Thompson v. State

Decision Date31 July 2013
Docket NumberNo. 03–12–00569–CR.,03–12–00569–CR.
Citation408 S.W.3d 614
PartiesBrithe THOMPSON, Appellant v. The STATE of Texas, Appellee.
CourtTexas Court of Appeals

OPINION TEXT STARTS HERE

Cherie A. Ballard, Austin, TX, for Appellant.

Kevin B. Stryker, Assistant County Attorney, Georgetown, TX, for Appellee.

Before Chief Justice JONES, Justices GOODWIN and FIELD.

OPINION

J. WOODFIN JONES, Chief Justice.

A jury convicted Brithe Thompson, appellant, of possession of a prohibited weapon (a switchblade knife), a class A misdemeanor. SeeTex. Penal Code § 46.05(a), (e). The jury assessed punishment at zero days confinement in the Williamson County Jail and a $500 fine. In three issues, appellant contends that (1) the trial court erred by denying her motion to suppress; (2) the evidence is legally insufficient to support the conviction; and (3) the trial court erred by refusing appellant's request for an article 38.23 jury instruction. SeeTex.Code Crim. Proc. art. 38.23. On the basis of her first argument, we will reverse the judgment of conviction and remand the cause to the trial court.

FACTUAL AND PROCEDURAL BACKGROUND

At approximately 10:30 a.m. on December 7, 2010, Texas Department of Public Safety Trooper Jason Ernst was engaged in traffic enforcement on Interstate 35 in Williamson County.1 Ernst stopped appellant for speeding while she was driving southbound on Interstate 35. According to Ernst, his radar detected appellant's car traveling at 84 m.p.h. in a 70 m.p.h. zone. After appellant pulled over on the highway shoulder, Ernst parked his patrol car behind her. Ernst walked to the passenger side window, which appellant lowered. Ernst testified that appellant was sitting in the car wearing only a bra and pants, which he considered unusual behavior. Ernst also testified that appellant's facial expression was “a little alarming” and that appellant did not seem to understand why she was being pulled over. Appellant said she would “put on a shirt real quick.” Ernst identified himself to appellant as a highway patrol officer and told her the speed limit was 70 m.p.h. and that her speed had exceeded that. Ernst asked appellant for her driver's license and asked her how fast she was going. Appellant stated that she did not have her driver's license with her, after which Ernst asked her to put on a shirt or jacket and step out of the car. Ernst testified that he often asks people who do not produce a driver's license to step out of the car.

Appellant and Ernst then stood behind and to the side of appellant's car. Ernst asked appellant where she was coming from, to which she answered, “Killeen.” Ernst asked appellant if that is where she lived, to which she responded that she did not but her friends did. Ernst then told appellant that he needed to get some information from her and asked her if she knew her driver's license number. Appellant stated that she did not but that she could provide her social security number. Then, responding to Ernst's questions, appellant provided her first and last name, her date of birth, and her address. She also gave Ernst her proof of automobile insurance.

At that point, which was approximately two minutes after he first identified himself to appellant, Ernst asked her where she was going. Appellant replied that she was going home to pick up her daughter. Appellant confirmed that she had spent the night in Killeen. Ernst then asked her what she had done the night before, and appellant responded that she had not really done anything. Appellant explained that she had gone to visit a friend who she thought was in jail in Bell County, but that he had been transferred to Dallas, so she was returning to Austin to pick up her child at the child's father's house so that he could go to work. At the hearing on the motion to suppress, Ernst testified that he found appellant's explanation unclear and that it did not make sense to him that someone who was traveling northbound on I–35 to visit a friend would go back the next day. Ernst also testified that he did not understand why appellant had left her child with the father rather than bringing it with her.

Ernst then examined the proof of insurance while appellant stated that her parents were paying for her automobile insurance at the time. Ernst asked appellant if she had a driver's license, and appellant stated that she did have a license but it was not with her. Ernst then asked appellant if anything was going to “pop up” when he ran her driver's license, to which she responded that she had a clean record except for something she did as a “youngster.” Ernst walked to the front of appellant's car and appeared to look at the registration sticker on the front windshield.

Ernst then returned to where appellant was standing and asked her what kind of work she did. Appellant responded that she was a tattoo artist and provided the name of her place of employment. Responding to Ernst's question, appellant stated that business was really slow. Ernst then informed appellant that she was traveling at 84 m.p.h. Appellant disputed that she was going that fast and informed Ernst that she had gotten a speeding ticket the previous day. Ernst told appellant to stay where she was and that he was going to check her driver's license. At that point, appellant's cell phone rang, and Ernst told her not to answer it. Appellant explained that she was turning the ringer off. Ernst then walked back to his patrol car.

At the suppression hearing, Ernst testified that he found appellant to be nervous and that she would not look him in the eye when he was asking direct questions. Ernst also testified that appellant asked numerous questions about why she was being stopped and that he noticed she was twitching her feet while he asked questions. Ernst stated that these behaviors were outside of the usual routine traffic stop. Ernst testified that while he expects some type of nervousness in a person who has been stopped by law enforcement, he would not expect it to the degree he observed in appellant. Ernst also testified that he did not believe appellant turned around to watch him while he went back to check the registration on her vehicle and that was “an indicator ... that something didn't seem right about that.” Ernst testified that he had observed these types of behaviors in other traffic stops where narcotics and weapons were found. When asked whether appellant seemed “extremely nervous,” Ernst responded that “nervous is nervous,” but that he did not observe any pounding pulse or any sweat and that appellant was not evasive in answering his questions. Ernst testified that appellant was forthcoming but that he was confused by her explanation of her coming and going to Killeen.

While Ernst was in his patrol car, and approximately five minutes after Ernst first identified himself to appellant, a computerized voice can be heard to state that appellant's status is “clear.” Approximately two and a half minutes later Ernst got out of his patrol car, walked over to appellant and asked her the name of the person she went to visit in jail. Appellant gave him the name and, responding to Ernst's questions, explained that she knew him because he was also a tattoo artist. She related that her friend had turned himself in to law enforcement because he found out there were outstanding warrants for his arrest for failure to pay child support. Ernst then asked appellant where this person was, to which she replied that he was in Dallas now because he had been transferred there. Ernst then asked appellant if she had gone to Dallas to see him. Appellant replied in the negative and explained again that her friend had been in Harker Heights (near Killeen), had turned himself in to authorities in Belton, and had been transferred to Dallas.

Ernst then asked her if the car she was driving belonged to her, which she confirmed. Ernst then asked appellant if there was anything in the car he needs to know about,” such as any illegal guns, knives, or narcotics. Appellant shook her head no. Ernst then asked appellant if she had smoked marijuana, to which she responded no. Ernst then asked appellant if she had ever smoked marijuana, to which she responded that she had when she was younger. Ernst then asked appellant if anyone had smoked marijuana in the car, to which appellant shook her head no, and added that she smoked cigarettes but had run out. At that point, Ernst asked appellant if she would mind if he searched her vehicle. Appellant replied that she did not want him to. Ernst asked her why not, to which she replied that it was her “right.” Ernst told appellant that he had asked her if there was anything in the vehicle and that she had said there was not. Appellant responded that it was her right not to consent to the search and that she felt like she was being berated for nothing. Ernst confirmed that it was appellant's right not to give her consent to the search. Appellant then said that she did not think she was speeding but that she might have been going five to six miles over the speed limit. Ernst then told appellant the reasons he had for asking to search the vehicle, which were: (1) her high rate of speed; (2) she was acting nervous; (3) that, although there was nothing wrong with it, she was driving her car wearing only a bra and pants; and (4) she did not have her driver's license with her. Ernst stated that those were the reasons he was asking her if there was anything in the vehicle he “need[ed] to know about.” Appellant repeated that there was not. Ernst then asked appellant again if she objected to his “taking a look at her vehicle,” to which appellant responded that it was her right to say no. Ernst then asked if appellant was telling him he could not search her vehicle, and appellant again confirmed that she was exercising her right to refuse to give her consent to the search. Ernst said “okay” and returned to the patrol car.

At the hearing on the motion to suppress, Ernst explained that the totality of...

To continue reading

Request your trial
60 cases
  • Riordan v. State
    • United States
    • Texas Court of Appeals
    • August 4, 2017
    ...record, whether direct or circumstantial, properly or improperly admitted, or submitted by the prosecution or the defense. Thompson v. State, 408 S.W.3d 614, 627 (Tex. App.—Austin 2013, no pet.); see Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016); Clayton v. State, 235 S.W.3d ......
  • Roberts v. State
    • United States
    • Texas Court of Appeals
    • October 26, 2016
    ...record, whether direct or circumstantial, properly or improperly admitted, or submitted by the prosecution or the defense. Thompson v. State, 408 S.W.3d 614, 627 (Tex. App.—Austin 2013, no pet.); see Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007); Finley v. State, 449 S.W.3d 1......
  • Torres v. State
    • United States
    • Texas Court of Appeals
    • July 21, 2017
    ...71. See Valtierra, 310 S.W.3d at 447; Perez v. State, 495 S.W.3d 374, 383 (Tex. App.—Houston [14th Dist.] 2016, no pet.); Thompson v. State, 408 S.W.3d 614, 621 (Tex. App.—Austin 2013, no pet.); see also State v. Villarreal, 475 S.W.3d 784, 798 (Tex. Crim. App. 2014) ("[B]ecause the facts a......
  • Frazier v. State
    • United States
    • Texas Court of Appeals
    • January 8, 2021
    ...the record, whether direct or circumstantial, properly or improperly admitted, orsubmitted by the prosecution or the defense. Thompson v. State, 408 S.W.3d 614, 627 (Tex. App.—Austin 2013, no pet.); see Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016); Clayton v. State, 235 S.W.......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT