Willis v. State

• Decision Date: 18 January 2006
• Docket Number: No. 12-04-00089-CR.,12-04-00089-CR.
• Parties: Berdell WILLIS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

192 S.W.3d 585

Berdell WILLIS, Appellant, v. The STATE of Texas, Appellee.

No. 12-04-00089-CR.

Court of Appeals of Texas, Tyler.

January 18, 2006.

Discretionary Review Refused May 10, 2006.

Mark E. Sossi, R.W. Armstrong & Associates, Brownsville, for appellant.

Michael J. West, for appellee.

Panel consisted of WORTHEN, C.J., GRIFFITH, J., and DeVASTO, J.

MEMORANDUM OPINION

DIANE DeVASTO, Justice.

Berdell Willis appeals his conviction for possession of four hundred or more grams of cocaine, for which he was sentenced to imprisonment for forty years. Appellant raises seven issues on appeal. We affirm.

BACKGROUND

On July 16, 2003, Highway Patrol Officer Corporal Wayne Hellen stopped a vehicle on Interstate 20 in Smith County, Texas for following too closely to a tractor trailer rig. The car was a rental vehicle. Appellant was the driver of the vehicle. Appellant was listed as the renter on the rental agreement he showed to Hellen. Frederick Wilkins, who was riding in the front passenger seat, was listed on the rental agreement as an authorized driver. The rental agreement indicated that Appellant had rented the car the day before in Mississippi.

According to Hellen, Appellant appeared very nervous — his hands were trembling and the artery in his neck was visibly throbbing. Although Wilkins appeared to be sleeping, Hellen stated that he thought Wilkins was feigning sleep to avoid having to talk to him.

Appellant told Hellen that he was returning home to Mississippi after having taken Little Raymond, his eight year old nephew, to visit his grandmother in Dallas. Appellant further stated that he and Wilkins had been in Dallas a few days despite the fact that the rental car receipt presented to Hellen indicated that Appellant had rented the car in Mississippi the day before.

At approximately 1:45 p.m., Hellen told Appellant that he was going to issue him a written warning for following too closely. At 1:47 p.m., Hellen conversed with Wilkins concerning the reason for their trip. Wilkins told Hellen that he and Appellant had gone to Dallas to pick up Little Raymond to take him to his mother in Mississippi. However, according to Wilkins, when he and Appellant could not find Little Raymond, they left Dallas and headed for Mississippi. Hellen testified that while talking to Appellant and Wilkins, he noticed a strong air freshener smell emanating from the car.

At 1:51 p.m., Hellen asked Appellant whether he had a gun on his person, then frisked Appellant. Hellen next asked Appellant to sit inside his patrol vehicle while he performed a driver's license check on Appellant. Hellen radioed Appellant's and Wilkins's license information to dispatch at 1:53 p.m. At 1:57 p.m., Hellen received word from dispatch that neither Appellant nor Wilkins had any outstanding warrants. As he wrote out a warning,¹ Hellen asked Appellant for permission to search his car. Appellant denied Hellen permission to search. Hellen responded that he wanted to search the car because he believed Appellant was "hauling drugs." Appellant then accused Hellen of racially profiling him. Hellen again requested permission to search Appellant's car, and Appellant again denied Hellen's request. Shortly after 1:59 p.m., Hellen called for a K-9 unit. However, there was a problem regarding availability of a K-9 unit, which necessitated an additional request by Hellen at 2:00 p.m. While awaiting the K-9 unit's arrival, Hellen completed the written warning to Appellant at 2:24 p.m.

Ultimately, at 2:28 p.m., Smith County Deputy John Smith and his drug dog arrived on the scene. Smith's dog sniffed the vehicle and alerted to it, indicating the presence of narcotics, which prompted Hellen and Smith to conduct a search of the vehicle. During the search, Smith located a brick of cocaine with four plastic bags over it underneath the front passenger seat. The cocaine weighed approximately one kilogram and had a street value of approximately one hundred thousand dollars.

Appellant was charged with possession of four hundred or more grams of cocaine and pleaded "not guilty." The matter proceeded to jury trial. Ultimately, the jury found Appellant guilty as charged and assessed Appellant's punishment at imprisonment for forty years. The trial court sentenced Appellant accordingly. This appeal followed.

MOTION TO SUPPRESS

In his first and second issues, Appellant argues that the cocaine found in the rental car he was driving was the product of an unreasonable seizure in violation of his Fourth Amendment rights. More specifically, Appellant argues that once the purpose for the traffic stop had been accomplished, Hellen had no further cause to detain him.

We review a trial court's ruling on a motion to suppress for abuse of discretion. See Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App.1996)

; Curry v. State, 965 S.W.2d 32, 33 (Tex. App.-Houston [1st Dist.] 1998, no pet.). A trial court does not abuse its discretion when its decision is at least within the zone of reasonable disagreement. See Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim.App.1990) (op. on reh'g).

In reviewing the trial court's ruling, we apply a bifurcated standard of review. See Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App.2000)

; Hernandez v. State, 957 S.W.2d 851, 852 (Tex.Crim.App.1998). We give almost total deference to the trial court's determination of historical facts, while conducting a de novo review of the trial court's application of the law to those facts. See Carmouche, 10 S.W.3d at 327. The trial court is the exclusive finder of fact in a motion to suppress hearing, and as such, it may choose to believe or disbelieve any or all of any witness's testimony. Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990). Furthermore, when, as in the instant case, "the trial court fails to file findings of fact, we view the evidence in the light most favorable to the trial court's ruling and assume that the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record." State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App.2000). If the trial judge's decision is correct on any theory of law applicable to the case, the decision will be sustained. Id. at 856.

Length of Detention

As a general matter, the Supreme Court has recognized that the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred. 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)). Furthermore, during a routine traffic stop, an officer is permitted to detain the individual in order to check for outstanding warrants. See Walter, 28 S.W.3d at 542

. An officer may also request a driver's license, liability insurance information, vehicle ownership information, the driver's destination, and the purpose of the trip. See Veal v. State, 28 S.W.3d 832, 835 (Tex.App.-Beaumont 2000, pet. ref'd). While an officer is awaiting a computer warrant check, questioning about matters unrelated to the initial traffic stop does not violate the Fourth Amendment because such questioning does not extend the duration of an initial valid seizure. Haas v. State, 172 S.W.3d 42, 50 (Tex.App.-Waco 2005, no pet.) (citing United States v. Sharpe, 470 U.S. 675, 687, 105 S.Ct. 1568, 1576, 84 L.Ed.2d 605 (1985)). In some circumstances, however, extensive questioning about unrelated matters may exceed the scope of the initial stop. Haas, 172 S.W.3d at 50 (citing United States v. Kelley, 981 F.2d 1464, 1470 (5th Cir.1993)).

Here, Appellant concedes that the initial stop for following another vehicle too closely was justified. Thus, our inquiry will focus on whether the detention extended beyond a reasonable duration, that is, whether Hellen diligently pursued a means of investigation that was likely to confirm or dispel his suspicions quickly. See Haas, 172 S.W.3d at 51-52

. A routine traffic stop is a detention and, thus, must be reasonable under the United States and Texas Constitutions. See Davis v. State, 947 S.W.2d 240, 244 (Tex.Crim.App.1997). To be reasonable, a traffic stop must be temporary and last no longer than is necessary to effectuate the purpose of the stop. See Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 1325, 75 L.Ed.2d 229 (1983); Davis, 947 S.W.2d at 245. If the detention becomes prolonged, it can no longer be considered an investigative stop; but there is no rigid time limitation on the permissible length of an investigative stop. Herrera v. State, 80 S.W.3d 283, 288 (Tex. App.-Texarkana 2002, pet. ref'd).

On appeal, we review the reasonableness of the detention from the same perspective as the officer: using an objective standard, we ask whether the facts available at the moment of detention would warrant a person of reasonable caution to have the belief that the action taken was appropriate. Haas, 172 S.W.3d at 52. The determination of reasonable suspicion is made by considering the totality of the circumstances. Id.

Hellen's questioning of Appellant and Wilkins, even when such questioning was unrelated to Appellant's traffic violation, was legitimate. See Haas, 172 S.W.3d at 53

; United States v. Dortch, 199 F.3d 193, 198 (5th Cir.1999). Moreover, all articulable facts and rational inferences from those facts that Hellen discovered during the lawful detention — driver appeared nervous, passenger appeared to be feigning sleep to avoid talking to Hellen, rental car traveling known drug corridor, heavy scent of air freshener, passenger and driver giving inconsistent stories regarding purpose of their trip, driver's story concerning trip contradicting rental agreement presented to officer — could form the basis for further reasonable detention and justify further investigation. See Haas, 172 S.W.3d at 53 (citing Razo v. State, 577 S.W.2d 709, 711 (Tex.Crim.App. [Panel Op.] 1979);...