination's housing under the tail light also supports the conclusion that a light was present. See State's Ex. 6, 7, 39. Taken together with the dashcam video in motion and the bodycam, the jury was presented evidence that could have caused them to reject the officer's testimony.
In addition to pointing out these discrepancies before the jury via trial counsel, Appellant included this issue in his proposed jury instructions. Appellant also argued to the Sixth Court of Appeals that: "said white light can be seem [sic] shining on the license plate of the Ford truck[.]" Just like the presence of a visible license plate issue, whether or not a light properly illuminated the license plate was affirmatively contested. An officer who didn't know (or didn't see) that a license plate was there wouldn't know (and wouldn't see) if it was illuminated at the time of the stop. It logically flows that if Appellant was entitled to an Article 38.23 jury instruction on the first issue, then he was also entitled to a similar instruction on the second. This is true because the contested fact concerning illumination was also "essential to deciding the lawfulness of the challenged conduct." [ Thus, Appellant was entitled an Article 38.23 instruction on the matter as well.
(1 CR 117-18).
Appellant's Br. at 31, Chambers v. State, No. 06-18-00090-CR (Tex. App.-Texarkana Mar. 29, 2019) rev'd and remanded, No. PD-0424-19 (Tex. Crim. App. April 6, 2022) (citing State's Ex. 3 at 0:29-0:34).
Chambers v. State, No. PD-0424-19 (Tex. Crim. App. April 6, 2022) (citing Madden v. State, 242 S.W.3d 504, 510-11 (Tex. Crim. App. 2007)).
The obscuring of the license plate
The State also argues that dispute over the existence of the temporary license plate was immaterial because the officer could have pulled Appellant over for the obscuration and alteration of the license plate. However, the State did not cite the statute regarding obscuration and alteration of the license plate until its motion for rehearing. In fact, the record reveals that the officer only noticed the obscuration or alteration of the plate after he had completed the traffic stop. And the still photographs, once again, contradict the officer's claim that the license plate was obscured. One can actually read "631648G" in the photos of the license plate introduced by the State. Thus, evidence affirmatively contesting the issue of whether the license plate was obscured was also presented to the jury. Appellant included this issue as well in his proposed jury instructions. For these reasons, we reject the State's arguments that this possible violation rendered any dispute regarding the existence of the license plate immaterial.
TEX. TRANSP. CODE § 504.945 ("Wrong, Fictitious, Altered, or Obscured License Plate").
(7 RR 141-42).
State's Ex. 6 & 7.
(1 CR at 117-18).
The expiration of the license plate
The State's last alleged reason why the officer could have stopped Appellant, making the display of the license plate immaterial, was the expired license plate. Unlike the previous two reasons discussed above, there was no dispute that the license plate was expired. However, it was undisputed that the presence of the license plate (and by extension its expiration date) was only discovered after the Appellant was forced out of his vehicle at gunpoint, searched, and arrested.
State's Ex. 5.
Thus, within that temporal context and within the scope of the Article 38.23 jury instruction question, the State errs by focusing on the expired tag because the expired tag could not have been a reason that formed the basis for the stop. The basis for the stop was the officer's alleged inability to see any license plate. Having proper illumination and determining if the license plate is obscured are in the same realm with whether a license plate was displayed because they relate to the visibility of the license plate. The expired tag had nothing to do with visibility, especially where the police collectively did not know the tag was expired at the time of the stop. Moreover, during cross-examination, the officer testified that the expired tag had absolutely nothing to do with the basis of the stop:
See Derichsweiler v. State, 348 S.W.3d 906, 914-915 (Tex. Crim. App. 2011) (providing that the reasonable suspicion standard for temporary detentions requires that officers have an "objectively justifiable basis for the detention."). A person can't read the expiration date of a license plate he doesn't see at all.
Q: Just one more question just to be absolutely sure. You didn't stop Larry Chambers for an expired temporary tag, did you?
A: No, sir.
Q: Your testimony is you stopped him because he didn't have a tag, right?
A: That's correct sir.
(7 RR 145).
An officer cannot argue that he pulled over a driver because he did not see a license plate and that he stopped the driver because he saw that the driver had an expired license plate. Even though the record is silent on the exact moment in time the officer discovered that the license plate was expired, it was undisputed the officer testified he saw the license plate after the Appellant was stopped. By the time the license plate had been discovered, the Appellant had already been forced out of the vehicle at gunpoint by a team of officers, forced to his knees, placed in handcuffs, and then asked for permission to search his pockets while a search of his person was already underway. However, the officer only speaks to the expiration of the tag when presented with the state's photograph of the plate and when questioned about the significance of the expiration date of the plate.
(7 RR 140).
(7 RR 142).
The State argues that if an objectively reasonable officer did see the license plate before deciding to pull Appellant over, said officer would have stopped Appellant for having an expired tag. Perhaps. But that is irrelevant for our Article 38.23 analysis because that fact was not known to the officer at the time of the traffic stop and it therefore could not have formed a basis for the stop.
A genuine disputed fact issue can arise from any source.
On original submission, we held that physical evidence can create a material dispute with an officer's testimony. The State's motion for rehearing does not change that. This Court routinely scrutinizes photos and videos to resolve disputed issues. The issues have arisen in cases involving traffic stops, driving in the left lane, weaving, fog-line violation and even child pornography cases. This practice happens in every legal/factual sufficiency case involving video evidence among others. Our original decision to grant and our unanimous opinion was based on whether a 38.23 charge could be obtained when videos or still pictures disputed a factual issue related to the stop.
See also Robinson v. State, 377 S.W.3d 712, 719 (Tex. Crim. App. 2012) ("Evidence to justify an Article 38.23(a) instruction can derive from 'any source' ...." (quoting Garza v. State, 126 S.W.3d 79, 85 (Tex. Crim. App. 2004) (quoting Wilkerson v. State, 933 S.W.2d 276, 280 (Tex. Crim. App. 1996) (citing Muniz v. State, 851 S.W.2d 238, 254 (Tex. Crim. App. 1993) ("When evidence from any source raises a defensive issue, and the defendant properly requests a jury charge on that issue, the trial court must submit the issue to the jury.")))).
Jaganathan v. State, 479 S.W.3d 244 (Tex. Crim. App. 2015); Carmouche v. State, 10 S.W.3d 323 (Tex. Crim. App. 2000); State v. Cortez, 543 S.W.3d 198 (Tex. Crim. App. 2018); State v. Bolles, 541 S.W.3d 128 (Tex. Crim. App. 2017).
All that is required for a factual dispute is some affirmative evidence.
All that is required to establish entitlement to an Article 38.23 instruction is some evidence that creates a material dispute with the evidence supporting the traffic stop. As we stated in our prior opinion, "the evidence need not prove the existence of the fact; it just has to raise the factual issue." We have consistently held over three decades that the evidence that raises a factual dispute under Article 38.23 can be "strong, weak, contradicted, unimpeached, or unbelievable." This line of case law is itself rooted in an even older lineage regarding required jury instructions for affirmative defenses.Nevertheless, the evidence must still actively conflict with the State's assertion of material fact in order to raise an affirmatively contested fact issue for an Article 38.23 instruction.
Robinson v. State, 377 S.W.3d 712, 719 (Tex. Crim. App. 2012) (quoting Garza v. State, 126 S.W.3d 79, 85 (Tex. Crim. App. 2004) (quoting Wilkerson v. State, 933 S.W.2d 276, 280 (Tex. Crim. App. 1996) (citing Muniz v. State, 851 S.W.2d 238, 254 (Tex. Crim. App. 1993)))).
See e.g., Moore v State, 574 S.W.2d 122, 124 (Tex. Crim. App. 1978) ("The credibility of evidence and whether it is controverted or conflicts with other evidence in the case may not be considered in determining whether a defensive charge or an instruction on a lesser included offense should be given. When evidence from any source raises a defensive issue . . . and a jury charge on the issue is properly requested, the issue must be submitted to the jury. It is the jury's duty, under the proper instructions, to determine whether the evidence is credible and supports the defense ....").
Here, there is some evidence affirmatively pointing in the opposite direction of the State's assertion that the decision to stop was reasonable. The jury heard a 15-year veteran officer claim he did not see a license plate where he expected it to be-the utility truck's center-rear area. The jury also saw videos in which the license plate was prominently displayed and illuminated on the left side of the truck. All this evidence raised a genuine issue of material fact that supported Appellant's request for an Article 38.23 instruction. As we held on original submission, he was entitled to have the jury consider whether the officer had a reasonable belief that Appellant was in violation of the law under Article 38.23.
(7 RR 8, 9-10).
Conclusion
If Article 38.23 stands for anything, it is that when a factual dispute is raised, as in this case, about why a person is stopped, detained and/or subsequently arrested, they have a right to let a jury determine the facts underlying the lawfulness of that initial detention. Here, Appellant raised a genuine material factual dispute and was, thus, entitled to the Article 38.23 jury charge. For all these reasons, the motion for rehearing is denied.
Keller, P.J., filed a dissenting opinion.
I would grant rehearing. I would hold that Appellant failed to raise a fact issue about whether the officer had reasonable suspicion regarding the proper illumination of a license plate or tag. There was no testimony that there was proper illumination, and the videos are unclear about the matter. If Appellant were being tried for violating the traffic laws pertaining to having a properly illuminated license tag, the videos would provide some evidence that he did not violate the law. But the videos do not provide evidence that the officer lacked reasonable suspicion about the matter.
On direct examination, the officer testified about whether there was a white light illuminating a license plate or tag on the rear of the vehicle. He said he did not see one:
Q. And if they are, is there a requirement that those be lighted and visible?
A. Yes, sir.
Q. And what's that requirement?
A. They have to be visible from 50 feet.
Q. Through what type of light? Is there a color?
A. White light.
Q. Throughout the u-turn that we recently watched in this clip of the video, were the defendant's brakes applied?
A. Yes
Q. And what color light was illuminated at that point?
A. Red.
Q. Did that red light allow you to see the license plate anywhere?
A. No.
On cross-examination, defense counsel tried to get the officer to testify that there was a white light but he could not get the officer to agree:
Q. If I remember your testimony, you said that you didn't see a white light on the back of the pickup; is that correct? Is that your testimony?
A. I don't recall one.
Q. So is there a difference between "I don't recall" and "I didn't see one" in your mind?
A. In my mind, I did not see one. * * *
Q. What I seem to see right here is I seem to see a white light under the red lights on this pickup. Do you recall seeing that?
A. I don't recall seeing that, sir. * * *
Q. Do you recall looking at the pickup and whether or not there was a lighted -- a light on the -- the plate whenever you stopped him?
A. I don't recall seeing one on there. * * *
Q. Your body camera -- What I see is I see some red lights where the taillights are. They're not on brake lights, but they are illuminated red and then a white light under it. Does that appear to be what it is?
A. It's pretty blurry, sir. I can't really tell from this point.
Q. There's not anybody -- no one else's lights are shining at the back of the vehicle, are they?
A. Mine are.
Photos taken after the truck was impounded show that there was in fact a temporary license tag on the truck below the left taillight. The tag is worn and tattered, and part of the area behind the tag is visible. That visible area appears to be silver or white, and is lighter than the otherwise black truck. Two of the impound photos show a light above the left brake lights being lit, but it is unclear from the photos whether the license-tag area is lit, and a light bulb cannot be seen.
A number of places on the officer's dashcam video show a square or rectangular area below the left taillight that is much lighter than the corresponding area below the right taillight. A still photo from the dashcam video shows one instance of this. A brief portion of the bodycam video shows this as well. It cannot be determined from the videos or the still photo, however, whether that is due to a light illuminating the temporary tag or whether it is due to the whiteness of the tag, the lightness of the area behind the tag, or light reflecting off the temporary tag or the area behind it.
The Court says the white light is most noticeable during 0:29-0:34 of the dashcam video. A jagged bright spot can be seen in the area we now know was occupied by the temporary tag. That jagged bright spot might be a light, but it is not clear that it is. It could be a reflection of another light on the roadway. The officer was following the vehicle, there were other vehicles on the road, and there were traffic lights and street lamps. Or it could be due to coloring behind the temporary tag. Or it could be some other visual artifact of the video. Some examples of visual artifacts can be seen throughout the video, such as the fact that, at times, the taillights seem to be different levels of brightness. It simply cannot be said for certain that this bright jagged area was in fact a separate light illuminating the tag. On the video from the officer's bodycam taken after the stop, it does look like there is a light illuminating the tag but, again, the light might have come from somewhere else.
As we explained on original submission, the evidence about the basis for the stop must be "affirmatively contested" to raise a fact issue. Videos that suggest only that there might have been a white light illuminating the temporary tag do not affirmatively contest a police officer's testimony that he did not see a light. A video showing that there might have been a light illuminating the tag is, at most, equivalent to a witness testifying only that there might have been a light illuminating the tag. We would not consider such testimony to create a disputed fact issue.
Chambers v. State, PD-0424-19, 2022 Tex.Crim.App. LEXIS 221, *4 (Tex. Crim. App. April 6, 2022). See also Madden v. State, 242 S.W.3d 504, 510 (Tex. Crim. App. 2007).
See Madden, supra at 513-14 ("If, however, Officer Lily says that appellant did speed, and Witness Two (or appellant) says that he doesn't remember or doesn't know, there is no disputed fact to submit because there is no affirmative evidence of a factual conflict. Similarly, if Officer Lily testifies that appellant did speed, but the cross-examiner grills him, 'Isn't it true that he really did obey the speed limit, you're wrong or you're lying?' there is no factual dispute unless Officer Lily admits, 'Yes, that is true.' . . . There must be some affirmative evidence of 'did not speed' in the record before there is a disputed fact issue.").
It is not clear to me that a video or photo can substitute for testimony about a fact so as to raise a disputed fact issue for Article 38.23 purposes. The idea of appellate court judges scrutinizing photos and watching and re-watching videos of events that an officer saw once, in real time, in order to decide whether they raise a disputed fact issue seems like the wrong way to address whether a trial court erred in refusing an instruction when there is no testimony contesting the issue.
See Jaganathan v. State, 479 S.W.3d 244, 248 (Tex. Crim. App. 2015) ("[T]here is a difference between what an officer sees during an ongoing event and what we see when reviewing a video. After watching the video many times, with the ability to stop the action and enlarge the image, we can say with some degree of confidence which cars were where, who was going faster than whom, and how the events transpired....We would be much closer to knowing what the officer observed if we were to view the video only one time, from start to finish, without stopping. But even then, we might not focus on what the officer focused on at the time of the stop.").
But even if video or photo evidence can substitute for testimony, for the video and photo evidence to affirmatively contest the officer's statement that he did not see a white illuminating light, that evidence needs to show that there was in fact such a light. This is unlike the issue we addressed on original submission, where the videos and photo evidence showed definitively that there was in fact a license tag on the truck and there was testimony that there was a license tag. If the temporary tag was properly illuminated, then someone could have testified to that fact. But there was no testimony that the tag was properly illuminated, and the video and photo evidence does not show definitively that it was.
See Chambers, supra at *5 ("Appellant proved the evidence on the fact issue was affirmatively contested. Here, the dashcam video and still photographs depicting a license plate affirmatively contest the officer's claim that he could not see a license plate.").
I conclude that Appellant did not provide evidence affirmatively contesting the officer's testimony that he did not see a white illuminating light, and so there was no disputed fact issue about whether the officer had reasonable suspicion regarding the existence of proper illumination. Because the officer having reasonable suspicion to believe there was no white illuminating light was a sufficient basis for the stop, any fact issue regarding the license plate is not material.
I respectfully dissent.