Wiede v. State, 03-03-00325-CR.

• Citation: 157 S.W.3d 87
• Decision Date: 21 January 2005
• Docket Number: No. 03-03-00325-CR.,03-03-00325-CR.
• Parties: David Edwin WIEDE, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas

157 S.W.3d 87

David Edwin WIEDE, Appellant, v. The STATE of Texas, Appellee.

No. 03-03-00325-CR.

Court of Appeals of Texas, Austin.

January 21, 2005.

John Fahle, Carter and Fahle, San Antonio, for Appellant.

Whitney S. Wiedeman, Asst. Crim. Dist. Atty., Lockhart, for State.

Before Chief Justice LAW, Justices B.A. SMITH and PATTERSON.

OPINION

BEA ANN SMITH, Justice.

In 1997, David Wiede pleaded guilty to a charge of possession of methamphetamine and was sentenced to ten years in prison; imposition of the sentence suspended and he was placed on probation for ten years.¹ In 2002, the State moved to revoke his probation, alleging that he had violated the terms of his probation by again possessing methamphetamine and by failing to pay fines and fees. Wiede pleaded not true to all the allegations in the State's motion and moved to suppress evidence obtained as the result of an unlawful search of his car. In its written order, the court denied Wiede's motion, found all the State's allegations to be true, revoked Wiede's probation, and sentenced him to eight years in prison.

On appeal, Wiede contends that the trial court erred in revoking his probation by two points of error (1) that the district court erred by admitting into evidence the methamphetamine related to the new offense, and (2) that the district court erred by considering his failures to pay fines and fees because the State waived those grounds at trial. The State contends that the evidence was properly admitted, but concedes that it waived at trial the administrative grounds for revocation and that the court consequently erred by revoking Wiede's probation on those grounds. Because we hold that the search of Wiede's car was an unreasonable search under the Fourth Amendment of the United States Constitution, we will reverse the judgment and remand the cause to the trial court for further proceedings.

BACKGROUND

The following is a summary of testimony from the combined hearing on the motion to suppress and the motion to revoke probation. The hearing occurred on two days a week apart.

At approximately 7:00 a.m. on April 17, 2002, motorist Roy Tambunga stopped at the T-intersection of Siebert Drive and F.M. 150 behind an 18-wheel truck loaded with sod. He waited while the truck turned left onto F.M. 150. As Tambunga turned right onto F.M. 150, he saw Wiede's car pass by. Although he was unsure of Wiede's speed, he testified that the car was traveling "at least the speed limit, at least 60 miles an hour." Looking through his side view mirror, Tambunga watched as Wiede collided with the truck that had turned onto the road in front of him. A photograph of the accident scene introduced into evidence shows long skid marks caused by Wiede's car prior to the collision. The truckdriver continued driving as if unaware the accident had occurred. Tambunga stopped to check Wiede's condition. Wiede's head was bleeding and his arm appeared to have a compound fracture. (Wiede later was found also to have a fractured pelvis that required a plate and multiple screws to mend.) Tambunga testified that Wiede was conscious but dazed, in pain, and moaning occasionally. A department of public safety trooper stopped and called in the accident.

Tambunga remained near Wiede's car and saw him moving around and looking back at Tambunga. At one point, Wiede's movements led Tambunga to believe he was going to light a cigarette. Leaning forward to dissuade Wiede from smoking, Tambunga saw Wiede instead cupping an item in his hand and pushing it between the console and the front seat; Tambunga never saw the item. Another peace officer arrived. After Wiede was removed from the car and taken to an ambulance, Tambunga told the unidentified officer, "You may want to check the seat, because he was messing around with something there."² The officer reached into the car and pulled out an empty plastic bag less than two inches square that Tambunga said was too small to be what Wiede had held. The officer reached in again and pulled out a larger plastic bag that appeared to contain about a half inch of an off-white powder.

Tambunga testified that after stopping he was never more than eight feet from Wiede until the emergency medical technicians moved Wiede to the ambulance. Tambunga did not hear the officers ask Wiede where he wanted his car taken. Tambunga testified that he did not see any officer search the car after finding the baggies or write down anything on a form. Tambunga was at the scene until the tow truck hooked up to Wiede's car.

DPS trooper Christopher McGuairt testified that he and other peace officers were driving to a training session in San Marcos when they came upon the accident scene and stopped. (Because McGuairt is based in Fort Stockton, he stopped to secure the scene but did not investigate the accident.) After Tambunga described the vehicle Wiede collided with, McGuairt drove on and stopped the truck driver, who was apparently unaware the collision had occurred; McGuairt and the truck returned to the scene. McGuairt said that Tambunga then told him and the unidentified officer something³ that prompted the other officer to reach into the car near the center console and retrieve a plastic bag containing an off-white powdery substance. McGuairt testified that, based on Tambunga's statement, the officer looked only by the console and did not search the car generally.

McGuairt, who was unfamiliar with the uniforms of local law enforcement agencies, was uncertain whether the person who retrieved the contraband was a deputy sheriff or an officer of another department. Based on the person's uniform, badge, sidearm, and conversation with other peace officers, McGuairt testified that the person was either an officer or impersonating one; McGuairt was reasonably certain that the person was an officer.

On the second day of the hearing, McGuairt testified that the severity of the wreck gave him concern for Wiede's health and well-being. Moreover, Tambunga's statement made him suspect that the item stashed near the console might be a controlled substance, that Wiede might be under the influence of that controlled substance, that medical personnel treating Wiede would need to know what that substance was, and that the nature of the substance could affect civil liability regarding the accident. However, he did not inform the medical personnel about the recovered substance, did not remind the investigating officer to notify the medical personnel to test Wiede for controlled substances, and did not hear the investigating officer do so.

DPS Trooper Brian Freeman investigated the accident. He testified that the collision rendered Wiede's car inoperable. Freeman said that McGuairt gave him a clear plastic bag suspected of containing a powdery controlled substance. Freeman testified that his supervisor conducted an inventory of the car, but the inventory report listed only the baggie seized from the car and did not list items in plain view in the car, such as the many compact discs that a friend of Wiede's later retrieved. Freeman testified that Wiede's vehicle was towed to an impound lot, but not to a DPS facility.

Wiede was hospitalized following surgery and was concerned that the items left in his car might be stolen. Wiede's friend, David Duggan, testified that he went to the lot where Wiede's car was towed and removed valuable items at Wiede's request. Duggan testified that he removed a compact disc player, several CDs, a CD changer, a stereo system, an amplifier, Snap-on tools, Oakley sunglasses, clothes, a silver ring, a gold chain, a nice winter coat, boots, two credit cards, and change. Duggan testified that the items appeared valuable and that Wiede tended to have top-of-the-line possessions.

The district court orally denied the motion to suppress. The court held that the drugs were not found pursuant to an inventory, but as part of an investigation into what Wiede had concealed at the scene of this accident. Alternatively, the court cited the officer's role as a community caretaker as a basis for the search.

The hearing continued on the motion to revoke. Wiede testified, denying ownership or knowledge of the drugs found in his car. His former sister-in-law, Kathleen Vann, testified that she had borrowed the car and, after invoking her right not to testify, rescinded that invocation and testified that the methamphetamine found in the car was hers. The district court then found the allegation of methamphetamine possession true and revoked Wiede's probation.

DISCUSSION

Wiede raises two points of error regarding the admission of evidence. He contends that the district court erred by denying his motion objecting to the admission into evidence of the baggie containing the methamphetamine, contending that the officers lacked any legal basis for their warrantless search of his vehicle. He also asserts that the State failed to establish a chain of custody of the baggie.

In reviewing a ruling on a challenge to the admission of evidence, we give almost total deference to the trial court's determination of historical facts and review the court's application of search and seizure law de novo. Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App.2002). When the trial court does not make explicit findings of historical facts, we review the evidence in a light most favorable to the trial court's ruling and assume that the trial court made implicit findings of fact supported in the record. Id. We must affirm the trial court's ruling if it can be upheld on any valid theory of law applicable to the case — even if the trial court did not base its decision on the applicable theory. State v. Steelman, 93 S.W.3d 102, 107 (Tex.Crim.App.2002); Romero v. State, 800 S.W.2d 539, 543-544 (Tex.Crim.App.1990).

Once the defendant establishes that a police search was not supported by a warrant, the burden shifts to the State to prove the reasonableness of the search and seizure. Russell v....