Justin Philip Lovell v. State ( 2009 )

Affirmed and Memorandum Opinion filed March 3, 2009

Affirmed and Memorandum Opinion filed March 3, 2009.

In The

Fourteenth Court of Appeals

____________

NO. 14-08-00454-CR

____________

JUSTIN PHILIP LOVELL, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court at Law No. 12

Harris County, Texas

Trial Court Cause No. 1487072

M E M O R A N D U M   O P I N I O N

Appellant, Justin Philip Lovell, was charged with driving while intoxicated.  Tex. Penal Code Ann. ' 49.04 (Vernon 2003).  The trial court denied appellant=s motion to suppress and appellant entered a plea of nolo contendere.  The trial court assessed punishment at six days= confinement in the Harris County Jail and a $1000 fine.  In one issue, appellant argues the trial court erred in denying his motion to suppress evidence seized during the allegedly illegal stop of his vehicle in violation of the Fourth Amendment to the United States Constitution and Article I, Section 9, of the Texas Constitution.  We affirm.

Factual and Procedural History

On October 21, 2007, at approximately 1:30 a.m., Officer Tovar observed appellant=s vehicle exiting a club parking lot, weaving, and crossing into an incoming lane while making a sharp turn.  Officer Tovar suspected appellant was intoxicated.  Because Officer Tovar was transporting a prisoner in his patrol car, he radioed Officer T. Phan for assistance, who subsequently stopped appellant and arrested him for driving while intoxicated.

Appellant filed a motion to suppress, and the trial court conducted a hearing.  The trial court denied appellant=s motion.

Discussion

A.      Standard of Review

We review a trial court=s ruling on a motion to suppress under a bifurcated standard of review, giving almost total deference to the trial court=s findings of historical fact supported by the record and reviewing de novo the trial court=s application of the law of search and seizure.  Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).  The trial court is the exclusive trier of fact and judge of the credibility of the witnesses and the weight to be given to their testimony at the suppression hearing.  State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).  As the trier of fact, the trial court is free to believe or disbelieve all or any part of a witness=s testimony, even if the testimony is uncontroverted.  Id.; Marsh v. State, 140 S.W.3d 901, 905 (Tex. App.CHouston [14th Dist.] 2004, pet ref=d).  In reviewing a trial court=s ruling on a motion to suppress, an appellate court must view the evidence in the light most favorable to the trial court=s ruling.  State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006).  When the trial court fails to make explicit findings of fact, we imply fact findings that support the trial court=s ruling so long as the evidence supports these implied findings.  Gutierrez v. State, 221 S.W.3d 680, 687 (Tex. Crim. App. 2007).  If the trial court=s ruling is reasonably supported by the record and is correct under any theory of the law applicable to the case, the reviewing court will sustain it upon review.  Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996).

B.      Analysis

Appellant urges the trial court erred by denying his motion to suppress evidence seized after an allegedly illegal traffic stop of his vehicle but does not specifically identify the allegedly illegally obtained evidence that should have been suppressed.  An unlawful seizure is not, per se, cause to reverse a conviction.  See Lyles v. State, 582 S.W.2d 138, 143 (Tex. Crim. App. 1979).  Rather, the sanction imposed against an unlawful seizure is the exclusion of the evidence improperly obtained.  Stiggers v. State, 506 S.W.2d 609, 611 (Tex. Crim. App. 1974).  Thus, an unlawful seizure that produces no evidence of culpability does not vitiate a conviction.  Id.  As this court has previously held:

When a defendant fails to state what evidence, if any, was obtained as a result of an alleged unlawful seizure, no error is shown in overruling his motion to suppress.  Correspondingly, in deciding whether to address the merits of an appeal of a denial of a motion to suppress, an appellate court must first identify the fruits that the trial court held would not be suppressed.  If it is not clear from the testimony and exhibits what the Afruits@ are, then the appellate court need not address the merits of the claim. 

Brennan v. State, 140 S.W.3d 779, 781 (Tex. App.CHouston [14th Dist.] 2004, pet. ref=d).  Because the point of error in appellant=s brief, challenging the denial of his motion to suppress, failed to identify what, if any, evidence was ruled upon by the denial, it presents nothing for our review and is overruled.  Accordingly, the judgment of the trial court is affirmed.

Conclusion

Having overruled appellant=s single issue on appeal, we affirm the trial court=s judgment.

/s/      John S. Anderson

Justice

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

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