Hernandez, Ricky v. State ( 2000 )


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  •                                     NO. 07-98-0322-CR
    IN THE COURT OF APPEALS
    FOR THE SEVENTH DISTRICT OF TEXAS
    AT AMARILLO
    PANEL A
    FEBRUARY 28, 2000
    ______________________________
    RICKY HERNANDEZ, APPELLANT
    V.
    THE STATE OF TEXAS, APPELLEE
    _________________________________
    FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;
    NO. 97-426278; HONORABLE BRADLEY S. UNDERWOOD, JUDGE
    _______________________________
    Before BOYD, C.J., REAVIS, and JOHNSON, JJ.
    Our opinion of January 5, 2000, is withdrawn and this opinion is substituted in its
    place. Our judgment of January 5, 2000, is also withdrawn and judgment affirming the trial
    court judgment is substituted in its place. TEX . R. APP . P. 50.
    Appellant was convicted by a jury of possession with intent to deliver more than four
    grams but less than 200 grams of cocaine.            The jury assessed his punishment at
    confinement for 25 years and a $6,000 fine. Appellant raises 11 issues. We affirm.
    I. FACTUAL BACKGROUND
    On August 10, 1997, an officer from the Lubbock Police Department was dispatched
    on a domestic dispute involving appellant’s alleged assault of his girlfriend. The officer
    proceeded to the residence and upon entering found a loaded pistol inside a shoe which
    was next to the sofa where appellant was sleeping. An unloaded shotgun was also
    discovered. The officer arrested appellant for aggravated assault and searched him. Two
    plastic bags containing 11 smaller bags of cocaine, weighing 7.29 grams, were found in
    appellant’s front pants pocket.
    After placing appellant in the police car, the officer re-entered the residence with
    appellant’s girlfriend and discovered additional items near the sofa, including a shotgun,
    a pistol, a knife, a set of scales, a plate with a rolled up dollar bill containing white residue,
    a set of rolling papers, and a bag containing ammunition. Appellant was indicted and
    convicted for the offense of possession with intent to deliver more than four grams but less
    than 200 grams of cocaine.
    II. LEGAL AND FACTUAL SUFFICIENCY OF EVIDENCE
    2
    By his first and second issues, appellant contends that the evidence was legally and
    factually insufficient to prove that the substance in the bags in his pocket was cocaine.
    When both the legal and factual sufficiency of evidence are challenged, we must
    first determine whether the evidence is legally sufficient to support the verdict. Clewis v.
    State, 
    922 S.W.2d 126
    , 133 (Tex.Crim.App. 1996). Legally sufficient evidence supporting
    a conviction exists if the court, after reviewing the evidence in the light most favorable to
    the prosecution, determines that a rational trier of fact could have found the essential
    elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 
    443 U.S. 307
    ,
    318, 
    99 S. Ct. 2781
    , 2789, 
    61 L. Ed. 2d 560
    , 573 (1979); 
    Clewis, 922 S.W.2d at 129
    ; Geesa
    v. State, 
    820 S.W.2d 154
    , 156-57 (Tex.Crim.App. 1991). We should uphold the jury’s
    verdict unless it is irrational or unsupported by more than a “mere modicum” of evidence.
    Moreno v. State, 
    755 S.W.2d 866
    , 867 (Tex.Crim.App. 1988).
    If the evidence is legally sufficient to support the verdict, we proceed with a factual
    sufficiency review. 
    Clewis, 922 S.W.2d at 133
    . In our review, we evaluate all the evidence
    without employing the prism of “in the light most favorable to the prosecution.” 
    Id. at 129.
    We therefore consider all of the evidence, comparing evidence that tends to prove the
    existence of disputed facts with evidence that tends to disprove such facts. Santellan v.
    State, 
    939 S.W.2d 155
    , 164 (Tex.Crim.App. 1997). We should set aside the verdict only
    when the factual finding is so against the great weight and preponderance of the evidence
    as to be clearly wrong and unjust. 
    Clewis, 922 S.W.2d at 135
    . In doing so, we must be
    3
    mindful that the jury is the sole judge of the weight and credibility of witness testimony.
    
    Santellan, 939 S.W.2d at 164
    .
    Regarding legal sufficiency, the indictment charged that on or about August 10,
    1997, appellant “did then and there intentionally and knowingly possess, with intent to
    deliver, a controlled substance listed in penalty group one, namely Cocaine, by aggregate
    weight, including adulterants and dilutants, less than two hundred (200) grams but at least
    four (4) grams.” This charge is pursuant to section 481.112 of the Texas Health and
    Safety Code. TEX . HEALTH & SAFETY CODE ANN . § 481.112 (Vernon Supp. 2000). Appellant
    contends that because no laboratory testing was performed to determine the “purity” of the
    substance, it is not possible to prove that appellant actually possessed a controlled
    substance. Thus, appellant reasons, if an adulterant or dilutant affects the chemical
    activity and makeup of the substance, the substance could be an analogue or precursor
    of cocaine and should not be considered a controlled substance. Appellant relies on
    sections 481.123 and 481.112 of the Texas Health and Safety Code, contending that
    section 481.112 does not apply to an analogue of cocaine.1
    1
    Section 481.123(a) provides that a controlled substance analogue is considered
    to be a controlled substance listed in Penalty Group 1 or 1-A if the analogue in whole or
    in part is intended for human consumption and:
    (1) the chemical structure of the analogue is substantially similar to the chemical
    structure of a controlled substance listed in Schedule I or Penalty Group 1 or 1-A; or
    (2) the analogue is specifically designed to produce an effect substantially similar
    to or greater than the effect of a controlled substance listed in Schedule I or Penalty Group
    1 or 1-A.
    Section 481.123(g) further provides that this section does not apply to: (1) a
    controlled substance.
    Section 481.112 provides in part:
    4
    An adulterant or dilutant is defined as any material that increases the bulk or
    quantity of a controlled substance, regardless of its effect on the chemical activity of the
    controlled substance. TEX . HEALTH & SAFETY CODE ANN . § 481.002(49) (Vernon Supp.
    2000). The State must prove that a controlled substance, plus adulterants and dilutants,
    weighs at least as much as the minimum weight alleged in the indictment. Reeves v.
    State, 
    806 S.W.2d 540
    , 542 (Tex.Crim.App. 1990). The State is not required to prove that
    the added adulterants or dilutants did not affect the chemical activity of a controlled
    substance. Warren v. State, 
    971 S.W.2d 656
    , 660 (Tex.App.--Dallas 1998, no pet.);
    Williams v. State, 
    936 S.W.2d 399
    , 405-06 (Tex.App.--Fort Worth 1996, pet. ref’d).
    The State presented testimony from James Thomas, an employee of the Texas
    Department of Public Safety (DPS) in Lubbock. He testified that he had degrees in
    chemistry and biology, was trained by the DPS laboratory in Austin, was a member of the
    Southwest Association of Forensic Scientists, and had approximately 13 years experience
    supervising the Lubbock laboratory. Thomas testified that the bags taken from appellant’s
    pocket were tested at the Lubbock DPS laboratory.          The testing revealed that the
    substance from the bags contained cocaine together with adulterants and dilutants, and
    (a) Except as authorized by this chapter, a person commits an offense if the person
    knowingly or intentionally manufactures, delivers, or possesses with intent to manufacture
    or deliver a controlled substance listed in Penalty Group 1.
    * * * * *
    (d) An offense under Section (a) is a felony of the first degree if the amount of the
    controlled substance to which the offense applies is, by aggregate weight, including
    adulterants or dilutants, four grams or more but less than 200 grams.
    TEX . HEALTH & SAFETY CODE ANN . (Vernon Supp. 2000).
    5
    weighed 7.29 grams. The record does not contain evidence that the substance in question
    was an analogue of cocaine.
    When viewed in the light most favorable to the prosecution, Thomas’s testimony is
    sufficient for us to conclude that a rational trier of fact could have found the existence of
    all the elements of the crime of possession of a controlled substance, cocaine, in an
    amount of less than 200 grams but at least four grams, beyond a reasonable doubt.
    
    Jackson, 443 U.S. at 318-19
    , 99 S.Ct. at 2788-89; 
    Geesa, 820 S.W.2d at 156-57
    . We
    overrule appellant’s first issue.
    Regarding factual sufficiency, appellant did not produce any evidence controverting
    the weight or “purity” of the cocaine in support of his theory challenging the State’s
    evidence. The verdict is not so contrary to the overwhelming weight of the evidence as
    to be clearly wrong and unjust. 
    Clewis, 922 S.W.2d at 135
    . We overrule appellant’s
    second issue.
    III. EXTRANEOUS OFFENSES DURING
    THE GUILT OR INNOCENCE PHASE OF TRIAL
    By his third issue, appellant contends that the trial court erred in denying his motion
    for mistrial because of the prosecutor’s efforts to introduce evidence that appellant had
    committed acts of domestic violence. Appellant asserts that the acts of domestic violence
    were inadmissible under Rule 404(b) of the Texas Rules of Evidence.
    6
    The State responds that the evidence should be considered “same transaction”
    contextual evidence, and is therefore admissible because the evidence is closely
    connected with the offense at trial. The State cites Mayes v. State, 
    816 S.W.2d 79
    (Tex.Crim.App. 1991). Mayes notes that “same transaction” contextual evidence should
    be admitted “[t]o show the context in which the criminal act occurred . . . under the
    reasoning that events do not occur in a vacuum and that the jury has a right to hear what
    occurred immediately prior to and subsequent to the commission of the act so that they
    may realistically evaluate the evidence.” 
    Id. at 86.
    The State also asserts that Mayes
    supports admission of the type of evidence complained of by appellant where several
    crimes are intermixed, or blended with one another, or so connected so that they form an
    indivisible criminal transaction, and full proof by testimony, whether direct or circumstantial,
    by any one of them cannot be given without showing the others. See 
    id. at 86,
    n.4,
    (quoting Nichols v. State, 
    97 Tex. Crim. 174
    , 
    260 S.W. 1050
    (1924)).
    Generally, evidence of other crimes, wrongs or acts is not admissible to prove the
    character of a person in order to show that the person acted in conformity therewith. TEX .
    R. EVID . 404(b). However, extraneous offense evidence is admissible for other purposes,
    such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or
    absence of mistake. 
    Id. The admissibility
    of extraneous offenses is determined by a two-
    part test. First, the trial court must determine whether the extraneous offense is relevant
    to a material, contested issue in the case other than the defendant’s character.
    Montgomery v. State, 
    810 S.W.2d 372
    , 387-89 (Tex.Crim.App. 1990). Second, the
    7
    relevancy value of the evidence must outweigh its inflammatory or prejudicial potential.
    
    Id. at 388.
    We review the trial court’s actions regarding the admissibility of such evidence
    under an abuse of discretion standard. 
    Id. at 391.
    As long as the trial court’s ruling was
    at least within the “zone of reasonable disagreement,” an appellate court will not find error.
    
    Id. During the
    arresting police officer’s trial testimony, the officer referred to appellant’s
    girlfriend as a “victim,” and the prosecutor questioned the officer about the “scene of
    domestic violence.” Appellant made objections on the basis of Rule 404(b), and on both
    occasions, the trial court sustained the objection. The court also instructed the jury to
    disregard the “victim” characterization and the subsequent question by the prosecutor
    concerning domestic violence. The trial court denied appellant’s two requests for a
    mistrial.
    Without applying the two-part test set out in Montgomery, we note that in the two
    instances complained of by appellant, he received all the relief requested except for a
    mistrial. The trial court sustained the objections and instructed the jury to disregard the
    testimony and question.
    Error in the admission of improper testimony is usually cured by the trial court’s
    instruction to the jury to disregard, except in extreme cases where it appears that the
    question or evidence is clearly calculated to inflame the minds of the jury and is of such
    character to suggest the impossibility of withdrawing the impression produced in their
    8
    minds. Coe v. State, 
    683 S.W.2d 431
    , 436 (Tex.Crim.App. 1984) (quoting Koller v. State,
    
    518 S.W.2d 373
    , 375 (Tex.Crim.App. 1975)).          The question and testimony complained
    of are not of such character as to suggest the impossibility of withdrawing their impression
    from the minds of the jury. Any possible error was cured by the trial court’s instruction to
    the jury. Accordingly, we overrule appellant’s third issue.
    Through the testimony of the arresting police officer, a pistol and a shotgun were
    admitted into evidence. The weapons were found near appellant at the time of his arrest.
    Another shotgun, a .22 caliber pistol, and a knife were recovered after appellant’s arrest
    and were also admitted into evidence. By his fourth and fifth issues, appellant contends
    that the trial court erred by permitting the prosecutor to elicit testimony that appellant was
    in possession of the guns and a knife at the time of his arrest. He claims the evidence was
    admitted in violation of Rules 404(b) and 403 of the Texas Rules of Evidence.
    In determining relevance, as required by the first part of the Montgomery test,
    evidence is relevant if it tends to make more or less probable an elemental fact or
    inferentially supports or undermines an elemental fact. 
    Montgomery, 810 S.W.2d at 387
    .
    The arresting officer testified that the items recovered after appellant’s arrest were in close
    proximity to a set of scales on the floor. In addition, an eight-year officer with the Narcotics
    Division of the Lubbock Police Department testified, as an expert for the State, that in his
    experience, guns are commonly associated with people who traffic in drugs. Further,
    evidence of possession of a weapon by a defendant when an offense is committed is
    usually relevant as a circumstance of the offense because arguably the weapon is
    9
    intended to be used, exhibited, or simply possessed for protection or threat during the
    offense. Couret v. State, 
    792 S.W.2d 106
    , 108 (Tex.Crim.App. 1990). The presence of
    guns and a knife bears relevance at least to the issues of appellant’s plan or intent to
    deliver drugs. The trial court did not abuse its discretion in admitting the evidence over
    appellant’s Rule 404(b) objection.
    When evidence is evaluated for admissibility under the second part of the
    Montgomery test, a presumption favors admissibility. 
    Montgomery, 810 S.W.2d at 389
    .
    The evidence of the guns and knife was so closely connected with the events of the arrest
    that it was admissible to aid the jury in understanding the circumstances of the charged
    crime. The evidence was “same transaction” evidence in nature, and the trial court did not
    abuse its discretion in determining that the probative value of the evidence exceeded its
    prejudicial effect. Accordingly, we overrule appellant’s fourth and fifth issues.
    IV. JURY ARGUMENT
    In his sixth issue, appellant contends that the trial court erred in denying his request
    for a mistrial because the State made a jury argument outside the record during the guilt
    or innocence stage of trial:
    Prosecutor: Now, if you’re out to sell drugs, just like selling anything else.
    You’re going to sell shirts. You’ve got to have some smalls.
    You’ve got to have some larges. Well, what do you have
    here? We’ve got some smalls. We’ve got some larges.
    These are exactly what Dale Gregg sees all the time in years
    of experience about drug trafficking in Lubbock, exactly right
    there.
    10
    Ladies and gentlemen of the jury, these witnesses know
    exactly what they’re talking about. It wasn’t Dale Gregg’s
    thought that maybe this man had the intent to deliver. He was
    sure, no doubt, somebody that does this is out to deliver
    drugs.
    Defense:      Your Honor, I’m going to object. Officer Gregg never said that
    this defendant, his opinion, had the intent to deliver.
    The trial court sustained the objection and instructed the jury to disregard the comment.
    Appellant’s request for a mistrial was denied.
    Jury arguments must fall into one of four general areas: 1) summation of the
    evidence, 2) reasonable deduction from the evidence, 3) answer to the argument of
    opposing counsel, and 4) plea for law enforcement. Walker v. State, 
    664 S.W.2d 338
    , 340
    (Tex.Crim.App. 1984); Alejandro v. State, 
    493 S.W.2d 230
    , 231 (Tex.Crim.App. 1973). It
    is improper for a prosecutor to call upon the jury to speculate as to activities of the accused
    that are not shown nor inferable from the evidence. 
    Walker, 664 S.W.2d at 340
    .
    Although the State’s expert did not expressly state that he had “no doubt” regarding
    appellant’s intent to deliver cocaine, the record reflects a portion of his testimony as
    follows:
    Q:     If--for example, let’s say somebody had in their possession over
    seven grams of cocaine packaged as you’ve seen in State’s Exhibits
    5 and 6, would you believe that person has that for personal use?
    A:     No.
    Q:     In your opinion, why would someone have drugs in that amount
    packaged that way?
    A:     To resell.
    11
    ***
    Q:     Are those particular sizes of packaging, is that common sizing for
    drug dealing in Lubbock, Texas?
    A:     Sure. Yes.
    Q:     Now, are--is it common to deal cocaine and package it using the
    corners of plastic baggies?
    A:     Yes.
    When considering the entire record, it is not unreasonable to infer that the expert
    believed appellant possessed the cocaine with the intent to deliver; therefore, the
    argument was not improper. Even if we assume that the argument was improper, however,
    the argument is not so inflammatory as to be incurable. The trial court’s instruction to the
    jury cured any error. Carter v. State, 
    614 S.W.2d 821
    , 823 (Tex.Crim.App. 1981).
    Appellant’s sixth issue is overruled.
    In his tenth issue, appellant contends that during the punishment phase of trial, the
    trial court erred in overruling his request for a mistrial because the State made an improper
    plea for law enforcement. Appellant’s complaint is based on the following jury argument
    and objection:
    Prosecutor: You know, I was thinking about voir dire on the first day of this
    trial and what the general consensus of the people that
    attended [sic] and were a part of the jury pool. The
    overwhelming majority of people expressed the idea that
    protecting society ---
    Defense:      Your Honor, I’m going to object to this argument; one, being
    outside the record; two, being an improper plea as to
    community expectations.
    12
    The trial court sustained the objection and instructed the jury to disregard the comment.
    Appellant’s request for a mistrial was denied.
    The State may make a proper plea for law enforcement, including arguing the
    relationship between the jury’s verdict and the deterrence of crime in general, arguing that
    juries should deter specific crimes by their verdicts, and arguing the impact of the jury’s
    verdict on the community. Borjan v. State, 
    787 S.W.2d 53
    , 55-56 (Tex.Crim.App. 1990).
    However, the State is not permitted to argue that the community or any particular group
    in the community demands or expects a verdict of guilty or a specific punishment. 
    Id. at 56.
    Prior to defense counsel’s objection, the prosecutor made an incomplete statement
    about what the majority of people expressed during voir dire prior to jury selection, and
    there is nothing in the record reflecting specific demands or expectations of the community.
    In Cortez v. State, 
    683 S.W.2d 419
    , 421 (Tex.Crim.App. 1984), the court quoted numerous
    cases where juries were improperly asked to follow community expectations, rather than
    the law. None of the language condemned by Cortez was used in this instance. If we
    assume that the argument was improper, the argument is not so inflammatory as to be
    incurable. The trial court’s instruction to disregard cured any error. 
    Carter, 614 S.W.2d at 823
    . Appellant’s tenth issue is overruled.
    In his eleventh issue, appellant contends that during the punishment phase of trial,
    the trial court erred in overruling his objection after the State made a harmful jury argument
    13
    that invited the jurors to speculate about matters outside of the record. Appellant’s
    complaint is based on the prosecutor’s argument as follows:
    [Defense counsel] wants to talk about how, well, no one was shot, no one
    was killed, he wasn’t caught actually dealing any drugs. Do not reward this
    man because the police officers happened to stop him before something
    worse happened.
    You know, what is somebody thinking, what are their intentions when they
    have something like this around in their drug business?
    Prior to the prosecutor’s remark, defense counsel had made the following argument to the
    jury:
    You can take into consideration this is a nonviolent crime. We’re not talking
    about a murder where someone’s life has been taken. We’re not talking
    about aggravated assault where somebody has been seriously injured.
    We’re not talking about a sexual assault or an aggravated assault. And I
    think you need to keep that in prospective [sic] for this particular case.
    Based on this record, it would not be unreasonable to infer appellant’s intent to use
    the guns in the course of dealing drugs, if necessary. Guns are designed to shoot
    projectiles, which in turn are designed to cause damage to what they strike.            The
    prosecutor’s argument is not an unreasonable inference to be drawn from the evidence
    and thus is not improper. 
    Walker, 664 S.W.2d at 340
    . Further, the prosecutor’s remark
    was in response to defense counsel’s argument and was not improper. Id.; 
    Alejandro, 493 S.W.2d at 231
    . Appellant’s eleventh issue is overruled.
    V. EVIDENCE OF EXTRANEOUS OFFENSE
    DURING PUNISHMENT PHASE OF TRIAL
    14
    In his seventh, eighth, and ninth issues, appellant contends that the trial court erred
    during the punishment phase of trial by admitting evidence of an extraneous offense
    involving appellant’s possession of cocaine. Appellant claims the evidence was obtained
    as the fruit of a traffic stop in violation of his rights under the Fourth and Fourteenth
    Amendments to the United States Constitution and Article I, Section 9 of the Texas
    Constitution, and admitted into evidence in violation of his rights under the Constitutions.
    Appellant also contends that admission of the evidence was error because Article 38.23
    of the Texas Code of Criminal Procedure requires exclusion of evidence obtained in
    violation of any provisions of the laws or Constitution of Texas or of the laws or
    Constitution of the United States.
    During presentation of evidence on punishment, the State introduced evidence
    obtained as a result of a traffic stop of a vehicle in which appellant was a passenger. The
    stop occurred on September 11, 1997, at 3:03 a.m., in the 5400 block of the northbound
    access road to Interstate Highway 27 in Lubbock. The police officer who stopped the
    vehicle in which appellant was a passenger and who arrested appellant gave no reason
    for the stop other than the fact that the vehicle had its lights on bright:
    Prosecutor:    And why did you stop this vehicle?
    Witness:       For driving with its lights on bright.
    After he stopped the vehicle, the officer shined his flashlight into the vehicle. He
    did not see anything suspicious. Because the officer observed appellant making “furtive
    gestures” like he might be placing something in the floorboard or under the car seat, or
    15
    reaching for something in the floorboard or under the car seat, the officer was suspicious
    that appellant might have a weapon. Based on his suspicion, he requested appellant to
    exit the vehicle. The officer saw appellant reach into his front pants pocket and toss a
    “little plastic baggy” on top of a jacket in the backseat floorboard. The officer testified that
    the baggy was not located on top of the jacket when he first shined his flashlight into the
    vehicle. The baggy was recovered and appellant was arrested. The State’s expert
    testified that the bag contained cocaine, which, including adulterants and dilutants,
    weighed .58 grams.
    In responding to appellant’s issues, the State acknowledges that when a search or
    seizure occurs without a warrant, the burden of proof is on the State to prove the
    reasonableness of the search or seizure. Referring to the stop of the vehicle as an
    investigatory stop, the State further acknowledges that to justify the stop, the officer must
    have possessed specific articulable facts which could reasonably have led him to suspect
    that the vehicle or an occupant of the vehicle had been, was, or soon would be involved
    in criminal activity. The State refers us to Terry v. Ohio, 
    392 U.S. 1
    , 
    88 S. Ct. 1868
    , 
    20 L. Ed. 2d 889
    (1968) and Davis v. State, 
    947 S.W.2d 240
    , 244 (Tex.Crim.App. 1997). The
    State attempts to justify the stop by asserting that failure to dim the headlights of an
    automobile to oncoming traffic violates T EX . TRANSP . CODE ANN . § 547.333(c) (Vernon
    1999).2 Thus, the State reasons, because a vehicle may be stopped and detained for a
    2
    Section 547.333(c) provides:
    (c) A person who operates a vehicle on a roadway or shoulder shall select a distribution
    of light or composite beam that is aimed and emits light sufficient to reveal a person or
    vehicle at a safe distance ahead of the vehicle, except that:
    16
    traffic violation,3 the vehicle in which appellant was a passenger was legally stopped. The
    State also cites section 547.305(a) of the Transportation Code as “relevant” to the legality
    of the stop. Section 547.305(a) provides that a motor vehicle light with a beam brighter
    than 300 candlepower shall be directed so that no part of the beam strikes the roadway
    more than 75 feet from the vehicle. However, the State does not reference evidence in the
    record to support its position with respect to section 547.305(a), nor does the State present
    argument showing how the stop was a violation of, and therefore justified by, such section.
    The Fourth Amendment to the United States Constitution protects persons from
    unreasonable searches and seizures. Elkins v. United States, 
    364 U.S. 206
    , 222, 
    102 S. Ct. 1319
    , 
    4 L. Ed. 2d 1669
    (1960); 
    Davis, 947 S.W.2d at 244
    . Evidence obtained by a
    search and seizure in violation of the Constitution is inadmissible at a criminal trial of the
    person whose constitutional rights were violated. Mapp v. Ohio, 
    367 U.S. 643
    , 655, 
    81 S. Ct. 1684
    , 
    6 L. Ed. 2d 1081
    (1961). Texas courts follow the guidance of the United States
    Supreme Court when interpreting the federal constitution and the rights thereunder. State
    v. Guzman, 
    959 S.W.2d 631
    , 633 (Tex.Crim.App. 1998).
    (1) an operator approaching an oncoming vehicle within 500 feet shall select:
    (A) the lowermost distribution of light or composite beam, regardless of road
    contour or condition of loading; or
    (B) a distribution aimed so that no part of the high-intensity portion of the
    lamp projects into the eyes of an approaching vehicle operator; and
    (2) an operator approaching a vehicle from the rear within 300 feet may not select
    the uppermost distribution of light.
    3
    McVickers v. State, 
    874 S.W.2d 662
    , 664 (Tex.Crim.App. 1993).
    17
    Article I, Section 9 of the Texas Constitution recognizes the right of the people to
    be secure from unreasonable searches and seizures. Hulit v. State, 
    982 S.W.2d 431
    , 434
    (Tex.Crim.App. 1998). The test for whether a search or seizure violates Article I, Section
    9 of the Texas Constitution is whether, viewing the totality of the circumstances and after
    considering the public and private interests that are at stake, the search or seizure was
    unreasonable. 
    Id. at 436,
    438. The Texas Constitution does not require exclusion of
    physical evidence seized in violation of Article I, Section 9. Welchek v. State, 93 Tex.
    Crim. 271, ___, 
    247 S.W. 524
    , 529 (1922).
    Article I, Section 9 of the Texas Constitution does not encompass a more stringent
    standard than the Terry standard which is used to evaluate a temporary investigative stop
    of a vehicle or its occupants under the Fourth Amendment to the federal constitution.
    Rhodes v. State, 
    945 S.W.2d 115
    , 117 (Tex.Crim.App. 1997). Because the Fourth
    Amendment of the federal constitution affords appellant as much or more protection than
    Article I, Section 9 of the Texas Constitution, we analyze appellant’s complaints under the
    federal Terry standard. If the stop of the vehicle and subsequent actions of the officer are
    not in violation of the federal Fourth Amendment and the Terry standards, they do not
    violate Article I, Section 9 of the Texas Constitution. 
    Rhodes, 945 S.W.2d at 117
    .
    An investigatory stop of a vehicle or person by the police does not violate the Fourth
    Amendment if articulable facts support a reasonable suspicion that the vehicle or person
    stopped has been or is involved in criminal activity. United States v. Cortez, 
    449 U.S. 411
    ,
    421-22, 
    101 S. Ct. 690
    , 
    66 L. Ed. 2d 621
    (1981); United States v. Brignoni-Ponce, 
    422 U.S. 18
    873, 881, 
    95 S. Ct. 2574
    , 
    45 L. Ed. 2d 607
    (1975); Sanders v. State, 
    992 S.W.2d 742
    , 748-
    49 (Tex.App.--Amarillo 1999, pet. ref’d). A “reasonable suspicion” exists if a reasonable
    person in the position of the officer making the stop could suspect that the vehicle or
    person stopped has been or is connected to criminal activity. United States v. 
    Cortez, 449 U.S. at 421-22
    ; Sanders v. 
    State, 992 S.W.2d at 748-49
    . The subjective thoughts and
    intentions of the officer making the stop are not determinative of whether the articulable
    facts support a reasonable suspicion. Whren v. United States, 
    517 U.S. 806
    , ___, 
    116 S. Ct. 1769
    , 1772, 
    135 L. Ed. 2d 89
    (1996). The Fourth Amendment standard is an objective
    standard based upon the record presented. Ornelas v. United States, 
    517 U.S. 690
    , 
    116 S. Ct. 1657
    , 1661-62, 
    134 L. Ed. 2d 911
    (1996).
    Generally, a passenger does not have a possessory interest in an automobile and
    therefore lacks standing to complain of its search because there is no infringement of his
    expectation of privacy. See Rakas v. Illinois, 
    439 U.S. 128
    , 148-49, 
    99 S. Ct. 421
    , 433, 
    58 L. Ed. 2d 387
    (1978). A vehicular stop, however, results in the seizure of both the driver
    and the passenger. Whren, 517 U.S. at ___, 116 S.Ct. at 1772; United States v.
    Roberson, 
    6 F.3d 1088
    , 1091 (5th Cir. 1993), cert. denied, 
    510 U.S. 1204
    , 
    114 S. Ct. 1322
    ,
    
    127 L. Ed. 2d 671
    (1994). Thus, an automobile stop is subject to the constitutional
    requirement that it not be unreasonable under the circumstances. Whren, 517 U.S. at ___,
    116 S.Ct. at 1772. The passenger of a stopped automobile has standing to challenge his
    or her seizure as unconstitutional. 
    Roberson, 6 F.3d at 1091
    ; see Lewis v. State, 
    664 S.W.2d 345
    , 348 (Tex.Crim.App. 1984). If a traffic stop was unlawful, evidence resulting
    19
    from the stop and any subsequent search is tainted and inadmissible. 
    Roberson, 6 F.3d at 1092
    ; Robinson v. State, 
    866 S.W.2d 649
    , 650 (Tex.App.--Houston [14th Dist.] 1993,
    pet. ref’d); see 
    Mapp, 367 U.S. at 655
    .
    The State bears the burden of proving the legality of warrantless seizures,
    warrantless searches and warrantless arrests. 
    McVickers, 874 S.W.2d at 664
    . A Fourth
    Amendment seizure occurs when a police officer stops the freedom of movement of a
    person through intentionally-applied actions. 
    Id. An officer
    may lawfully stop and detain
    a vehicle when the officer has probable cause to believe a traffic violation has occurred.
    Whren, 517 U.S. at ___, 116 S.Ct. at 1772; United States v. Shabazz, 
    993 F.2d 431
    , 435
    (5th Cir. 1993); Garcia v. State, 
    827 S.W.2d 937
    , 944 (Tex.Crim.App. 1992). A traffic
    violation is committed when a vehicle’s headlights are not appropriately dimmed to
    oncoming traffic or to another vehicle being approached from the rear. TEX . TRANSP . CODE
    ANN . § 547.333(c) (Vernon 1999).
    The standard of review on appeal, and therefore the amount of deference we afford
    to the trial court’s rulings, generally is determined by which judicial actor is in a better
    position to decide the issue. Miller v. Fenton, 
    474 U.S. 104
    , 
    106 S. Ct. 445
    , 
    88 L. Ed. 2d 405
    (1985); Guzman v. State, 
    955 S.W.2d 85
    , 87 (Tex.Crim.App. 1997). Appellate courts
    afford almost total deference to a trial court’s determination of historical facts that the
    record supports, especially when the trial court’s findings are based on an evaluation of
    credibility and demeanor. 
    Id. at 89;
    See Ornelas, 
    517 U.S. 690
    ,__, 116 S.Ct. at 1663.
    Appellate courts afford the same amount of deference to trial courts’ rulings on application
    20
    of law to fact questions if the resolution of those ultimate questions turns on an evaluation
    of credibility and demeanor. 
    Guzman, 955 S.W.2d at 89
    . As to the foregoing two
    categories of rulings, we view the record and evidence in the light most favorable to the
    trial court’s ruling. 
    Id. For purposes
    of Fourth Amendment analysis we give appropriate
    deference to the trial court’s determination of historical facts, but we review the decision
    of the trial court de novo as to whether the historical facts, viewed from the standpoint of
    an objectively reasonable person so situated as was the police officer, amount to
    “reasonable suspicion” that the vehicle or a person in it has, is, or will be, engaged in
    criminal activity. See Ornelas, 517 U.S. at ___, 116 S.Ct. at 1661-62; 
    Guzman, 955 S.W.2d at 89
    .
    There is no evidence in the record establishing that the vehicle in which appellant
    was a passenger failed to dim its headlights to oncoming traffic, nor that the vehicle failed
    to dim its lights when approaching another vehicle from the rear. The record contains no
    evidence of whether the access road on which appellant’s vehicle was stopped had
    multiple traffic lanes or had only a single lane. No evidence was presented as to whether
    the vehicle in which appellant was riding had passed other vehicles going in the opposite
    direction, or whether it was following other vehicles. The record does not show whether
    the arresting officer was stopped beside the roadway when he observed the vehicle in
    which appellant was riding to have its headlights on bright, whether he drove up behind
    the vehicle and observed the bright headlights, whether he passed the vehicle going in the
    opposite direction on the access roadway, or whether he was perhaps on the interstate
    21
    highway when he observed the vehicle’s bright lights. The State’s position that a traffic
    violation justified the officer’s stop of the vehicle in which appellant was riding is not valid.
    Further, for purposes of justifying a Fourth Amendment investigatory stop, the fact that an
    automobile is being operated on an access road to an interstate highway at 3:00 a.m. with
    its headlights on bright is not sufficient to raise a reasonable suspicion that it or one of its
    occupants is, has been, or soon will be, involved in criminal activity.
    Because the vehicle was not being operated in violation of a traffic law, and the
    State did not prove that the officer possessed articulable facts which could create a
    reasonable suspicion that the vehicle or one of its occupants was, had been, or soon
    would be, involved in criminal activity, the traffic stop of the vehicle and the resultant
    seizure of appellant violated appellant’s rights under the Fourth Amendment to the United
    States Constitution. The evidence that appellant possessed cocaine was obtained in
    violation of appellant’s Fourth Amendment rights. The evidence was inadmissible on the
    basis of the exclusionary rule of Mapp and its progeny, and on the basis of TEX . CRIM .
    PROC . CODE ANN . art. 38.23(a) (Vernon 1979 & Supp. 2000). The trial court erred in
    admitting the evidence.
    Having concluded that the trial court erred in admitting evidence derived from a
    violation of appellant’s Fourth Amendment rights, we must determine whether the error
    requires reversal of the judgment as to punishment. Texas Rule of Appellate Procedure
    44.2 provides the standard by which we are guided.
    22
    If the appellate record in a criminal case reveals constitutional error that is subject
    to harmless error review, the court of appeals must reverse the judgment unless the court
    determines beyond a reasonable doubt that the error did not contribute to the conviction
    or punishment. TEX . R. APP . P. 44.2(a). A constitutional error within the meaning of Rule
    44.2(a) is an error that directly offends against the United States Constitution or the Texas
    Constitution without regard to any statute or rule that might also apply. Tate v. State, 
    988 S.W.2d 887
    , 890 (Tex.App.--Austin 1999, pet. ref’d). With respect to the erroneous
    admission or exclusion of evidence, constitutional error is presented only if the correct
    ruling was constitutionally required. 
    Id. Any other
    error, defect, irregularity, or variance
    that does not affect substantial rights must be disregarded. TEX . R. APP . P. 44.2(b).
    Certain federal constitutional errors labeled by the United States Supreme Court as
    “structural” errors4 require reversal of the case without consideration of whether the error
    caused harm. See Arizona v. Fulminante, 
    499 U.S. 279
    , 309-10, 
    111 S. Ct. 1246
    , 
    113 L. Ed. 2d 302
    (1991); Cain v. State, 
    947 S.W.2d 262
    , 264 (Tex.Crim.App. 1997). Such
    cases are categorically immune from harmless error review. 
    Fulminante, 499 U.S. at 309
    -
    10; 
    Cain, 947 S.W.2d at 264
    . Additionally, if the effects of an error in a particular case
    defy harmless error analysis or the data is insufficient to conduct a meaningful harmless
    error analysis, the error will not be proven harmless, 
    Fulminante, 499 U.S. at 309
    -10; 
    Cain, 947 S.W.2d at 264
    , whether the error is constitutional or non-constitutional. See Heard
    v. State, 
    995 S.W.2d 317
    , 321-22 (Tex.App.--Corpus Christi 1999, pet. ref’d). However,
    4
    See Gonzales v. State, 
    994 S.W.2d 170
    , 171 n.4 (Tex.Crim.App. 1999) for a list
    of classes of cases in which the Supreme Court has found ”structural” errors.
    23
    the erroneous admission of evidence obtained in violation of Fourth Amendment rights has
    not been declared by the Supreme Court to be a “structural” error, see Gonzales v. State,
    
    994 S.W.2d 170
    , 171 n.4 (Tex.Crim.App. 1999), nor is this the type of record which defies
    harmless error analysis for the error in question. See 
    Heard, 995 S.W.2d at 321-22
    .
    Therefore, we proceed to a harmless error analysis pursuant to Rule 44.2.
    We first determine if the error in admitting evidence was constitutional error as
    contemplated by Rule 44.2(a).      In Mapp, the Supreme Court held that the federal
    constitution requires that evidence obtained in violation of an accused’s Fourth
    Amendment right to privacy be excluded from trial. 
    Mapp, 367 U.S. at 655
    . Various
    opinions of the Court and of individual justices subsequent to Mapp have posited that the
    exclusionary rule which was explicitly held to be of constitutional origin by Mapp was not
    necessarily of such genesis. For example, in United States v. Calandra, 
    414 U.S. 338
    ,
    348, 
    94 S. Ct. 613
    , 
    38 L. Ed. 2d 561
    (1974), the Supreme Court stated that the exclusionary
    rule is a judicially-created means of deterring illegal searches and seizures. In Stone v.
    Powell, 
    428 U.S. 465
    , 
    96 S. Ct. 3037
    , 
    49 L. Ed. 2d 1067
    (1976), the Court considered
    whether state prisoners making claims that they were convicted because evidence
    procured by unlawful searches and seizures was admitted at their trials should be allowed
    to assert a constitutional violation claim in federal habeas corpus proceedings. The Court
    reviewed the development of the exclusionary rule which was made applicable to the
    states by Mapp. 
    Stone, 428 U.S. at 482-84
    . At the outset of its review the Court noted that
    the exclusionary rule was a judicially-created means of effectuating the rights secured by
    24
    the Fourth Amendment and that prior to Weeks v. United States, 
    232 U.S. 383
    , 
    34 S. Ct. 341
    , 
    58 L. Ed. 652
    (1914), and Gouled v. United States, 
    255 U.S. 298
    , 
    41 S. Ct. 261
    , 
    65 L. Ed. 647
    (1921), no barrier existed to the introduction in criminal trials of evidence
    obtained in violation of the Amendment. 
    Stone, 428 U.S. at 482
    . The Court also noted
    that in Mapp only four justices adopted the view that the Fourth Amendment itself requires
    exclusion of unconstitutionally-seized evidence in state criminal trials; that Justice Douglas
    concurred; and that Justice Black concurred on the basis that the Fourth Amendment
    alone was not sufficient basis for the exclusionary rule, but that the rule emerged when the
    Fourth and Fifth Amendments were considered together. 
    Id. at 484
    n.21. The Court then
    forthrightly stated that “Post-Mapp decisions have established that the [exclusionary] rule
    is not a personal constitutional right.” 
    Id. at 486.
    Language in the recent decision of Pennsylvania Bd. of Probation and Parole v.
    Scott, __U.S.__, 
    118 S. Ct. 2014
    , __ L.Ed.3d__(1998) directly addresses the issue which
    we must answer in determining whether the admission of the illegally-seized evidence at
    appellant’s trial was federal constitutional error as referred to by Rule 44.2(a). In Scott,
    the Court considered whether the rule excluding evidence seized in violation of the Fourth
    Amendment applies in state parole revocation hearings. The Court held that the rule does
    not so apply. In beginning its discussion of law surrounding the issue, the Court succinctly
    and clearly stated its position on the question now before us: “We have emphasized
    repeatedly that the State’s use of evidence obtained in violation of the Fourth Amendment
    does not itself violate the Constitution.” __ U.S. at __, 118 S.Ct. at 2019. We conclude
    25
    that the trial court’s error in admitting evidence obtained in violation of appellant’s Fourth
    Amendment rights did not directly offend the United States Constitution, was not required
    by the Constitution itself, and therefore was not federal constitutional error for purposes
    of Rule 44.2(a). See 
    Tate, 988 S.W.2d at 890
    .
    As we have previously noted, the Texas Constitution does not require exclusion of
    physical evidence seized in violation of Article I, Section 9. Welchek v. State, 93 Tex.
    Crim. 271,__, 
    247 S.W. 524
    , 529 (1922). Even if the cocaine had been obtained from
    appellant in violation of his rights under the Texas Constitution, a question we do not
    decide, the admission of the evidence at trial would not have been Rule 44.2(a)
    constitutional error based on its being a direct offense to, or exclusion of the evidence
    being required by, the Texas Constitution. See 
    Tate, 988 S.W.2d at 890
    .
    Because the error in admitting the evidence was not constitutional error, we use the
    standard of Rule 44.2(b) to determine whether the error warrants reversal. Under Rule
    44.2(b) an error affects a substantial right of the defendant when the error has a
    substantial and injurious effect or influence in determining the jury’s verdict. King v. State,
    
    953 S.W.2d 266
    , 271 (Tex.Crim.App. 1997). A criminal conviction will not be reversed for
    non-constitutional error if the appellate court, after examining the record as a whole, has
    fair assurance that the error did not influence the jury, or had but a slight effect. See
    Johnson v. State, 
    967 S.W.2d 410
    , 417 (Tex.Crim.App. 1998).
    26
    The record shows that appellant was in possession of two plastic bags containing
    smaller bags of cocaine. In the residence where appellant was sleeping when he was
    arrested, the police found both loaded and unloaded guns, ammunition, a knife, scales and
    other obvious drug paraphernalia. Testimony was given to the effect that drugs packaged
    like those seized from appellant were commonly part of drug dealing activities. During the
    punishment phase of trial, the State produced evidence of other offenses by appellant in
    addition to evidence of his cocaine possession. The other offenses included a Class A
    misdemeanor assault offense, three Class B misdemeanor theft offenses, a Class A
    misdemeanor offense of unlawfully carrying a weapon, and a third-degree felony offense
    of burglary of a vehicle. Approximately one and one-half years before his arrest on the
    charges for which he was on trial, appellant had been sentenced to five years in prison,
    probated for five years. During final summation, the prosecutors reminded the jury of how
    recently appellant appeared in court for sentencing for another crime and how little he
    seemed to be affected by his experience. Evidence of an arrest for drug possession
    occurring after the date of the crime for which appellant was on trial could have been very
    important to a jury in determining appellant’s sentence. We note, however, that in final
    summation appellant’s counsel argued to the jury that the cocaine possessed by appellant
    was illegally seized and that the court’s charge instructed them not to consider such
    evidence if the jury found that the evidence was illegally obtained.         The possible
    punishment range for appellant’s crime was confinement for five years to ninety-nine years
    and a fine of up to ten thousand dollars. The prosecutors urged the jury to assess a
    minimum of forty-five years confinement as punishment. Yet the jury assessed only
    27
    twenty-five years confinement and a fine of $6,000. Upon this record we conclude that the
    effect of the trial court’s error in admitting the illegally-obtained evidence was not
    substantial and injurious, but was slight, at most, and therefore must be disregarded. TEX .
    R. APP . P. 44.2(b).
    The judgment is affirmed.
    Phil Johnson
    Justice
    Publish.
    28