Aric Danyl White v. State

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Aric Danyl White

Appellant

Vs.                   No. 11-03-00026-CR -- Appeal from Collin County

State of Texas

Appellee

After the trial court denied his motion to suppress evidence, Aric Danyl White pleaded guilty to the state jail felony offense of possession of more than 4 ounces but less than 5 pounds of marihuana.  The trial court deferred the adjudication of guilt and placed appellant on community supervision for 5 years.  The terms of his community supervision required appellant to serve 120 hours of community service, complete the substance abuse felony program, and obtain his college degree within 6 months of his release from the substance abuse felony program.  We affirm.

In his three issues on appeal, appellant argues that the trial court erred in denying his motion to suppress evidence because:  (1) the officer had no reasonable suspicion to stop appellant=s vehicle; (2) the officer was not engaged in the community caretaking function when he stopped appellant; and (3) the officer had no probable cause to detain appellant once the officer determined that he was not going to arrest appellant on unconfirmed warrants.  The State contends that it is not relying on the community caretaking exception; therefore, we need not address that as a reason for the officer stopping appellant. 

                                                               Standard of Review

We review a trial court=s denial of a motion to suppress for abuse of discretion.  Oles v. State, 993 S.W.2d 103, 106 (Tex.Cr.App.1999).  In reviewing a trial court=s ruling on a motion to suppress, appellate courts must give great deference to the trial court=s findings of historical fact as long as the record supports the findings.  Guzman v. State, 955 S.W.2d 85 (Tex.Cr.App.1997). We must afford the same amount of deference to the trial court=s rulings on Amixed questions of law and fact,@ such as the issue of probable cause, if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor.  Guzman v. State, supra at 89.  Appellate courts, however, review de novo Amixed questions of law and fact@ not falling within the previous category. Guzman v. State, supra.  When faced with a mixed question of law and fact, the critical question under Guzman is whether the ruling Aturns@ on an evaluation of credibility and demeanor.  Loserth v. State, 963 S.W.2d 770, 773 (Tex.Cr.App.1998).  A question Aturns@ on an evaluation of credibility and demeanor when the testimony of one or more witnesses, if believed, is always enough to add up to what is needed to decide the substantive issue.  Loserth v. State, supra.  We must view the record in the light most favorable to the trial court=s ruling and sustain the trial court=s ruling if it is reasonably correct on any theory of law applicable to the case.  Guzman v. State, supra. 

                                                    Reasonable Suspicion for the Stop

A routine traffic stop closely resembles an investigative detention.  Berkemer v. McCarty, 468 U.S. 420 (1984).  Law enforcement officers may stop and briefly detain a person for investigative purposes on less information than would be required to support a probable cause determination.  Terry v. Ohio, 392 U.S. 1, 21-22 (1968).  The reasonableness of a temporary detention must be examined in terms of the totality of the circumstances and will be justified when the detaining officer has specific articulable facts which, taken together with rational inferences from those facts, lead the officer to conclude that the person detained actually is, has been, or soon will be engaged in criminal activity.  Woods v. State, 956 S.W.2d 33, 38 (Tex.Cr.App.1997). 

The only witness at the hearing on appellant=s motion to suppress, Sergeant Investigator Andrew Hawkes with the Collin County Sheriff=s Office, testified that when he stopped appellant he was in a marked patrol vehicle.  Sergeant Hawkes stopped appellant on U.S. Highway 75 northbound near the Foster Crossing Exit in Collin County.  Sergeant Hawkes said:

I observed the vehicle crossing over the B both solid white lines on the right side and the center dividing lines and traveling at a decreased speed for the speed limit there.

Sergeant Hawkes testified that appellant was traveling at 45-50 miles per hour in a 60 mile per hour zone.  Sergeant Hawkes also stated that he had been a certified peace officer for 102 years and that he had observed A[t]housands of cars on that highway.@

Much of appellant=s argument concentrates on the portion of the stop that was recorded by the camera in Sergeant Hawkes=s vehicle.  However, Sergeant Hawkes said early in his testimony:

The initial reason for the stop probably wasn=t on [the film], but as soon as I had probable cause then I activated my camera.^[1]

Sergeant Hawkes testified that he stopped appellant for Afailing to maintain a single lane and driving on the shoulder.@  Citing Bass v. State, 64 S.W.3d 646, 648 (Tex.App. - Texarkana 2001, pet=n ref=d), State v. Cerny, 28 S.W.3d 796, 800 (Tex.App. - Corpus Christi 2000, no pet=n), and Hernandez v. State, 983 S.W.2d 867, 871 (Tex.App. B Austin 1998, pet=n ref=d), appellant argues that his failure to drive within a single lane did not constitute a violation of TEX. TRANSP. CODE ANN. ' 545.060(a) (Vernon 1999) because there was no evidence that his driving was unsafe.  Section 545.060(a) requires an operator on a roadway divided into two or more clearly-marked lanes for traffic to (1) drive, as nearly as practical, entirely within a single lane and (2) not move from the lane unless that movement can be made safely.

The court in Bass held that the State had not presented evidence that Bass=s one lane change occurred in an unsafe manner; the court noted that the officer did not testify that, based on his experience, he subjectively suspected Bass of being intoxicated.   Hernandez involved a police officer stopping the driver after observing him swerve once 18 to 24 inches from the right lane into the adjacent left lane of traffic going the same direction.  The swerve in question was characterized as a slow drift over and back and was not a problem for any other vehicle.  The court in Cerny affirmed the trial court=s granting of the motion to suppress, expressly deferring to the trial court=s determination of the historical facts concerning the driver=s actions. 

As in Cerny, we believe that the trial court was in a better position to determine the credibility and demeanor of Sergeant Hawkes, and we must defer to the trial court=s determination of the historical facts concerning the stop of appellant.  Guzman v. State, supra at 87.  As to whether there was anything unsafe about appellant=s weaving, Sergeant Hawkes testified:

Sure there was.  He wasn=t maintaining a single lane and in a police officer=s standpoint, that=s not safe.  From my standpoint that=s not safe.

Sergeant Hawkes said that he was concerned about appellant=s driving:

If he was falling asleep, if he was intoxicated, if he was eating a hamburger and it was falling in his lap and he wasn=t paying attention.

The tape reflected that, after the stop, Sergeant Hawkes asked appellant:

Have you had any alcohol to drink?  You were weaving on the road, that=s why I stopped you.

Sergeant Hawkes did not recall how many times that appellant crossed over the center stripe between the two lanes.  Appellant points out that, during cross-examination, Sergeant Hawkes conceded that he did not think that appellant was intoxicated; however, Sergeant Hawkes apparently based this statement on his observations of appellant after the stop.

The court in Cook v. State, 63 S.W.3d 924, 928-31 (Tex.App. - Houston [14th Dist.] 2002, pet=n ref=d), considered a motion to suppress similar to the one before us.  There, the court held that the officer was justified in stopping the defendant based on a reasonable suspicion that he was in violation of Section 545.060(a); the officer was also justified in stopping appellant based on a reasonable suspicion that appellant was driving while intoxicated.  We agree with Cook that Section 545.060(a) does not permit a driver to weave across lanes of traffic so long as no other vehicles are in the vicinity.  Id. at 928; Gajewski v. State, 944 S.W.2d 450, 453 (Tex.App. B Houston [14th Dist.] 1997, no pet=n). Weaving can be unsafe even if the driver does not come close to hitting another car while the officer is observing the driver.  U.S. Highway 75 is a major highway connecting Dallas and Tulsa, and the video showed a number of cars passing the scene of the stop.  The trial court believed Sergeant Hawkes=s testimony that appellant=s weaving was unsafe, and we defer to that finding. 

We find that, based on the totality of Sergeant Hawkes=s testimony as to the facts and the rational inferences to be drawn from those facts, appellant=s driving behavior was sufficient to justify the officer in stopping appellant based on a reasonable suspicion that he was in violation of Section 545.060(a) and to raise a reasonable suspicion in the mind of a reasonable police officer that appellant was driving while intoxicated.  Appellant=s first issue is overruled.

                                                      The Detention Was Reasonable

Although appellant agreed that he consented to Sergeant Hawkes=s request to search his car, appellant contends in his third issue that, even if the detention was appropriate, the purpose of the detention ended when Sergeant Hawkes made the determination that he was not going to arrest appellant on unconfirmed warrants. Therefore, according to appellant, he should have been released, and no subsequent search should have taken place.

Under Terry v. Ohio, supra, an investigative detention is reasonable if the officer=s action was justified at its inception and was reasonable related in scope to the circumstances that justified the detention. Terry v. Ohio, supra at 19-20. Thus, a traffic stop must last no longer than is necessary to carry out the purpose of the stop.  Florida v. Royer, 460 U.S. 491, 500 (1983); Davis v. State, 947 S.W.2d 240, 245 (Tex.Cr.App.1997).  However, once the purpose of the original detention has been effectuated, a continued detention may be supported by some additional reasonable suspicion.  Davis v. State, supra at 244-45.

The detention lasted approximately 18 minutes before appellant consented to the search.  Sergeant Hawkes first asked appellant to step to the back of the car.  After asking to see appellant=s driver=s license, Sergeant Hawkes then asked appellant where he was going, and appellant replied that he had visited his mother in Dallas and was heading back to Muskogee, Oklahoma. The passenger told Sergeant Hawkes that they were going to Haskell, Oklahoma. Sergeant Hawkes then returned to his patrol unit to run a routine driver=s license and warrants check on appellant. The check showed that appellant had some outstanding warrants out of the Dallas Police Department.  On the video, Sergeant Hawkes said that he A[felt] like he smells marihuana.@  Sergeant Hawkes called for a back-up unit.  Although at the hearing Sergeant Hawkes denied that he had requested a canine unit as his backup, the trial court correctly remembered that the video reflected that he had. Sergeant Hawkes asked appellant for consent to search the car, and appellant gave his consent. The officers found an assault rifle with a collapsible stock in the trunk and two pounds of marihuana, $11,100 in cash, and a .45 automatic handgun under the backseat of appellant=s car.  Appellant and his passenger were arrested.

Officer Hawkes testified that the conflicting answers of appellant and his passenger and their behavior made him suspicious; the video reflected that he thought he smelled marihuana. In Freeman v. State, 62 S.W.3d 883, 888 (Tex.App. B Texarkana 2001, pet=n ref=d), the court found that the  inconsistent answers between driver and passenger along with the odor of marihuana justified a continued detention.  Here, it is not even clear that the purpose of the original detention had been effectuated by Sergeant Hawkes when he asked appellant for consent to search the vehicle.  Even if it had been, Sergeant Hawkes did not have to have additional reasonable suspicion to request a consent to search.  Ohio v. Robinette, 519 U.S. 33, 39-40 (1996); James v. State, 102 S.W.3d 162, 173 (Tex.App. - Fort Worth 2003, pet=n ref=d). Compare Davis v. State, supra, where the defendant twice refused to give consent to search after the purpose of the detention had been effectuated and the court held that a continued detention of the defendant until the drug dogs arrived was unreasonable.

We cannot say that the trial court abused its discretion in denying appellant=s motion to suppress.  Appellant=s third issue is overruled.

                                                                This Court=s Ruling

The judgment of the trial court is affirmed.

TERRY McCALL

JUSTICE

February 19, 2004

Do not publish.  See TEX.R.APP.P. 47.2(b).

Panel consists of:  Arnot, C.J., and

Wright, J., and McCall, J.

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^[1]During cross-examination, Sergeant Hawkes again said that he turned his camera on after he observed Aprobable cause of a traffic violation.@