Carl Anthony Lee v. State

Affirmed and Memorandum Opinion filed February 19, 2008 Affirmed and Memorandum Opinion filed February 19, 2008. In The Fourteenth Court of Appeals ____________ NO. 14-07-00229-CR ____________ CARL ANTHONY LEE, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 183rd District Court Harris County, Texas Trial Court Cause No. 1075225 M E M O R A N D U M  O P I N I O N Appellant, Carl Anthony Lee, appeals his conviction for the possession of a controlled substance and raises two issues contending that the trial court erred by: (1) denying appellant=s motion to suppress; and (2) applying Athe inevitable discovery@ doctrine to the illegally seized contraband. We affirm. Background At 2:34 a.m. on July 2, 2006, appellant was driving his 1993 Pathfinder SUV and carrying a passenger, Cedric Jenkins. Officers M. K. Williams and R. Martinez were on patrol when they noticed appellant=s SUV moving past them with a broken headlight; they turned on their lights and pulled behind the SUV. The officers used a spotlight to illuminate the SUV because it had tinted windows and the street was dark. They observed Afurtive@ movements within the vehicle. They also observed that the vehicle swerved into other lanes, and that appellant took about 45 seconds to pull over even though there was little traffic. The SUV nearly struck the curb when appellant finally did pull over. The commotion in the SUV continued after it was parked. Given appellant=s behavior, Williams directed him to step out of the vehicle; asked him if he had any weapons in the truck; and told him to place his hands on the hood of the SUV so he could be checked for weapons. As appellant exited the vehicle, Williams noted a baggie protruding from the pocket of appellant=s shorts. During a brief pat-down for weapons, Williams felt a hard lump in that pocket. Williams believed the lump to be cocaine. He removed the contents of that pocket and found thirteen separate small plastic baggies. Laboratory testing later confirmed that the baggies contained cocaine. Appellant=s motion to suppress was heard by the trial court on January 25, 2007 and denied on March 13, 2007. Appellant then pled guilty to the charge of possession with intent to distribute a controlled substance, without waiving his right to appeal, and was sentenced to five years.[1] Standard of Review The trial court is the sole trier of fact at a suppression hearing; its evaluation of witness testimony and credibility is entitled to almost complete deference. Torres v. State, 182 S.W.3d 899, 902 (Tex. Crim. App. 2005); see also Guzman v. State, 955 S.W.2d 85, 87-88 (Tex. Crim. App. 1997). While we grant great deference to the trial court=s determination of historical facts, we apply de novo review to legal determinations and to mixed questions of law and fact that do not pivot upon witness testimony and credibility. Torres, 182 S.W.3d at 902; Morrison v. State, 132 S.W.3d 37, 42 (Tex. App.CHouston [14th Dist.] 2004, pet. ref=d). We apply the same bifurcated standard of review to Fourth Amendment search and seizure cases, giving near total deference to the trial court=s factual determinations while reviewing de novo its application of the law. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). When the trial court makes no explicit findings of fact, as in the present case, we must view the evidence in the light most favorable to the trial court=s determination.[2] Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002). We will assume the trial court made such determinations of fact as the judgment requires, and will uphold those determinations if evidence in the record supports them. Torres, 182 S.W.3d at 902. The defendant bears the initial burden of proof at a Fourth Amendment suppression hearing, but this burden shifts to the State when no warrant was issued. Russell v. State, 717 S.W.2d 7, 9-10 (Tex. Crim. App. 1986). The State then bears the burden to show the warrantless search was reasonable. Id. In Texas, the Atotality of the circumstances@ test applies to determine whether probable cause exists for a warrantless search and seizure. See Amores v. State, 816 S.W.2d 407, 413 (Tex. Crim. App. 1991). APursuant to the Fourth Amendment, a warrantless search of either a person or property is considered per se unreasonable subject to a >few specifically defined and well established exceptions.=@ McGee v. State, 105 S.W.3d 609, 615 (Tex. Crim. App. 2003) (quoting Minnesota v. Dickerson, 508 U.S. 366, 372 (1993)). Among these exceptions are voluntary consent to search, search under exigent circumstances, and search incident to arrest. Id. AAn unarticulated >hunch,= a suspicion, or the good faith of the arresting officer is insufficient to support probable cause@ to justify a warrantless search. Torres, 182 S.W.3d at 902 (citing Leighton v. State, 544 S.W.2d 394 (Tex. Crim. App. 1976)). A trial court abuses its discretion when it refuses to suppress evidence that is acquired in violation of the law and therefore inadmissible under article 38.23 of the Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. art 38.23(a) (Vernon Supp. 2007); see Erdman v. State, 861 S.W.2d 890, 893 (Tex. Crim. App. 1993). Analysis Appellant=s first issue contends that the trial court erred in denying his motion to suppress because Officer Williams lacked the necessary reasonable basis to detain and search him on July 2, 2006. The State stipulated that appellant was stopped and searched without a warrant, and that the State therefore bore the burden to demonstrate that no warrant was required. McGee, 105 S.W.3d at 615. A warrant is not required when an officer temporarily detains someone if the officer has a reasonable suspicion that justifies doing so. See Gurrola v. State, 877 S.W.2d 300, 302 (Tex. Crim. App. 1994) (en banc). Here, a broken headlight was the initial reason for stopping appellant. Although the appellant claims the headlight was not broken, as a historical fact we accept the trial court=s implicit finding that the stop was justified for this reason.[3] Torres, 182 S.W.3d at 902; Guzman, 955 S.W.2d at 87-88. Officer Williams had authority to conduct a pat-down for weapons pursuant to this brief legal detention. See Terry v. Ohio, 392 U.S. 1, 27 (1968); Morrison, 132 S.W.3d at 45. The only issue in dispute is whether Williams had probable cause to remove the baggie from appellant=s pocket after determining it was not a weapon, and in the absence of additional incriminating evidence such as the smell of marijuana or the presence of other visible drug paraphernalia. The State contends, and Officer Williams testified, that Williams was justified in conducting a pat-down search for weapons because of appellant=s actions after he was signaled to pull over. Williams testified that appellant made furtive movements to the right during the moments before he finally pulled over, as if he was putting something into his right pocket; during this time appellant had difficulty maintaining his lane.[4] The State argues that this behavior, along with the fact that appellant was a large man, gave Williams cause to conduct a Terry search of the defendant. Williams testified that during this Terry search of the outside of appellant=s pants, which were similar to cargo pants, he felt the lump in appellant=s pocket and that the lump felt like cocaine. At the suppression hearing, Williams testified that he had probable cause upon seeing the baggie even before he felt the contents of appellant=s pocket because they were in a neighborhood with drug activity, and because in Williams= experience baggies often contain drugs. Williams testified he did not act on his initial belief. Rather, the removal of the baggie was done only after he felt the pocket during the Terry pat-down, at which time Williams concluded he was feeling cocaine. The cocaine discovery was premised upon the Terry frisk and Officer Williams= identification of the substance as cocaine before removing it from appellant=s pocket. Appellant argues that Williams exceeded the scope of his Terry authority by reaching into his pocket and recovering the narcotics. We reject this argument. AIf the protective search goes beyond what is necessary to determine if the suspect is armed, it is no longer valid under Terry, and its fruits will be suppressed.@ Dickerson, 508 U.S. at 373. However, when Aa police officer lawfully pats down a suspect=s outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect=s privacy beyond that already authorized by the officer=s search for weapons.@ Id. at 375. If an officer is legitimately conducting a Terry frisk, no additional privacy interest is implicated by the seizure of an item whose identity is already known through the officer=s sense of touch. Carmouche, 10 S.W.3d at 330 (citing Dickerson, 508 U.S. at 377). Applying Dickerson, it is clear that Officer Williams= pat-down and discovery of the cocaine-filled packets did not exceed permissible bounds. Williams testified at trial that when he conducted the frisk he believed upon feeling the lump in appellant=s pocket that he was touching cocaine. Appellant emphasizes one line in Officer Williams= testimony: AWhen I grabbed whatever it was and I didn=t know what it was.@ Appellant characterizes this as an admission that Officer Williams was not certain about what he had encountered. Appellant=s argument fails because this testimony, taken in context, comports with Officer William=s testimony that any initial uncertainty upon encountering the lump was dispelled once he had felt the lump in appellant=s pocket. This testimony provides no basis for disturbing the trial court=s ruling. Even if this testimony gives rise to a credibility determination, we defer to the trial court=s determination on this issue. An officer=s tactile appreciation of a substance=s nature has been upheld as a valid basis for removing and recovering contraband. See Dickerson, 508 U.S. at 375-377 (adopting a Aplain touch doctrine@ pursuant to Terry searches; an item=s size and contour can confirm its identity to an officer with as much certainty as a visual inspection); Griffin v. State, 215 S.W.3d 403, 410 (Tex. Crim. App. 2006) (sufficient evidence existed to uphold Aplain touch@ doctrine when officer immediately recognized the container as one commonly used in carrying narcotics). This rule applies with full force to Officer Williams= conduct here. Appellant=s first issue is overruled. Appellant=s second issue regarding the inevitable discovery doctrine is immaterial because probable cause existed for the search. Further, the trial court=s reasoning in admitting the evidence at trial is not dispositive when there are alternative grounds for doing so. Therefore, even if we assume that the inevitable discovery rule is inapplicable, the evidence properly was admissible based on the alternative grounds discussed above. Osbourn v. State, 92 S.W.3d 531, 538 (Tex. Crim. App. 2002) (AEven if the trial judge gives the wrong reason for his decision, if the decision is correct on any legal theory of law applicable to the case it will be sustained@); see also Brimage v. State, 918 S.W.2d 466, 479 (Tex. Crim. App. 1994) (same); Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990) (same). Appellant=s second issue is overruled. Having concluded the trial court acted within its discretion in refusing to suppress cocaine found after a brief detention and Terry frisk, the judgment of the trial court is affirmed. /s/ William J. Boyce Justice Judgment rendered and Memorandum Opinion filed February 19, 2008. Panel consists of Chief Justice Hedges, and Justices Anderson and Boyce. Do not publish C Tex. R. App. P. 47.2(b). [1] Appellant crossed out the standard language waiving his right to appeal on his guilty plea form on March 13, 2007. [2] Appellant=s brief asserts that the trial court made findings of fact, but he cites to commentary by the court overruling the suppression motion. The trial court found probable cause for the traffic stop and then noted that because appellant could have been arrested for the traffic offense, any narcotics discovered would be admissible. [3] The trial court explicitly accepted Officer Williams= rendition of this fact when it overruled appellant=s motion to suppress. Williams also testified about other traffic violations, including appellant=s failure to maintain his lane four times and failure to yield in a timely manner after the squad car pulled behind him and used its lights to indicate an intention to pull appellant over. [4] This testimony was countered by appellant, who offered the testimony of a private investigator. This investigator reenacted events in an effort to show that the use of a spotlight would not have allowed Williams to see any movement in appellant=s SUV because of the dark window tinting. The trial court excluded the private investigator=s testimony and accepted Williams= testimony. Appellant does not complain on appeal of the refusal of the trial court to consider this expert testimony at the suppression hearing.