NICK DUDLEY v. THE STATE OF TEXAS

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Court of Appeals of Texas, Dallas.

NICK DUDLEY, Appellant v. THE STATE OF TEXAS, Appellee

No. 05–10–01089–CR

Decided: August 25, 2011

Before Chief Justice Wright and Justices Fillmore and Campbell

OPINION

Opinion By Justice Campbell 1

This is an appeal from a conviction for the offense of driving while intoxicated (DWI).   Appellant pled guilty to an information charging same, and punishment was assessed at eighteen months' confinement in the county jail and a fine of $850.   Imposition of the jail term was suspended and appellant was placed on community supervision.   Appellant sought and received permission from the trial court to appeal this cause.   See Tex.Code Crim. Proc. Ann. art. 44.02 (West 2006).

In a single issue, appellant contends he was illegally stopped by the arresting officer, and that any evidence of intoxication obtained thereafter was acquired in violation of the law.   We disagree and will affirm.

Appellant and the State entered into an agreement that the police report and the arrest warrant and its supporting affidavit accurately portrayed the facts of this case, viz:  appellant was stopped by the arresting officer after the officer observed appellant driving a vehicle that had no license plate on its front bumper.   There was, however, a license plate mounted inside the front windshield of the vehicle.   Appellant was ultimately arrested for DWI. Appellant filed a pretrial motion to suppress the fruits of the arrest, but it was overruled by the trial court.   Appellant then pled guilty, his right to appeal intact under article 44.02.

Issues involving probable cause and reasonable suspicion generally involve mixed questions of law and fact.   See Guzman v. State, 955 S.W.2d 85, 87–89 (Tex.Crim.App.1997);  State v. West, 20 S.W.3d 867, 870 (Tex.App.—Dallas 2000, pet. ref'd).   When, as here, the facts are undisputed, an appellate court should employ a de novo review.  Oles v. State, 993 S.W.2d 103, 106 (Tex.Crim.App.1999);  West, 20 S.W.3d at 870–71.

An officer may, with certain exceptions, arrest without a warrant a person he finds committing a traffic violation.   See Tex. Transp.  Code Ann. § 543.001 (West 2011);  see also Tex.Code Crim. Proc. Ann. art. 14.01(b) (West 2005).   It is illegal to fail to display a license plate on the front and rear of a motor vehicle.   See Tex. Transp.  Code Ann. § 502.404(a) (West Supp.2010).   The officer, according to the stipulated and agreed facts, had at least reasonable suspicion to stop appellant's vehicle for the perceived license plate violation.   The only issue remaining to be resolved by this Court is whether displaying a license plate in the front windshield satisfies section 502.404(a).   The Texas Court of Criminal Appeals held that it does not.   Spence v. State, 325 S.W.3d 646, 654 (Tex.Crim.App.2010).

Appellant relies on State v. Losoya, 128 S.W.3d 413 (Tex.App.—Austin 2004, pet. ref'd).   In Losoya, the Austin Court of Appeals held that displaying a license plate on a vehicle's dashboard complied with section 502.404(a) if the plate could otherwise be seen from the front of the car.  Losoya, 128 S.W.3d at 416.   That court reasoned that the word “front” was ambiguous, and it found that the legislative purpose of the statute was to make sure that one could see the license plate from the front of the car.  Id. at 416.

The State in its reply brief argues that this precise issue was decided contrary to appellant's position in Spence.   In Spence, the court of criminal appeals addressed a split of authority between the Austin court in Losoya and the Amarillo court in the aforementioned Spence, viz:  Spence v. State, 296 S.W.3d 315 (Tex.App.—Amarillo 2009), aff'd 325 S.W.3d 646 (Tex.Crim.App.2010).   The court of criminal appeals agreed with the Amarillo court in concluding that the plain language of section 502.404(a) requires that a license plate be displayed at the foremost part or front of a vehicle, most commonly the front bumper.  Spence, 325 S.W.3d at 651.   The court of criminal appeals disavowed the reasoning of the Austin court in Losoya, and found that such an interpretation conflicted with the plain meaning of the statute.  Id. at 653.   The court of criminal appeals opined that allowing a license plate to be located in a number of different places would make it difficult to quickly determine whether a given [vehicle] has a license plate or what its numbers are.  Id. The facts in Spence and in the instant case are indistinguishable.

Appellant, as in Spence, was displaying his license plate between the windshield and the dashboard.   The initial stop of appellant by the officer was based on probable cause that an offense was committed under section 502.404(a) within his presence and view, and the officer was then warranted in detaining appellant for further investigation.   See id.;  Anderson v. State, 701 S.W.2d 868, 873 (Tex.Crim.App.1985).   The resulting symptoms observed by the officer indicating intoxication were lawfully observed and those observations were admissible in court.   See Anderson, 701 S.W.2d at 873.   The trial court properly overruled appellant's motion to suppress the stop of appellant's vehicle, and appellant's symptoms of intoxication were admissible.   We resolve appellant's issue against him.

The judgment of the trial court is affirmed.

FOOTNOTES

FN1. The Honorable Charles F. Campbell, Senior Appellate Judge, Texas Court of Criminal Appeals, sitting by assignment..  FN1. The Honorable Charles F. Campbell, Senior Appellate Judge, Texas Court of Criminal Appeals, sitting by assignment.

CHARLES F. CAMPBELL JUSTICE, ASSIGNED

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