Cross, Shinton Khalique v. State ( 2004 )

Affirmed and Memorandum Opinion filed December 30, 2004

Affirmed and Memorandum Opinion filed December 30, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-03-01417-CR

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SHINTON KHALIQUE CROSS, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 23rd District Court

Brazoria County, Texas

Trial Court Cause No. 40,364

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M E M O R A N D U M   O P I N I O N

Appellant, Shinton Khalique Cross, appeals from the trial court=s order revoking his community supervision.  In his sole issue, appellant contends the trial court erred in refusing to suppress the evidence used against him at the revocation hearing. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion and affirm.  See Tex. R. App. P. 47.4.

I.  Background

On August 26, 2002, appellant pled guilty to possession of a controlled substance.  See Tex. Health & Safety Code Ann. ' 481.112 (Vernon 2003).  In accordance with a plea agreement, the trial court sentenced appellant to a six year term of imprisonment and a $4,000 fine, suspended imposition of the sentence, and placed him on community supervision.

On October 13, 2003, appellant was arrested during a traffic stop when the officer discovered appellant was in possession of cocaine.  The State subsequently filed a Petition for Revocation of Probated Sentence, alleging appellant violated the terms of his community supervision by committing the offense of possession of a controlled substance.  On November 13 and 14, 2003, the trial court  held a contested revocation hearing in which appellant pled Anot true@ to the State=s allegation and moved to suppress all evidence seized during the traffic stop.

According to the evidence introduced at the revocation hearing, Oyster Creek Police Officer Tim Bradberry was on patrol on October 13, 2003, when he observed appellant drive through an intersection as the light turned yellow. A second vehicle drove through the intersection after the light turned red.  Officer Bradberry stopped the second vehicle.  He recognized the driver as the daughter of a local tow truck operator. The driver informed Officer Bradberry that appellant was Aswerving all over the road,@ and that she was trying to get his license plate number. The driver thought appellant might have been intoxicated.  Officer Bradberry gave a verbal warning to the driver of the second vehicle and informed her that he would investigate appellant=s erratic driving. 

Officer Bradberry caught up with appellant and observed his car straddle the Afog line@ for several seconds before pulling back into the lane.  Based on this observation and the information provided by the driver of the other vehicle, Officer Bradberry decided to stop appellant.

When Officer Bradberry approached appellant=s car, he smelled an odor that he thought was marijuana and saw a cigar butt in the ashtray.  He testified that many marijuana users lace their cigars with marijuana.  He asked appellant to step out of the car and submit to a sobriety test.  He administered a sobriety test and determined appellant was not intoxicated. He then obtained appellant=s verbal consent to search the car.  Before searching the vehicle, Officer Bradberry conducted a pat down search on appellant for weapons.  During the pat down search, Officer Bradberry noticed what appeared to be a crack rock between appellant=s foot and the edge of his sandal.  When Officer Bradberry reached for the object, appellant turned and ran away. As appellant was running, Officer Bradberry saw appellant throw an object, later discovered to be a plastic bag containing cocaine.

Officer Bradberry did not chase appellant, but instead requested that a canine unit be sent to search the area.  While Officer Bradberry was waiting for the canine unit, appellant walked back to the location of the traffic stop.  Appellant stated that he came back because he did not want Officer Bradberry to take his money from the car.  Appellant was handcuffed and placed in the back of a patrol car.

When the canine unit arrived, a search was initiated.  The officers located the plastic bag containing cocaine that appellant had thrown down while running from Officer Bradberry.  Inside appellant=s car, the officers found approximately 1,000 small plastic bags, a large amount of cash, and a device used to falsify drug tests known as a AWhizzinator.@

At the conclusion of the revocation hearing, the trial court denied appellant=s motion to suppress, found the allegation in the State=s Petition to Revoke Probated Sentence to be Atrue,@ and revoked appellant=s community supervision.  Appellant brings this appeal from the trial court=s order.

II.  Standards Of Review

This appeal involves overlapping standards of review.  First, in reviewing the trial court=s decision to revoke community supervision, we must keep in mind that the trial court possesses substantial discretion.  Webster v. State, 542 S.W.2d 403, 405 (Tex. Crim. App. 1976).  Proof by a preponderance of the evidence that a condition of community supervision has been violated is sufficient to support the revocation.  See Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993).

Second, we review the trial court=s suppression ruling for abuse of discretion.  Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002). In our review, we give almost total deference to the trial court=s determination of historical facts and mixed questions of law and fact that turn on an evaluation of credibility an demeanor of witnesses.  Guzman v. State, 955 S.W.2d 85, 88B89 (Tex. Crim. App. 1997).  However, we review questions of reasonable suspicion and probably cause de novo. Id. at 87.

III. Motion To Suppress

In his sole issue, appellant contends the trial court erred in denying his motion to suppress the evidence used against him at the revocation hearing.  Specifically, appellant contends that all evidence seized as a result of the traffic stop should have been suppressed because (1) the officer did not have reasonable suspicion to justify the initial detention, and (2) the officer exceeded the scope of the detention.

A.        Initial Detention

Appellant first contends that the officer did not have reasonable suspicion to justify the stop because the information from the unnamed informant was not reliable and was not sufficiently corroborated.

A police officer may stop and briefly detain a person for investigative purposes if, under the totality of the circumstances, the officer has reasonable suspicion supported by articulable facts that the person detained is, has been, or soon will be engaged in criminal activity.  Terry v. Ohio, 392 U.S. 1, 21B22, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); Woods v. State, 956 S.W.2d 33, 38 (Tex. Crim. App. 1997).  Whether a detention is reasonable under the totality of the circumstances turns upon the content and reliability of the information possessed by the officer.  Alabama v. White, 496 U.S. 325, 330, 110 S. Ct. 2412, 110 L. Ed. 2d 301 (1990); State v. Sailo, 910 S.W.2d 184, 188 (Tex. App.CFort Worth 1995, pet. ref=d).

A tip by an unnamed informant of undisclosed reliability, standing alone, will rarely establish the requisite level of suspicion necessary to justify an investigative detention.  State v. Garcia, 25 S.W.3d 908, 912B13 (Tex. App.CHouston [14th Dist.] 2000, no pet.) (citing Florida v. J.L., 529 U.S. 266, 120 S. Ct. 1375, 1378, 146 L. Ed. 2d 254 (2000) (involving an anonymous tip).  However, there are situations in which a tip from an unnamed informant may exhibit sufficient indicia of reliability to justify the detention.  For example, the reliability of a tip can be heightened to the point where an officer is justified in making a detention when an informant places himself in a position to be easily identified and held responsible for the information given.  See State v. Hawes, 125 S.W.3d 535, 538B540 (Tex. App.CHouston [1st Dist.] 2002, no pet.).

Several Texas courts of appeals have held that an informant=s tip is sufficiently reliable to justify a detention when the informant presents himself to an officer while driving a vehicle through which his identity might be easily traced, and thus, the informant can be held accountable for the information provided.  Hawes, 125 S.W.3d at 540 (upholding detention based upon report from wrecker driver who was following erratic driver); Fudge v. State, 42 S.W.3d 226, 232 (Tex. App.CAustin 2001, no pet) (upholding detention based upon cab driver=s unsolicited personal report to officer about erratic driving); Sailo, 910 S.W.2d at 189 (upholding stop based on a report personally given to officer even though informant drove away before being identified). While appellant acknowledges these cases, he contends that the informant=s tip in this case does not deserve the same weight because the informant did not voluntarily come forward with the information she provided. We disagree.

As in Fudge, Sailo, and Hawes, the informant in the present case was easily identifiable, and therefore, could be held responsible if the information she provided proved to be fabricated.  Not only was the informant driving a vehicle that could be easily traced, but Officer Bradberry also recognized the informant as the daughter of a local tow truck operator.  Further, the information provided was precise relative to the time of the criminal activity and specific about the kind of criminal activity.  See Fudge, 42 S.W.3d at 232 (holding indicia of reliability was that information given was Aneither imprecise about the time of the criminal activity nor vague about the kind of criminal activity@).  Moreover, in a totality of circumstances analysis, corroboration of any information related by the informant increases the reliability of the information.  Pipkin v. State, 114 S.W.3d 649, 654 (Tex. App.CFort Worth 2003, no pet.); Sailo, 910 S.W.2d at 188. In this case, Officer Bradberry corroborated the informant=s tip when he saw appellant=s vehicle straddle the Afog line@ for several seconds before pulling back into the lane.^[1] 

Based on the totality of these circumstances, we find there was sufficient factual basis for a reasonable suspicion to justify the investigative detention.  See Garcia, 25 S.W.3d at 913B14 (holding that reliability of the informant=s tip, combined with the officer=s subsequent corroboration of details, provided reasonable suspicion for investigative detention).

B.        Scope of Detention

Appellant further contends, without citation to authority, that Officer Bradberry exceeded the scope of the initial detention.  Specifically, appellant claims the encounter should have been terminated after Officer Bradberry administered the sobriety test and determined appellant was not intoxicated. 

An investigative detention must be temporary and last no longer than is necessary to carry out the purpose of the stop.  Florida v. Royer, 460 U.S. 491, 500, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983); Davis v. State, 947 S.W.2d 240, 243 (Tex. Crim. App. 1997).  Once the reason for detention has been satisfied, the stop may not be used as a fishing expedition for unrelated criminal activity.  Ohio v. Robinette, 519 U.S. 33, 41, 117 S. Ct. 1319, 136 L. Ed. 2d 347 (1996) (Ginsburg, J., concurring); Davis, 947 S.W.2d at 243.  However, if an officer develops reasonable suspicion to believe that another offense is being committed before concluding an investigative detention, further detention is justified.  Davis, 947 S.W.2d at 244B45; Powell v. State, 5 S.W.3d 369, 377 (Tex. App.CTexarkana 1999, pet. ref=d).

In this case, Officer Bradberry initially stopped appellant to investigate whether appellant was driving while intoxicated.  However, during the traffic stop, Officer Bradberry smelled an odor he thought was marijuana and observed a cigar butt that he knew from experience is commonly laced with marijuana.  Thus, when Officer Bradberry completed the sobriety test, it was reasonable for him to continue the detention to investigate appellant=s possible possession of marijuana.  See Mohmed v. State, 977 S.W.2d 624, 628 (Tex. App.CFort Worth 1998, pet. ref=d) (holding smell of marijuana gave the officer reasonable suspicion to continue to detain driver for investigation of drug possession). Accordingly, we hold that appellant=s detention following the sobriety test was a lawful extension of Officer Bradberry=s criminal investigation.

Additionally, an officer may request consent to search a vehicle after the purpose of the  traffic stop has been accomplished as long as it is reasonable under the circumstances and the officer does not convey a message that compliance with the officer=s request is required.  Leach v. State, 35 S.W.3d 232, 235B36 (Tex. App.CAustin 2000, no pet.).  Here, following the sobriety test, Officer Bradberry requested and obtained appellant=s consent to search the car.  There is nothing in the record to indicate that Officer Bradberry conveyed a message that compliance with the request was required.  Therefore, even assuming Officer Bradberry did not have reasonable suspicion of criminal activity following the sobriety test, the detention was lawfully extended when appellant gave consent to search.

We overrule appellant=s sole issue and affirm the judgment of the trial court.

/s/        Charles W. Seymore

Justice

Judgment rendered and Memorandum Opinion filed December 30, 2004.

Panel consists of Chief Justice Hedges and Justices Fowler and Seymore.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  Appellant cites Hernandez v. State, 983 S.W.2d 867 (Tex. App.CAustin 1998, pet. ref=d) as authority that a vehicle crossing a lane marker a single time does not support a reasonable suspicion that a driver is intoxicated.  However, Hernandez is distinguishable because in that case the officer stopped the vehicle based solely upon the fact that the vehicle crossed the lane marker.  See id. at 868.