Delford B. Mathews v. Richard A. Trinci, Jr.; Kathryn A. Bell; Sgt. James Hudson, and Timothy Moffett--Appeal from 412th District Court of Brazoria County

SUPREME COURT CASES

Laws-info.com » Cases » Texas » 14th District Court of Appeals » 2008 » Delford B. Mathews v. Richard A. Trinci, Jr.; Kathryn A. Bell; Sgt. James Hudson, and Timothy Moffett--Appeal from 412th District Court of Brazoria County

State: Texas

Court: Texas Northern District Court

Docket No: 14-07-00719-CV

Case Date: 12/02/2008

Plaintiff: Delford B. Mathews

Defendant: Richard A. Trinci, Jr.; Kathryn A. Bell; Sgt. James Hudson, and Timothy Moffett--Appeal from 412th

Preview:Michael Higgins v. The State of Texas--Appeal from Co Crim Ct at Law No 4 of Harris County
Opinion issued January 31, 2008

In The Court of Appeals For The First District of Texas

NO. 01-06-00911-CR

MICHAEL HIGGINS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from County Criminal Court at Law No. 4 Harris County, Texas Trial Court Cause No. 1387547

MEMORANDUM OPINION Appellant, Michael Higgins, pleaded guilty to the offense of possession of marihuana, and the trial court accepted a plea agreement and sentenced him to a $200.00 fine and a one-year suspension of his driver's license. Tex. Health & Safety Code 481.121 (Vernon 2003). In three issues, appellant challenges the trial court's denial of his motion to suppress evidence. We affirm. Background

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Around 11:30 p.m. on July 3, 2006, Harris County Sheriff's Deputy Terry B. Jackson watched appellant change lanes and make a U-turn from the right-hand lane, all without signaling. Deputy Jackson signaled appellant to stop. Instead of stopping immediately, appellant slowed down but continued driving, which caused Deputy Jackson to suspect that "something was going on in the vehicle at that time." According to Deputy Jackson, appellant finally stopped in the middle of the road in the moving lane of traffic. Deputy Jackson approached appellant's vehicle and saw some "furtive movement" when he shined his spotlight inside. Deputy Jackson testified that appellant immediately "rolled his window down, and I noted the strong odor of recent burnt marijuana coming from the interior of the vehicle." Strongly suspecting that appellant and the passengers had been smoking and were in possession of marihuana, Deputy Jackson detained and searched appellant to make sure appellant had no weapons. During the pat down, Deputy Jackson felt a hard object in appellant's left pocket, which he removed. Based on his experience, he believed the object to be a bag of marihuana, as later testing confirmed. Deputy Jackson handcuffed appellant and put him in the patrol car. Jackson then frisked and detained the occupants of the vehicle and determined that none of them had a driver's license. He searched the vehicle and found a partially smoked marihuana cigar on the driver's side. Appellant was charged with misdemeanor possession of marihuana. The trial court heard testimony from two witnesses: Deputy Jackson and one of appellant's passengers, who contradicted Deputy Jackson's account. The trial court issued written findings of fact and conclusions of law. The Court having carefully considered the presented facts and the credibility of the witnesses finds that Deputy Jackson had a reasonable suspicion to stop the Defendant based upon his observation of a traffic offense. After the stop the deputy, who had significant experience in the detection and intervention of narcotics, immediately detected the "strong odor of recently burned marijuana," and furtive movements in the stopped vehicle.

Deputy Jackson had a reasonable suspicion based upon his training and observations to elevate his investigation to the level of probable cause to search the Defendant.

Upon the initial "Terry" frisk he felt a hard object in Defendant's front pocket which later turned out to be a money clip and cell phone. Based upon the deputy's reasonable suspicion and probable cause he reached into the Defendant's pocket and immediately felt what he suspected to be a sandwich bag of marijuana and removed the bag, discovering exactly what he suspected, a bag of marijuana. Standard of Review We review a trial court's ruling on a motion to suppress evidence for abuse of discretion. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996); Taylor v. State, 945 S.W.2d 295, 297 (Tex. App.--Houston [1st Dist.] 1997, pet. ref'd). The appellate court will afford almost total deference to a trial court's determination of historical facts that the record supports, especially when the findings are based on the evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). The fact-finder is the sole judge of the witnesses' credibility and may accept or reject any or all of the witnesses' testimony. Taylor, 945 S.W.2d at 297. In reviewing a ruling on a question of application of law to facts, we review the evidence in the light most favorable to the trial court's ruling. Guzman, 955 S.W.2d at 89. When a traffic violation is committed in an officer's presence, the officer has probable cause to conduct a traffic stop. State v. Gray, 158 S.W.3d 465, 469 (Tex. Crim. App. 2005). A peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view. Tex. Code Crim. Proc. Ann. art. 14.01(b) (Vernon 2005). Any peace officer may arrest without warrant a person found committing a violation of the Rules of the Road. Tex. Transp. Code Ann. 543.001 (Vernon 1999). Incident to such an arrest, a peace officer may lawfully search the person
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and passenger compartment of the vehicle. Gray, 158 S.W.3d at 470. A search incident to arrest may lawfully be conducted a few moments prior to formal custodial arrest. Williams v. State, 726 S.W.2d 99, 101 (Tex. Crim. App. 1986) (citing Rawlings v. Kentucky, 448 U.S. 98, 111, 100 S. Ct. 2556, 2564 (1980)). Discussion In three issues, appellant challenges the trial court's denial of his motion to suppress evidence, i.e., the bag of marihuana Deputy Jackson found in his pocket. Specifically, appellant complains that the trial court erred in finding (1) that there was reasonable suspicion to stop him, (2) that the Terry frisk was proper, and (3) that Deputy Jackson properly reached into his pocket. The Transportation Code requires a driver to signal before changing lanes or turning. Tex. Transp. Code Ann. 545.104 (Vernon 1999). Deputy Jackson saw appellant change lanes and turn without using a turn signal. He had probable cause to stop and arrest appellant at that time. Despite appellant's characterization of the search as a Terry search, Deputy Jackson conducted a lawful search of appellant and his vehicle incident to arrest. That Deputy Jackson developed probable cause to arrest appellant for a different crime, namely, possession of marihuana, does not invalidate an otherwise lawful detention and search. We hold that the trial court did not abuse its discretion in denying appellant's motion to suppress evidence. We overrule all of appellant's issues. Conclusion We affirm the trial court's judgment.

Sam Nuchia Justice

Panel consists of Justices Nuchia, Hanks, and Higley. Do not publish. Tex. R. App. P. 47.2(b).

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