Court of Appeals of Texas, Eighth District, El PasoMay 10, 2007
No. 08-05-00247-CR (Tex. App. May. 10, 2007)

No. 08-05-00247-CR

May 10, 2007. DO NOT PUBLISH.

Appeal from the 86th Judicial District Court of Kaufman County, Texas (TC# 21524).

Before CHEW, C.J., MCCLURE, and CARR, JJ.


Zon Edward Thomas appeals his conviction for possession of more than one but less than four grams of methamphetamine. In three issues, he argues that: (1) officers lacked reasonable suspicion to suspect him of speeding, therefore, the evidence discovered during a search of his vehicle should not have been admitted at trial; (2) the trial court erred in denying his motion to suppress because the extended detention was unlawful; and (3) the trial court erred by refusing to submit his requested jury instruction. We affirm. In July 2002, Appellant and his passenger were driving in Kaufman County, Texas. Texas Department of Public Safety Trooper Maury Buford and Trooper Lance Yager were on patrol that evening. At approximately 11 p.m., Trooper Buford noticed Appellant traveling in his direction and visually estimated his speed to be sixty miles per hour in a posted fifty-five mile an hour zone. Trooper Buford confirmed Appellant's speed of sixty-two miles an hour by use of a radar device. Trooper Buford testified that he believed Appellant's speed was unsafe due to darkness, the narrow width of the road, the lack of a shoulder, and because Appellant was approaching a bend in the road. Trooper Buford then conducted a routine traffic stop. After Appellant pulled over on the shoulder of the road, Trooper Buford approached his vehicle. Trooper Buford asked Appellant to step to the rear of his vehicle and into the ditch running alongside the roadway and requested his drivers license. According to Trooper Buford's testimony at trial, Appellant's hands were trembling and he was unable to stand still. Trooper Buford questioned Appellant about the passenger Becky Robinson (Webb) and Appellant indicated that she was his girlfriend. While Trooper Buford questioned Appellant, Trooper Yeager questioned Ms. Robinson. According to Trooper Buford, because of Appellant's nervousness and the inconsistent answers concerning the passenger, Trooper Buford asked to search Appellant's vehicle. Appellant gave Trooper Buford permission to seach. Trooper Yeager conducted the search of Appellant's automobile and discovered a bag containing a quantity of methamphetamine and marihuana. According to Trooper Buford, when Appellant was asked about the drugs, he indicated that they were his and the passenger did not know anything about them. Appellant was then placed under arrest. A jury found Appellant guilty of possession of methamphetamine in an amount of one gram or more but less than four grams. The trial court sentenced Appellant to eight years confinement in the Institutional Division of the Texas Department of Criminal Justice and assessed a fine of $1,000. Appellant timely filed his notice of appeal.

Standard of Review

In reviewing a trial court's ruling on a motion to suppress, we apply a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000). At a suppression hearing, the trial court is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony and may accept or reject all or any part of a witness's testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000). Accordingly, we do not engage in our own factual review of the trial court's decision. Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App. 1990). We give almost total deference to the trial court's ruling on questions of historical fact and application-of-law-to-fact questions that turn on an evaluation of credibility and demeanor. Johnson v. State, 68 S.W.3d 644, 652-53 (Tex.Crim.App. 2002). On the other hand, mixed questions of law and fact that do not turn on the credibility and demeanor of a witness are reviewed de novo. Id. When the trial court makes no express findings of fact, as here, we review the evidence in the light most favorable to the trial court's ruling. Carmouche, 10 S.W.3d at 327-28. We will assume that the trial court made implicit findings of fact that support the ruling as long as those findings are supported by the record. Walter v. State, 28 S.W.3d 538, 540 (Tex.Crim.App. 2000). In determining whether the record supports a trial court's decision, we generally consider only evidence presented at the suppression hearing because the ruling was based on it rather than the evidence introduced later. Rachal v. State, 917 S.W.2d 799, 809 (Tex.Crim.App. 1996). However, this general rule is inapplicable where the suppression issue has been consensually re-litigated by the parties during a trial on the merits. Id. We will uphold the trial court's ruling if it is correct on any theory of law applicable to the case. Ross, 32 S.W.3d at 855-56. In Issue One, Appellant complains the trial court erred by admitting the physical evidence because Trooper Buford lacked reasonable suspicion to conduct a traffic stop and the evidence obtained during the subsequent search of his vehicle was inadmissible as fruit of the poisonous tree. Specifically, Appellant contends Trooper Buford lacked probable cause to stop his vehicle because: (1) Officer Buford's visual estimate of Appellant's speed did not justify reasonable suspicion; and (2) the radar measurement of Appellant's speed is inadmissible. We construe Appellant's argument as a challenge to the trial court's ruling on his motion to suppress. An officer's temporary detention is lawful if based on reasonable suspicion that an individual is violating the law. Ford v. State, 158 S.W.3d 488, 492 (Tex.Crim.App. 2005). Reasonable suspicion exists if the officer has specific, articulable facts that when combined with rational inferences from those facts, would lead him to reasonably conclude that a particular person actually is, has been, or soon will be engaged in criminal activity. Id. Whether an officer has reasonable suspicion to make an investigatory stop must be based on an objective standard and we must consider the totality of the circumstances at the time of the stop. Icke v. State, 36 S.W.3d 913, 915 (Tex.App.-Houston [1st Dist.] 2001, pet. ref'd). Ordinarily, a violation of a traffic law committed in view of a police officer is sufficient authority for a traffic stop. See Lemmons v. State, 133 S.W.3d 751, 756 (Tex.App.-Fort Worth 2004, pet. ref'd). A person commits a traffic offense if he drives at a speed greater than is reasonable and prudent under the circumstances. Tex.Transp. Code Ann. § 545.351(a) (Vernon 1999). Under the Texas Transportation Code, a speed in excess of the limits established by Subsection (b) or under another provision of this subchapter is prima facie evidence that the speed is not reasonable and prudent and that the speed is unlawful. Tex.Transp. Code Ann. § 545.352(a) (Vernon Supp. 2006). Here, Trooper Buford testified that he observed Appellant traveling at what appeared to him to be a high rate of speed. We note that an officer's visual estimates of speed can suffice to establish reasonable suspicion to conduct a traffic stop. See Hesskew v. Texas Dept. of Public Safety, 144 S.W.3d 189, 191 (Tex.App.-Tyler 2004, no pet.); Icke, 36 S.W.3d at 916. In addition to Officer Buford's visual estimation, Appellant's speed was confirmed by use of a radar device. The radar unit indicated Appellant was driving sixty-two miles per hour in a fifty-five mile per hour zone. In most cases, when an officer observes an automobile traveling at a high rate of speed and confirms speed by use of radar, the resulting traffic stop is reasonable. See Perales v. State, 117 S.W.3d 434, 438 (Tex.App.-Corpus Christi 2003, pet. ref'd). Even if the radar reading is ultimately shown to be inaccurate or false, when an officer relies on radar to conduct a traffic stop, he has developed reasonable suspicion that a defendant was speeding. Icke, 36 S.W.3d at 916. In considering the totality of circumstances and in viewing the evidence in the light most favorable to the trial court's ruling, we conclude the traffic stop initiated by Trooper Buford was based on a reasonable suspicion that Appellant had committed a traffic violation. Accordingly, the trial court did not err in overruling Appellant's motion to suppress on the basis of lack of reasonable suspicion to conduct a traffic stop. Issue One is overruled. In Issue Two, Appellant argues the trial court erred in denying his motion to suppress because even if the initial stop was supported by probable cause, "[n]o reasonable suspicion existed that [Appellant] and his passenger were committing any offense" and thus any extended detention was unlawful. Further, any evidence found as a result of the unlawful detention was inadmissible as fruit of the poisonous tree. In addition, Appellant argues because his consent was not voluntary, it did not dissipate the taint of the Fourth Amendment violation. An officer's investigative detention must be temporary and may last no longer than is necessary to effectuate its purpose. Davis v. State, 947 S.W.2d 240, 244-45 (Tex.Crim.App. 1997). A search that is reasonable at its inception may violate the Fourth Amendment by virtue of its excessive intensity and scope. See id. at 243. To determine the reasonableness of an investigative detention, we apply the Terry test: (1) whether the officer's action was justified at its inception; and (2) whether it was reasonably related in scope to the circumstances that justified the initial interference. Kothe v. State, 152 S.W.3d 54, 63 (Tex.Crim.App. 2004). Having determined the validity of the initial stop in Issue One, we turn to the second prong of the analysis, whether Trooper Buford's actions were reasonably related to the circumstances that justified the initial interference. See id. During a routine traffic stop, an officer has the right to check for outstanding warrants and request information such as a driver's license, insurance papers, identification, and car registration information. See Kothe, 152 S.W.3d at 63-4; Davis, 947 S.W.2d at 245 n. 6. In addition, the officer may also question the driver about ownership of the vehicle, destination, and the purpose of the trip. See Powell v. State, 5 S.W.3d 369, 377 (Tex.App.-Texarkana 1999, pet. ref'd). If, during the course of a valid investigative detention, the officer develops a reasonable suspicion that the detainee was engaged in, or soon would engage in criminal activity, a continued detention is justified. Freeman v. State, 62 S.W.3d 883, 888 (Tex.App.-Texarkana 2001, pet. ref'd), citing Davis, 947 S.W.2d at 245. An officer may rely on all the facts ascertained during the course of his contact with a defendant to develop articulable facts which would justify a continued detention. Sims v. State, 98 S.W.3d 292, 295 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd). Appellant asserts that Trooper Buford's traffic investigation was complete and "[t]he extended detentions of [Appellant] and Becky was unlawful." We point out that a traffic stop investigation is not fully resolved until a computer check is completed, the officer knows that the driver has a currently valid license, no outstanding warrants, and the car is not stolen, and the officer issues either a citation or warning. See Kothe, 152 S.W.3d at 63-4; Powell, 5 S.W.3d at 378-79. When the traffic investigation is fully resolved, the detention must end and the subject must be permitted to leave absent reasonable suspicion of other criminal activity. Kothe, 152 S.W.3d at 64. Here, the record is devoid of any indication that the traffic investigation was complete and Trooper Buford improperly detained Appellant in hopes of finding evidence of other criminal activity. On the contrary, although Trooper Buford stated that a check for warrants was returned as negative, he also testified that he did not recall ever writing Appellant a citation for speeding. In addition, Trooper Buford testified that it would not have been uncommon for him to disregard a less serious offense upon discovery of the greater. Although unclear, it appears from the record that Trooper Buford obtained consent to search Appellant's vehicle prior to completion of his traffic stop investigation. It is not until the original purpose of the stop is concluded that an officer may not unnecessarily detain a suspect. Kothe, 152 S.W.3d at 64. In this case, there is no evidence that Trooper Buford failed to diligently pursue his investigation or unreasonably detained Appellant after the purposes of the traffic stop were complete. In any event, even assuming the facts of this case were as Appellant presents and the traffic stop was complete, Trooper Buford's suspicions were based on a reasonable suspicion developed before he issued a citation. See Powell, 5 S.W.3d at 379. Appellant was traveling at a late hour in an area known by Trooper Buford as a "very high drug area, a lot of methamphetamine, a lot of burglaries, a lot of drunks, things like that." Trooper Buford stated that during the stop, he felt Appellant was a "little more nervous than usually than someone you might stop for speeding." Trooper Buford also testified that as Appellant handed him his driver's license, "his hands were trembling. He was fidgeting around and couldn't stand in one place." Trooper Buford also stated that when someone exhibited such a high degree of nervousness, it indicated that illegal activity might be occurring. When Trooper Buford asked Appellant about the passenger, he identified her as "Becky Robinson" and claimed to have been in a romantic relationship with her for eight years. When Trooper Yager questioned the passenger, she indicated that her name was "Becky Webb." We find that these specific and articulable facts, when coupled with reasonable inferences therefrom, and considered in light of Trooper Buford's experience and personal knowledge, were sufficient to reasonably justify an extended detention of Appellant. As it relates to Appellant's sub-issue, because neither the initial stop nor its duration violated the Fourth Amendment, Appellant's consent to search was not unconstitutionally tainted. See Kothe, 152 S.W.3d at 67. We now address whether Appellant voluntarily gave consent to search his vehicle. Under the Fourth and Fourteenth Amendments, a search conducted without a warrant issued on probable cause is per se unreasonable unless it falls within one of the well-established exceptions to the warrant requirement. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043-44, 36 L.Ed.2d 854 (1973); Reasor v. State, 12 S.W.3d 813, 817 (Tex.Crim.App. 2000). Consent to search is one of the well-established exceptions to the constitutional requirements of both a warrant and probable case. Carmouche, 10 S.W.3d at 331, citing Schneckloth, 412 U.S. at 219, 93 S.Ct. at 2043-44. To show that the search was made with the property owner's consent and thus trigger the consent exception to the warrant requirement, the State must prove by clear and convincing evidence, based on the totality of the circumstances, that the defendant gave consent freely and voluntarily. Reasor, 12 S.W.3d at 818. For consent to be voluntary, the consent must "`not be coerced, by explicit or implicit means, by implied threat or covert force.'" Carmouche, 10 S.W.3d at 331, citing Schneckloth, 412 U.S. at 228, 93 S.Ct. at 2048. The record reflects that after Appellant pulled over on the side of the road, Trooper Buford asked him to step to the rear of the vehicle for safety. Trooper Buford testified that when he asked Appellant to search his vehicle, Appellant unequivocally gave his verbal consent. There is no indication that Appellant was pulled from his vehicle or placed in handcuffs or was in any other way physically restrained. In addition, there is nothing in the record to indicate Appellant was coerced into giving his consent by force or threat, either express or implied. In fact, Trooper Buford testified that he did not threaten, coerce, or make any promises or other inducements to Appellant before asking for his consent to search. See Martinez v. State, 17 S.W.3d 677, 683 (Tex.Crim.App. 2000) (testimony of officers that no coercion involved in obtaining consent, some evidence of the voluntary nature of the consent). Viewing the totality of the circumstances surrounding the statement of consent, we find the record supports the finding that Appellant's consent was freely and voluntarily given. Having determined that the initial traffic stop was valid, Appellant was not unreasonably detained after the purpose of the traffic stop was complete and even if the traffic stop was complete, the continued detention of Appellant was based on reasonable suspicion, and Appellant's consent to search his vehicle was given voluntary, we conclude there was no unconstitutional search or seizure. Accordingly, the trial court did not err in denying Appellant's motion to suppress. Issue Two is overruled. In Issue Three, Appellant argues the court's charge to the jury was erroneous for failing to fully inform the jury that to show possession, the State must prove that the accused exercised care, control, and management over the contraband and furthermore, the accused knew the substance was contraband. Additionally, Appellant argues the court's charge was erroneous for failing to inform the jury of the factors that link an accused to contraband. We utilize a two-step process when reviewing charge error. Torres v. State, 116 S.W.3d 208, 210 (Tex.App.-El Paso 2003, no pet.). First, we determine whether error actually exists in the charge. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984). Our review is not limited to a series of isolated statements or portions of the charge standing alone. Torres, 116 S.W.3d at 211. Second, if error exists, we must determine whether sufficient harm was caused by the error to warrant reversal. Almanza, 686 S.W.2d at 171; Rubio v. State, 203 S.W.3d 448, 451 (Tex.App.-El Paso 2006, pet. ref'd). If the charge error was the subject of timely objection, such as here, reversal is required if that error results in some harm. Almanza, 686 S.W.2d at 171; Rodriguez v. State, 90 S.W.3d 340, 360 (Tex.App.-El Paso 2001, pet ref'd). Degree of harm is examined in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole. Almanza, 686 S.W.2d at 171; Rodriquez, 90 S.W.3d at 360. The trial court's charge to the jury must set forth the law applicable to the case. Tex. Code Crim.Proc.Ann. art. 36.14 (Vernon 2007). The trial court must instruct the jury on each element of the offense or offenses charged and include in its charge each statutory definition that affects the meaning of an element of the offense. Murphy v. State, 44 S.W.3d 656, 661 (Tex.App.-Austin 2001, no pet.). If a phrase, term, or word is statutorily defined, the trial court must submit the statutory definition to the jury. Miramontes v. State, ___ S.W.3d ___ 2005 WL 2095101, *10 (Tex.App.-El Paso 2005, no pet.); Moore v. State, 82 S.W.3d 399, 408 (Tex.App.-Austin 2002, pet ref'd). In this case, the trial court's charge tracked the language of the statute. Specifically, the charge stated that "a person commits an offense if he knowingly or intentionally possesses a controlled substance. Methamphetamine is a controlled substance in penalty group 1." See Tex.Health Safety Code Ann. § 481.102(6) (Vernon Supp. 2006); Tex.Health Safety Code Ann. § 481.115 (Vernon 2003). The trial court's charge also defined possession as "actual care, custody, control or management." See Tex.Health Safety Code Ann. § 481.002(38) (Vernon Supp. 2006) . In addition to possession, the charge also defined intentionally, knowingly, controlled substance, adulterant or dilutant, and law of parties. Appellant objected to the charge and sought to include the following: To show possession of a controlled substance, the State must prove two elements: (1) the accused exercised care, control, and management over the contraband; and (2) the accused knew the substance was contraband. Possession is more than being where the action is. Possession means dominion and control. If the accused does not exclusively possess the place where the authorities find the contraband, the State does not prove the two elements of possession unless additional independent facts affirmatively link the accused to the contraband. Facts surrounding a search and arrest that link an accused to contraband include: (1) the search turned up drugs in plain view or in areas "private" to the accused, (2) the drugs were conveniently accessible to the accused, (3) other drugs or paraphernalia not included in the charge were present, (4) the accused had cash and weapons, (5) eyewitnesses had seen the accused with the drugs, and, (6) the accused fled the scene. The State need not show a precise set of facts to prove possession. A circumstantial case is legally sufficient when some of the factors appear in concert. One factor alone does not support a finding of an affirmative link. Appellant was not entitled to this "affirmative links" instruction. See Gilbert v. State, 874 S.W.2d 290, 297 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd); see also Davila v. State, 749 S.W.2d 611, 614 (Tex.App.-Corpus Christi 1988, pet. ref'd). Consequently, the trial court did not err in refusing to submit Appellant's requested instruction. Issue Three is overruled. We affirm the trial court's judgment.