Joshua Santana Timmons v. State ( 2011 )

NUMBER 13-10-00638-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
JOSHUA SANTANA TIMMONS, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 329th District Court
of Wharton County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Garza
Memorandum Opinion by Chief Justice Valdez
Appellant, Joshua Santana Timmons, pleaded no contest to felony possession of
a firearm by a felon. See TEX. PENAL CODE ANN. § 46.04 (West 1999). The trial court
sentenced Timmons to confinement in the Institutional Division of the Texas Department
of Criminal Justice for six years with one hundred and thirty-nine days credit for time
served. On appeal, Timmons challenges the trial court’s denial of his motion to
suppress. We affirm.
I. BACKGROUND
On March 12, 2010, El Campo Police Officers, Clint Savino and J.D. Gingles,
were stationed under an overpass monitoring a frontage road stop sign when they
stopped a white Buick at the 1400 block of Palacios Street El Campo, Texas. Officer
Savino testified that the officers stopped the vehicle because it failed to stop at the
designated point at the stop sign intersection. According to Officer Savino, the Buick
stopped approximately three-quarters of the length past the stop sign. The Officer then
initiated a traffic stop of the vehicle.
Officer Gingles approached the driver’s side of the Buick, and Officer Savino
approached the passenger side. Officer Savino testified that he used his flashlight to
look into the Buick and noticed what appeared to be marijuana leaves on the front
passenger’s shirt1. Officer Savino also stated that the back seat passenger, Timmons,
kept reaching down towards his pants, after being warned several times to keep his
hands up by Officer Gingles and Game Warden Byrd, who had just arrived on the
scene. Timmons and Kearny were both removed from the vehicle and placed in
handcuffs and patted down for weapons.
Officer Savino testified that Officer Gingles asked the owner of the vehicle,
Wright, if he had any contraband in the vehicle and then “do you have a problem with
1
The record reflects that the front passenger’s last name is “Kearney”; however, the record does
not state his first name.
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me checking the car?”2 Officer Savino stated that Wright consented to the search and
then asked the officers if they wanted to also look in the trunk.
Officer Savino stated that he then searched the right front seat of the passenger
side and found a hand-rolled marijuana cigar. He placed Kearny under arrest. Next,
Officer Savino testified that he searched the backseat of the Buick and found a piece of
paper with marijuana inside and a Torres (Taurus) fun, .410, .45 pistol under the seat in
front of Timmons. Timmons was then arrested. Wright was subsequently arrested for
not having a driver’s license. At the police station, a blue latex glove with three .410
shells were found in Timmons pocket during the booking process search.
On June 21, 2010, the trial court held a hearing on Timmons’ motion to suppress.
Timmons challenged the stop of the vehicle and the subsequent search of the vehicle.
The court denied his motion. On June 28, 2010, Timmons pleaded no contest to felony
possession of a firearm by a felon. On October 28, 2010, the trial court sentenced
Timmons to confinement in the Institutional Division of the Texas Department of
Criminal Justice for six years with one hundred and thirty-nine days credit for time
served. This appeal followed
II. STANDARD OF REVIEW
We review a trial courts ruling on a motion to suppress under a bifurcated
standard of review: the trial courts findings of fact are given “almost total deference”
when its ruling relies on the credibility of witnesses, Carmouche v. State, 10 S.W.3d
323, 327 (Tex. Crim. App. 2000), while we apply a de novo standard of review to rulings
that do not depend on credibility. Id.; Castro v. State, 227 S.W.3d 737, 741 (Tex. Crim.
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The record reflects that the owner of the vehicle’s name is “Wright”; however, the record does
not state his first name.
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Ohio App. 2000) (“A reasonable-suspicion determination is made by considering the totality
of the circumstances, giving almost total deference to the trial court’s determination of
historical facts and reviewing de novo the trial court’s application of the law to facts not
turning on credibility and demeanor.”). When the trial court does not enter findings of
fact “a reviewing court must view the evidence in the light most favorable to the trial
court’s ruling and assume that the trial court made implicit findings of fact that support
its ruling as long as those finding are supported by the record. Wiede v. State, 214
S.W.3d 17, 25 (Tex. Crim. App. 2007).
III. APPLICABLE LAW
The Fourth Amendment of the United States Constitution guarantees:
the right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to
be seized.
U.S. CONST. amend. IV. The Fourth Amendment protects individuals from unreasonable
seizures. Wong Sun v. United States, 371 U.S. 471, 484 (1963).
A person is seized by the police and therefore entitled to challenge the
government’s action under the Fourth Amendment of the constitution when the officer
restrains the person’s freedom of movement. Florida v. Bostick, 501 U.S. 429, 434
(1991).
Any reasonable passenger would have understood the officers to
be exercising control to the point that no one in the car was free to
depart without police permission. A traffic stop necessarily
curtails a passenger's travel just as much as it halts the driver,
diverting both from the stream of traffic to the side of the road, and
the police activity that normally amounts to intrusion on privacy
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does not normally (and did not here) distinguish between
passenger and driver.
Brendlin, 551 U.S. at 250. Therefore, when police initiate a traffic stop, a passenger in
the car like the driver is seized under the Fourth Amendment and has standing to
challenge the constitutionality of the stop. Id. at 249. This is true regardless of whether
the passenger has a reasonable expectation of privacy. Lewis, 664 S.W2d at 348.
Temporary custody of a vehicle that the police have probable cause to believe
has committed a traffic violation is consistent with the Fourth Amendment regardless of
whether a reasonable officer would have been motivated to stop the automobile. Whren
v. United States, 517 U.S.806, 810 (1996). “There is no requirement that a particular
statute is violated in order to give rise to reasonable suspicion.” Gajewski v. State, 944
S.W.2d 450, 452 (Tex. App.—Houston [14th Dist.] 1997, no pet.). The State only needs
to prove by testimony that the officer knew sufficient facts to reasonably believe that
appellant violated traffic laws. Whren, 517 U.S. at 809-10.
A warrantless automobile stop is a Fourth Amendment seizure analogous to a
temporary detention and it must be justified by reasonable suspicion. Berkemer v.
McCarty, 468 U.S. 420, 439, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984); Hernandez v.
State, 983 S.W.2d 867, 869 (Tex. App.—Austin 1998, pet. ref’d). The reasonableness
of a temporary detention must be examined in terms of the totality of the circumstances.
Woods v. State, 956 S.W.2d 33, 38 (Tex. Crim. App. 1997). A detaining officer must
have specific articulable facts that, taken together with rational inferences from those
facts, lead him to conclude that the person detained is, has been, or soon will be
engaged in criminal activity. Id.; Hernandez, 983 S.W.2d at 869. It is the State’s
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burden to prove that a warrantless detention was lawful. State v. Huddleston, 164
S.W.3d 711, 716 (Tex. App.—Austin 2005, no pet.).
IV. STANDING
By his first issue, Timmons contends that, as a passenger of the vehicle that was
stopped and searched by the police, he has standing to challenge both the vehicle stop
and the resulting search by the police.3
When police officers signal that a driver should stop the vehicle, and in response
the driver actually stops the vehicle, then the driver and all passengers inside the
vehicle have been seized under the Fourth Amendment. Arizona v. Johnson, 555 U.S.
323 (2009); Brendlin v. California, 551 U.S. 249, 257 (2007). A passenger, therefore,
has standing to challenge his seizure as unconstitutional regardless of whether he has
an expectation of privacy. Lewis v. State, 664 S.W.2d 345, 34338 (Tex. Crim. App.
1984).
Officer Savino and Gingles turned on the flashing lights and signaled that the
Buick should pull over, while Timmons was a passenger in the vehicle. Brendlin, 551
U.S. at 257. When the officers made the traffic stop of the vehicle, curtailing Timmons
travel, the officers’ activity was an intrusion on both the driver and Timmons. Id.
Therefore, Timmons has standing to challenge the constitutionality of the traffic stop by
police officers. Id. We sustain Timmons’ first issue.
V. REASONABLE SUSPICION
3
In accordance with the Texas Rules of Appellate Procedure 38.1(i), Timmons’ argument
challenging the search of the Buick will not be addressed because the brief did not contain a clear and
concise argument with appropriate citations to authorities and the record. See Tex. R. App. P. 38.1 (i)
(West 1999) (the appellant brief must contain a clear and concise argument for the contentions made,
with appropriate citations to authorities and to the record).
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In his second issue, Timmons contends that El Campo Police did not have
reasonable suspicion to stop the vehicle because there was no clearly marked line at
the intersection where the officers stopped the Buick.
In this case, the State argued that reasonable suspicion existed to stop Timmons
because Officer Savino suspected a violation of section 544.010 of the transportation
code. See TEX. TRANSP. CODE ANN. § 544.010 (West 1999). Section 544.010 provides
that:
(a) [u]nless directed to proceed by a police officer or traffic-control
signal, the operator of a vehicle or streetcar approaching an
intersection with a stop sign shall stop as provided by Subsection
(c).
(b) If safety requires, the operator of a vehicle approaching a yield
sign shall stop as provided by Subsection (c).
(c) An operator required to stop by this section shall stop before
entering the crosswalk on the near side of the intersection. In the
absence of a crosswalk, the operator shall stop at a clearly
marked stop line. In the absence of a stop line, the operator shall
stop at the place nearest the intersecting roadway where the
operator has a view of approaching traffic on the intersecting
roadway.
Id. “However, there is no requirement that an actual traffic offense be committed, just
that the officer reasonably believed that a violation was in process.” Vasquez v. State,
324 S.W.3d 912,919 (Tex. App.—Houston [14th Dist.] 2010, no pet.)
Officer Savino testified that they reasonably believed that a traffic violation had
occurred, when they observed the Buick fail to stop at the stop sign. See TEX. TRANSP.
CODE ANN. § 544.010 (West 1999). Officer Savino testified that he was very familiar with
the intersection because he drove through it on daily basis. Next, he stated that he saw
the Buick stop approximately three-quarters of the length of the car past the stop sign,
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and that at this particular intersection it is a violation of the traffic laws to go past the
stop sign to look into the intersection because there is a stop line. Officer Savino also
said he believed that the Buick had violated the traffic laws. Vasquez, 324 S.W.3d at
919.
Officer Savino was shown pictures of the stop sign, which were admitted into
evidence. Upon viewing the picture, Officer Savino stated, “The stop line is
there. . . . and at nighttime it’s reflective.” Then when asked by Timmons’ defense
counsel “No, I’m asking you whether that’s a clearly marked stop line,” Officer Savino
replied, “It’s the remnants of a clearly marked stop line.” Timmons appears to argue
that Officer Savino’s statement proves that there was not a clearly marked line.
However, whether the line was clearly marked is a question of fact which the trial court
resolved in the State’s favor. See Castro, 227 S.W.3d at 741.
After hearing the testimony of Officer Savino about the traffic stop, the line, and
viewing the pictures of the stop sign, the trial court could have decided to believe the
officer’s testimony that there was a clearly marked stop line. See Kelly v. State, 331
S.W.3d 541, 548 (Tex. App.—Houston [14th Dist.] 2011, no pet.). The trial court as the
resolver of facts could have determined that based on the totality of the circumstances
the officers had reasonable suspicion to stop the Buick for violating section 544.010 of
the transportation code. See Whren, 517 U.S. at 810. Therefore, viewing the evidence
in the light most favorable to the trial court's ruling, we conclude that the record supports
the trial court's determination to deny the motion to suppress. See Wiede, 214 S.W.3d.
at 28. We overrule Timmons’ second issue.
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VI. CONCLUSION
The judgment of the trial court is affirmed.
_____________________
ROGELIO VALDEZ
Chief Justice
Do not Publish.
TEX. R. APP. P. 47.2(b)
Delivered and filed the
14th day of July, 2011.
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