In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-14-00101-CR
________________________
VICTORIA MORIN, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the County Court at Law No. 2
Lubbock County, Texas
Trial Court No. 2012-472569; Honorable Drue Farmer, Presiding
November 16, 2015
MEMORANDUM OPINION
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
Appellant, Victoria Morin, was convicted by a jury of possession of marihuana, in
an amount of two ounces or less (a Class B misdemeanor)1 and assessed a fine of
$1,250. On appeal, Appellant asserts the trial court erred by denying her motion to
suppress evidence because (1) Appellant’s detention for a traffic violation was premised
on a chapter of the Texas Transportation Code that is unconstitutionally vague and (2)
1
See TEX. HEALTH & SAFETY CODE ANN. § 481.121(a), (b)(1) (West 2010).
Appellant’s incriminating statements were the result of an unconstitutional interrogation.
We affirm.
BACKGROUND
On December 6, 2012, an information was filed alleging that, on or about
November 20, she intentionally or knowingly possessed a usable quantity of marihuana
in an amount of two ounces or less. On May 20, 2013, Appellant filed a motion to
suppress alleging she was arrested without probable cause, her statements were
involuntary and coerced, she was deprived of counsel, and all evidence underlying her
arrest was tainted by an illegal/unlawful detention.
HEARING ON MOTION TO SUPPRESS
At a hearing held August 22, 2013, Corporal Jason Johnson of the Lubbock
County Sheriff’s Office testified he stopped Appellant the night of the offense because
her high-mounted center taillamp was not working. Johnson first made contact with
Appellant on the driver’s side while Corporal James Owens approached the passenger
side. When Appellant rolled her window down, Johnson noticed an overwhelming odor
of burnt marihuana coming from inside the vehicle. He asked Appellant for her driver’s
license and, after she handed it to him, asked her to step out of the vehicle. After she
stepped out, he informed her of the traffic violation and showed her the inoperable high-
mounted center taillamp. As she spoke to him, he noticed the smell of burnt marihuana
on her breath.
After informing her of the traffic violation, he told her “[l]ets talk about the odor of
marihuana coming from inside the vehicle.” She pointed at the passenger and said he
had been smoking marihuana. Johnson asked her if there was any more marihuana in
2
her vehicle and indicated he was going to conduct a search of the vehicle. She replied
in the affirmative indicating there was more marihuana in her purse. Johnson then
Mirandized2 her, after which she indicated she understood her rights. He then asked
her if there was anything she wanted to tell him and she replied “nothing other than the
marihuana.”3 Corporal Owens asked the passenger to step out of the vehicle and
retrieve a dog from the back seat. Corporal Johnson then called for another unit and
when Sergeant William White arrived, he watched Appellant and her passenger.
Johnson then retrieved Ringo, his drug-detecting dog, from his patrol vehicle and
ran Ringo around the vehicle. Ringo alerted to the driver’s and passenger’s side doors
and to a black purse on the driver’s side in the floorboard. Officer Eric Chadis arrived
shortly and conducted a search of Appellant’s vehicle. He discovered in Appellant’s
purse a green leafy substance weighing 15.1 grams that tested positive for marihuana.
Appellant was placed under arrest and received a written warning for the defective high-
mounted center taillamp.
At the hearing’s conclusion, Appellant argued there was no reasonable suspicion
or probable cause for the traffic stop because there was no traffic violation when
Appellant was pulled over and detained. In her brief filed in support of her motion to
suppress, Appellant asserted the traffic stop was not based on reasonable suspicion
and, therefore, her statements regarding the contraband found in her vehicle were the
product of an improper custodial interrogation. Her motion to suppress was
subsequently denied.
2
See Miranda v. Arizona, 384 U.S. 486, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
3
This exchange occurred on the video camera attached to Johnson’s patrol vehicle. The video
was offered and admitted as State’s Exhibit No. 4.
3
TRIAL
Prior to voir dire, Appellant re-urged her motion to suppress generally asserting
violations of her right to due process, freedom from unreasonable search and seizure
and warrantless searches, and the grounds previously advanced in her original motion.
During the State’s case-in-chief, she re-urged that the traffic stop was not a valid stop
based on the argument that having an inoperable high-mounted center taillamp was not
a violation of the law in Texas. Corporal Johnson’s testimony and the videotape of the
traffic stop mirrored the evidence presented at the suppression hearing.
After the State rested, Appellant’s sole witness testified that a high-mounted
center taillamp was not required during a state vehicle inspection. There was no
evidence presented concerning whether or when Appellant’s vehicle was last inspected.
After she rested her case-in-chief, Appellant re-urged her motion to suppress alleging:
(1) there was not a noticeable smell of marihuana coming from her vehicle, (2) Corporal
Johnson did not act in good faith when he initiated the traffic stop, (3) Appellant’s
statements were obtained as a result of a Miranda violation, and (4) Corporal Johnson
violated her constitutional rights “as stated in her Motion to Suppress and supporting
brief.” The trial court denied her motion and the jury subsequently found her guilty of
possession of marihuana in an amount of two ounces or less and assessed a fine of
$1,250.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
In its Findings of Fact and Conclusions of Law, the trial court determined
Corporal Johnson performed a lawful traffic stop pursuant to section 547.3215 of the
Texas Transportation Code requiring a motor vehicle to be in compliance with current
4
federal standards stated in chapter 49 and section 571.108 of the Code of Federal
Regulations.4 He also determined that Texas law incorporates and does not conflict
with federal law. Based on these determinations, the trial court found Corporal Johnson
had a reasonable suspicion for performing the traffic stop.
Based upon the odor of marihuana coming from her vehicle and person, positive
alerts by Ringo, Appellant’s admissions that her passenger had been smoking
marihuana, and she possessed one-half ounce of marihuana in her purse, the trial court
determined Corporal Johnson had probable cause to search her vehicle. The trial court
also determined Appellant was not in custody at the time of her admissions because (1)
the traffic stop shifted to an investigatory detention when Corporal Johnson smelled
marihuana coming from the vehicle and later on Appellant’s person, (2) his questions
regarding the source of the odor were part of his investigatory detention, and (3)
although Appellant was not free to leave the scene, she was not yet the focus of an
interrogation or under arrest. The trial court concluded Appellant’s statements were
voluntary and admissible, but even if they were not, probable cause to search
Appellant’s vehicle existed independently of Appellant’s statements made prior to being
Mirandized.
4
The Texas Transportation Code requires that a motor vehicle be equipped with at least two
rear-mounted taillamps which are “plainly visible at a distance of 1,000 feet from the rear of the vehicle.”
See TEX. TRANSP. CODE ANN. § 547.322(a), (c), (d) (West 2011). That same code also requires that a
motor vehicle be equipped with at least two rear-mounted stoplamps which “emit a red or amber light, or
a color between red and amber, that is . . . displayed when the vehicle service brake is applied.” Id. §
547.323(a), (c), (d).
In addition to the general lighting requirements of §§ 547.322 and 547.323, a motor vehicle must
comply with “the current federal standards in 49 C.F.R. § 571.108; or . . . the federal standards in that
section in effect, if any, at the time the vehicle or motor vehicle was manufactured.” Id. at 547.3215. See
Schwintz v. State, 413 S.W.3d 192 (Tex. App.—Beaumont 2013, pet. ref’d) (provision of state
transportation code governing number of taillamps on vehicles less than 80 inches wide permitted DPS to
adopt federal standard requiring high-mounted center taillamp in addition to two stoplamps specified in
code and no provision of the code prohibited adoption of the federal standard requiring high-mounted
center taillamp).
5
FIRST POINT OF ERROR—UNCONSTITUTIONALLY VAGUE STATUTE
An officer may make a warrantless traffic stop if the “reasonable suspicion”
standard is satisfied. Jaganathan v. State, PD-1189-14, 2015 Tex. Crim. App. LEXIS
920, at *5 (Tex. Crim. App. Sept. 16, 2015); Guerra v. State, 432 S.W.3d 905, 911 (Tex.
Crim. App. 2014). Reasonable suspicion exists if the officer has “specific articulable
facts that, when combined with rational inferences from those facts, would lead him to
reasonably suspect that a particular person has engaged or is (or soon will be)
engaging in criminal activity.” Abney v. State, 394 S.W.3d 542, 548 (Tex. Crim. App.
2013). The Texas Transportation Code provides that a person commits an offense if
she operates a motor vehicle that is “not equipped in a manner that complies with the
vehicle equipment standards and requirements established by [chapter 547 of the
Texas Transportation Code].” TEX. TRANSP. CODE ANN. § 547.004(a)(2) (West 2011).
Therefore, before an officer can have reasonable suspicion to believe that a vehicle
equipment offense has occurred, the officer must be aware of facts that support a
reasonable inference that the suspected person operated the vehicle without the
mandated vehicle safety equipment. Abney, 394 S.W.3d at 549. The record in the
present case establishes that Corporal Johnson did in fact observe Appellant operate
her vehicle without an operational high-mounted center taillamp. Accordingly,
reasonable suspicion to stop Appellant’s vehicle existed.
On appeal, Appellant asserts the trial court erroneously denied her motion to
suppress because chapter 547 of the Texas Transportation Code, taken as a whole, is
unconstitutional and void for vagueness because it is unclear whether the operation of a
motor vehicle without an operational high-mounted center taillamp is in fact a traffic
offense. We conclude this assertion is waived because it does not comport with
6
Appellant’s objection at trial. See Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App.
2002) (finding that “[a] point of error on appeal must comport with the objection made at
trial”).
In her written motion to suppress, at the hearing, and at trial, Appellant asserted
(albeit incorrect in the assertion being made) the traffic stop in question was invalid and
unlawful because having an inoperable high-mounted center taillamp was not a violation
of the Texas Transportation Code. For the first time on appeal, she now asserts
chapter 547 of the Texas Transportation Code, taken as a whole, is unconstitutional and
void for vagueness. We find Appellant has failed to preserve error on this issue.
A complaint that could, in isolation, be read to express more than one legal
argument, will generally not preserve all potentially relevant arguments on appeal.
Resendez v. State, 306 S.W.3d 308, 313-15 (Tex. Crim. App. 2009) (a statutory
argument alone is legally distinct from a constitutional argument). See Swain v. State,
181 S.W.3d 359, 365 (Tex. Crim. App. 2005) (arguments that are global in nature and
contain little more than citations to constitutional and statutory provisions are not
sufficiently specific to preserve a legal theory on appeal that was not advanced in the
trial court). A review of the clerk’s record and reporter transcripts leads us to conclude
that Appellant’s first point of error on appeal does not comport with the objections or
arguments made at the suppression hearing, in Appellant’s brief in support of her
motion to suppress, or at trial. Neither was her appellate assertion addressed in the trial
court’s Findings of Fact and Conclusions of Law. Resendez, 306 S.W.3d at 313 (“when
context shows that a party failed to effectively communicate his argument then the error
will be deemed forfeited on appeal”). Because Appellant’s “constitutionally vague”
7
complaint on appeal was not asserted below, the trial judge did not have an opportunity
to rule on whether chapter 547 of the Texas Transportation Code, taken as a whole,
was unconstitutional and void for vagueness. See Lovill v. State, 319 S.W.3d 687, 691
(Tex. Crim. App. 2009) (“specificity requirement met if complaint at trial was clear
enough for the trial judge to understand what the complaining party wanted, why they
were entitled to it, and take corrective action”). Thus, Appellant’s first point of error is
not preserved for our review and is overruled.
SECOND POINT OF ERROR—CUSTODIAL INTERROGATION
Appellant next asserts that admissions made outside her vehicle to the effect that
her passenger had been smoking marihuana and there was more marihuana in her
purse were inadmissible because they were the result of a custodial interrogation made
prior to being Mirandized. Appellant asserts Corporal Johnson’s statement to her, prior
to any Miranda warning, concerning his intent to search her vehicle was, in fact,
calculated to illicit an incriminating response. In response, the State contends
Appellant’s statements were not the result of a custodial interrogation but rather resulted
from an investigatory detention—an argument supported by the trial court’s findings of
fact and conclusions of law. Alternatively, the State argues that if Appellant’s
statements were admitted in error, the error was harmless under a constitutional harm
analysis. See TEX. R. APP. P. 44.2(a).
In its Findings of Fact and Conclusions of Law, the trial court found the
statements in question were “not the product of a custodial interrogation” because
Appellant was the subject of a lawful traffic stop that had merely shifted to an
investigatory detention based on the officer’s smelling what he believed to be
8
marihuana. The trial court found that Appellant was not the focus of the officer’s inquiry
at the time the non-Mirandized statements were made and that those statements were
voluntary. Notwithstanding the almost total deference we would give to the trial judge’s
conclusions, Guzman v. State, 955 S.W.2d 85, 87-89 (Tex. Crim. App. 1997), even
assuming the statements in question were made in response to a custodial
interrogation, the videotape admitted into evidence shows Appellant admitted to the
presence of marihuana in her vehicle after she was Mirandized and prior to the vehicle
being searched. Based on this record, we find the non-Mirandized statements were
cumulative of other evidence properly admitted and the error, if any, in the admission of
those statements did not contribute to Appellant’s conviction or punishment beyond a
reasonable doubt. See TEX. R. APP. P. 44.2(a). See also Clay v. State, 240 S.W.3d
895, 904 (Tex. Crim. App. 2007). Accordingly, any error was harmless and Appellant’s
second point of error is overruled.
CONCLUSION
The trial court’s judgment is affirmed.
Patrick A. Pirtle
Justice
Do not publish.
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Victoria Morin v. State
Combined Opinion