Michael Orlanda Hale v. State ( 2002 )

                NUMBERS 13-01-251-CR & 13-01-252-CR

                         COURT OF APPEALS

               THIRTEENTH DISTRICT OF TEXAS

                  CORPUS CHRISTI B EDINBURG

MICHAEL ORLANDA HALE,                                        Appellant,

                                           v.

THE STATE OF TEXAS,                                              Appellee.

                  On appeal from the 260th District Court

                           of Orange County, Texas.

                                  O P I N I O N

                   Before Justices Dorsey, Yañez, and Baird^[1]

                             Opinion by Justice Baird

  

Appellant was charged in two indictments with the offense of possession of marihuana: cause no. D-990-372-R alleged possession of more than four ounces but not more than five pounds; and, cause no. D-000,036-R alleged possession of more than five but less than 50 pounds.  The trial judge overruled appellant=s motions to suppress the alleged contraband in each case, and appellant pled guilty to the charged offenses.  The trial judge assessed punishment at twelve months confinement in a state jail facility in cause no. D-990-372-R, and four years confinement in the Texas Department of Criminal Justice--Institutional Division and a fine of $3,500 in cause no. D-000,036-R.  Appellant now appeals the denial of the motions to suppress.

I.  Standard of Appellate Review.

An appellate court reviews the trial judge's ruling whether to admit or exclude evidence under an abuse of discretion standard.  Wilks v. State, 983 S.W.2d 863, 866 (Tex. App.BCorpus Christi 1998, no pet.).  In reviewing a trial court's ruling on a motion to suppress, we afford almost total deference to the trial court's determination of the historical facts that the record supports, especially when the trial court's findings turn on evaluating a witness's credibility and demeanor.  State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).  We afford the same amount of deference to the trial court's ruling on "application of law to fact questions," also known as "mixed questions of law and fact," if resolving those ultimate questions turns on evaluating credibility and demeanor.  Ross, 32 S.W.3d at 856; Guzman, 955 S.W.2d at 89.  However, we review de novo questions of law and "mixed questions of law and fact" that do not turn on an evaluation of credibility and demeanor.  Ross, 32 S.W.3d at 856; Guzman, 955 S.W.2d at 89. A review of a trial court's ruling on a motion to suppress presents an application of law to a fact question.  Maestas v. State, 987 S.W.2d 59, 62 (Tex. Crim. App. 1999).

The trial judge heard the suppression motions simultaneously because the same peace officer stopped appellant=s vehicle on the two occasions in question.  That officer was the only witness at the suppression hearing. To avoid confusion, we will address the trial court=s rulings separately.

II.  May 2, 1999

A.  Factual Summary.

On May 2, 1999, Bridge City Police Department Officer Brad Frye was patrolling Interstate 10 when he saw appellant, on two occasions, fail to indicate a lane change when passing other vehicles.  After pulling behind the vehicle, Frye noticed that the passenger was not wearing a seat belt.  Frye stopped appellant=s vehicle, and approached appellant, who handed Frye a ATriple A@ card rather than a driver=s license.  Appellant never provided a valid driver=s license to Frye.  Frye asked and received permission from appellant to search the vehicle. Appellant never withdrew his consent and, in fact, opened the back door for Frye.  During the search, Frye smelled what he believed to be marihuana, and subsequently found marihuana in a piece of luggage which appellant identified as his.  This is the marihuana alleged in cause no. D-990-372-R.^[2]

B.  Analysis.

Our analysis of this stop begins with the trial judge=s written findings of fact, which state that appellant=s passenger was not wearing a seat belt.^[3]  This is a traffic offense.  Texas Dept. of Public Safety v. Torres, 54 S.W.3d 438, 441 (Tex. App.BFort Worth 2001, no pet. h.) (failure to wear a seat belt while in the front seat of a vehicle violates Tex. Transp. Code Ann. ' 545.413 (Vernon Supp. 2001)).

Appellant raises two arguments in connection with this stop. First, that Frye did not stop appellant for a traffic offense but, rather, that the traffic stop was merely a pretext to secure the complained of evidence.  This argument must fail because the pretext arrest doctrine is no longer viable.  Crittenden v. State, 889 S.W.2d 668, 674 (Tex. Crim. App. 1995) (holding objectively valid traffic stop is not unlawful under Article I, ' 9 of the Texas Constitution just because the detaining officer may have ulterior motive for making it); Garcia v. State, 827 S.W.2d 937, 944- 45 (Tex. Crim. App. 1992) (holding that pretext arrest is no longer a viable defense as a matter of Fourth Amendment jurisprudence).

Appellant=s second argument is that Frye exceeded the permissible scope of the detention.  Appellant correctly cites Davis v. State, 947 S.W.2d 240 (Tex. Crim. App. 1997), for the proposition that once the reason for the stop has been satisfied, the stop may not be used as a "fishing expedition for unrelated criminal activity."  Davis, 947 S.W.2d at 243.  But Davis is distinguishable because there the defendant did not consent to the search of his vehicle, 947 S.W.2d at 241, whereas, in the instant case, appellant did consent.  Consequently, Davis is not controlling.  Appellant does not argue his consent was not voluntarily obtained.

For both of these reasons, we hold the May 2, 1999 stop and the subsequent recovery of the contraband was not unlawful.

III.  August 1, 1999.

A.  Factual Summary.

On August 1, 1999, three months after the initial stop, Frye was patrolling the same section of Interstate 10 when he saw appellant, who was driving the same vehicle.  Upon recognizing appellant, Frye turned his vehicle around and began pursuit.^[4]  Appellant was in the right lane of traffic.  When Frye was approximately 1000 feet behind appellant, Frye saw the right tires of appellant=s vehicle cross the white line that separates the right lane of traffic from the shoulder.  Only the right tires crossed onto the shoulder for a distance estimated by Frye to be one to two feet.  This occurred as appellant approached an entrance ramp and was done without appellant indicating a lane change.  Appellant then returned to the right lane of traffic, and never drifted into the other lane of traffic.  Frye testified other vehicles were in the immediate vicinity, but further explained there were no other vehicles, parked cars, highway department objects or cones or barrels on the shoulder but there were a few cars in the left lane, Amaybe one or two in front of [appellant].@  Frye further testified that appellant was neither speeding nor going too slow.  And that appellant did not cause an accident or almost cause an accident.

Frye activated his emergency equipment and stopped appellant=s vehicle.  Frye requested, but appellant was unable to produce, a valid driver=s license.  Frye asked for permission to search the vehicle, but appellant refused.  Frye then explained that appellant was not under arrest, and read appellant his Miranda warnings.  Appellant stated he understood his rights and agreed to answer Frye=s questions.  When Frye asked appellant if he had marihuana in the vehicle, appellant answered that he had two joints in the vehicle.  Frye arrested appellant for not having a valid driver=s license.  Frye conducted an inventory search of the vehicle and found the marihuana alleged in cause no. D-000,036-R.

B.  Analysis.

In connection with this stop, the trial judge explicitly found appellant was Aweaving within his own lane of traffic and driving in an erratic manner,@ that Frye believed appellant Ato be intoxicated or under the influence of some other substance,@ and Frye remembered appellant Adid not have a driver=s license.@  We will address these findings seriatim.

i.  Traffic Offense.

Stopping an automobile and detaining its occupants constitutes a "seizure" within the meaning of the Fourth Amendment.  Whren v. United States, 517 U.S. 806, 809‑10 (1996); Delaware v. Prouse, 440 U.S. 648, 653‑54 (1979); United States v. Martinez‑Fuerte, 428 U.S. 543, 556‑58 (1976); United States v. Brignoni‑Ponce, 422 U.S. 873, 878 (1975).  A peace officer's decision to stop an automobile is reasonable under the Fourth Amendment when the officer has probable cause to believe the driver committed a traffic offense.  Whren, 517 U.S. at 810; Texas Dep't of Pub. Safety v. Walter, 28 S.W.3d at 542.  If an actual violation of law is observed, there is probable cause for the traffic stop, and law enforcement officials are free to enforce the laws and detain a person for that violation.  Tex. Code Crim. Proc. Ann. art. 14.01(b) (Vernon 1977); Garcia v. State, 827 S.W.2d 937, 944 (Tex. Crim. App.1992); Williams v. State, 726 S.W.2d 99, 101 (Tex. Crim. App. 1986); Howard v. State, 932 S.W.2d 216, 218 (Tex. App.BTyler 1996, pet. ref'd) (holding officer's testimony that violation of a statute has occurred is sufficient to show probable cause to make an arrest without a warrant).  Therefore, violation of a traffic law in an officer's presence is sufficient authority for an initial stop of a vehicle.  Armitage v. State, 637 S.W.2d 936, 939 (Tex. Crim. App. 1982); Valencia v. State, 820 S.W.2d 397, 400 (Tex. App.BHouston [14th Dist.] 1991, pet. ref'd).

The first question related to the instant stop is whether appellant violated the traffic laws.  The State argues a violation occurred Awhen [appellant] left his lane of travel without signaling his intention to do so.@  State=s brief, pg. 9.  This argument is flawed in three respects.  First, it is not supported by the trial judge=s findings of fact which expressly state appellant was driving Awithin his own lane of traffic.@  (Emphasis added).  Second, even if appellant left his lane of travel without signaling, that conduct is not an offense.  Section 545.104(a) provides that signals are mandatory only when turning, changing lanes, or starting from a parked position.  Tex. Transp. Code Ann. ' 545.104(a)  (Vernon 1999); Trahan v. State, 16 S.W.3d 146, 147 (Tex. App.BBeaumont 2000, no pet.).  Therefore, since appellant did not turn or change lanes, there was no traffic violation, even if the facts were as Frye suspected them to be.  United States v. Lopez‑Valdez, 178 F.3d 282, 288 (5th Cir.1999); United States v. Miller, 146 F.3d 274, 279 (5th Cir.1998).

Third, section 545.060(a) of the Transportation Code provides that an operator on a roadway divided into two or more clearly marked lanes for traffic (1) shall drive as nearly as practical entirely within a single lane; and (2) may not move from the lane unless that movement can be made safely.  Tex. Transp. Code Ann. ' 545.060(a) (Vernon 1999).  A violation of section 545.060(a) occurs only when a vehicle fails to stay within its lane and that movement is not safe or is not made safely.  State v. Cerny, 28 S.W.3d 796, 800 (Tex. App.BCorpus Christi 2000, no pet.); Hernandez v. State, 983 S.W.2d 867, 871 (Tex. App.BAustin 1998, pet. ref'd).

In the instant case, there is no finding by the trial judge either that appellant failed to stay within his lane of traffic or that he moved in an unsafe manner.  In fact, the evidence is to the contrary.  As noted above, Frye testified the right tires of appellant=s vehicle crossed onto the shoulder just once, and even then only for a distance of one to two feet.  Appellant=s vehicle never drifted into the other lane of traffic. Additionally, there were no other vehicles, parked cars, highway department objects or cones or barrels on the shoulder.  Cerny, 28 S.W.3d at 801 (swerve over solid white line separating the traffic lane from the right shoulder of the road three or four times not sufficient to establish violation of ' 545.060); Hernandez, 983 S.W.2d at 871 (single instance of crossing a lane dividing line by eighteen to twenty‑four inches into a lane of traffic traveling the same direction not shown to be unsafe or dangerous does not provide reasonable basis for suspecting defendant committed traffic offense).

For these three reasons, we hold that on August 1, 1999, Frye did not have probable cause to believe appellant committed a traffic offense. Whren, 517 U.S. at 810; Texas Dep't of Pub. Safety v. Walter, 28 S.W.3d at 542.

ii.  Intoxication.

We next turn to the judge=s finding that Frye believed appellant to be intoxicated or under the influence of some other substance.  Probable cause exists when the facts and circumstances within an officer's personal knowledge and of which he has reasonably trustworthy information are sufficient to warrant a person of reasonable caution to believe that, more likely than not, a particular suspect has committed an offense.  Hughes v. State, 878 S.W.2d 142 (Tex. Crim. App. 1992).  After an officer stops a defendant for a traffic offense, there must be additional facts constituting probable cause to arrest the defendant for driving while intoxicated.  Texas Dep't of Public Safety v. Rodriguez, 953 S.W.2d 362, 364 (Tex. App.BAustin 1997, no pet.).  There must be some causal link between the probable cause to stop the vehicle and the subsequent probable cause to arrest the motorist for driving while intoxicated.  Id. at 364‑65.

As noted in subsection i, supra, a traffic violation will not serve as the basis for the stop of appellant=s vehicle.  But even if it could, there is no causal connection between the stop and possible intoxication.  Frye did not make any inquiry to determine appellant=s state of sobriety, and Frye did not perform any field sobriety tests on appellant to determine whether appellant was intoxicated or under the influence of another substance.^[5]  Therefore, we hold the August 1, 1999, stop was not justified by Frye=s belief that appellant may have been intoxicated.^[6]

iii.  No valid driver=s license.

We end with the trial judge=s finding that A[a]fter stopping the vehicle, [appellant] could not produce a driver=s license.@  This argument fails for two reasons.  First, this finding relates to what occurred after the stop.  As noted in subsections ii and iii, supra, there was no justification for the stop.  Our law is clear that what occurs after an illegal stop cannot be used to cure the initial illegality.  Wilson v. State, 621 S.W.2d 799, 804 (Tex. Crim. App. 1981); Colston v. State, 511 S.W.2d 10, 13 (Tex. Crim. App. 1974).

Secondly, when asked if he knew whether appellant had a driver=s licence, Frye admitted he did not know until he arrested appellant.  Frye further admitted that he could not legally stop someone on the hunch:  AI bet he doesn=t have a license.@ Finally, Frye conceded that it would have been easy for appellant to have secured a driver=s license after the May 2 stop and before the August 1 stop.^[7]  An inchoate and unparticularized suspicion or hunch may not serve as the basis for a lawful detention.  United States v. Sokolow, 490 U.S. 1, 7 (1989); Terry v. Ohio, 392 U.S. 1, 27 (1968); Williams v. State, 621 S.W.2d 609, 612 (Tex. Crim. App.1981). The record is clear that Frye was operating on the hunch that appellant had not obtained a driver=s license since the initial stop.

Accordingly, we hold the August 1, 1999 stop was not justified by the suspicion that appellant did not possess a driver=s license.

IV.  Conclusion.

For the reasons stated in part II of this opinion, we hold the trial judge did not err in overruling appellant=s motion to suppress the evidence seized from the stop of appellant=s vehicle on May 2, 1999.  And for the reasons stated in part III of this opinion, we hold the stop of appellant=s vehicle on August 1, 1999, was illegal.  Therefore, the evidence obtained as a result of that stop should have been suppressed.  Viveros v. State, 828 S.W.2d 2, 4 (Tex. Crim. App. 1992).  Consequently, the trial judge erred in overruling appellant=s motion to suppress that evidence.

The trial court=s judgment in cause no. D-990-372-R is affirmed, and the trial court=s judgment in cause no. D-000,036-R is reversed.

________________________

CHARLES F. BAIRD 

Justice

Do not publish.

Tex. R. App. P. 47.3.

Opinion delivered and filed

this 25th day of April, 2002.

---

^[1] Former Court of Criminal Appeals Judge Charles F. Baird assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov=t Code Ann. ' 74.003 (Vernon 1998).

^[2]Frye video taped this stop and that video was introduced into evidence at the suppression hearing.

^[3] The trial judge=s findings of fact also state that appellant failed to signal his intention to change lanes on two occasions, but does not state that same was done in an unsafe manner.  We need not address whether this conduct constituted a violation of section 545.104(a) of the transportation code, as Frye=s observation of the seat belt violation was sufficient to justify a traffic stop.  See Tex. Transp. Code Ann. '545.104(a) (Vernon 1999).

^[4]The record is not clear on this point. Apparently, Frye was driving in the opposite direction and used a Acrossover@ to change directions in order to follow appellant.

^[5] We also reject any argument that the stop can be justified by Frye=s conversation with appellant following the initial stop on May 2, 1999, wherein appellant admitted using marihuana heavily. Under the facts presented here, we hold this argument does not give rise to probable cause, but rather is proof of nothing more than an inchoate and unparticularized suspicion or hunch which may not serve as the basis for a lawful detention.  Terry v. Ohio, 392 U.S. 1, 27 (1968); United States v. Sokolow, 490 U.S. 1, 7 (1989); Williams v. State, 621 S.W.2d 609, 612 (Tex. Crim. App.1981).

^[6] In its brief the State seems to argue this stop may be justified by the Acommunity caretaking@ exception to the warrant requirement.  We reject this argument for three reasons.  First, this exception is not mentioned in the trial judge=s findings of fact.  Second, the entirety of the State=s argument in support of this position is:  AAn officer may perform a detention of an individual using the >community caretaking= function if the officer reasonably believes that the safety of the individual or community is threatened.@  State=s brief pg. 9.  However, this sentence is not followed by a citation to any authority. This briefing is inadequate.  Garcia v. State, 887 S.W.2d 862, 873 (Tex. Crim. App. 1994) (argument consisting of one sentence is not adequately briefed.) Third, the leading case on this subject is Wright v. State, 7 S.W.3d 148 (Tex. Crim. App. 1999), where the Court of Criminal Appeals recognized a police officer may stop and assist an individual who a reasonable person, given the totality of the circumstances, would believe is in need of help. The Wright Court set out four factors in determining the reasonableness of such a stop:  (1) the nature and level of the distress exhibited by the individual; (2) the location of the individual; (3) whether or not the individual was alone and/or had access to assistance independent of that offered by the officer; and (4) to what extent the individual, if not assisted, presented a danger to himself or others. Id. at 152.  For the reasons state above, we hold these factors will not serve as an independent basis to support the stop in the instant case. Stewart v. State, 22 S.W.3d 646, 650 (Tex. App.BAustin 2000, pet. ref'd) (AIt is clear that the officer stopped appellant solely for the purpose of investigating the suspected criminal violation.@).

^[7] Specifically, on cross-examination, Frye testified as follows:

Q.  You agree with me that it=s - - it=s usually pretty easy to go get you a driver=s license.  You can have on - - you cannot have one on September 30th and have one on October the 1st.  All you got to do is go down and take a test and pay a fee in most cases, correct?

A.  Yes.

Q.  So, it would have been very easy for [appellant] in this three- or four-month period of time between the first time - -

A.  Sure.

Q.  - - you saw him and the second time for him to go get a license?

A.  Sure.