Ray, Gary Wayne v. State ( 2004 )

Affirmed and Memorandum Opinion filed April 15, 2004

Affirmed and Memorandum Opinion filed April 15, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-03-00610-CR

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GARY WAYNE RAY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 228th District Court

Harris County, Texas

Trial Court Cause No. 927,690

M E M O R A N D U M   O P I N I O N

Appellant Gary Wayne Ray appeals from the trial court=s denial of his motion to suppress evidence obtained from a traffic stop on October 17, 2002.  Following the denial of his motion, appellant entered a plea of guilty to the charged felony offense of possession of a firearm by a felon.  Pursuant to a plea bargain agreement, he was sentenced to a term of ten years= confinement.  Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. See Tex. R. App. P. 47.4.  We affirm.

In his sole issue presented for review, appellant argues that the trial court erred in denying his motion to suppress because the search of his vehicle violated federal and state constitutional law, as well as several provisions of the Texas Code of Criminal Procedure.^[1]  We review the trial court=s ruling on appellant=s motion for abuse of discretion. Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002).  We give almost total deference to the trial court=s determination of historical facts and review de novo its application of search and seizure law.  Id.  If the trial court did not make explicit findings of fact, we view the evidence in the light most favorable to the ruling.  Id.  The judgment of the trial court will be sustained if it is correct on any theory of law applicable to the case. State v. Ross, 32 S.W.3d 853, 855-56 (Tex. Crim. App. 2000).

Generally, a law enforcement officer may arrest a suspect if he observes the commission of a traffic offense. See Nelson v. State, 848 S.W.2d 126, 133 (Tex. Crim. App. 1992), cert. denied, 510 U.S. 830 (1993).^[2]  Officer Benjamin Gill of the Houston Police Department testified by affidavit that he observed a sequence of events in which the vehicle driven by appellant traveled on the wrong side of Mascot Street, stopped in front of a particular location under surveillance for known drug activity, and then traveled in reverse on the wrong side for almost an entire block.  Such conduct constitutes a violation of Section 545.051(a) of the Texas Transportation Code.^[3]  Therefore, the officer had probable cause to arrest appellant.^[4]

The United States Supreme Court has held that when an officer has made a lawful custodial arrest of the occupant of an automobile, he may search the passenger compartment of that automobile as a contemporaneous incident of the arrest.  New York v. Belton, 453 U.S. 454, 460 (1981). In Belton, the state policeman initiated a traffic stop and directed the occupants to exit the automobile. Id. at 456.  He then proceeded to Apat down@ each of them and Asplit them up into four separate areas of the Thruway at this time so they would not be in physical touching area of each other.@  Id. After having administered the Miranda warnings to the suspects and searched each of them, the policeman then searched the passenger compartment of the car and discovered a jacket on the back seat containing cocaine inside one of the pockets.  Id.

In the present case, Officer Gill=s affidavit stated that the officers in the marked patrol car, who were acting on his instructions, initiated the traffic stop of appellant=s vehicle.  They directed appellant to exit the vehicle, completed a pat down search, and placed him in the back of the patrol car while they checked the validity of his driver=s license and searched for any outstanding warrants. While appellant was seated in the patrol car with Officer Newman, Officer Lummus searched appellant=s vehicle for contraband.  Appellant voluntarily told Officer Newman that there was a pistol located inside his vehicle.^[5]  Officer Newman in turn told Officer Lummus about appellant=s admission, but Lummus still could not find the pistol.  Appellant then voluntarily explained that Athe seat had to be laid forward and that they needed to pull back a piece of fabric to find the weapon.@  According to Officer Gill=s affidavit, appellant=s explanation led to the discovery of the firearm in that location.

Appellant=s affidavit and that of witness Andre Thomas contradict Officer Gill=s evidence.  Appellant stated that at no time did he ever tell either of the officers that there was a gun in his truck.  He also claims that the officer who searched his truck came back to the patrol car and told the other officer that a pistol had been found in the truck.  Thomas stated that he saw one officer place appellant in the patrol car while the other officer started searching appellant=s truck.  Thomas did not see the officer find anything inside the vehicle and did not know why the police initially pulled appellant=s vehicle over because he saw appellant=s truck driving on the right side of the road.  Appellant=s evidence, however, does not require reversal.  The trial court, as trier of fact, resolves any conflict in the testimony. See Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996).

Because the search that yielded the discovery of the firearm was conducted within the passenger compartment of appellant=s vehicle as a contemporaneous incident to his lawful arrest, we conclude under Belton that the trial court did not err in denying appellant=s motion to suppress.  Accordingly, we overrule appellant=s sole issue presented for review.

The judgment is affirmed.

/s/      Adele Hedges

Chief Justice

Judgment rendered and Memorandum Opinion filed April 15, 2004.

Panel consists of Chief Justice Hedges and Justices Frost and Guzman.

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

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^[1]  While appellant cites the Fourth and Fourteenth Amendments to the United States Constitution and Article I, Section 9 of the Texas Constitution, he fails to provide any argument or authority regarding how the protections under the Texas Constitution differ from those under the United States Constitution.  Because his state constitutional claims are not properly presented for review, we do not consider them in this appeal. See Ex parte Fierro, 79 S.W.3d 54, 61 n.4 (Tex. Crim. App. 2002).

^[2]  See also Tex. Code Crim. Proc. Ann. art. 14.01(b) (Vernon 1977) (AA peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view.@); Tex. Transp. Code Ann. ' 543.001 (Vernon 1999) (AAny peace officer may arrest without warrant a person found committing a violation of this subtitle.@). But see Tex. Transp. Code Ann. ' 543.004 (Vernon Supp. 2003) (providing for the only exception to the general rule: officer shall issue written notice rather than arrest for speeding offense or violation of open container law).

^[3]  That section provides: AAn operator on a roadway of sufficient width shall drive on the right half of the roadway, unless: (1) the operator is passing another vehicle; (2) an obstruction necessitates  moving the vehicle left of the center of the roadway and the operator yields the right-of-way to a vehicle that: (A) is moving in the proper direction on the unobstructed portion of the roadway; and (B) is an immediate hazard; (3) the operator is on a roadway divided into three marked lanes for traffic; or (4) the operator is on a roadway restricted to one-way traffic.@ (Vernon 1999).

^[4]  We read this conclusion by assuming the truth of appellant=s claim that he was placed under arrest prior to the search of his vehicle as well as by drawing this inference from the evidence presented in favor of the ruling.

^[5]  Because appellant does not challenge whether his statements were obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966), we do not address this issue on appeal.