Clarence Derrick Leonard v. State

Opinion issued January 31, 2008 In The Court of Appeals For The First District of Texas NO. 01-06-00617-CR CLARENCE DERRICK LEONARD, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 185th District Court Harris County, Texas Trial Court Cause No. 1059087 MEMORANDUM OPINION Appellant, Clarence D. Leonard, appeals from a judgment sentencing him to six years in prison for the felony of possession of a controlled substance weighing more than one gram and less than four grams. See Tex. Health & Safety Code Ann. § 481.112(a), (c) (Vernon 2003). After the trial court denied the written pretrial motion to suppress filed by appellant, he was sentenced in accordance with a plea bargain agreement with the State, which was entered in exchange for his plea of guilty to the offense and true to a prior conviction used to enhance punishment. In two issues, appellant challenges the trial court’s denial of the motion to suppress by contending that the search of his car violated the Texas Constitution, the Code of Criminal Procedure, and the Fourth Amendment of the United States Constitution. U.S. Const. amend. IV; Tex. Const. art I, § 9; Tex. Code Crim. Proc. Ann. arts. 38.21–.23 (Vernon 2003). BackgroundIn February 2006, Houston Police Department Officer Moreire received information from a female informant, who said that appellant often supplied her with cocaine. The informant called appellant asking that he bring her cocaine at a fast-food restaurant. Based on the informant’s description of appellant’s car, Officer Moreire and his partner identified appellant’s vehicle as it pulled into the parking lot of a Wendy’s restaurant late at night. When the Wendy’s closed shortly after his arrival, appellant circled the parking lot of a neighboring Jack-in-the-Box restaurant before making a right turn onto Hillcroft Street. As appellant left the Jack-in-the-Box parking lot, Officer Moreire, who was driving on Hillcroft in an unmarked vehicle towards appellant, saw appellant driving the car without wearing a seatbelt. Officer Moreire informed officers in a marked police car about the traffic violation, and they stopped appellant. Appellant was then arrested for outstanding warrants. Although in the initial search of the car no illegal contraband was found, a second search by Officer Moreire revealed cocaine that weighed 4.6 grams. The cocaine was in a hidden compartment of a water bottle under the rear floorboard of the car. Prior to trial, appellant filed a written motion to suppress that challenged the search of the car. In the evidentiary hearing concerning the motion to suppress, Officer Moreire and appellant gave competing versions of the events. Officer Moreire testified he saw appellant driving the car without wearing a seat belt. Although he recalled that the windows of the car were tinted, Officer Moreire said he could clearly see into the car through the driver’s side window, which was illuminated by Moreire’s headlights, streetlights, and lights from the neighboring businesses. In his testimony, appellant maintained that he wore a seatbelt. Appellant said that the vehicle’s windows were tinted with a medium-dark tint, but acknowledged it was possible to see in between the driver’s side window and the passenger’s side window. In addition to the testimony from the two witnesses, photos and a surveillance videotape taken from Jack-in-the-Box restaurant were introduced into evidence by appellant. Motion to Suppress In his two issues, appellant contends that the trial court erred in admitting evidence of cocaine found in appellant’s vehicle because the officers’ search of his vehicle was unlawful, in violation of the U.S. Constitution, Texas Constitution and Code of Criminal Procedure. Appellant’s entire challenge is premised on the single claim that the “clear weight of factual evidence demonstrates that Officer Moreire could not see into [a]ppellant’s vehicle with such clarity to determine whether or not [appellant] was wearing his seatbelt while driving his vehicle.” In reviewing the trial court’s ruling on a motion to suppress evidence, we apply a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000); Blake v. State, 125 S.W.3d 717, 722 (Tex. App.—Houston [1st Dist.] 2003, no pet.). 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 those facts. Carmouche, 10 S.W.3d at 327. The trial court is the sole judge of the credibility of the witnesses and decides the weight to give their testimony. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996). If, after a hearing on a motion to suppress, the trial court does not file findings of fact, as here, we view the evidence in the light most favorable to the trial court’s determination and we assume that the trial court made implicit findings of fact in support of its determination if those findings are supported by the record. State v. Gray, 158 S.W.3d 465, 467 (Tex. Crim. App. 2005) (quoting State v. Ross, 32 S.W.3d 853, 855–56 (Tex. Crim. App. 2000)). Failure to wear a seatbelt while driving a car is a traffic violation for which a defendant may be arrested. Tex. Transp. Code Ann. §§ 543.001, 545.413 (Vernon 2005); State v. West, 20 S.W.3d 867, 8792(Tex. App.—Dallas 2000, pet ref’d). Appellant does not contend that officers may not arrest him for failing to wear a seatbelt; rather, his challenge narrowly focuses on the trial court’s assessment of the evidence that determined that he did not wear a seatbelt. Similarly, appellant does not assert any challenge premised on the legality of the search of the car conducted incident to his lawful arrest for the outstanding warrants. See Thornton v. United States, 541 U.S. 615, 617, 124 S. Ct. 2127, 2129 (2004) (allowing search of car incident to lawful arrest); New York v. Belton, 453 U.S. 454, 460, 101 S. Ct. 2860, 2864 (1981); Satterwhite v. State, 726 S.W.2d 81, 87 (Tex. Crim. App. 1986), rev’d on other grounds, 486 U.S. 249, 108 S. Ct. 1792; Willis v. State, 176 S.W.3d 240, 243 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d). As the sole judge of the credibility of the witnesses, the trial court could have disregarded appellant’s claim that he wore a seatbelt by instead crediting the officer’s testimony. See Villarreal, 935 S.W.2d at 138. Viewing the evidence in a light most favorable to the trial court’s ruling, the evidence supports the trial court’s implied determination that Officer Moreire’s headlights, in conjunction with the street lights and lights from the businesses, lit appellant’s car sufficiently for Officer Moreire to see through the tinted windows that appellant was not wearing a seatbelt. The trial court could have discounted the photographs of the car since they were taken under different lighting conditions on an overcast day, with no headlights or other lighting to illuminate the car. The trial court also could have disregarded the value of the videotape evidence since it was taken from atop the Jack-in-the-Box building, which was a different vantage point than the officer’s view. The trial court’s implied determination that the officer saw appellant driving a car without wearing a seatbelt is supported by evidence in the record. See Willis, 176 S.W.3d at 243 (sustaining trial court’s ruling admitting evidence from search of vehicle as reasonably supported by record); see also Villarreal, 935 S.W.2d at 138; Cantu v. State, 817 S.W.2d 74, 77 (Tex. Crim. App. 1991); Flores v. State, 177 S.W.3d 8, 14 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d). We hold that the trial court did not err by denying the motion to suppress. We overrule appellant’s two issues. Conclusion We affirm the judgment of the trial court. Elsa Alcala Justice Panel consists of Justices Taft, Keyes, and Alcala. Do not publish. See Tex. R. App. P. 47.2(b).