Smith v. State

• Decision Date: 24 April 1990
• Docket Number: No. 07-89-0090-CR,07-89-0090-CR
• Citation: 789 S.W.2d 350
• Parties: Robert Lee SMITH, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 350

789 S.W.2d 350

Robert Lee SMITH, Appellant, v. The STATE of Texas, Appellee.

No. 07-89-0090-CR.

Court of Appeals of Texas Amarillo.

April 24, 1990.

Rehearing Denied May 21, 1990.

Adkins & Fling, James C. Fling, Shamrock, for appellant.

Harold Comer, Dist. Atty., John Mann, Asst. Dist. Atty., Wheeler, for appellee.

Before REYNOLDS, C.J., and DODSON, and POFF, JJ.

REYNOLDS, Chief Justice.

A jury found appellant Robert Lee Smith guilty of the offense of aggravated possession of a controlled substance, and assessed his punishment at eighteen (18) years confinement in the Texas Department of Corrections (now, the Texas Department of Criminal Justice, Institutional Division). By eight points of error, appellant contends the trial court erred (1-3) by overruling his motion to suppress evidence because the initial stop was a pretextual stop motivated by use of a drug courier profile, consent to search was obtained before Miranda warnings had been given, and the search lacked voluntary consent or probable cause to support it; (4-5) by refusing appellant's motion for instructed verdict on the grounds of legal insufficiency of evidence to establish guilt, and a fatal variance between the indictment and proof; (6-7) by refusing to declare a mistrial because of improper jury arguments by the prosecutor; and (8) by refusing appellant's motion for new trial because of evidence not previously available to defendant. For the reasons stated, we will affirm.

Prior to trial, appellant filed a motion to suppress the contraband evidence which formed the basis of the prosecution. After a hearing on the motion, the court found the initial detention was legal, being based on a traffic violation, and denied the motion to suppress. The court also held that voluntariness of the consent to search was a question of fact to be submitted to the jury at the time of trial.

At the subsequent trial on the merits, it was shown that the instant prosecution developed when Department of Public Safety officers Waight and King observed a car with Tennessee license plates pass another car on Interstate Highway 40. Officer Waight testified his radar showed the Tennessee vehicle was traveling 69 m.p.h., four miles over the speed limit. Officer King did not check the radar and could only testify officer Waight said the car was speeding. Odie Blakemore, the driver of the car, testified he was not speeding "by the car hand." The patrolmen stopped the car and both troopers exited their vehicle, officer Waight approaching the driver while officer King observed. The car had four occupants. Appellant was seated in the front seat with Odie Blakemore, the driver; two women were in the back seat.

Officer Waight secured Blakemore's license and a registration for the vehicle and then asked Blakemore to accompany him to the patrol car, where he began issuing a warning citation for speeding. Blakemore complied, sitting on the passenger side of the patrol car while officer Waight sat on the driver's side, and "began to visit" with him concerning his point of origin, his destination and whether he was transporting any contraband. At this time, officer Waight told Blakemore he intended to issue a warning citation for speeding. Up to this point, there was nothing to excite officer Waight's suspicion except the fact that Blakemore "became highly nervous" whenever the word "contraband" was mentioned. Trooper Waight maintained in his testimony that it was his standard practice to question motorists detained on a routine traffic stop concerning the possible transport of contraband.

It was also standard procedure for DPS troopers to carry written consent-to-search forms and to secure a signature on such a form before conducting a search based on consent. When officer Waight asked Blakemore if he had any objection to a search, Blakemore replied "No, if Robert [appellant] don't [sic] mind." When requested to sign a consent form, Blakemore refused, saying consent needed to be obtained from appellant.

Officer Waight then sent Blakemore back to the car to ask appellant back to "visit" with him. This "visit" took much the same course as that with Blakemore. Appellant was nervous at the mention of contraband and refused to sign the consent form. Officer Waight testified Appellant said "to go ahead and search the car, he did not have any problem," and also stated that "Odie [Blakemore] was the one that [sic] had control of the vehicle."

Officer Waight interpreted the two men's remarks as oral consent to search, informed officer King of their "consent," and had all four of the car's occupants step into the grassy median between the service road and the highway to await the search. The search disclosed two brick-like packages which, upon analysis, proved to be 35% cocaine. The "bricks" were in a drawstring bag contained inside another, woven bag. The occupants of the vehicle were arrested, given the warnings prescribed by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and jailed.

By his first three points of error, appellant contests the admissibility of the contraband evidence at trial. He contends that the search which produced the evidence was unlawful because (1) the underlying stop was motivated by use of a drug courier profile, was pretextual and, therefore, illegal; (2) any consent to search was obtained before Miranda warnings were given; and (3) the officers lacked voluntary consent or probable cause to support the warrantless search.

A pretextual stop occurs when officers are aware of a specific crime and conduct surveillance of an individual seeking to detain, question, or search the suspect in relation to the suspected crime. Typically, surveillance is maintained until a minor traffic infraction is observed and the suspect is then detained on that pretext. In its more egregious form, a pretextual stop may be effected for traffic violations by officers who do not normally enforce the traffic laws and who have delayed the stop until long after observing the traffic infractions. A finding of pretext results in the suppression of evidence discovered. See, e.g., Black v. State, 739 S.W.2d 240, 244-45 (Tex.Cr.App.1987).

Appellant contends that in the present case, the officers were not aware of a specific crime, but had a general suspicion of criminal conduct based on the use of a drug courier profile. The traffic detention, he argues, was merely a pretext to conduct an investigation into the transport of drugs motivated by the drug courier profile.

The record shows that when patrolmen work in pairs, one assumes the role of "lead trooper," and the other takes the role of "referred trooper." The lead trooper drives the patrol car and is in charge, making the decisions and the judgment calls. On the date of the appellant's arrest, officer Waight was functioning as lead trooper; officer King served as referred trooper.

Officer Waight's testimony is that the reason for the initial detention was a traffic violation. Officer King does not contradict this. When asked if he ever said he made use of a drug courier profile, officer Waight denied it. He did, however, admit to using "identifiers" upon which to base his suspicions after a car has been stopped. Since these "identifiers" did not form any part of the basis for the initial stop, they are not relevant to a determination of its validity.

Against officer Waight's testimony that the cause of the stop was a traffic violation, stands Odie Blakemore's testimony that he was not speeding. The jury, as the exclusive judge of the facts, the credibility of the witnesses and the weight to be afforded their testimony, Vanderbilt v. State, 629 S.W.2d 709, 716 (Tex.Cr.App.1981), cert. denied, 456 U.S. 910, 102 S.Ct. 1760, 72 L.Ed.2d 169 (1982), exercised its proper function when it resolved the conflicting evidence to find the existence of a traffic violation. There is no evidence in the record that anything other than that violation motivated the contested stop. It is settled law that an officer has the authority to detain a vehicle after observing a traffic violation. Armitage v. State, 637 S.W.2d 936, 939 (Tex.Cr.App.1982). This record does not support the existence of a pretextual stop.

What the record does reveal is officer Waight's testimony that it was his standard practice to question motorists detained on a routine traffic stop concerning the possible transport of contraband. An investigative stop must last only as long as necessary to effect the purpose of the stop, Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 1325, 75 L.Ed.2d 229, 238 (1983), unless the officer has probable cause to arrest the person or obtains the person's consent. "When the detention permitted by the statute becomes a mere subterfuge or excuse for some other purpose which would not be lawful the actions then become unreasonable and fail to meet the constitutional requirement." Faulkner v. State, 549 S.W.2d 1, 3 (Tex.Cr.App.1976) (citing Murphy v. State, 194 Tenn. 698, 254 S.W.2d 979, 980 (1953)). Warrant checks, car registration checks, and verification of identification have all been upheld as legitimate components of otherwise valid investigatory stops. Petty v. State, 696 S.W.2d 635, 638 (Tex.App.--Dallas 1985, no pet'n), and cases cited therein. There is nothing in the record to show that appellant was held after all the legitimate components of a traffic stop had been completed. There is an indication that the stop itself began at 11:00 a.m. and the search began at 11:20 a.m.; however, there has been no showing that this period of 20 minutes was unreasonably long for the traffic stop. The first point of error is overruled.

By his second point, appellant attacks the legality of the search on the basis that consent was requested and obtained prior to the issuance of Miranda warnings. He contends that he and Blakemore were in custody for Miranda purposes when consent to search was requested...