Michael Orlanda Hale v. State

NUMBERS 13-01-251-CR

& 13-01-252-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI B

EDINBURG

MICHAEL ORLANDA HALE , Appellant,

v.

THE

STATE OF TEXAS , Appellee.

On appeal from the 260th

District Court

of Orange

County, Texas.

O P I N I O

N

Before Justices Dorsey, Yañez, and Baird [1]

Opinion by Justice Baird

Appellant was charged

in two indictments with the offense of possession of marihuana: cause no.

D-990-372-R alleged possession of more than four ounces but not more than five

pounds; and, cause no. D-000,036-R alleged possession of more than five but

less than 50 pounds. The trial judge

overruled appellant = s motions to suppress

the alleged contraband in each case, and appellant pled guilty to the charged

offenses. The trial judge assessed

punishment at twelve months confinement in a state jail facility in cause no.

D-990-372-R, and four years confinement in the Texas Department of Criminal

Justice--Institutional Division and a fine of $3,500 in cause no.

D-000,036-R. Appellant now appeals the

denial of the motions to suppress.

I. Standard of Appellate Review.

An appellate

court reviews the trial judge's ruling whether to admit or exclude evidence

under an abuse of discretion standard. Wilks

v. State , 983 S.W.2d 863, 866 (Tex. App. B Corpus Christi 1998, no pet.). In reviewing a trial court's ruling on a motion

to suppress, we afford almost total deference to the trial court's

determination of the historical facts that the record supports, especially when

the trial court's findings turn on evaluating a witness's credibility and

demeanor. State v. Ross , 32

S.W.3d 853, 856 (Tex. Crim. App. 2000); Guzman v. State , 955 S.W.2d 85,

89 (Tex. Crim. App. 1997). We afford the

same amount of deference to the trial court's ruling on "application of

law to fact questions," also known as "mixed questions of law and

fact," if resolving those ultimate questions turns on evaluating

credibility and demeanor. Ross ,

32 S.W.3d at 856 ; Guzman , 955 S.W.2d at 89 . However, we review de novo questions

of law and "mixed questions of law and fact" that do not turn on an

evaluation of credibility and demeanor. Ross ,

32 S.W.3d at 856 ; Guzman , 955 S.W.2d at 89 . A review of a trial court's

ruling on a motion to suppress presents an application of law to a fact

question. Maestas v. State , 987

S.W.2d 59, 62 (Tex. Crim. App. 1999).

The trial judge heard

the suppression motions simultaneously because the same peace officer stopped

appellant = s vehicle on the two

occasions in question. That officer was

the only witness at the suppression hearing.

To avoid confusion, we will address the trial court = s rulings separately.

II. May 2, 1999

A. Factual Summary.

On May 2, 1999, Bridge

City Police Department Officer Brad Frye was patrolling Interstate 10 when he

saw appellant, on two occasions, fail to indicate a lane change when passing

other vehicles. After pulling behind the

vehicle, Frye noticed that the passenger was not wearing a seat belt. Frye stopped appellant = s vehicle, and

approached appellant, who handed Frye a A Triple A @ card rather than a

driver = s license. Appellant never provided a valid driver = s license to

Frye. Frye asked and received permission

from appellant to search the vehicle.

Appellant never withdrew his consent and, in fact, opened the back door

for Frye. During the search, Frye

smelled what he believed to be marihuana, and subsequently found marihuana in a

piece of luggage which appellant identified as his. This is the marihuana alleged in cause no.

D-990-372-R. [2]

B. Analysis.

Our analysis of this

stop begins with the trial judge = s written findings of

fact, which state that appellant = s passenger was not

wearing a seat belt. [3] This is a

traffic offense. Texas Dept.

of Public Safety v. Torres , 54 S.W.3d 438, 441 (Tex. App. B Fort Worth 2001, no

pet. h.) (failure to wear a seat belt while in the front seat of a vehicle

violates Tex. Transp. Code Ann. ' 545.413 (Vernon Supp.

2001)).

Appellant raises two

arguments in connection with this stop.

First, that Frye did not stop appellant for a traffic offense but,

rather, that the traffic stop was merely a pretext to secure the complained of

evidence. This argument must fail

because the pretext arrest doctrine is no longer viable. Crittenden v.

State, 889 S.W.2d 668 , 674 (Tex. Crim. App. 1995) (holding objectively

valid traffic stop is not unlawful under Article I, ' 9 of the Texas

Constitution just because the detaining officer may have ulterior motive for

making it); Garcia v. State, 827 S.W.2d 937 , 944- 45 (Tex. Crim. App.

1992) (holding that pretext arrest is no longer a viable defense

as a matter of Fourth Amendment jurisprudence).

Appellant = s second argument is

that Frye exceeded the permissible scope of the detention. Appellant correctly cites Davis v. State,

947 S.W.2d 240 (Tex. Crim. App. 1997), for the proposition that once the reason

for the stop has been satisfied, the stop may not be used as a "fishing

expedition for unrelated criminal activity." Davis , 947 S.W.2d at 243 . But Davis is distinguishable because

there the defendant did not consent to the search of his vehicle, 947 S.W.2d at

241 , whereas, in the instant case, appellant did consent. Consequently, Davis is not

controlling. Appellant does not argue

his consent was not voluntarily obtained.

For both of these

reasons, we hold the May 2, 1999 stop and the subsequent recovery of the

contraband was not unlawful.

III. August 1, 1999.

A. Factual Summary.

On August 1, 1999,

three months after the initial stop, Frye was patrolling the same section of

Interstate 10 when he saw appellant, who was driving the same vehicle. Upon recognizing appellant, Frye turned his

vehicle around and began pursuit. [4] Appellant was in the right lane of

traffic. When Frye was approximately

1000 feet behind appellant, Frye saw the right tires of appellant = s vehicle cross the

white line that separates the right lane of traffic from the shoulder. Only the right tires crossed onto the

shoulder for a distance estimated by Frye to be one to two feet. This occurred as appellant approached an

entrance ramp and was done without appellant indicating a lane change. Appellant then returned to the right lane of

traffic, and never drifted into the other lane of traffic. Frye testified other vehicles were in the

immediate vicinity, but further explained there were no other vehicles, parked

cars, highway department objects or cones or barrels on the shoulder but there

were a few cars in the left lane, A maybe one or two in

front of [appellant]. @ Frye further testified that appellant was

neither speeding nor going too slow. And

that appellant did not cause an accident or almost cause an accident.

Frye activated his

emergency equipment and stopped appellant = s vehicle. Frye requested, but appellant was unable to

produce, a valid driver = s license. Frye asked for permission to search the

vehicle, but appellant refused. Frye

then explained that appellant was not under arrest, and read appellant his Miranda

warnings. Appellant stated he understood

his rights and agreed to answer Frye = s questions. When Frye asked appellant if he had marihuana

in the vehicle, appellant answered that he had two joints in the vehicle. Frye arrested appellant for not having a

valid driver = s license. Frye conducted an inventory search of the

vehicle and found the marihuana alleged in cause no. D-000,036-R.

B. Analysis.

In connection with

this stop, the trial judge explicitly found appellant was A weaving within his own

lane of traffic and driving in an erratic manner, @ that Frye believed appellant A to be intoxicated or

under the influence of some other substance, @ and Frye remembered appellant A did not have a driver = s license. @ We will address these findings seriatim .

i. Traffic Offense.

Stopping an

automobile and detaining its occupants constitutes a "seizure" within

the meaning of the Fourth Amendment. Whren

v. United States , 517 U.S. 806 , 809‑10 (1996); Delaware v. Prouse ,

440 U.S. 648 , 653‑54 (1979); United States v. Martinez‑Fuerte ,

428 U.S. 543 , 556‑58 (1976); United States v. Brignoni‑Ponce ,

422 U.S. 873, 878 (1975). A peace

officer's decision to stop an automobile is reasonable under the Fourth

Amendment when the officer has probable cause to believe the driver committed a

traffic offense. Whren , 517 U.S.

at 810 ; Texas

Dep't of Pub. Safety v. Walter , 28 S.W.3d at 542. If an actual violation of law is observed,

there is probable cause for the traffic stop, and law enforcement officials are

free to enforce the laws and detain a person for that violation. Tex.

Code Crim. Proc. Ann. art. 14.01(b) (Vernon 1977); Garcia v. State,

827 S.W.2d 937, 944 (Tex. Crim. App.1992); Williams v. State, 726 S.W.2d

99, 101 (Tex. Crim. App. 1986); Howard v. State, 932 S.W.2d 216, 218

(Tex. App. B Tyler 1996,

pet. ref'd) (holding officer's testimony that violation of a statute has

occurred is sufficient to show probable cause to make an arrest without a

warrant). Therefore, violation of a

traffic law in an officer's presence is sufficient authority for an initial

stop of a vehicle. Armitage v. State ,

637 S.W.2d 936, 939 (Tex. Crim. App. 1982); Valencia v. State , 820

S.W.2d 397, 400 (Tex. App. B Houston [14th

Dist.] 1991, pet. ref'd).

The first question

related to the instant stop is whether appellant violated the traffic

laws. The State argues a violation

occurred A when [appellant] left

his lane of travel without signaling his intention to do so. @ State = s brief, pg. 9. This argument is flawed in three

respects. First, it is not supported by

the trial judge = s findings of fact

which expressly state appellant was driving A within his own lane of traffic. @ (Emphasis added). Second, even if appellant left his lane of

travel without signaling, that conduct is not an offense. Section 545.104(a) provides that signals are

mandatory only when turning, changing lanes, or starting from a parked

position. Tex. Transp. Code Ann. ' 545.104(a) (Vernon 1999); Trahan v. State , 16

S.W.3d 146, 147 (Tex. App. B Beaumont 2000, no

pet.). Therefore, since appellant did

not turn or change lanes, there was no traffic violation, even if the facts

were as Frye suspected them to be. United

States v. Lopez‑Valdez , 178 F.3d 282, 288 (5th Cir.1999); United

States v. Miller , 146 F.3d 274, 279 (5th Cir.1998).

Third, section

545.060(a) of the Transportation Code provides that an operator on a roadway

divided into two or more clearly marked lanes for traffic (1) shall drive as

nearly as practical entirely within a single lane; and (2) may not move from

the lane unless that movement can be made safely. Tex.

Transp. Code Ann. ' 545.060(a) (Vernon

1999). A violation of section 545.060(a)

occurs only when a vehicle fails to stay within its lane and that movement is

not safe or is not made safely. State

v. Cerny , 28 S.W.3d 796, 800 (Tex. App. B Corpus Christi 2000, no pet.); Hernandez v.

State , 983 S.W.2d 867, 871 (Tex. App. B Austin 1998, pet.

ref'd).

In the instant case,

there is no finding by the trial judge either that appellant failed to stay

within his lane of traffic or that he moved in an unsafe manner. In fact, the evidence is to the contrary. As noted above, Frye testified the right

tires of appellant = s vehicle crossed onto

the shoulder just once, and even then only for a distance of one to two

feet. Appellant = s vehicle never

drifted into the other lane of traffic.

Additionally, there were no other vehicles, parked cars, highway

department objects or cones or barrels on the shoulder. Cerny , 28 S.W.3d at 801 (swerve over

solid white line separating the traffic lane from the right shoulder of the

road three or four times not sufficient to establish violation of ' 545.060); Hernandez,

983 S.W.2d at 871 (single instance of crossing a lane dividing line by

eighteen to twenty‑four inches into a lane of traffic traveling the same

direction not shown to be unsafe or dangerous does not provide reasonable basis

for suspecting defendant committed traffic offense).

For these three

reasons, we hold that on August 1, 1999, Frye did not have probable cause

to believe appellant committed a traffic offense. Whren , 517 U.S. at

810 ; Texas Dep't of Pub. Safety v. Walter , 28 S.W.3d at 542 .

ii. Intoxication.

We next turn to the

judge = s finding that Frye

believed appellant to be intoxicated or under the influence of some other

substance. Probable cause exists when

the facts and circumstances within an officer's personal knowledge and of which

he has reasonably trustworthy information are sufficient to warrant a person of

reasonable caution to believe that, more likely than not, a particular suspect

has committed an offense. Hughes v.

State , 878 S.W.2d 142 (Tex. Crim. App. 1992). After an officer stops a defendant for a

traffic offense, there must be additional facts constituting probable cause to

arrest the defendant for driving while intoxicated. Texas Dep't of Public Safety v. Rodriguez ,

953 S.W.2d 362, 364 (Tex. App. B Austin 1997, no

pet.). There must be some causal link

between the probable cause to stop the vehicle and the subsequent probable

cause to arrest the motorist for driving while intoxicated. Id. at 364‑65.

As noted in subsection

i, supra , a traffic violation will not serve as the basis for the stop

of appellant = s vehicle. But even if it could, there is no causal

connection between the stop and possible intoxication. Frye did not make any inquiry to determine

appellant = s state of sobriety,

and Frye did not perform any field sobriety tests on appellant to determine

whether appellant was intoxicated or under the influence of another substance. [5] Therefore, we hold the August 1, 1999, stop

was not justified by Frye = s belief that

appellant may have been intoxicated. [6]

iii. No valid driver = s license.

We end with the trial

judge = s finding that A [a]fter stopping the

vehicle, [appellant] could not produce a driver = s license. @ This argument fails for two reasons. First, this finding relates to what occurred after

the stop. As noted in subsections ii and

iii, supra, there was no justification for the stop. Our law is clear that what occurs after

an illegal stop cannot be used to cure the initial illegality. Wilson v. State , 621 S.W.2d 799, 804

(Tex. Crim. App. 1981); Colston v. State , 511 S.W.2d 10, 13 (Tex. Crim.

App. 1974).

Secondly, when asked

if he knew whether appellant had a driver = s licence, Frye

admitted he did not know until he arrested appellant. Frye further admitted that he could not

legally stop someone on the hunch: A I bet he doesn = t have a license. @ Finally, Frye

conceded that it would have been easy for appellant to have secured a driver = s license after the

May 2 stop and before the August 1 stop. [7] An inchoate and unparticularized suspicion or

hunch may not serve as the basis for a lawful detention. United States v. Sokolow , 490 U.S. 1,

7 (1989); Terry v. Ohio, 392 U.S. 1, 27 (1968); Williams v. State ,

621 S.W.2d 609, 612 (Tex. Crim. App.1981).

The record is clear that Frye was operating on the hunch that appellant

had not obtained a driver = s license since the

initial stop.

Accordingly, we hold

the August 1, 1999 stop was not justified by the suspicion that appellant did

not possess a driver = s license.

IV. Conclusion.

For the reasons stated

in part II of this opinion, we hold the trial judge did not err in overruling

appellant = s motion to suppress

the evidence seized from the stop of appellant = s vehicle on May 2, 1999. And for the reasons stated in part III of this

opinion, we hold the stop of appellant = s vehicle on August 1, 1999, was

illegal. Therefore, the evidence

obtained as a result of that stop should have been suppressed. Viveros v. State , 828 S.W.2d 2, 4

(Tex. Crim. App. 1992). Consequently,

the trial judge erred in overruling appellant = s motion to suppress that evidence.

The trial court = s judgment in cause

no. D-990-372-R is affirmed, and the trial court = s judgment in cause no. D-000,036-R is reversed.

________________________

CHARLES F. BAIRD

Justice

Do not publish.

Tex. R. App. P. 47.3.

Opinion delivered and filed

this 25th day of April, 2002.

[1]

Former Court of Criminal Appeals Judge Charles F. Baird assigned to this

Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov = t Code Ann . '

74.003 (Vernon 1998).

[2] Frye

video taped this stop and that video was introduced into evidence at the

suppression hearing.

[3]

The trial judge = s findings of

fact also state that appellant failed to signal his intention to change lanes

on two occasions, but does not state that same was done in an unsafe

manner. We need not address whether this

conduct constituted a violation of section 545.104(a) of the transportation

code, as Frye = s observation

of the seat belt violation was sufficient to justify a traffic stop. See Tex.

Transp. Code Ann. ' 545.104(a)

(Vernon 1999).

[4] The

record is not clear on this point.

Apparently, Frye was driving in the opposite direction and used a A crossover @

to change directions in order to follow appellant.

[5]

We also reject any argument that the stop can be justified by Frye = s

conversation with appellant following the initial stop on May 2, 1999, wherein

appellant admitted using marihuana heavily.

Under the facts presented here, we hold this argument does not give rise

to probable cause, but rather is proof of nothing more than an inchoate and

unparticularized suspicion or hunch which may not serve as the basis for a

lawful detention. Terry v. Ohio,

392 U.S. 1, 27 (1968); United States v. Sokolow , 490 U.S. 1, 7 (1989); Williams

v. State , 621 S.W.2d 609, 612 (Tex. Crim. App.1981).

[6]

In its brief the State seems to argue this stop may be justified by the A community

caretaking @ exception to

the warrant requirement. We reject this

argument for three reasons. First, this

exception is not mentioned in the trial judge = s

findings of fact. Second, the entirety

of the State = s argument in

support of this position is: A An

officer may perform a detention of an individual using the > community

caretaking = function if

the officer reasonably believes that the safety of the individual or community

is threatened. @ State = s

brief pg. 9. However, this sentence is

not followed by a citation to any authority.

This briefing is inadequate. Garcia

v. State , 887 S.W.2d 862, 873 (Tex. Crim. App. 1994) (argument consisting

of one sentence is not adequately briefed.)

Third, the leading case on this subject is Wright v. State , 7

S.W.3d 148 (Tex. Crim. App. 1999), where the Court of Criminal Appeals

recognized a police officer may stop and assist an individual who a reasonable

person, given the totality of the circumstances, would believe is in need of

help. The Wright Court set out four factors in determining the

reasonableness of such a stop: (1) the

nature and level of the distress exhibited by the individual; (2) the location

of the individual; (3) whether or not the individual was alone and/or had access

to assistance independent of that offered by the officer; and (4) to what

extent the individual, if not assisted, presented a danger to himself or

others. Id. at 152 . For the

reasons state above, we hold these factors will not serve as an independent

basis to support the stop in the instant case. Stewart v. State , 22

S.W.3d 646, 650 (Tex. App. B Austin

2000, pet. ref'd) ( A It is clear

that the officer stopped appellant solely for the purpose of investigating the

suspected criminal violation. @ ).

[7]

Specifically, on cross-examination, Frye testified as follows:

Q. You agree with me that it = s

- - it = s usually

pretty easy to go get you a driver = s

license. You can have on - - you cannot

have one on September 30th and have one on October the 1st. All you got to do is go down and take a test

and pay a fee in most cases, correct?

A. Yes.

Q. So, it would have been very easy for

[appellant] in this three- or four-month period of time between the first time

- -

A. Sure.

Q. - - you saw him and the second time for him

to go get a license?

A. Sure.