Myles v. State

• Decision Date: 05 June 1997
• Docket Number: Nos. 14-94-00543-C,14-94-00663-CR,s. 14-94-00543-C
• Citation: 946 S.W.2d 630
• Parties: Edwin Abadoo MYLES, Appellant, v. The STATE of Texas, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 630

946 S.W.2d 630

Edwin Abadoo MYLES, Appellant, v. The STATE of Texas, Appellee.

Nos. 14-94-00543-CR, 14-94-00663-CR.

Court of Appeals of Texas,

Houston (14th Dist.).

June 5, 1997.

Rehearing Overruled June 5, 1997.

Gerald Fry, Houston, for appellant.

Michael R. Little, Steve Green, Anahuac, for appellee in No. 14-94-00543-CR.

Michael R. Little, Anahuac, for appellee in No. 14-94-00663-CR.

Before MURPHY, C.J., and ANDERSON and HUDSON, JJ.

CORRECTED OPINION

ANDERSON, Justice.

We withdraw the opinion issued October 31, 1996 in this consolidated appeal and substitute the following opinion in its place.

In two causes consolidated for trial, appellant entered a plea of not guilty to the offense of aggravated possession of a controlled substance, TEX. HEALTH & SAFETY CODE ANN. § 481.115(d) (Vernon 1992), ¹ and to the offense of failure to pay a controlled substance tax. TEX. TAX CODE ANN. § 159.201 (Vernon 1992). A jury found appellant guilty of both charges, and assessed punishment for the possession offense at thirty-five years confinement in the Institutional Division of the Texas Department of Criminal Justice, and a $20,000 fine. For the failure to pay a controlled substance tax, the jury assessed punishment at ten years confinement probated for ten years, and a fine of $5,000. In six points of error, appellant alleges the trial court erred in overruling his motion to suppress evidence and his motion for a directed verdict, and entering a conviction on both offenses. We affirm.

Two Texas Department of Public Safety (DPS) troopers stopped appellant after observing his vehicle cross the inside shoulder stripe a few feet from the median on Interstate 10. After receiving information that appellant faced three outstanding traffic warrants, the troopers arrested appellant and conducted an inventory search of his rented vehicle. The interior search of the car revealed a can of Fix-a-Flat, the Club, an anti-theft device, and two marijuana cigarettes in a storage pocket on the driver's side door which prompted the troopers to conduct a more thorough search of the car. In the trunk the troopers discovered ten cellophane bags of cocaine hidden inside the spare tire. The troopers issued appellant a citation, warning him for failing to drive in a single marked lane, and charging him with possession of a controlled substance and failure to pay a controlled substance tax.

In points one, two, three, and five, appellant asserts the trial court erred in overruling a motion to suppress evidence of the cocaine. ² The trial judge is the sole and exclusive trier of fact and judge of the credibility of the witnesses and the weight of the evidence to be given their testimony at a hearing on a motion to suppress evidence. DuBose v. State, 915 S.W.2d 493, 496 (Tex.Crim.App.1996). The trial judge is also the initial arbiter of the legal significance of those facts. Id. Therefore, if the record supports the trial court's findings, an appellate court is not at liberty to disturb them, and on appellate review, the appellate court addresses only whether the trial court properly applied the law to the facts. Penry v. State, 903 S.W.2d 715, 744 (Tex.Crim.App.), cert. denied, --- U.S. ----, 116 S.Ct. 480, 133 L.Ed.2d 408 (1995); Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990). Moreover, an appellate court will not reverse the trial court's decision on the admissibility of the evidence unless the trial judge clearly abused his discretion. Romero, 800 S.W.2d at 543.

In his first point of error, appellant asserts the troopers seized the cocaine as the result of an illegal stop. Appellant contends the stop was illegal because the troopers did not observe all the elements of the traffic violation which he allegedly committed, namely, the failure to drive in a single marked lane. The revised civil statutes require a driver of a vehicle to drive entirely within a single lane as nearly as practical, and not to move from such lane until he has first ascertained that such movement can be made with safety. TEX.REV.CIV. STAT. ANN. art. 6701d, § 60(a) (Vernon 1977). ³

Appellant does not dispute that he crossed the inside yellow line as the troopers alleged, but contends the troopers failed to ascertain whether appellant's movement into another lane could be made with safety. Any peace officer may arrest without warrant any person found committing a violation of any provision of Article 6701d of the Texas Revised Civil Statutes. TEX.REV.CIV. STAT. ANN. art. 6701d, § 153 (Vernon 1977). ⁴ An officer need not observe all the elements of an offense, but merely reasonably believe that an offense is occurring in order to make an arrest. Dempsey v. State, 857 S.W.2d 759, 761 (Tex.App.--Houston [14th Dist.] 1993, no pet.).

A routine traffic stop does not normally constitute a custodial arrest, but a temporary investigative detention. Id. (citing Berkemer v. McCarty, 468 U.S. 420, 439, 104 S.Ct. 3138, 3149-50, 82 L.Ed.2d 317 (1984)). An investigative detention must be founded on a reasonable, articulable suspicion that the person detained is connected with criminal activity, whereas an arrest must be supported by probable cause to believe that the person has committed or is committing an offense. Amores v. State, 816 S.W.2d 407, 411 (Tex.Crim.App.1991). An investigative detention or stop is therefore a lesser intrusion on a person's freedom. Id. Based on one of the trooper's testimony, we find that the trooper had probable cause to arrest appellant for violating Section 60(a) of Article 6701d. Accordingly, the trooper also had sufficient justification for the less intrusive stop of appellant for a minor traffic offense. See Valencia v. State, 820 S.W.2d 397, 400 (Tex.App.--Houston [14th Dist.] 1991, pet. ref'd). The trial court did not abuse its discretion in denying appellant's motion to suppress evidence of the cocaine because the stop, in this case, was lawful. Appellant's first point of error is overruled.

In his second point of error, appellant maintains the troopers exceeded the scope of the inventory search of his vehicle when they discovered the marijuana in the rented vehicle. Appellant offers no authority for this proposition. Therefore, he did not adequately brief this point of error. Garcia v. State, 887 S.W.2d 862, 873 (Tex.Crim.App.1994), cert. denied, 514 U.S. 1021, 115 S.Ct. 1368, 131 L.Ed.2d 223 (1995). When a party raises a point of error without citation of authority or argument, nothing is presented for appellate review. State v. Gonzalez, 855 S.W.2d 692, 697 (Tex.Crim.App.1993). Appellant's second point of error is overruled.

In his third point of error, appellant challenges the validity of the warrantless search of the trunk of the rented vehicle. Appellant contends because the tire in which the troopers found the cocaine was a moveable container, the troopers were required to obtain a search warrant before opening it. Having failed to obtain a warrant, appellant maintains, the troopers conducted an illegal search, the fruit of which was the cocaine.

The record reflects that the troopers discovered marijuana in the interior of appellant's vehicle during a routine inventory search pursuant to appellant's arrest and impoundment of his vehicle. The discovery of the marijuana provided the troopers with probable cause to conduct a more thorough search of the vehicle because they were conducting a search of the vehicle incident to a custodial arrest. "If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search." United States v. Ross, 456 U.S. 798, 825, 102 S.Ct. 2157, 2173, 72 L.Ed.2d 572 (1982); accord Osban v. State, 726 S.W.2d 107, 111 (Tex.Crim.App.1986), overruled by Heitman v. State, 815 S.W.2d 681 (Tex.Crim.App.1991) (finding that the Texas Constitution affords greater protection than the federal constitution). ⁵ We have seen however, that appellant failed to distinguish in his brief between the levels of protection afforded by the Texas and federal constitutions (see n. 2 above). Therefore, the trial court did not abuse its discretion in denying appellant's motion to suppress the cocaine because the warrantless search of the spare tire in the trunk of appellant's rental vehicle was lawful. Appellant's third point of error is overruled.

In his fifth point of error, appellant contends the trial court erred in denying his motion to suppress because the warrants upon which the officers arrested him were invalid, thus making his arrest illegal. The movant in a motion to suppress alleging lack of probable cause to arrest must initially produce evidence that a warrantless arrest or seizure occurred. Russell v. State, 717 S.W.2d 7, 9 (Tex.Crim.App.1986); Hahn v. State, 852 S.W.2d 627, 628 (Tex.App.--Houston [14th Dist.] 1993, pet. ref'd). The burden then shifts to the State to show that a warrant existed. Russell, 717 S.W.2d at 9. If the State produces evidence that a warrant existed, the burden shifts back to the defendant to show the invalidity of the arrest or seizure. Id. If the State cannot prove the existence of a warrant, it must prove the reasonableness of the arrest or seizure. Id. at 10.

To justify an arrest on the basis of an arrest warrant issued by a magistrate, the State must produce and exhibit the warrant and the affidavit to the trial court for a determination of its sufficiency. Moreno v. State, 858 S.W.2d 453, 461 (Tex.Crim.App.), cert. denied, 510 U.S. 966, 114 S.Ct. 445, 126 L.Ed.2d 378 (1993); Garrett v. State, 791 S.W.2d 137, 140 (Tex.Crim.App.1990); Miller v. State, 736 S.W.2d 643, 648 (Tex.Crim.App.1987); Gant v. State, 649 S.W.2d 30, 33 (Tex.Crim.App.), cert. denied, 464 U.S. 836, 104 S.Ct. 122, 78 L.Ed.2d 120 (1983). The warrant and affidavit production and exhibition requirements are imposed so that the trial court may inspect the documents and determine whether...