Willie Sellers v. State

Opinion issued January 20, 2005. In The Court of Appeals For The First District of Texas NO. 01-03-00593-CR WILLIE SELLERS, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 278th District Court Grimes County, Texas Trial Court Cause No. 14,859 MEMORANDUM OPINION After the trial court denied his motion to suppress, appellant, Willie Sellers, plead guilty to the offense of possession of a controlled substance, and the trial court sentenced him to 11 years’ confinement. In his sole issue, appellant contends that the trial court erred in denying his motion to suppress. We affirm. Background On November 4, 2001, Trooper Sarah Skrivanek of the Texas Department of Public Safety observed appellant driving at a rate that exceeded the posted limit. After stopping appellant, Skrivanek noticed that he was unusually nervous for what she would have considered a routine traffic stop. Appellant’s hands and voice were shaking, and appellant would not make direct eye contact with her. Skrivanek asked appellant to step out of the car because she was concerned for her safety and she wanted to “take [appellant] out of his surroundings.” Shrivanek explained to appellant that she stopped him for speeding and that she would issue him citations for speeding and for having an outdated car inspection. She also warned appellant about failing to provide proof of liability insurance. Skrivanek asked appellant if he had been previously arrested and appellant replied “just tickets and stuff.” Skrivanek then ran a routine check on appellant’s driver’s license. She also ran appellant’s criminal history because he indicated that he had been previously arrested. She discovered that appellant had been arrested several times for “dangerous drugs” and one time for theft. When he heard the report over the radio, appellant’s demeanor changed, and he became “extremely nervous.” Appellant appeared “ready to get out of there, and didn’t seem to care what kind of tickets he was going to get.” Skrivanek asked appellant if she could search his car, and appellant voluntarily consented. She patted down appellant for weapons and searched the passenger side of the car. Next, she went to the driver’s side of the car where she found a piece of plastic that looked like it was torn off of a grocery bag. Inside the plastic, she discovered a white substance that appeared to be cocaine. Skrivanek handcuffed appellant and placed him under arrest for the possession of a controlled substance.Motion to Suppress In his sole issue, appellant contends that the trial court erred in denying his motion to suppress the cocaine because Shrivanek lacked probable cause or reasonable suspicion for the initial stop. In reviewing the trial court’s ruling on the motion to suppress, we apply a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). We give almost total deference to the trial court’s determination of historical facts that depend on credibility, while we conduct a de novo review of the trial court’s application of the law to the facts. Id. Where, as here, there are no findings of fact, we view the evidence in the light most favorable to the trial court’s ruling and assume that the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record. See State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). If the trial court’s decision is correct on any theory of law applicable to the case, the decision will be upheld. Id. at 856. The fact finder is the sole judge of the witnesses’ credibility and may accept or reject any or all of the witnesses’ testimony. Taylor v. State, 945 S.W.2d 295, 297 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d). Appellant argues the following: The record clearly established that appellant was driving a vehicle where the posted speed limit was sixty-five miles per hour. Speed is generally expressed as a rate of distance during a particular period of time. In the United States most people use the English system of measurement. Many are using a metric system. When asked to testify about Appellant’s speed it was stated to be eighty-one. Eighty-one is a number, but does not describe a speed because it does not state a distance during a particular period of time. Appellant might have been traveling at eighty-one meters per hour and eighty-one miles per day. The failure to sufficiently describe the rate of speed and the failure to describe any other driving behavior that would justify the stop renders the stop illegal. The State responds that “it defies the bounds of credulity” for appellant to argue that there was no evidence of an offense being committed by claiming the rate of speed was never established. We agree. A violation of a traffic law provides sufficient authority for an officer to stop a vehicle. See Armitage v. State, 637 S.W.2d 936, 939 (Tex. Crim. App. 1982); see also Ortega v. State, 861 S.W.2d 91, 95 (Tex. App.–Houston [1st Dist.] 1993, pet. ref’d) (holding that the appellant’s stop and detention were reasonable because appellant was driving without wearing his seat belt). Here, Trooper Skrivanek testified that the posted speed limit was “sixty-five miles-an-hour,” and that appellant was exceeding the posted speed limit. She testified that she “checked the speed of [appellant’s car] at eighty-one in a sixty-five miles-an-hour at night.” Appellant did not make any objections to clarify that “eighty-one” referred to miles per hour, rather than “miles per day” or “meters per hour.” Shrivanek also testified that she used a radar to “clock” appellant’s car and checked the internal calibrations of the radar to establish that it worked properly. Accordingly, we hold that, the trial court did not abuse its discretion when it implicitly found that Shrivanek had probable cause to initiate the traffic stop because appellant exceeded the posted speed limit, which is a traffic violation. We overrule appellant’s sole issue.Conclusion We affirm the judgment of the trial court. George C. Hanks, Jr. Justice Panel consists of Justices Nuchia, Hanks, and Higley. Do not publish. Tex. R. App. P. 47.2(b).