COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-12-00171-CR
BRIAN MICHAEL LAMB APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY
MEMORANDUM OPINION1
I. Introduction
In three points, Appellant Brian Michael Lamb appeals his conviction of
possession of less than one gram methamphetamine. We affirm.
II. Factual and Procedural Background
On May 18, 2011, around 11:30 p.m., Arlington Police Officer Justin
Mason was at a gas station conducting a routine patrol, which included running 1 See Tex. R. App. P. 47.4. license plate checks for warrants, when he saw Lamb. Officer Mason said that
Lamb caught his eye because Lamb did a ―double take‖ when he saw Officer
Mason. Officer Mason ran Lamb’s license plate and discovered that Lamb had a
suspended driver’s license and an outstanding warrant for an expired vehicle
registration.
Officer Mason testified that after he caught up with Lamb, pulled him over,
and confirmed Lamb’s identity as the individual listed on the arrest warrant, he
received confirmation that the warrant was valid. He also noted that when Lamb
stopped his truck, Lamb made ―furtive movements,‖ meaning Officer Mason
could see Lamb’s hands moving, but he could not see what Lamb was doing.
Officer Mason said that furtive movements generally indicate that the person is
reaching for a weapon. After confirming Lamb’s identity, Officer Mason went
back to his patrol car and waited for another officer to arrive before making the
arrest.
Once Lamb was placed under arrest and handcuffed, but before Officer
Mason searched him, Officer Mason asked Lamb if he had any needles on his
person that would poke or stick him. Lamb replied, ―I don’t think I have any
points on me, but I dropped a syringe in the car when you pulled me over.‖
Officer Mason searched Lamb, placed Lamb into the rear seat of his patrol car,
and then returned to Lamb’s truck to complete an inventory search before the
tow truck arrived.
Officer Mason testified that the driver’s side door of Lamb’s truck was
2 already open and, after shining his flashlight inside, he saw the syringe that
Lamb had mentioned on the floorboard next to the gas pedal. Officer Mason
picked up the syringe and booked it into evidence on his return to the police
station. The syringe contained .14 grams of liquid methamphetamine. A grand
jury indicted Lamb with possession of a controlled substance. See Tex. Health &
Safety Code Ann. §§ 481.102(b), 481.115(a) (West 2010).
Before trial, Lamb filed four motions to suppress, seeking to exclude
evidence—primarily, the syringe—because it was obtained as a result of a
detention and subsequent arrest that allegedly violated the Fourth Amendment.
The trial court denied Lamb’s motions without entering findings of fact or
conclusions of law, and Lamb did not request findings or conclusions.
At trial, the syringe was admitted into evidence. The jury found Lamb
guilty, the trial court assessed punishment at ten years’ confinement. This
appeal followed.
III. Suppression
In his first point, Lamb complains that the trial court erred by overruling his
motions to suppress because Officer Mason did not rely on the expired
registration warrant in good faith. He argues that there was no showing that his
truck’s registration was expired when it was stopped or that Officer Mason saw
any traffic violation to otherwise support the stop. Lamb also complains that the
search of his truck was unreasonable under Arizona v. Gant, 556 U.S. 332, 344
129 S. Ct. 1710, 1719 (2009).
3 A. Standard of Review
We review a trial court’s ruling on a motion to suppress evidence under a
bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex.
Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).
We give almost total deference to a trial court’s rulings on questions of historical
fact and application-of-law-to-fact questions that turn on an evaluation of
credibility and demeanor, but we review de novo application-of-law-to-fact
questions that do not turn on credibility and demeanor. Amador, 221 S.W.3d at
673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson v.
State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002).
Stated another way, when reviewing the trial court’s ruling on a motion to
suppress, we must view the evidence in the light most favorable to the trial
court’s ruling. Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007); State
v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). When, as here, the record
is silent on the reasons for the trial court’s ruling, we imply the necessary fact
findings that would support the trial court’s ruling if the evidence, viewed in the
light most favorable to the trial court’s ruling, supports those findings. State v.
Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008); see Wiede, 214
S.W.3d at 25. We then review the trial court’s legal ruling de novo unless the
implied fact findings supported by the record are also dispositive of the legal
ruling. Kelly, 204 S.W.3d at 819. We must uphold the trial court’s ruling if it is
supported by the record and correct under any theory of law applicable to the
4 case even if the trial court gave the wrong reason for its ruling. State v. Stevens,
235 S.W.3d 736, 740 (Tex. Crim. App. 2007); Armendariz v. State, 123 S.W.3d
401, 404 (Tex. Crim. App. 2003), cert. denied, 541 U.S. 974 (2004).
B. Unlawful-Search-and-Seizure Challenge
The Fourth Amendment protects against unreasonable searches and
seizures by government officials. U.S. Const. amend. IV; Wiede, 214 S.W.3d at
24. As such, state law mandates that ―[n]o evidence obtained by an officer or
other person in violation of any provisions of . . . the Constitution or laws of the
United States of America, shall be admitted in evidence against the accused on
the trial of any criminal case.‖ Tex. Code Crim. Proc. Ann. art. 38.23(a) (West
2005); see Bell v. State, 169 S.W.3d 384, 391 (Tex. App.—Fort Worth 2005, pet.
ref’d). Stopping an automobile and detaining its occupants is a ―seizure‖ within
the meaning of the Fourth Amendment. Whren v. U.S., 517 U.S. 806, 809–10,
116 S. Ct. 1769, 1772 (1996). To suppress evidence because of an alleged
Fourth-Amendment violation, the defendant bears the initial burden of producing
evidence that rebuts the presumption of proper police conduct. Young v. State,
283 S.W.3d 854, 872 (Tex. Crim. App.), cert. denied, 130 S. Ct. 1015 (2009);
Amador, 221 S.W.3d at 672. A defendant satisfies this burden by establishing
that a search or seizure occurred without a warrant. Amador, 221 S.W.3d at 672.
C. Analysis
1. Reasonable Suspicion
Lamb first argues that he was illegally detained because Officer Mason
5 lacked reasonable suspicion to make the traffic stop, thus tainting any evidence
obtained as a result. A detention, as opposed to an arrest, may be justified on
less than probable cause if a person is reasonably suspected of criminal activity
based on specific, articulable facts. Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct.
1868, 1880 (1968); Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App.
2000). An officer conducts a lawful temporary detention when he or she has
reasonable suspicion to believe that an individual is violating the law. Crain v.
State, 315 S.W.3d 43, 52 (Tex. Crim. App. 2010); Ford v. State, 158 S.W.3d 488,
492 (Tex. Crim. App. 2005). Reasonable suspicion exists when, based on the
totality of the circumstances, the officer has specific, articulable facts that, when
combined with rational inferences from those facts, would lead him to reasonably
conclude that a particular person is, has been, or soon will be engaged in
criminal activity. Ford, 158 S.W.3d at 492. This is an objective standard that
disregards any subjective intent of the officer making the stop and looks solely to
whether an objective basis for the stop exists. Id.; see also State v. Priddy, 321
S.W.3d 82, 88 n.9 (Tex. App.—Fort Worth 2010, pet. ref’d) (stating that once
officer received confirmation that defendant’s driver’s license was suspended, he
had probable cause to arrest her for that offense); Givens v. State, 949 S.W.2d
449, 451–52 (Tex. App.—Fort Worth 1997, pet. ref’d) (concluding that officer
acted with requisite probable cause when he arrested appellant for driving
without a license based on computer check indicating appellant’s license was
suspended). ―An investigatory detention or an arrest is not invalid merely
6 because an officer relies upon reasonably trustworthy information that later
proves to be erroneous.‖ Mount v. State, 217 S.W.3d 716, 728 (Tex. App.—
Houston [14th Dist.] 2007, no pet.) (op. on reh’g); Brown v. State, 986 S.W.2d 50,
54 (Tex. App.—Dallas 1999, no pet.).
Officer Mason testified that he ran Lamb’s license plate after Lamb did a
―double take‖ when he spotted Officer Mason at the gas station. The truck was
registered at a Fort Worth address to an individual named Brian Lamb. Officer
Mason searched the police database and discovered three individuals listed
under that name. Officer Mason testified that only one individual matched
Lamb’s physical characteristics and also lived at the same address registered to
the truck. Officer Mason then ran a warrant check based on this information.
Officer Mason testified that he made the initial traffic stop based on two reports
he received from the warrant check: one report stated that Lamb had an
outstanding warrant for his arrest and the other stated that Lamb’s driver’s
license was suspended.
Under transportation code section 521.457(a)(2), a person commits an
offense if he operates a motor vehicle when his license is suspended. Tex.
Transp. Code Ann. § 521.457(a)(2) (West 2013). In addition to the information
about the expired registration warrant, Officer Mason also received information
that Lamb had a suspended license; thus, the trial court could have found that
Officer Mason acted reasonably by relying on the information he had received.
See Brother v. State, 166 S.W.3d 255, 257 (Tex. Crim. App. 2005) (holding that
7 factual basis for stopping a vehicle need not arise from the officer’s personal
observation but may be supplied by information acquired from other sources);
Brown, 986 S.W.2d at 52 (holding that computer database reports indicating
vehicle was stolen provided officers with probable cause to make warrantless
arrest of driver); Givens, 949 S.W.2d at 451–52 (holding that officer had probable
cause to stop and arrest defendant based on computer information indicating that
his license was suspended). Because Officer Mason had information that
indicated that Lamb was committing the offense of driving while his license was
suspended, Officer Mason had specific, articulable facts that, coupled with his
own personal observations, gave him reasonable suspicion to stop Lamb to
investigate. See Tex. Transp. Code Ann. § 521.457(a)(2); Ford, 158 S.W.3d at
492. Therefore, Lamb’s temporary detention was legally permissible, and we
overrule this portion of Lamb’s first point.
2. Arrest
Although Lamb additionally complains that his arrest was illegal under the
expired registration warrant, we need not address this argument because the
record provides an objective basis for the stop and arrest based on Officer
Mason’s observing Lamb drive with a suspended license in violation of
transportation code section 521.457.2 See Tex. Transp. Code Ann.
2 Lamb argues that there was no showing that his license was suspended at the time of the stop and that no attempt was made to confirm whether it was suspended following the stop. However, in Givens, addressing the same challenge Lamb now makes, we held that the State is not required to offer
8 § 521.457(a)(2); see also Tex. Code Crim. Proc. Ann. art. 14.01(b) (West 2005)
(―A peace officer may arrest an offender without a warrant for any offense
committed in his presence or within his view.‖); Givens, 949 S.W.2d at 452
(stating that when detained motorist is found driving with suspended license,
probable cause exists to arrest the driver for that offense). Because the record
provides sufficient support for the legality of Lamb’s arrest independent of the
expired registration warrant, we overrule this portion of Lamb’s first point without
reaching his argument on the no-registration warrant. See Stevens, 235 S.W.3d
at 740; Armendariz, 123 S.W.3d at 404; see also Tex. R. App. P. 47.1.
3. Search
The ―plain-view‖ doctrine requires that (1) law enforcement officials must
lawfully be where the object can be viewed plainly, (2) the incriminating character
of the object in plain view must immediately be apparent to the officials, and
(3) the officials must have the right to access the object. Keehn v. State, 279
S.W.3d 330, 334 (Tex. Crim. App. 2009); Walter v. State, 28 S.W.3d 538, 541
(Tex. Crim. App. 2000); see also Swarb v. State, 125 S.W.3d 672, 680 (Tex.
extrinsic proof that a motorist’s driver’s license was, in fact, suspended when the arresting officer testifies that the arrest was made after a computer check indicated the motorist’s driver’s license was suspended. 949 S.W.2d at 451. Officer Mason testified that his police computer system indicated that Lamb’s driver’s license was currently suspended and had expired in 2007. On cross- examination, Lamb neither challenged this testimony nor asked Officer Mason whether he confirmed the suspended license after making the stop. No affirmative evidence was introduced that put this fact into question or challenged the authenticity of this information. Therefore, Lamb’s argument is without merit.
9 App.—Houston [1st Dist.] 2003, pet. dism’d).
If an article is in plain view, neither its observation nor its seizure involves
any invasion of privacy. Swarb, 125 S.W.3d at 680. In Swarb, the court found a
vehicle search legal when officers, on their way to execute an arrest warrant,
approached the appellant’s vehicle in a parking lot and shone a flashlight into it,
revealing methamphetamine in plain view on the vehicle’s floorboard. Id. (stating
that looking inside vehicle, even with the use of flashlight, does not implicate
Fourth Amendment protections or prevent application of plain-view doctrine); see
also Hill v. State, 303 S.W.3d 863, 873–76 (Tex. App.—Fort Worth 2009, pet.
ref’d) (stating that Fourth Amendment privacy expectations were not implicated
when officers plainly could see, based on their experience and training, what they
immediately identified as crack cocaine between the vehicle’s seat and console).
Here, Officer Mason testified that Lamb told him about the syringe in the
truck before he searched Lamb incident to the arrest and before he went to
Lamb’s truck to conduct an inventory search.3 He walked over to the truck, which
had its door already open, shone his flashlight into the truck, and saw the syringe
on the floorboard. Officer Mason testified that he believed the liquid in the
syringe to be methamphetamine because he had seen liquid methamphetamine
like it before. He also testified that before joining the Arlington Police
Department, he had been a K9 police officer in the Navy for four-and-a-half
3 Lamb does not argue that his response to Officer Mason’s question should have been suppressed.
10 years, using his dog to search for drugs. At the time that he stopped Lamb, he
was working with Arlington’s ―Hot Spot Enforcement and Assistance Team‖
(HEAT), a specialized unit addressing areas of the city having problems with
drugs, among other things. Because the trial court could have concluded based
on Officer Mason’s testimony that he seized the syringe, which was in plain view,
the search was supported by probable cause. See, e.g., Perez v. State, 514
S.W.2d 748, 749 (Tex. Crim. App. 1974) (holding police had probable cause for
warrantless search of defendant when he was found unconscious near drug
paraphernalia); Stephens v. State, No. 09-10-00488-CR, 2011 WL 2732253, at
*3 (Tex. App.—Beaumont July 13, 2011, no pet.) (mem. op., not designated for
publication) (probable cause for search of vehicle was established by officer’s
plain-view observation of crack pipe). We overrule the remainder of Lamb’s first
point.
IV. Jury Charge
In his second and third points, Lamb contends that the trial court erred by
overruling his requested jury-charge instructions and by overruling his objections
to the jury charge as submitted. Lamb complains that the trial court improperly
rejected his requested jury-charge instructions on (1) reasonable suspicion; (2)
probable cause; and (3) the application of code of criminal procedure article
38.23’s exclusionary rule because there was a factual dispute over the validity of
the basis for the stop, arrest, search, and seizure. Concomitantly, Lamb argues
that the trial court erred by overruling his objections to the jury charge that failed
11 to include these requested instructions.
A. Standard of Review
―[A]ll alleged jury-charge error must be considered on appellate review
regardless of preservation in the trial court.‖ Kirsch v. State, 357 S.W.3d 645,
649 (Tex. Crim. App. 2012). In our review of a jury charge, we first determine
whether error occurred; if error did not occur, our analysis ends. Id.
B. Article-38.23 Instructions
Code of criminal procedure article 38.23(a) prohibits the admission of
evidence against an accused in a criminal trial if the evidence was obtained in
violation of state or federal constitutions or laws. Tex. Code Crim. Proc. Ann. art.
38.23(a). The statute further provides:
In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.
Id. A defendant's right to the submission of jury instructions under article
38.23(a) is limited to disputed issues of fact that are material to his claim of a
constitutional or statutory violation that would render evidence inadmissible.
Madden v. State, 242 S.W.3d 504, 509–10 (Tex. Crim. App. 2007). To be
entitled to an article-38.23(a) instruction, the defendant must show that (1) an
issue of historical fact was raised before the jury, (2) the fact was contested by
affirmative evidence at trial, and (3) the fact is material to the constitutional or
statutory violation that the defendant has identified as rendering the particular
12 evidence inadmissible. Robinson v. State, 377 S.W.3d 712, 719 (Tex. Crim.
App. 2012).
The record reflects that there was no disputed issue of fact relevant to the
stop but rather only a dispute as to whether Officer Mason had reasonable
suspicion to detain Lamb. Additionally, the only dispute raised by Lamb
regarding the search concerned the legal question of probable cause.
In reference to the alleged dispute surrounding the initial stop, Lamb’s
counsel stated:
The factual dispute would be he didn’t know for a fact that that was Brian Lamb with the warrant. He’s just looking at the person driving this vehicle. The person driving this vehicle is registered to a Brian Lamb. He didn’t know for a fact that that person was Brian Lamb. And officer [Mason] testified that, that he didn’t know for a fact that was Brian Lamb, that he was making a guess. So he was assuming that was Brian Lamb.
The relevant uncontested facts leading up to the stop are as follows: Officer
Mason’s license-plate search revealed that the truck was registered to a Fort
Worth resident named Brian Lamb; Officer Mason’s police database query for
―Brian Lamb‖ listed three individuals by that name; only one of the listed
individuals had an address that matched the registered address of the truck and
matched Officer Mason’s observations of Lamb’s physical characteristics;4
4 Officer Mason testified that:
[T]wo of them I ruled out because they were in their late 50’s and early 70’s, so they didn’t fit the description of the individual I was
13 Officer Mason ran a warrant check on the matching individual; the returned
warrant check revealed that Brian Lamb had a suspended license, an expired
vehicle registration, and a warrant out for his arrest; and Lamb gave Officer
Mason a state identification card that contained the same information—and
social security number—as was listed for ―Brian Lamb‖ in the Arlington Police
Department’s computer database system. Officer Mason presented the only
evidence at trial regarding the facts surrounding the traffic stop, and no
affirmative evidence puts these facts into question. See Madden, 242 S.W.3d at
513. Lamb challenges the trial court’s application of the law to the facts—not the
facts themselves. See Holmes v. State, 248 S.W.3d 194, 199 (Tex. Crim. App.
2008) (―There is, of course, nothing to instruct the jury about if the suppression
question is one of law only, and there is nothing to instruct the jury about unless
there is affirmative evidence that raises a contested fact issue.‖). Therefore,
Lamb was not entitled to a reasonable-suspicion instruction under article 38.23.
The same can be said with regard to Lamb’s requested probable-cause
and exclusionary instructions under article 38.23. The jury heard Officer Mason’s
uncontroverted testimony that Lamb stated he had dropped a needle on the
floorboard of his truck; that the driver’s side door to the truck was already open;
and that Officer Mason shone his flashlight on the floorboard, spotted the syringe
looking at. The individual I was looking at was about 5-11, 185 pounds, and I found a Brian Lamb 5-11, 185 pounds, roughly, that I was looking at. And it also had an address out of Fort Worth that matched the same address on the vehicle.
14 beside the gas pedal, and retrieved the syringe as evidence. This testimony
supports the trial court’s conclusion that Officer Mason conducted a legal search
of Lamb’s truck, and no affirmative evidence was raised that would put Officer
Mason’s testimony at issue. See Madden, 242 S.W.3d at 513. Therefore, Lamb
was not entitled to an exclusionary instruction or to a probable-cause instruction
under article 38.23.
Having determined that the trial court did not err by denying Lamb’s
requested additions to the jury charge, we overrule Lamb’s second point.
Because we hold that the trial court committed no error by charging the jury
without Lamb’s requested jury-charge instructions, it is unnecessary for us to
reach Lamb’s third point. See Tex. R. App. P. 47.1.
V. Conclusion
Having overruled Lamb’s two dispositive points, we affirm the trial court’s
judgment.
BOB MCCOY JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and MCCOY, JJ.
DO NOT PUBLISH Tex. R. App. P. 47.2(b)
DELIVERED: October 10, 2013