Paul Mireles v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-98-00065-CR Paul Mireles, Appellant v. The State of Texas, Appellee FROM THE DISTRICT COURT OF COMAL COUNTY, 22ND JUDICIAL DISTRICT NO. CR96-283, HONORABLE JACK ROBISON, JUDGE PRESIDING Paul Mireles appeals from a judgment convicting him of the felony offense of possessing more than 5 pounds but less than 50 pounds of marihuana. See Texas Controlled Substances Act, Tex. Health & Safety Code Ann. § 481.121(b)(4) (West Supp. 1998). A jury found Mireles guilty. The trial judge assessed punishment, enhanced by a previous felony conviction, at imprisonment for thirteen years and a $2500 fine. In his sole point of error, appellant contends the trial court erred by overruling his motion to suppress evidence. We will affirm the judgment. THE CONTROVERSY A police officer, the sole witness to testify at the hearing on Mireles' motion to suppress, stated that he saw Mireles operating his motor car at an excessive speed and weaving in his lane on Interstate 35. Suspecting Mireles was intoxicated, the officer stopped him and asked Mireles for his operator's license and proof of insurance. Mireles complied. The officer noticed an open beer container in Mireles' car but accepted his explanation that he had been drinking earlier in the day. The officer determined Mireles was not intoxicated but continued the detention because Mireles was shaking and appeared more nervous than an ordinary person stopped for a traffic offense; and Mireles had given inconsistent statements regarding his destination. The officer asked Mireles if he had any weapons or drugs in his automobile; Mireles said there were none and agreed that the officer might search the automobile. The officer found in the trunk of the car a bag of marihuana--the object of Mireles' pre-trial motion to suppress evidence. The trial judge overruled the motion and the marihuana was received in evidence at Mireles' trial. DISCUSSION AND HOLDINGS Mireles contends in a single point of error that the evidence was not admissible because it was obtained from an illegal warrantless detention. See U.S. Const. amend. IV; Tex. Const. art. I, § 9; Tex. Code Crim. Proc. Ann. art. 38.23(a) (West Supp. 1998). While conceding the legality of the officer's detention for a traffic offense observed by the officer, (1) Mireles argues the officer's authority to detain him ended when the officer determined Mireles was not intoxicated and the officer's testimony surrounding the episode did not include any "articulable facts which, taken together with rational inferences from those facts, would warrant a man of reasonable caution in the belief that continued detention was justified." Davis v. State, 947 S.W.2d 240, 245 (Tex. Crim. App. 1997) (quoting Terry v. Ohio, 392 U.S. 1, 21-22 (1968)). We disagree. We cannot say as a matter of law that the officer's initial authority to detain Mireles expired when he determined Mireles was not intoxicated. There remained for resolution the question of whether to arrest Mireles for the traffic offenses and to take him before a magistrate; to issue Mireles a citation in that regard requiring him to appear in court afterwards to answer the officer's complaint; or to caution Mireles concerning the matter and allow him to continue on his way. The issue lay within the officer's discretion to decide. See Tex. Transp. Code Ann. § 543.001, .003, .004, 545.351, .352 (West Supp. 1998); Staton v. State, 354 S.W.2d 582, 582 (Tex. Crim. App. 1962); Borner v. State, 521 S.W.2d 852, 854 (Tex. Crim. App. 1975); Dominguez v. State, 924 S.W.2d 950, 954 (Tex. App.--El Paso 1996, no writ). The discovery of the marihuana intervened before a decision was made. We believe, moreover, that the officer related in his testimony "articulable facts" of the character required by Terry and Davis. We refer to the officer's testimony that Mireles gave inconsistent statements concerning his destination and that Mireles was nervous and shaking "[b]eyond anything" the officer had "ever seen" in a person stopped for a traffic violation. See Bustamante v. State, 917 S.W.2d 144, 146 (Tex. App.--Waco 1996, no writ) (justifying search after traffic stop based on nervousness and inconsistent statements); see also Pace v. State, 461 S.W.2d 409, 410 (Tex. Crim. App. 1971). The detention being valid, the search incident to the detention, which led to discovery of the contraband, was authorized. We hold accordingly and affirm the judgment. John Powers, Justice Before Chief Justice Aboussie, Justices Powers and Kidd Affirmed Filed: November 30, 1998 Do Not Publish 1. An officer may lawfully stop and detain a person for a traffic violation such as excessive speed and erratic operation of an automobile. See Tex. Transp. Code Ann. § 543.001, 545.351, .352, .401 (West Supp. 1998); see also Garcia v. State, 827 S.W.2d 937, 944 (Tex. Crim. App. 1992). An officer may also lawfully stop and detain a person based upon a reasonable suspicion that the person is operating a motor vehicle while intoxicated. See Tex. Penal Code Ann. § 49.04(a) (West 1994); see also Barraza v. State, 733 S.W.2d 379, 380 (Tex. App.--Corpus Christi 1987), aff'd, 790 S.W.2d 654 (Tex. Crim. App. 1990); Miffleton v. State, 728 S.W.2d 880, 882-83 (Tex. App.--Austin 1987), aff'd, 777 S.W.2d 76 (Tex. Crim. App.1989). > DISCUSSION AND HOLDINGS Mireles contends in a single point of error that the evidence was not admissible because it was obtained from an illegal warrantless detention. See U.S. Const. amend. IV; Tex. Const. art. I, § 9; Tex. Code Crim. Proc. Ann. art. 38.23(a) (West Supp. 1998). While conceding the legality of the officer's detention for a traffic offense observed by the officer, (1) Mireles argues the officer's authority to detain him ended when the officer determined Mireles was not intoxicated and the offic