Calvin Jones v. State ( 2005 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-04-00120-CR

Calvin Jones,

                                                                      Appellant

 v.

The State of Texas,

                                                                      Appellee

From the 52nd District Court

Coryell County, Texas

Trial Court No. FDP-02-16570

MEMORANDUM  Opinion

      Jones appeals his conviction for possession of cocaine with intent to deliver.  See Tex. Health & Safety Code Ann. § 481.112(d) (Vernon 2003).  We affirm.

      In his sole issue, Jones contends that the trial court erred in overruling Jones’s motion to suppress evidence.  Jones argues that he was arrested without probable cause.  Giving almost total deference to the trial court’s determination of the historical facts, we hold that the trial court did not abuse its discretion in overruling the motion.  See Masterson v. State, 155 S.W.3d 167, 170 (Tex. Crim. App. 2005); State v. Mechler, 153 S.W.3d 438, 438 (Tex. Crim. App. 2005).  Police officers were dispatched to a report of the use of marijuana.  While responding to the call, one officer saw a truck matching the description given by the informant.  Jones was a passenger in the truck.  The truck pulled into a gas station and stopped, and the officer pulled in after it.  As the officer approached the truck, the driver got out quickly and nervously, and made what the officer took as furtive gestures, so that the officer was not able to see the driver’s hands.  The officer pulled his gun and ordered the driver to show his hands.  After the officer was satisfied that the driver was not holding a weapon, the officer put his gun away.  Officers smelled the odor of marijuana, and handcuffed the driver and Jones.   The driver gave the officers a false name, and was arrested.  See Tex. Penal Code Ann. § 38.02(b) (Vernon Supp. 2004-2005).  When an officer asked Jones where his identification was, he pointed to the truck’s console.  An officer retrieving Jones’s identification briefly searched the passenger seat area, and found cocaine there.  Jones argues that he was under arrest when the first officer pulled his gun or when Jones was handcuffed.  Officers could have lawfully searched the truck either on probable cause to believe that it contained marijuana or incident to the arrest of the driver.  See State v. Gray, 158 S.W.3d 465, 470 (Tex. Crim. App. 2005); State v. Guzman, 959 S.W.2d 631, 633-34 (Tex. Crim. App. 1998). 

      Having overruled Jones’s issue, we affirm the judgment.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

      Justice Vance, and

      Justice Reyna

      (Justice Vance concurring with note)*

Affirmed

Opinion delivered and filed June 22, 2005

Do not publish

[CR25]

  *  “(Justice Vance concurs with a note:  It is hard to understand why this opinion, even though it is a memorandum opinion, does not adequately address Appellant’s issues.  Although I concur in the judgment, I cannot join this opinion.)”