Dwinal v. State
| Decision Date | 03 November 2017 |
| Docket Number | NO. 03-17-00012-CR,03-17-00012-CR |
| Parties | Charles Eric Dwinal, Appellant v. The State of Texas, Appellee |
| Court | Texas Court of Appeals |
NO. B-16-0352-SB, HONORABLE BEN WOODWARD, JUDGE PRESIDING
After the police initiated a traffic stop of Charles Eric Dwinal, he was charged with one count of possession of a controlled substance (methamphetamine) with intent to deliver in an amount between 4 and 200 grams, with one count of possession of a controlled substance (cocaine) with intent to deliver in an amount between 4 and 200 grams, and with one count of unlawful possession of a firearm. See Tex. Health & Safety Code §§ 481.102(3)(D), (6) (), .112(a), (d) (providing that person commits offense by possessing "with intent to deliver a controlled substance listed in Penalty Group 1" and that offense is first-degree felony if amount of controlled substance is between 4 and 200 grams); Tex. Penal Code § 46.04(a), (e) (). Further, the indictment contained enhancement paragraphs for the controlled-substance charges alleging that Dwinal had previously been convicted of the felony offense of burglary of a habitation. See Tex. Penal Code § 30.02(a), (c)(2) (); see also id. § 12.42 (). After being charged, Dwinal filed a motion to suppress. The district court convened a hearing on the motion to suppress and later issued an order denying the motion. Following that ruling, Dwinal entered into a plea agreement regarding the methamphetamine charge. Under the terms of the agreement, Dwinal reserved the right to appeal the suppression ruling and agreed to enter a plea of guilty for the methamphetamine charge in exchange for the State recommending that Dwinal be sentenced to 30 years' imprisonment and for the State agreeing to abandon the enhancement allegation and to allow the district court to consider his guilt in the remaining two charges when assessing his punishment. See id. § 12.45 (). After accepting Dwinal's plea, the district court imposed its sentence in conformity with the terms of the plea agreement and rendered its judgment of conviction accordingly. Dwinal filed a motion for new trial asserting that the district court erred by denying his motion to suppress, and the motion was overruled by operation of law. In two issues on appeal, Dwinal asserts that the district court erred by denying his motion to suppress and by failing to grant his motion for new trial. We will affirm the district court's judgment of conviction.
BACKGROUND
After Dwinal was charged with possession of methamphetamine with intent to deliver, he filed a motion to suppress the evidence and testimony regarding the items seized from his vehicle after Officer Dustin Henderson initiated a traffic stop and to suppress evidence of testing performed on the seized items, and the district court convened a hearing on the motion.
During the hearing, Officer Henderson, Officer William Pierce, and Dwinal all testified, and a recording of the traffic stop was admitted into evidence. In his testimony, Officer Henderson related that he decided "to conduct a traffic stop" after observing Dwinal commit two traffic violations. Next, Officer Henderson recalled that when he approached the vehicle to talk with Dwinal about the violations, he smelled "[b]urned" "marijuana in the vehicle" and "asked [Dwinal] to exit the vehicle." Moreover, Officer Henderson stated that Dwinal "was real nervous," that "he was real pale," that he looked "scared," and that "his carotid artery on his neck [was] pulsating really fast."
In his testimony, Officer Henderson explained that when he went back to the car to talk with the female passenger, he no longer smelled marijuana, that he later asked Dwinal about the smell of marijuana, that Dwinal denied that there was any marijuana in the car, that Dwinal became "more upset about the situation," and that Dwinal started gesturing with his hands. In addition, Officer Henderson recalled that he requested that a canine unit be sent to the scene. Moreover, Officer Henderson explained that Dwinal's "temper was escalating" and that Dwinal "began to pace around."
Furthermore, Officer Henderson testified that the canine unit arrived approximately 23 minutes after the traffic stop began and that the canine officer (Frost) alerted to the presence ofillegal drugs in the car by scratching at the back bumper. Next, Officer Henderson stated that after Frost alerted, he performed "a probable cause search of the vehicle," that he started the search in the trunk, that he found no contraband but smelled marijuana in the trunk, that he then searched the passenger compartment, and that he found "marijuana residue up on the dash of the driver's side" and found the following inside bags located in the "front passenger's seat floorboard": two pistols, multiple marijuana pipes and grinders, "[s]ix small marijuana joints," "a used methamphetamine pipe," a "container with marijuana shake in it," "digital scales," and a clear bag containing more than 100 grams of methamphetamine. In addition, Officer Henderson explained that they transferred the car to the police station to continue the search in a safer location and that the additional search revealed a bag containing "27 grams of cocaine" as well as a third pistol under the driver's seat.
When describing why he did not search the car when he first smelled marijuana, Officer Henderson explained that he did not feel comfortable performing a search because he "was outnumbered" by Dwinal and the passenger, because he learned during the traffic stop that Dwinal had a history of "assaultive weapons" and drug use, and because he no longer smelled marijuana when he returned to the car to talk to the passenger. During his cross-examination, Officer Henderson admitted that the only evidence of the presence of marijuana that he observed prior to calling for a canine unit was the smell of marijuana that he noticed when he first interacted with Dwinal and that he did not believe that he had probable cause to search the car before the dog alerted. Further, Officer Henderson testified during his cross-examination that the alert by the dog provided him with probable cause to search the entire vehicle.
During Officer Henderson's testimony, a recording from the dashboard camera in Officer Henderson's patrol car was admitted into evidence. The recording is generally consistentwith Officer Henderson's testimony. In addition, the recording captures Dwinal refusing Officer Henderson's request to search the car.
After Officer Henderson finished his testimony, Officer Pierce was called to the stand. In his testimony, Officer Pierce explained that Officer Henderson contacted him and asked him to perform "a free air search" around the vehicle and that Frost alerted to the presence of narcotics by scratching on the trunk of the car. Moreover, Officer Pierce explained that drug dogs alert to the seams of a car, including the seams on the trunk, because that is where the odors emit from.
Once Officer Pierce finished his testimony, Dwinal was called to the stand and testified that he did not give permission for anyone to search his vehicle.
At the end of the hearing, the district court took the matter under advisement and later issued an order denying the motion to suppress. Following that ruling, Dwinal requested findings of fact and conclusions of law supporting the ruling, and the district court issued the following relevant findings and conclusions:
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