Anitra Adams v. Chasewood Community Improvement Association--Appeal from 240th District Court of Fort Bend County

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State: Texas

Court: Texas Northern District Court

Docket No: 01-09-00185-CV

Case Date: 08/27/2009

Plaintiff: Cerdric D. Horton

Defendant: The State of Texas--Appeal from 339th District Court of Harris County

Preview:Affirmed and Memorandum Opinion filed June 3, 2010.

In The

Fourteenth Court of Appeals
NOS. 14-08-00804-CR, 14-08-00786-CR CEDRIC D. HORTON, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 339th District Court Harris County, Texas Trial Court Cause Nos. 1145506, 1145507

MEMORANDUM OPINION
Appellant Cedric D. Horton challenges his convictions for possession of a controlled substance and felon-in-possession of a firearm, claiming the trial court erred in denying his motion to suppress evidence seized during his detention and arrest. We affirm. I. FACTUAL AND PROCEDURAL BACKGROUND Following a traffic stop, appellant was charged by indictment with two offenses: (1) possession of a controlled substance and (2) being a felon in possession of a firearm. Appellant filed a motion to suppress evidence seized by law enforcement officers as the

fruit of an allegedly illegal search and seizure. The evidence appellant sought to suppress consisted of a pill bottle with 14 crack cocaine rocks, a clear plastic bag with 23 grams of crack cocaine, a .380 caliber pistol, any testimony by the officers concerning such evidence, and any written or oral statement made by appellant to the officers. At a hearing on appellant`s motion, the State stipulated that there was no warrant for appellant`s arrest. Viewing the evidence in the light most favorable to the trial court`s ruling,1 the record from the hearing reflects the following: Officer Vaughn, in an unmarked police vehicle, was conducting surveillance of a parking lot in a high-traffic narcotics area. Officer Vaughn observed a man exit a parked vehicle and then enter a vehicle driven by appellant, which had just arrived. Based on his experience, Officer Vaughn believed that he was witnessing the beginning of a narcotics transaction. Officer Vaughn then followed the vehicle as it left the parking lot. He observed appellant commit a traffic violation by failing to signal a right turn. By radio communication, Officer Vaughn notified Officer Novak and Officer Abel to pursue appellant in marked police cruisers. Officer Abel and Officer Novak testified that they learned of the suspected narcotics transaction and traffic violation by radio communications with Officer Vaughn, a plain-clothes officer. Officer Novak and Officer Abel each pursued appellant in their respective patrol vehicles and activated emergency lights and sirens to notify appellant to pull over. Both Officer Novak and Officer Abel testified that appellant`s vehicle slowed before coming to a stop, which, based on their experiences, indicated that the occupants of the vehicle were trying to conceal contraband or trying to retrieve a weapon. However, neither officer saw these overt movements inside the vehicle as it slowed. After the vehicle stopped, Officer Novak and Officer Abel approached the vehicle with caution and with their weapons drawn because of the possible threat of weapons in the vehicle. Officer Vaughn then arrived on the scene and approached the passenger`s
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Baldwin v. State, 278 S.W.3d 367, 369 (Tex. Crim. App. 2009).

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side of the vehicle; he did not have his weapon drawn. Officer Vaughn testified that he saw movement inside the vehicle and saw the occupants storing a pill bottle in the vehicle`s center console. He alerted the other officers to movement inside the vehicle. His role at the scene was to continue to conduct surveillance. Because Officer Vaughn alerted the officers to movement within the vehicle, Officer Novak ordered appellant to exit the vehicle. Officer Novak observed a slight bulge in the front of appellant`s waistband, which the officer knew from experience is a common place to conceal a weapon. Officer Novak conducted a pat-down of appellant, located a pistol and a razor blade, and placed appellant under arrest for possessing a weapon. Officer Novak checked appellant`s criminal record to determine whether Officer Abel appellant`s criminal history prohibited him from carrying a weapon. searched and arrested the passenger, Robert Duane Johnson. At some point thereafter, two other officers arrived on the scene. Officer Novak recalled that he may have assisted the other officers in searching appellant`s vehicle. Officers recovered crack cocaine from the vehicle`s center console. Officer Novak and Officer Vaughn each confirmed that appellant`s vehicle was searched after appellant and Johnson were searched and arrested; Officer Abel did not know whether the vehicle was searched before or after Officer Novak recovered the gun from appellant. Appellant testified and admitted that the narcotics belonged to him; he placed the narcotics in the center console before the evening in question. He claimed that he was handcuffed, searched, and that the gun slid from his waistband into his underwear as he exited the vehicle. He claimed that the officers recovered the gun from his underwear in a subsequent search after he alerted officers to the location of the gun. Although

appellant claimed that the vehicle was searched before the officers found the gun, he testified that he was standing beside the vehicle with an officer as other officers searched his vehicle. Johnson testified that officers searched him and appellant at the same time. Johnson claimed to be in custody in the back of a police cruiser when he saw the officers 3

search appellant`s vehicle; but Johnson testified that officers searched the vehicle before recovering the gun from appellant.2 The trial court did not rule on the motion at the conclusion of the hearing, but ultimately denied appellant`s motion to suppress. Appellant waived his right to a jury and judicially confessed to committing the charged offenses. The trial court sentenced appellant to five years` confinement for each cause number with the sentences to run concurrently. The trial court certified appellant`s right to appeal the denial of his motion to suppress. II. ANALYSIS In a single issue on appeal, appellant claims the trial court erred in overruling the motion to suppress. Appellant argues that the weapon and narcotics should have been suppressed because the officers conducted an unlawful stop and search of appellant and his vehicle. According to appellant, because the arresting officer did not witness the traffic violation and because the testimony at the hearing was not sufficient to prove that appellant failed to use a turn signal, there were no lawful grounds for the stop. We review a trial court`s ruling on a motion to suppress evidence under a bifurcated standard of review. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). At a suppression hearing, the trial court is the sole finder of fact and is free to believe or disbelieve any or all of the evidence presented. Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007). We give almost total deference to the trial court`s

determination of historical facts that depend on credibility and demeanor, but review de novo the trial court`s application of the law to the facts if resolution of those ultimate questions does not turn on the evaluation of credibility and demeanor. See Guzman, 955 S.W.2d at 89. When, as in this case, there are no written findings of fact in the record, we uphold the ruling on any theory of law applicable to the case and presume the trial
Although somewhat unclear, the record reflects that Johnson pleaded guilty to a charged offense related to this case because he violated terms of his probation in an unrelated case.
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court made implicit findings of fact in support of its ruling so long as those findings are supported by the record. State v. Ross, 32 S.W.3d 853, 855

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