Sharon Keithley v. State

IN THE

TENTH COURT OF APPEALS

 

No. 10-04-00300-CR

Sharon Keathley,

                                                                      Appellant

 v.

The State of Texas,

                                                                      Appellee

From the 249th District Court

Somervell County, Texas

Trial Court No. 249-00518

MEMORANDUM  Opinion

      Keathley appeals her conviction for possession of less than one gram of methamphetamine.  See Tex. Health & Safety Code Ann. § 481.115(a)-(b) (Vernon 2003); id. § 481.102(6) (Vernon 2003).  We affirm.

      In Keathley’s two issues, she contends that the trial court erred in overruling her motion to suppress the methamphetamine.  Keathley was a passenger in a car that a Texas Department of Public Safety trooper stopped for having a defective headlight.  See Tex. Transp. Code Ann. §§ 542.301(a), 547.321 (Vernon 1999).  When the driver handed the trooper the driver’s insurance card, the trooper saw a cellophane bag inside the driver’s watchband.  When the trooper asked the driver what was in the bag, the driver admitted that there was marijuana in the bag.  The trooper arrested the driver for possession of marijuana.  See Tex. Health & Safety Code Ann. § 481.121(a) (Vernon 2003).  When the trooper then approached Keathley, Keathley appeared to be putting something inside her shorts.  The trooper handcuffed Keathley, and deputy sheriffs took Keathley to the county jail.  At the jail, Keathley removed two cellophane bags of methamphetamine from her vagina. 

      “The job of an appellate court” in reviewing the lower court’s decision on a motion to suppress “is to review the decision of the lower court for an abuse of discretion.”  State v. Dixon, No. PD-0077-05, 2006 Tex. Crim. App. LEXIS 363, at *6-*7 (Tex. Crim. App. Feb. 15, 2006); accord Swain v. State, 181 S.W.3d 359, 365 (Tex. Crim. App. 2005).  “We give almost total deference to a trial court’s express or implied determination of historical facts and review de novo the court’s application of the law of search and seizure to those facts.”  Dixon at *7; see Guzman v. State, 955 S.W.2d 85, 87 (Tex. Crim. App. 1997).  “We view the record in the light most favorable to the trial court’s conclusion . . . .”  Dixon at *7; accord Swain at 365; Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002). “We . . . assume that the trial court made implicit findings of fact supported in the record.”  Swain at 365; accord Balentine at 768.  “We will sustain the lower court’s ruling if it is reasonably supported by the record and is correct on any theory of law applicable to the case.”  Dixon at *7; accord Swain at 365; State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000).  We “reverse the judgment only if it is outside the zone of reasonable disagreement.”  Dixon at *7; see Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh’g). 

      “The right of the people to be secure in their persons, . . . against unreasonable searches and seizures, shall not be violated . . . .”  U.S. Const. amend. IV; see id. amend. XIV; Tex. Const. art. I, § 9.  Texas courts generally interpret Texas Constitution Article I, Section 9, in accordance with the Fourth Amendment to the United States Constitution.  See Johnson v. State, 912 S.W.2d 227, 232-35 (Tex. Crim. App. 1995).  “A warrantless search by the police is invalid unless it falls within one of the narrow and well-delineated exceptions to the warrant requirement . . . .”  Flippo v. West Virginia, 528 U.S. 11, 13 (1999).    “[I]f the scope of the search exceeds that permitted by . . . the character of the relevant exception from the warrant requirement, the subsequent seizure is unconstitutional without more.”  Wilson v. Layne, 526 U.S. 603, 611 (1999) (quoting Horton v. California, 496 U.S. 128, 140 (1990)).  “[A]bsent circumstances justifying a warrantless search, it is ‘constitutional error [to] admit into evidence the fruits of the illegal search[.]’”  Powell v. Nevada, 511 U.S. 79, 85 (1994) (quoting Vale v. Louisiana, 399 U.S. 30, 35 (1970)) (1st alteration in Powell); accord Mapp v. Ohio, 367 U.S. 643 (1961); Weeks v. United States, 232 U.S. 383 (1914); Boyd v. United States, 116 U.S. 616 (1886). 

      In Keathley’s first issue, she argues that the detention of the driver exceeded the scope of the initial traffic stop.[1]  “[T]he general rule is that an investigative stop can last no longer than necessary to effect the purpose of the stop.”  Kothe v. State, 152 S.W.3d 54, 63 (Tex. Crim. App. 2004).  “An officer conducts a lawful temporary detention when he has reasonable suspicion to believe that an individual is violating the law.”  Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005).  “Reasonable suspicion exists if the officer has specific, articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably conclude that a particular person is, has been, or soon will be engaged in criminal activity.”  Id.  “If, during a valid traffic stop and detention, the officer develops reasonable suspicion that the detainee is engaged in criminal activity, prolonged or continued detention is justified.”  Haas v. State, 172 S.W.3d 42, 52 (Tex. App.—Waco 2005, pet. ref’d). 

      Keathley argues that the valid purpose of the traffic stop ended when the trooper told the driver that the trooper would give the driver a warning without a citation.  The State argues that the officer had reasonable suspicion to detain the driver temporarily for investigation of the cellophane bag.  The trooper testified, however, that he determined to ask the driver about the bag as soon as he saw it, before he finished giving the driver a warning for the broken headlight, and that in the trooper’s experience marijuana users often carry marijuana in such cellophane bags.   Viewing the evidence in the light most favorable to the trial court’s ruling, we hold that the trial court did not abuse its discretion in finding that the trooper had reasonable suspicion to detain the driver. 

      In Keathley’s second issue, she argues that she was arrested without probable cause, and that the search of her person was thus illegal.  “A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment . . . .”  Illinois v. Lafayette, 462 U.S. 640, 645 (1983) (quoting United States v. Robinson, 414 U.S. 218, 235 (1973)); see Wong Sun v. United States, 371 U.S. 471 (1963).  “[T]he substance of all the definitions of probable cause is a reasonable ground for belief of guilt.”  Maryland v. Pringle, 540 U.S. 366, 371 (2003) (quoting Gates v. Illinois, 462 U.S. 213, 232 (1983)).  In the context of a search, “probable cause means ‘a fair probability that contraband or evidence of a crime will be found.’”  Alabama v. White, 496 U.S. 325, 330 (1990) (quoting United States v. Sokolow, 490 U.S. 1, 7 (1989) (quoting Gates, 462 U.S. at 238)). “[P]robable cause is a flexible, common-sense standard.”  Texas v. Brown, 460 U.S. 730, 742 (1983) (plurality op.).  “[S]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.”  Arkansas v. Sullivan, 532 U.S. 769, 772 (2001) (quoting Whren v. United States, 517 U.S. 806, 813 (1996)).  Probable cause “merely requires that the facts available to the officer would ‘warrant a man of reasonable caution in the belief’ that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false.”  Brown at 742 (quoting Carroll v. United States, 267 U.S. 132, 162 (1925)); accord Henry v. United States, 361 U.S. 98, 102 (1959).  “A ‘practical, nontechnical’ probability that incriminating evidence is involved is all that is required.”  Brown at 742 (quoting Brinegar v. United States, 338 U.S. 160, 176 (1949)). 

      Keathley points to the trooper’s testimony that he did not believe at the time that he had probable cause to arrest Keathley.  The State points to the trooper’s testimony that the driver’s cellophane bag containing marijuana was in plain view in the car before the stop; that Keathley began to make furtive movements, including putting her hands inside her shorts, immediately after the trooper arrested the driver for possession of marijuana; and that, although unusual, suspects sometimes attempt to hide contraband inside their pants.  Viewing the evidence in the light most favorable to the trial court’s ruling, we hold that the trial court did not abuse its discretion in holding that the trooper had probable cause to arrest Keathley. 

      The trial court did not abuse its discretion in overruling Keathley’s motion to suppress.  We overrule Keathley’s issues and affirm the judgment. 

TOM GRAY

Chief Justice

Before Chief Justice Gray,

      Justice Vance, and

      Justice Reyna

      (Justice Vance concurring with note)*

Affirmed

Opinion delivered and filed June 14, 2006

Do not publish

[CR25]

  *  “(Justice Vance concurs in the judgment with a note:  I believe that we owe it to the litigants, the higher courts, the Bench and Bar, and the public generally to provide more of the facts, the arguments of the parties, and our analysis in memorandum opinions.  For example, in the first issue, the suggestion in the footnote is simply incorrect, as demonstrated on pages 15-18 of Keathley’s brief (and pages 21-23 of the State’s response), where the events of her prolonged detention are discussed, not just the initial right to detain the driver.  I cannot join this opinion.)”

---

[1]  Although Keathley states her issue in terms of her own detention, she argues the issue only in terms of the initial detention of the driver. 

60;    The trial court also found that Griffitts’s life insurance policy interests did not constitute notes. Griffitts does not show that the court erred.

      Griffitts purchased her interests in the life insurance policies from her individual retirement account (“IRA”) by the use of promissory notes secured by the proceeds of the policies. When the insurance company paid the insured’s death benefits, the trust company paid the note.

      The use of a note to purchase an interest in a life insurance policy does not convert that interest, which is otherwise not a security, into a security. See Life Partners, 87 F.3d at 548-49. The purpose of the use of a note is avoid running afoul of tax law restrictions on investments by an IRA in insurance policies on the life of a person other than the holder of the IRA. Id.

      Griffitts argues that we should use the analysis in Reves v. Ernst & Young to determine whether her interests in life insurance policies constituted notes. See Reves v. Ernst & Young, 494 U.S. 56 (1990). Griffitts misapplies the Reves analysis. Griffitts applies the analysis to the life insurance policies themselves, not to the promissory notes that she used in the purchase of interests in the policies. For example, one of the Reves factors is “the ‘plan of distribution’ of the instrument” and “whether it is an instrument in which there is ‘common trading for speculation or investment.’” Id. at 66 (quoting SEC v. C.M. Joiner Leasing Corp., 320 U.S. 344, 351, 353 (1943)). Griffitts points to summary judgment evidence that Life Partners had “thousands of investors”; however, she does not point to evidence that these investors used promissory notes.

      Accordingly, Griffitts does not show that the trial court erred in concluding that Griffitts’s interests in life insurance policies did not constitute notes.

“Other Evidences of Indebtedness”

      The trial court also concluded that Griffitts’s life insurance policy interests did not constitute “other evidences of indebtedness.” See Tex. Rev. Civ. Stat. Ann. art. 581-4(A). Griffitts does not show that the court erred.

      Griffitts scarcely argues this theory in less than a page. Griffitts notes that the Act’s term “other evidence of indebtedness” is ejusdem generis of the Act’s phrase, “note, bond, debenture, mortgage certificate.” Griffitts Br. at 43 (citing Thomas v. State, 3 S.W.3d 89, 93 (Tex. App.—Dallas 1999), aff’d, 65 S.W.3d 38 (Tex. Crim. App. 2001)). Griffitts apparently argues that viatical settlements are similar to mortgage certificates, and cites Searsy in connection with mortgage certificates; however, Searsy does not concern mortgage certificates. See id. at 43-44 (citing Searsy, 560 S.W.2d at 641-42). Griffitts does not otherwise argue that viatical settlements are similar to mortgage certificates so as to constitute evidences of indebtedness.

      Accordingly, Griffitts does not show that the trial court erred in concluding that Griffitts’s interests in life insurance policies did not constitute evidences of indebtedness.

      The trial court concluded that Griffitts’s interests in life insurance policies did not constitute securities on any of three theories. Griffitts does not show that the court erred as to any of those theories. Therefore, Griffitts does not show that the trial court erred in concluding that Griffitts’s interests in life insurance policies did not constitute securities.

Insurance Contracts

      The trial court also granted summary judgment on the ground that Griffitts’s interests in life insurance policies fell within an insurance product exception to the definition of securities. The Securities Act excludes from the definition of security

any insurance policy, endowment policy, annuity contract, optional annuity contract, or any contract or agreement in relation to and in consequence of any such policy or contract, issued by an insurance company subject to the supervision or control of the Texas Department of Insurance when the form of such policy or contract has been duly filed with the Department as now or hereafter required by law.

Tex. Rev. Civ. Stat. Ann. art. 581-4(A). Since we find that the trial court did not err in concluding that Griffitts’s interests in life insurance policies did not constitute securities, we do not decide whether those interests are excepted from the definition of securities.

Conclusion

      Accordingly, Griffitts does not show that the trial court erred in rendering summary judgment against Griffitts.

      The vast majority of Griffitts’s argument is devoted to Life Partners’ motion for summary judgment. Griffitts scarcely argues her own motion. For the reasons stated above, Griffitts does not establish that the trial court erred in concluding that Griffitts’s interests in life insurance policies did not constitute securities. However, even if Griffitts’s interests in life insurance policies could, as a matter of law, constitute securities, Griffitts does not show that she is entitled to judgment as a matter of law.

      We affirm the judgment of the trial court.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

      Justice Vance, and

      Justice Reyna

(Justice Vance dissents with note: I would find that the viatical settlement contracts and notes are securities under the Searsy-Howey four-pronged test and the Reves test. Searsy v. Commercial Trading Corp., 560 S.W.2d 637, 639-40 (Tex. 1977); Grotjohn Precise Connexiones Int’l, S.A. v. JEM Financial, Inc., 12 S.W.3d 859, 868 (Tex. App.—Texarkana 2000, no pet.).)

Affirmed

Opinion delivered and filed May 26, 2004

[CV06]