Robertson v. State

• Decision Date: 07 June 2018
• Docket Number: NO. 14-16-01004-CR,NO. 14-17-00625-CR,NO. 14-17-00624-CR,14-16-01004-CR,14-17-00624-CR,14-17-00625-CR
• Parties: LANCE ROBERTSON, Appellant v. THE STATE OF TEXAS, Appellee
• Court: Texas Court of Appeals

LANCE ROBERTSON, Appellant v. THE STATE OF TEXAS, Appellee

NO. 14-16-01004-CR

NO. 14-17-00624-CR

NO. 14-17-00625-CR

State of Texas in the Fourteenth Court of Appeals

June 7, 2018

On Appeal from the 344th District Court and County Court Chambers County, Texas

Trial Court Cause Nos. 18007, 31599 & 31600

MEMORANDUM OPINION

After the denial of his motion to suppress, appellant Lance Robertson pleaded guilty to possession of marijuana, possession of methamphetamine, and unlawfully carrying a weapon. See Tex. Penal Code § 46.02 (West 2011); Tex. Health & Safety Code Ann. §§ 481.115(a), 481.121(a), 481.121(b)(1) (West 2017). Appellant contends the trial court erroneously denied his motion. We affirm.

I. BACKGROUND

On July 24, 2014, appellant was arrested for possession of methamphetamine, possession of marijuana, and unlawfully carrying a weapon. Charges were filed in the county and district courts of Chambers County. Appellant filed motions to suppress in each case. In his motions, appellant argued the evidence discovered during his detention and arrest should be suppressed because the "evidence seized and/or statements made [were] made as a result of the illegal stop, detention and/or arrest, and/or search and seizure." Appellant asserted there was no probable cause for the traffic stop because the trooper who conducted the stop, Trooper Ihnen, did not articulate specific facts which led Ihnen to conclude a traffic offense had occurred. Appellant also asserted that the search and seizure of the pill bottle and the vehicle appellant was driving were without probable cause or reasonable suspicion. Appellant argued that he did not consent to the search of the pill bottle and the pill bottle was not in plain view.

The parties agreed that the district court's ruling on appellant's motion to suppress would be binding in each case.¹ The district court heard the motion on November 3, 2016. At the hearing, Ihnen testified that he stopped appellant because appellant was "following a vehicle too close and getting closer to them." In response to the prosecutor's questioning, Ihnen articulated the specific facts which led him to conclude a traffic offense had occurred:

Q. . . . [A]t what point in the stop did you decide that they were too close?

A. As—when I got behind him, he started inching up closer and closer to that Volkswagen when I got behind him.

Q. So, basically you could see through the back windshield. You could see the car in front of them, and they were getting closer and closer?

A. Yes, sir.

Q. And that's when you turned on your sirens to stop?

A. That's when—yes, sir.

Q. Okay. And when you're considering following too close, what are some of the issues that you consider? Do you consider the speed?

A. Speed.

Q. Do you remember, approximately, how fast y'all were traveling?

A. 65, 66, somewhere in there.

Q. Around the speed limit?

A. Yes, sir.

Q. Okay. And about the traffic, was there quite a bit of traffic on the road at the time?

A. Medium traffic.

Q. Okay. And the distance on how far they were from the other car?

A. About a car length, maybe a car length and a half.

Q. And in your experience and your training, is that too close? If something were to happen and that car were to slam on their brakes, if—

A. Yes, sir. I could also see he was watching me in the rearview mirror. So, he had divided attention. So, if something were to happen, I don't think he would have had enough time to react to avoid a collision.

The State also presented a video recording of the stop. The video shows that after pulling over appellant, Ihnen explained to appellant that he had been following the Volkswagen too closely.

Ihnen testified that after stopping appellant and approaching the vehicle, he "immediately detected the odor of marijuana coming from the vehicle." Ihnentestified his initial contact with appellant was unusual. Appellant appeared "very nervous right off the bat" and "his hands were shaking." Ihnen asked appellant for his driver's license. Appellant told Ihnen that he did not have a driver's license but did have a passport. Appellant did not have his passport on his person; "He had to remove it from a backpack, which was located in the backseat."

Video evidence of the traffic stop showed appellant began looking through the backpack in the backseat of the vehicle, but Ihnen asked him to take the bag out of the vehicle. Appellant pulled the backpack out of the car and then continued digging through it in front of Ihnen, looking for his passport. Video also showed that while appellant was rifling through his backpack, Ihnen noticed a pill bottle. Ihnen testified that the pill bottle had no label and had a "plastic baggy shoved inside of it." Based on his training and experience, Ihnen testified, "That's not normal. That's not how everyday folks carry their pills." Ihnen asked appellant to hand the pill bottle to him, and appellant did so. Ihnen then opened the bottle and found a purple pill, which he identified as ecstasy, a drug containing methamphetamine. Ihnen questioned appellant about the pill. Appellant initially said he did not know what the pill was, but after further questioning, appellant admitted the pill was ecstasy.

Ihnen's testimony and the video showed that after finding the ecstasy, Ihnen brought appellant back to his patrol vehicle to continue his investigation. Before appellant got in the patrol vehicle, Ihnen asked appellant for consent to search his person; appellant consented. Ihnen searched appellant's person. Ihnen and appellant then got into the front seat of Ihnen's patrol vehicle. Ihnen continued questioning appellant, and using appellant's identification information, Ihnen discovered that appellant had active warrants. Ihnen then placed appellant under arrest for possession of a controlled substance. After arresting appellant, Ihnen searchedappellant's vehicle and its contents. He found marijuana in the driver's side door, a pistol in the backpack, and a rifle in the trunk. Before releasing the vehicle appellant had been driving to a passenger in that vehicle, Ihnen asked appellant for the contents of his pockets. Appellant produced more marijuana from his pocket. Finally, Ihnen released the vehicle to the passenger and told her he was taking appellant to the Chambers County jail.

No evidence other than Ihnen's testimony and the video recording was presented at the hearing.

At the conclusion of the hearing, the trial court made oral findings on the record and denied appellant's motions to suppress. The trial court stated, in relevant part:

I'm going to deny your Motion to Suppress. I'll make the specific finding that my view of the video indicated that a vehicle that's called the Volkswagen . . . pulled in front of the defendant's car. At that point the video indicates the defendant's vehicle comes next into play that it is fairly close at that time. The lane change rules apply to that. It was obviously done safely. So, the Volkswagen is not in any trouble for that particular move; and he didn't have to hit his brakes.

However, the video also shows that once the trooper got behind the defendant, that the car—you can see it on the video. It's hard to tell the difference (sic) from the video—the distance. But I see a vehicle in the left lane, which appears to either slow down or his car is speeding up because it is impossible for him to change lanes to pass that vehicle. Whether he would or wouldn't have, I don't know; but it indicates to me that he is still going at a speed that, if he continued at that speed, he might be following too close in comparison to the other vehicles on the highway. And, so, I think it is a legitimate stop.

. . .

I also make the finding that he volunteered to get his ID and pull out—or was apparently looking into the backpack where he thought his ID was, which gives indicia evidence for me that that is his backpack. Hedoes pull it out at the officer's request. As he's going through it, the officer sees this unmarked pill bottle with a pill in it; and then the questioning ensues about that.

I think that with all the things leading up to that, that he is certainly in the proper place and, therefore, may be in the position to, in fact, view an offense in his presence under Chapter 14 at that point in time. So, then later the defendant admits that would be ecstasy, I believe, was his testimony.

So, for all those findings—and I can certainly be more specific if you want me to—I think it, cumulatively, clearly is a good stop and a valid arrest; and, therefore, I will deny your Motion.

. . .

The defendant did appear very nervous; and, I mean, he came out—you know, he did appear nervous that he was pulled over. Obviously, it was a Wisconsin license plate. So, he may not be from around here. I don't know. But I did want to make that notation.

Appellant pleaded guilty to all charges. Both the district court and the county court sentenced appellant to deferred community supervision and assessed fines. This appeal followed.

II. ANALYSIS

A. Standard of review

We review a trial judge's ruling on a motion to suppress under a bifurcated standard of review. Weems v. State, 493 S.W.3d 574, 577 (Tex. Crim. App. 2016). First, we afford almost total deference to a trial judge's determination of historical facts. Id. The judge is the sole trier of fact and judge of witnesses' credibility and the weight to be given their testimony. Id. The judge is entitled to believe or disbelieve all or part of a witness's testimony—even if that testimony is uncontroverted—because the judge can observe the witness's demeanor and appearance. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010).

When the trial judge makes express findings of fact, we afford those findings almost total deference as long as the record supports them. Id. When there is not an express finding on an issue, we infer implicit findings of fact that support the trial court's ruling as long as those findings are supported by the record. See id. "[T]he...