Thomas v. State, No. 12-06-00080-CR (Tex. App. 8/31/2007)
| Decision Date | 31 August 2007 |
| Docket Number | No. 12-06-00080-CR.,12-06-00080-CR. |
| Parties | VICTOR THOMAS, Appellant v. THE STATE OF TEXAS, Appellee. |
| Court | Court of Appeals of Texas |
Appeal from the 114th Judicial District Court of Smith County, Texas.
Panel consisted of WORTHEN, C.J., GRIFFITH, J., and HOYLE, J.
Victor Thomas appeals his conviction for possession of a controlled substance. In seven issues, he contends that the evidence is legally and factually insufficient to support his conviction and that the trial court made errors in admitting evidence. We affirm.
Appellant and Melton McMorris were traveling through Smith County, Texas on Interstate 20 in an eighteen wheel tractor trailer. McMorris was driving. Appellant owned the tractor, and McMorris owned the trailer. McMorris had filed papers with the State of Mississippi the day before, registering the tractor and the trailer in his name and listing Appellant as the owner of the tractor. A Smith County sheriff's deputy pulled the men over after he observed the driver of the truck commit traffic violations. After stopping the truck, he smelled marihuana from somewhere in the vicinity of the trailer, and a dog trained to detect illegal drugs was brought to the scene. The dog alerted to the presence of illegal drugs in the trailer, and the officer opened the trailer. The police found the trailer virtually empty, but with what looked like brand new decking on the walls of the trailer. Upon further inspection, the police found a secret compartment built inside the front wall of the trailer. Inside a container behind the false wall they found at least 1,800 pounds of marihuana and approximately twenty kilograms of cocaine. One of the officers asked Appellant how much the narcotics weighed. He said, "I can't even begin to tell you."
A Smith County grand jury indicted Appellant and McMorris for the felony offense of possession of cocaine in an amount of more than 400 grams. A trial was held, and Appellant pleaded not guilty. The jury found Appellant guilty. After a separate punishment hearing, the jury assessed punishment at fifty—five years of imprisonment. This appeal followed.
In his first issue,1 Appellant argues the initial traffic stop was illegal and that the trial court should have granted his motion to suppress the evidence for that reason.
We review a trial court's ruling on a motion to suppress in the light most favorable to the ruling. See State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). A trial court judge is uniquely situated to observe the demeanor and appearance of a witness and to make factual determinations. See State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000); Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996). Therefore, the trial court is the sole trier of fact, and we afford almost total deference to the trial court's factual conclusions when reviewing a ruling on a motion to suppress. See Wiede v. State, 214 S.W.3d 17, 24-25 (Tex. Crim. App. 2007). We afford the same deference to the trial court's rulings on "application of law to fact questions," also known as "mixed questions of law and fact," if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor. See Montanez v. State, 195 S.W.3d 101, 106 (Tex. Crim. App. 2006). We review de novo wholly legal conclusions as well as mixed questions of law and fact that do not turn on an evaluation of credibility and demeanor. Id. The trial court's ruling will be upheld if it is reasonably supported by the record and is correct on any theory of law applicable to the case. Ross, 32 S.W.3d at 855-56; Villarreal, 935 S.W.2d at 138.
The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures. U.S. CONST. amend. IV. The Texas Constitution contains a similar prohibition. See TEX. CONST. art. I, § 9. A warrantless search is unreasonable unless it falls within certain specific exceptions. See Flippo v. West Virginia, 528 U.S. 11, 13, 120 S. Ct. 7, 8, 145 L. Ed. 2d 16 (1999); McGee v. State, 105 S.W.3d 609, 615 (Tex. Crim. App. 2003). One such exception is that a law enforcement officer may stop a vehicle if the officer observes the driver of the vehicle commit a traffic violation. Walter v. State, 28 S.W.3d 538, 542 (Tex. Crim. App. 2000) (citing Whren v. United States, 517 U.S. 806, 810, 116 S. Ct. 1769, 1772, 135 L. Ed. 2d 89 (1996)).
In this case, the officer testified that he observed the driver of the tractor trailer commit three traffic offenses. Specifically, the officer testified, and the trial court found, that the driver drove on the shoulder, TEX. TRANSP. CODE ANN. § 545.058 (Vernon 2006), did not maintain a safe speed, TEX. TRANSP. CODE ANN. § 545.363 (Vernon 2006), and did not have proper mudflaps on the vehicle. TEX. TRANSP. CODE ANN. § 547.606 (Vernon 2006).
McMorris testified at a hearing on the motion to suppress. His testimony did not contradict the officer's testimony in a dramatic fashion, although he did state that the photograph of the mudflap was different than he remembered it. He also testified that the flap, as it was depicted in a photograph, was a violation of the statute. Texas Transportation Code, Section 547.606 provides, inter alia, that mudflaps are to be of a type prescribed by the Texas Department of Transportation. The department has promulgated rules requiring that "safety guards or flaps" be "rigid enough to prevent slush, mud, or gravel being transmitted from the vehicle's rear wheels to the windshield of the following vehicle" and "not split or torn to the extent that [they are] ineffective." 37 TEX. ADMIN. CODE § 21.1(g)(7), (8) (West 2007). The officer testified that the torn mudflap was a concern because rocks and debris could go through a tear and strike a vehicle. He also expressed concern that the flap itself, or some part of it, could come loose and strike a vehicle. The first concern is sufficient to support the ruling of the trial court. Appellant argues that the officer's testimony was ambiguous as to whether he was testifying about the flap on the very back of the trailer or the back of the tractor and that he discovered the defect only after stopping the vehicle. These are factual determinations, and we defer to the trial court's resolution of these issues.
With respect to the failure to maintain a safe speed, the relevant statute provides that an "operator may not drive so slowly as to impede the normal and reasonable movement of traffic, except when reduced speed is necessary for safe operation or in compliance with law." Tex. Transp. Code Ann. § 545.363(a). The officer testified that he observed the truck slow rapidly from sixty—five miles an hour to fifty miles an hour, that there were eight or nine cars behind the vehicle, and that those vehicles had to slow and apply their brakes. The State argues that the trial court should be sustained on this issue because it was the officer's "undisputed opinion" that this action was a violation of Section 545.363. This argument is unpersuasive. The court of criminal appeals has held that an officer's conclusion that the law had been violated is not sufficient for the State to carry its burden to show an exception to the general requirement for warrant. See Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005). Rather, there must be specific, articulable facts from which a court can assess whether the officer reasonably concluded that a person actually was, had been, or soon would have been engaged in criminal activity. Id.
We defer to the trial court's factual findings, and so we will accept the officer's testimony that there was "traffic that was behind him that was flowing at the same speed as him, and then he slowed down, coming up on me, and the cars [were] having to hit their brakes," that the reduction in speed was "pretty rapid," and that there were eight or nine cars behind the vehicle. Pursuant to Ford, we do not credit his conclusory statements about the statute being violated because they provide no specific or articulable facts from which to find that the State had proven a violation of the law.2 The question then is whether slowing from sixty—five miles an hour to fifty and causing eight or nine cars to brake is impeding the normal and reasonable movement of traffic.
In Moreno v. State, 124 S.W.3d 339, 346-47 (Tex. App.-Corpus Christi 2003, no pet.), the court of appeals held that a reduction of speed to twenty—five miles per hour in a forty—five miles per hour zone which caused the medium to heavy traffic in the area to back up while the cars behind the driver waited for the other lane of traffic to clear was a violation of the statute. In Richardson v. State, 39 S.W.3d 634, 638-39 (Tex. App.-Amarillo 2000, no pet.), the court held that the statute was not violated because there was no proof of any traffic that was impeded by a slow driver. See also Davy v. State, 67 S.W.3d 382, 392-93 (Tex. App.-Waco 2001, no pet.). And in United States v. Coronado, 480 F. Supp. 2d 923, 928 (W.D. Tex. 2007), a federal trial court applying Texas law held that the government failed to show reasonable suspicion that a driver had impeded traffic because there was no evidence of how long the officer observed any backup of cars behind the vehicle, and no evidence that the vehicle, which was briefly traveling twelve miles under the posted speed limit, was impeding the normal and reasonable movement of traffic.
Although Coronado is not binding authority, it is persuasive in this case. This is not a case where the vehicle was stopped in the road. See, e.g., State v. Rivenburgh, 933 S.W.2d 698, 702 (Tex. App.-San Antonio 1996, no pet.); State v. Green, 773 S.W.2d 816, 818 (Tex. App.-San Antonio 1989, no pet.). The relevant testimony was that...
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