Caraway v. State

• Decision Date: 03 April 2008
• Docket Number: No. 11-06-00115-CR.,11-06-00115-CR.
• Citation: 255 S.W.3d 302
• Parties: Cleave Andrew CARAWAY, Appellant v. STATE of Texas, Appellee.
• Court: Texas Court of Appeals

255 S.W.3d 302

Cleave Andrew CARAWAY, Appellant v. STATE of Texas, Appellee.

No. 11-06-00115-CR.

Court of Appeals of Texas, Eastland.

April 3, 2008.

Benjamin Aaron Webb, Joel R. Cook, Law Offices of Wm. Everett Seymore, Lubbock, for appellant.

Tim W. Ford, Michael K. Burns, Dist. Atty., Palo Pinto, for State.

Panel consists of WRIGHT, C.J., McCALL, J., and STRANGE, J.

OPINION

TERRY McCALL, Justice.

Cleave Andrew Caraway appeals his conviction for the first degree felony offense of possession of cocaine in an amount of four hundred grams or more. See TEX. HEALTH & SAFETY CODE ANN. § 481.115(f) (Vernon 2003). After the trial court denied appellant's motion to suppress evidence, appellant pleaded guilty to the offense. Pursuant to a plea bargain agreement, the trial court sentenced appellant to twenty-five years confinement and a fine of $5,000. In two appellate issues, appellant argues that the trial court erred in denying his motion to suppress (1) because the search of his vehicle resulted from an illegal detention and (2) because his consent to search the vehicle resulted from a violation of his Fourth Amendment rights. We affirm.

Background

On August 31, 2005, at about 11:00 a.m., Department of Public Safety Trooper Jason Shea made a traffic stop of appellant because he believed that appellant's vehicle had illegal tint on its windows. Appellant does not challenge the legality of the reason for the stop. Trooper Shea was the only witness at the suppression hearing. The stop was videotaped by a camera in Trooper Shea's vehicle, and appellant introduced into evidence a copy of the video (in DVD format). The DVD contained audio and video of the stop.¹

After stopping appellant, Trooper Shea walked to the passenger's side of appellant's vehicle as appellant remained seated in the driver's seat. The video showed that Trooper Shea first talked with appellant at 11:05:33. Trooper Shea told appellant that he wanted to check the window tint because it looked "a little bit dark." Trooper Shea also asked appellant for his driver's license and proof of insurance. Appellant responded by saying that he was going to a wedding. Trooper Shea asked appellant some background questions about the trip. Appellant told Trooper Shea that he had come from Lubbock and that the wedding was in Dallas. Trooper Shea asked appellant what type of work he did, and appellant responded that he was a barber. Appellant gave Trooper Shea his driver's license. Trooper Shea said that appellant acted very nervous, had shaky hands, talked very rapidly, and failed to make eye contact with him. Trooper Shea tested the window on the passenger's side of appellant's vehicle with a window tint meter. The test showed that the window had tint darker than the legal limit. Trooper Shea then informed appellant that he was going to write appellant a warning for the window tint, as opposed to a citation.

Trooper Shea requested appellant to accompany him to his police vehicle so that he could write the warning. The video showed that Trooper Shea and appellant got into Trooper Shea's vehicle at 11:07:35. Once Trooper Shea and appellant were inside the vehicle, they could not be seen on the video. However, their voices could be heard on the audio portion. Trooper Shea testified that appellant continued to act nervously. At 11:08:30, Trooper Shea initiated an outstanding warrants check and a criminal history check on appellant by calling appellant's driver's license number into DPS communications over his radio. While Trooper Shea waited to receive the warrant and criminal history information, Trooper Shea and appellant talked about appellant's occupation as a barber. At 11:09:45, Trooper Shea asked appellant whether he had ever been arrested. At about the same time, Trooper Shea began receiving information about appellant's criminal history over the radio. Appellant told Trooper Shea that he had been arrested on conspiracy and drug charges in 1992 and that he had served four years in prison for the charges.

Trooper Shea testified that he asked appellant whether he could look in the car for anything illegal and that appellant said he could. The video established that, at 11:10:05, Trooper Shea asked appellant the following questions: "You don't have anything illegal in the car right now? Do you mind if I look and make sure? Is that okay?" The audio portion of the video did not demonstrate whether appellant gave a "yes" or "no" response to Trooper Shea's request for consent to search. Because Trooper Shea and appellant could not be seen in the video at the time of the request for consent to search, the video did not establish whether appellant nodded his head indicating that Trooper Shea could search the vehicle. However, the audio portion of the video established that, at 11:10:10, appellant stated the following: "It's my mom's truck. I don't have nothing." At 11:10:15, Trooper Shea exited his vehicle and walked to appellant's vehicle to search it. Appellant also exited Trooper Shea's vehicle and walked up beside Trooper Shea. The video showed that appellant actually conducted the search of the vehicle. Appellant showed Trooper Shea a number of items that he had in the vehicle. Trooper Shea testified that normally people do not walk up to the vehicle with him while he is conducting a search.

The video showed that, at 11:11:20, Trooper Shea and appellant got back into Trooper Shea's vehicle. Trooper Shea proceeded to write appellant a warning. At 11:11:55, Trooper Shea told appellant that it was a warning with no fine. Trooper Shea received more information about appellant's criminal history over the radio, and appellant told Trooper Shea that he had gone back to prison in 1999 for a "violation." The video showed that, at 11:12:30, Trooper Shea exited the vehicle. Appellant remained inside Trooper Shea's vehicle. Trooper Shea then searched the rest of appellant's vehicle. Trooper Shea testified that he found a United Supermarket bag, which he believed contained a substantial amount of cocaine, in the back trunk area of appellant's vehicle. Trooper Shea placed appellant under arrest.

Trooper Shea sent the substance to the Abilene DPS crime lab for analysis. The report from the lab indicated that the substance contained approximately 1800 grams of cocaine.

During cross-examination, Trooper Shea testified that appellant was not free to leave when he asked appellant for consent to search the vehicle. He also testified that he would have called for a canine unit if appellant had refused consent to search.

After the conclusion of the evidence and arguments of counsel, the trial court denied appellant's motion to suppress. The trial court stated the following findings on the record: "that the evidence contain[ed] an articulated reasonable suspicion, which developed during the course of a valid initial detention, and that the consent given during the course of the detention was voluntary." The parties did not request written findings of fact and conclusions of law, and the trial court did not enter written findings of fact and conclusions of law.

Standard of Review

A trial court's denial of a motion to suppress is reviewed for an abuse of discretion. Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App.2002). In reviewing a trial court's ruling on a motion to suppress, an appellate court must view the evidence in the light most favorable to the trial court's ruling. State v. Kelly, 204 S.W.3d 808, 818 (Tex.Crim.App.2006). We must give great deference to the trial court's findings of historical facts as long as the record supports the findings. Torres v. State, 182 S.W.3d 899, 902 (Tex. Crim.App.2005); Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). We also give deference to the trial court's rulings on mixed questions of law and fact when those rulings turn on an evaluation of credibility and demeanor. Guzman, 955 S.W.2d at 89. Where such rulings do not turn on an evaluation of credibility and demeanor, we review the trial court's actions de novo. Id.; Davila v. State, 4 S.W.3d 844, 847-48 (Tex.App.-Eastland 1999, no pet.). We are obligated to uphold the trial court's ruling if that ruling was supported by the record and was correct under any theory of law applicable to the case, even if the trial court gave the wrong reason for its ruling. Armendariz v. State, 123 S.W.3d 401, 404 (Tex.Crim.App. 2003); State v. Ross, 32 S.W.3d 853, 856 (Tex.Crim.App.2000).

The Detention Was Reasonable

In his first issue, appellant contends that the purpose of the stop was completed before Trooper Shea asked for consent to search the vehicle. Therefore, appellant contends that he was being illegally detained at the time Trooper Shea requested his consent to search. Trooper Shea stopped appellant for a suspected window-tint violation. A traffic stop is a detention and must be reasonable under the United States and Texas Constitutions. See Davis v. State, 947 S.W.2d 240, 245 (Tex.Crim.App.1997). To be reasonable, a traffic stop must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983); Davis, 947 S.W.2d at 245. Reasonableness is measured in objective terms by examining the totality of the circumstances. Ohio v. Robinette, 519 U.S. 33, 39, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996); Spight v. State, 76 S.W.3d 761, 765 (Tex.App.-Houston [1st Dist.] 2002, no pet.).

During a traffic stop, an officer may ask questions about the driver's destination and the purpose of the trip. Willis v. State, 192 S.W.3d 585, 590-91 (Tex.App.-Tyler 2006, pet. ref'd); Veal v. State, 28 S.W.3d 832, 835 (Tex.App.-Beaumont 2000, pet. ref'd). An officer may also check for outstanding warrants and demand identification, a valid driver's license, and proof of insurance from the driver. Kothe v. State, 152 S.W.3d 54, 63 (Tex.Crim.App.2004); Davis, 947 S.W.2d at 245 n. 6; Spight, 76 S.W.3d...