Ford, Matthew v. State ( 2003 )

Opinion issued March 27, 2003.

  In The

Court of Appeals

For The

First District of Texas

---

  NO. 01-02-00643-CR

---

MATTHEW FORD, Appellant

V.

THE STATE OF TEXAS, Appellee

---

On Appeal from the 338th Criminal District Court

Harris County, Texas

Trial Court Cause No. 886798

---

MEMORANDUM OPINION

          Appellant, Matthew Ford, was charged with the felony offense of possession of a controlled substance, codeine, weighing at least 400 grams. Before trial, appellant filed a motion to suppress the codeine, discovered when police officers searched appellant’s car after he had been stopped for a traffic violation. The trial court conducted a hearing on the motion to suppress and denied the motion. After his motion to suppress was denied, appellant entered into a plea bargain with the State, agreeing to plead guilty in exchange for a reduced charge of second degree possession of a controlled substance. After appellant entered his plea of guilty, the trial court assessed punishment at nine years’ deferred adjudication and a fine of $500.00.

          Appellant now appeals the trial court’s denial of his motion to suppress, claiming that the trial court erred because (1) the State did not demonstrate that reasonable suspicion supported the underlying traffic stop, and (2) the State did not demonstrate that appellant’s continued detention after the initial traffic stop, during which appellant’s car was searched and the codeine was discovered, was supported by reasonable suspicion. We affirm the judgment of the trial court.

Background

          Appellant contends that the trial court erred by denying his motion to suppress evidence gathered as a result of a traffic stop and a search incident to that traffic stop. The primary witness at the suppression hearing was Texas State Trooper Andrew Peavy, a four-year veteran who testified that his duties included enforcing traffic and criminal laws in the area west of Houston where appellant was stopped and arrested.           Trooper Peavy’s testimony at the suppression hearing revealed that he observed appellant driving a car westbound on Highway 290 outside of Houston and following the vehicle in front of it too closely. Trooper Peavy’s marked police car was behind appellant’s car, traveling in the same westerly direction. Trooper Peavy turned on his emergency lights and pulled appellant over to the side of the highway. When appellant brought his car to a stop, Trooper Peavy approached the passenger side window of appellant’s car, and appellant rolled down the window. Trooper Peavy testified that he detected a strong odor of marijuana when appellant rolled down the car window, but he did not mention the smell to appellant. Trooper Peavy took appellant’s driver’s license and returned to his patrol car to run a check on appellant’s license and to write a warning ticket for the traffic violation that he had observed.

          When he returned to appellant’s car, Trooper Peavy gave appellant the warning ticket and he then requested that appellant get out of the car. Appellant got out of the car and stood at the rear bumper. Trooper Peavy asked appellant for permission to search his car, which appellant denied. Trooper Peavy called for backup and continued speaking with appellant while waiting for more police officers to arrive. Trooper Peavy testified that, after he called for backup, appellant gave permission for the car to be searched. When another State Trooper arrived, Trooper Peavy searched appellant’s car and found a Styrofoam cup in the cup holder and two bottles under the driver’s seat. One bottle contained liquid codeine, while the other contained liquid codeine mixed with soda. Appellant was arrested while Trooper Peavy continued to search the car in order to determine the source of the marijuana odor he detected when appellant rolled down the passenger’s side window. When his search failed to reveal the source of the odor, Trooper Peavy called for a canine unit. The search dog arrived and alerted on the center console. Officers discovered 55 grams of marijuana hidden in the console of the car. Discussion

          Appellant challenges the trial court’s denial of his motion to suppress the codeine found during the search of his car by arguing that the trial court erred in denying his motion because the State failed to establish both the validity of the initial stop for a traffic violation and the validity of appellant’s continued detention after he was issued a ticket for the traffic violation.

Standard of Review

          At a hearing on a motion to suppress, the trial court is the sole judge of the weight and credibility of the evidence. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). Thus, the trial court is free to believe any or all of a witness’s testimony. Allridge v. State, 850 S.W.2d 471, 492 (Tex. Crim. App. 1991). An appellate court reviewing a trial court’s ruling on a motion to suppress must view the record evidence and all reasonable inferences therefrom in the light most favorable to the trial court’s ruling, and must sustain the trial court’s ruling if it is reasonably supported by the record evidence and is correct under any theory of law applicable to the case. State v. Ross, 32 S.W.3d 853, 855-56 (Tex. Crim. App. 2000). We must afford almost total deference to the trial court’s determination of the historical facts that the record supports when the trial court’s findings are based on an evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). Likewise, we are to utilize the same deference in reviewing the trial court’s ruling on mixed questions of law and fact when the resolution of the questions turns on an evaluation of credibility and demeanor. Id. However, we review de novo mixed questions of law and fact that do not fall within the preceding two categories. Id. We will independently review a trial court’s determination of reasonable suspicion and probable cause, because this requires the application of law to facts. Guevara v. State, 6 S.W.3d 759, 762 (Tex. App.— Houston [1st Dist.] 1999, pet. ref’d). We will, however, give great weight to certain inferences drawn by the trial court. Id.     

Initial Stop

          In his first point of error, appellant argues that the trial court erred by denying his motion to suppress because the State failed to establish that the stop was reasonable. To justify an investigative stop, an officer must have specific articulable facts which, in light of his experience and personal knowledge, together with inferences from those facts, would reasonably warrant the intrusion. Davis v. State, 947 S.W.2d 240, 243 (Tex. Crim. App. 1997). The articulable facts used by the officer must create some reasonable suspicion that some activity out of the ordinary is occurring or has occurred, some suggestion to connect the detainee with the unusual activity, and some indication the unusual activity is related to crime. Meeks v. State, 653 S.W.2d 6, 12 (Tex. Crim. App. 1983)

          Accordingly, the issue before us is whether the trial court erred by denying appellant’s motion to suppress where the State was required to establish that Trooper Peavy had at least reasonable suspicion to pull appellant over to the side of the highway. Appellant argues that a bald assertion by Trooper Peavy that appellant was following another car too closely, without more, is insufficient to meet the State’s burden.

          When following another vehicle, a driver shall maintain an assured clear distance between the two vehicles, “so that, considering the speed of the vehicles, traffic and the conditions of the highway, the operator can safely stop. . . .” Tex. Transp. Code Ann. § 545.062(a) (Vernon 2001). An officer is authorized to stop a person who commits a traffic violation in the officer’s presence. McVickers v. State, 874 S.W.2d 662, 664 (Tex. Crim. App. 1993). In addition to Trooper Peavy’s statement that appellant was following another car too closely, the trial court also heard evidence regarding Trooper Peavy’s experience, training, and his duties of enforcing traffic laws. Further, although appellant denied that he was following the car in front of him too closely, at the suppression hearing he did admit that another car moved into his lane suddenly, cutting in between his car and the car he had originally been following. In light of all the evidence presented at the suppression hearing, the trial court did not err by denying appellant’s motion to suppress on the grounds that the initial stop for the traffic violation was invalid. Appellant’s first point of error is overruled.

Continued Detention after Warning Issued

          In his second point of error, appellant argues that the trial court erred in denying his motion to suppress because the State failed to establish the reasonableness of appellant’s continued detention after Trooper Peavy issued appellant a warning for the traffic violation. Appellant contends that, once Trooper Peavy issued the warning for the traffic violation, the purpose of the initial traffic stop was completed and his continued detention by Trooper Peavy was therefore unreasonable. Once an officer concludes the investigation of the conduct that initiated the stop, continued detention of a person is permitted only if there is reasonable suspicion to believe another offense has been or is being committed. Davis, 947 S.W.2d at 244. Appellant’s continued detention was supported by reasonable suspicion, due to the strong odor of marijuana that Trooper Peavy smelled when appellant rolled down the passenger side window during the traffic stop. The odor of marijuana alone provides reasonable suspicion of criminal activity sufficient to justify a continued detention. Mohmed v. State, 977 S.W.2d 624, 628 (Tex. App.—Fort Worth 1998, pet. ref’d). In fact, the odor of marijuana emanating from a car is sufficient to constitute probable cause to search a detainee’s car or objects within his car. See Isam v. State, 582 S.W.2d 441, 444 (Tex. Crim. App. 1979) (holding that where an officer smelled the odor of marijuana as he approached the vehicle, the arrest and search of the defendant were reasonable); Duff v. State, 546 S.W.2d 283, 286 (Tex. Crim. App. 1977) (holding that an officer executing a valid stop and detecting the odor of marijuana coming from the defendant’s car was justified in his search of the car). Accordingly, the trial court did not err in denying appellant’s motion to suppress the codeine found in the search of his car on the grounds that his continued detention after Trooper Peavy issued a warning for the traffic violation was unreasonable. Appellant’s second point of error is overruled.

Conclusion

          We affirm the judgment of the trial court.

                                                             George C. Hanks, Jr.

                                                             Justice

Panel consists of Justices Nuchia, Hanks, and Price.

Do not publish. Tex. R. App. P. 47.2(b).