Herbert Lee Smith, III v. State

Opinion

Opinion issued June 14, 2012.

In The

Court of Appeals

For The

First District of Texas

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NO. No. 01-11-00445-CR

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Herbert Lee Smith III, Appellant

V.

The State of Texas, Appellee

On Appeal from the 122nd District Court

Galveston County, Texas

Trial Court Case No. 09CR2799

MEMORANDUM OPINION

Herbert Lee Smith III was charged by indictment with possession of a controlled substance weighing more than four grams but less than two hundred grams.  After the trial court denied Smith’s motion to suppress, Smith pleaded guilty and was sentenced to forty-two months in prison.  In his sole issue on appeal, Smith argues that the trial court erred in denying his motion to suppress because the arresting officer had no warrant and stopped Smith to investigate a suspected drug transaction the officer had not witnessed.  We affirm.

Background

Smith was arrested on July 23, 2009, for failing to signal continuously for not less than 100 feet before making a right hand turn.  The arresting officer, E. Garcia of the Houston Police Department, drove Smith to the county jail in Garcia’s patrol car.  At the jail, Garcia found a bag of crack cocaine on the floorboard of his patrol car under Smith’s feet.  Smith was charged with possession of a controlled substance.  He filed a pre-trial motion to suppress his arrest and the evidence relating to his arrest, arguing that he was stopped, searched, and arrested without a warrant, probable cause, or other lawful authority in violation of the federal and Texas constitutions and Texas Code of Criminal Procedure section 38.23. 

On January 26, 2011, the trial court held a hearing on Smith’s pre-trial motion to suppress.  Officer Garcia testified.  According to Garcia, another officer instructed Garcia to search for Smith’s car because police suspected that Smith had been involved in a drug deal.  Garcia testified that he stopped Smith because he saw Smith commit a traffic violation: failing to “signal continuously for not less than the last 100 feet of movement of the vehicle before [a] turn.”  According to Garcia, he stopped Smith on the basis of that traffic violation.  When Garcia asked Smith for his license and insurance, Smith turned away from Garcia and began searching through his center console.  Garcia testified that he became nervous and pulled Smith out of the car for Garcia’s safety.  According to Garcia, he arrested Smith and believed he saw Smith chewing on and swallow something.  Garcia saw white residue on Smith’s mouth, but after searching for thirty to forty minutes, Garcia and other officers did not recover any drugs.  The State played Garcia’s patrol car video and audio recording of the stop. 

On cross examination, Garcia admitted that he pulled Smith over after observing Smith commit a traffic violation because Garcia had information that Smith may have been involved in a drug deal.  Garcia also agreed that he questioned Smith about the drug investigation and that he falsely told Smith he knew of Smith’s involvement in an earlier drug deal.  It was not until they arrived at the county jail that Garcia found the baggie of crack cocaine in the backseat of his police vehicle.

After the hearing, the trial court denied Smith’s motion to suppress but did not make findings of fact or conclusions of law.  Smith pleaded guilty to possession of cocaine.  This appeal followed.

Standard of Review

“In review of a trial court’s ruling on a motion to suppress, an appellate court must apply a standard of abuse of discretion and overturn the trial court’s ruling only if it is outside the zone of reasonable disagreement.”  Martinez v. State, 348 S.W.3d 919, 922 (Tex. Crim. App. 2011).  We use a bifurcated standard of review and give “almost total deference to a trial court’s determination of historic facts and mixed questions of law and fact that rely upon the credibility of a witness, but applying a de novo standard of review to pure questions of law and mixed questions that do not depend on credibility determinations.”  Id. at 922–23.  In a hearing on a motion to suppress, the trial court is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony.  State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).  A reviewing court views the record in the light most favorable to the trial court’s ruling.  Id.  When the trial court files no findings of fact or conclusions of law, the appellate court assumes that the trial court made implicit findings of fact supporting its ruling, as long as those findings are supported by the record.  Id.

Analysis

Smith acknowledges that pretextual stops are legal but argues Garcia’s stop of Smith was not pretextual because Garcia admitted that the reason he wanted to stop Smith was to investigate Smith’s suspected involvement in a drug deal.  The State contends that Garcia had an objective reason to stop and arrest
Smith—Garcia saw Smith commit a traffic violation—and therefore Garcia’s subjective reason for the stop is irrelevant. 

It is well established that, when a traffic violation is committed within an officer’s view, the officer may lawfully stop and detain the person for the traffic violation.  Walter v. State, 28 S.W.3d 538, 542 (Tex. Crim. App. 2000).  The Texas Transportation Code requires that an operator “intending to turn a vehicle right or left shall signal continuously for not less than the last 100 feet of movement of the vehicle before the turn.”  Tex. Transp. Code Ann. § 545.104(b) (West 2011).  Section 543.001 of the Texas Transportation Code allows any peace officer to arrest without a warrant a person found committing a traffic violation, other than speeding or a violation of the open container law.  Tex. Transp. Code
Ann. § 543.001, 543.004(a)(1) (West 2011).  An arrest for a minor traffic violation is not an unreasonable seizure under the Fourth Amendment.  See Atwater v. City of Lago Vista, 532 U.S. 318, 354, 121 S. Ct. 1536, 1557 (2001); State v. Gray, 158 S.W.3d 465, 469 (Tex. Crim. App. 2005). 

Smith does not contest that he failed to signal continuously for at least 100 feet before making a turn.  Rather, Smith argues that the stop was unlawful even if there was an objective reason for the stop because Garcia testified that he was searching specifically for Smith and wanted to detain Smith to investigate Smith’s suspected involvement in a drug deal.  We disagree with Smith’s contention that the stop was unlawful.  The Texas Court of Criminal Appeals has held that “[t]he fact that the officer may have had another subjective motive for seizing [appellant] would not have made an objectively reasonable seizure unlawful under the constitutions of the United States or of this state.”  Gray, 158 S.W.3d at 469–70 (citing Whren v. United States, 517 U.S. 806, 116 S. Ct. 1769 (1996); Crittenden v. State, 899 S.W.2d 668 (Tex. Crim. App. 1995)).  Regardless of Garcia’s reason for following Smith, once Smith committed a traffic violation, Garcia could properly stop and arrest Smith on the basis of the traffic violation.  See Tex. Transp. Code Ann. § 543.001 (“Any peace officer may arrest without warrant a person found committing a violation of this subtitle.”).  Although Garcia testified that he wanted to find Smith’s car to “investigate a possible drug case,” Garcia also testified that he stopped and arrested Smith because Smith did not signal continuously for not less than the last 100 feet of movement before making a right turn.  The video taken by Garcia’s in-car camera corroborated Garcia’s testimony.  Thus, regardless of Garcia’s subjective motivation for stopping Smith, Garcia had a lawful basis to stop and arrest Smith and could conduct a search incident to that arrest.  See Thornton v. United States, 541 U.S. 615, 617, 124 S. Ct. 2127, 2129 (2004) (allowing search of car incident to lawful arrest).  The record supports the trial court’s implicit finding that Smith committed a traffic violation; Garcia therefore had probable cause to stop and arrest Smith and search Smith’s car.  See Gray, 158 S.W.3d at 469–70 (holding that despite officers subjective intent to search appellant for drugs, the stop and arrest of appellant were lawful when there was undisputed evidence that officers following appellant saw him commit traffic violation); see Garcia v. State, 827 S.W.2d 937, 944 (Tex. Crim. App. 1992) (even if arresting officer had second subjective reason for stopping vehicle, trial court erred in suppressing evidence because officer had objective reason for arrest when appellant failed to stop at stop sign). 

We overrule Smith’s sole issue. 

Conclusion

We affirm the judgment of the trial court.

                                                                   Rebeca Huddle

                                                                   Justice

Panel consists of Justices Higley, Sharp, and Huddle.

Do not publish.   Tex. R. App. P. 47.2(b).