Kevin Wade Brown v. State of Texas

• Court: Court of Appeals of Texas
• Decided: December 19, 2001
• Docket: 12-00-00352-CR
• Status: Published

Opinion

NOS. 12-00-00351-CR

12-00-00352-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

KEVIN WADE BROWN,

§ APPEAL FROM THE 392ND

APPELLANT

V.

§ JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE

§ HENDERSON COUNTY, TEXAS

PER CURIAM

Kevin Wade Brown ("Appellant") appeals his two convictions for possession of a controlled substance with the intent to deliver. After the trial court denied Appellant's motion to suppress the evidence, Appellant pleaded guilty and was sentenced to forty and twenty years of imprisonment, respectively, to run concurrently. Appellant contends that the trial court erred in denying the motion to suppress the evidence because the arresting officer did not have probable cause to stop Appellant for a traffic offense. We affirm.

Appellant was stopped for a traffic violation by an Athens police officer, Ben Boyd ("Boyd").

Boyd testified that Appellant was driving on the inside lane of a two-lane highway, with the turn lane on Appellant's left. The posted speed limit was sixty-five miles per hour with no minimum speed. Boyd testified that he observed Appellant's vehicle was being passed by other vehicles in the right lane and that Appellant continued driving without making a left turn. Boyd stated he knew that it was a violation of the traffic code to drive in the inside lane slower than posted speed and not make an immediate attempt to turn left. Tex. Transp. Code Ann. § 545.051(b) (Vernon 1995). Boyd testified that when he operated his emergency equipment in order to make the stop, the vehicle continued to travel for a mile-and-a-half before pulling over. He approached the driver's side of the vehicle and asked Appellant for his driver's license, which he was unable to produce. Further, Boyd testified that after he ran a license check on Appellant, it was determined that Appellant's license had been suspended for a prior drug offense. He arrested Appellant and performed an inventory search of the vehicle prior to its being towed from the location of the stop. During his search, Boyd found a loaded .45 caliber handgun, a blue zipper baggie containing weighing scales, two plastic baggies of marijuana, one plastic baggie containing methamphetamines, and one baggie of amphetamines.

In his motion to suppress, Appellant alleged that he was not prohibited from driving in the left-hand lane if there were three marked lanes of traffic available. Tex. Transp. Code Ann. § 545.051(a) (Vernon 1995). The State countered with evidence that the roadway was merely a two- lane roadway with a designated left turn lane and not a three-lane roadway. The trial court agreed with the State and denied the motion to suppress.

In reviewing a trial court's decision on a motion to suppress, we give almost total deference to the trial court's determination of historical facts and mixed questions of law and fact which turn on an evaluation of credibility and demeanor, but we review its application of law, such as questions involving reasonable suspicion and probable cause, de novo. See Ornelas v. United States, 517 U. S. 690, 697-99 (1996); Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). Where, as here, a trial court makes no explicit findings of historical fact, we presume it made findings necessary to support its ruling as long as those implied findings are supported by the record. Carmouche, 10 S.W.3d at 327-28.

As a basis for ruling on a motion to suppress evidence, a trial court may choose to believe or disbelieve any or all of the witnesses testimony. Taylor v. State, 604 S.W.2d 175, 177 (Tex. Crim. App. 1980). Further, an appellate court is not at liberty to disturb any finding which is supported by the record. Green v. State, 615 S.W.2d 700, 707 (Tex. Crim. App. 1980); see e.g., Johnson v. State, 803 S.W.2d 272, 287 (Tex. Crim. App. 1990); Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). We, therefore, review the evidence in the light most favorable to the trial court's ruling. State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999); State v. Munoz, 991 S.W.2d 818, 821 (Tex. Crim. App. 1999).

The issue in this case is not whether Appellant believes he committed an offense. Rather, the issue is whether a police officer who observes a vehicle violating a statute has reasonable suspicion to make a traffic stop. See Gajewski v. State, 944 S.W.2d 450, 452 (Tex. App.-Houston [14th Dist.] 1997, no pet.)(holding traffic laws are designed to protect not only the safety of persons in other vehicles, but also the safety of the driver in question).

A peace officer, after a bona fide stop for a traffic offense, may then make an additional arrest for any other offense discovered during the investigation. Taylor v. State, 421 S.W.2d 403, 407 (Tex. Crim. App. 1967); Cunningham v. State, 11 S.W.3d 436, 440 (Tex. App.-Houston [14th Dist.] 2000, no pet.). Moreover, the officer may conduct a search incident to such arrest. Christopher v. State, 639 S.W.2d 932, 935 (Tex. Crim. App. 1982). Probable cause exists where the facts and circumstances within the officer's knowledge and of which he has reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that a particular person has committed or is committing an offense. Amores v. State, 816 S.W.2d 407, 413 (Tex. Crim. App. 1991).

Boyd stopped Appellant's vehicle for going slower than the posted speed limit while driving in the inside lane and not making a left turn, a violation of section 545.051(b) of the Texas Transportation Code. Tex. Transp. Code Ann. § 545.051(b) (Vernon 1999). It is well settled that a traffic violation committed in an officer's presence authorizes at least an initial stop. Tex. Code Crim. Proc. Ann. art. 14.01(b) (Vernon 1995); Armitage v. State, 637 S.W.2d 936, 939 (Tex. Crim. App. 1982); McCallum v. State, 608 S.W.2d 222, 225 (Tex. Crim. App. 1980). During his investigation, Boyd learned from sources on which he could rely that Appellant's driver's license was suspended. Since Appellant was driving the vehicle, he was subject to arrest. Article 14.01 of the Texas Code of Criminal Procedure states:

(a) A peace officer or any other person, may, without a warrant, arrest an offender when the offense is committed in his presence or within his view, if the offense is one classed as a felony or as an offense against the public peace.

(b) A peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view.

Tex. Code Crim. Proc. Ann. art. 14.01(a)(b) (Vernon 1995).

We hold Appellant's arrest for driving while license was suspended was lawful under article 14.01 of the Texas Code of Criminal Procedure and that the ensuing search was also lawful. The trial court did not err by denying Appellant's motion to suppress. Accordingly, Appellant's sole issue is overruled.

The judgments of the trial court are affirmed.

Opinion delivered December 19, 2001.

Panel consisted of Davis, C.J., Worthen, J., and Griffith, J.

(DO NOT PUBLISH)