Smith, Amy Ann v. State

• Court: Court of Appeals of Texas
• Decided: June 20, 2002
• Docket: 01-01-00406-CR
• Status: Published

Opinion

In The

Court of Appeals

For The

First District of Texas

____________

NO. 01-01-00406-CR

AMY ANN SMITH, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 344th District Court

Chambers County, Texas

Trial Court Cause No. 11228

O P I N I O N

Appellant, Amy Ann Smith, entered a plea of nolo contendere to a charge of unlawful possession with intent to deliver a controlled substance, namely methamphetamine, in an amount of four grams or more but less than 200 grams. Appellant was assessed a suspended sentence of 10 years community supervision and a $2,500 fine. We address whether the legality of a traffic stop made by an officer for one purpose can be upheld on another basis. We affirm.

Facts

Between 2:00 and 2:15 a.m. on January 26, 2000, Officer Matt Ashby, of the Chambers and Liberty County Narcotics Task Force, stopped the vehicle driven by appellant for failing to maintain a single marked lane of traffic. Rodrigo Anthony Boyle, was in the front passenger seat of the vehicle and a third person was in the back seat. Officer Ashby asked Boyle and appellant several questions. Boyle's and appellant's answers were inconsistent. Officer Ashby then asked for permission to search Boyle. Boyle gave no oral response. Instead, he turned around, raised his hands, and gave a cigarette box to Officer Ashby. The cigarette box contained methamphetamine. A subsequent search of the vehicle produced a bag that contained more methamphetamine.

Appellant filed a motion to suppress the evidence seized by Officer Ashby on the grounds that the stop, detention, search, and arrest/seizure were unreasonable, in violation of the Fourth Amendment of the United States Constitution, Article I, Section 9 of the Texas Constitution, and Article 38.23 of the Texas Code of Criminal Procedure. After the trial court denied appellant's motion to suppress, she entered her plea of nolo contendere.

Hearing on Motion to Suppress

A. Officer Ashby's Testimony

Officer Ashby became suspicious when appellant grabbed her purse as she got out of the vehicle, but produced her driver's license from her back pocket. His suspicions were further aroused when Boyle moved around and repeatedly pulled his hands in and out of his pockets and when appellant and Boyle gave inconsistent statements to several questions. When Officer Ashby asked permission to search Boyle's person, Boyle responded by turning around, putting up his hands, and handing objects from his pockets to Officer Ashby. One of the objects was the cigarette box in which Officer Ashby found methamphetamine. Officer Ashby placed Boyle under arrest and then discovered more methamphetamine in a backpack located in the trunk of the vehicle.

Officer Ashby also stated he stopped appellant's vehicle for failing to maintain a single marked lane of traffic. Ashby claimed that, as he was approaching from behind the vehicle, he observed the vehicle swerving within the lane and also saw the vehicle cross over the left-lane marker. Under cross-examination, Officer Ashby stated he could not remember whether he was "stationary" or "mobile" when he first observed the vehicle, or whether the vehicle was traveling in the extreme left or center lane at that time. In addition, Officer Ashby conceded he could not remember at what rate of speed he was traveling when he approached the vehicle, and also acknowledged appellant's swerving did not create an immediate danger, because there were no other vehicles nearby.

On re-direct examination, Officer Ashby testified he stopped appellant's vehicle about eight or nine miles past the point where Interstate 10 changes from two to three lanes, and that there were signs on that portion of the freeway stating, "the inside lane is for passing only." Officer Ashby confirmed a traffic violation occurred if a vehicle remained in the left lane when not passing other vehicles.

B. Appellant and Boyle's Testimony

Boyle stated appellant was driving the vehicle in the left lane when they noticed Officer Ashby's vehicle approaching from behind. Boyle also stated appellant signaled then and moved into the center lane, and acknowledged that appellant had been driving in the far left lane for at least 10 minutes since last passing another vehicle and before she saw Officer Ashby approach. Appellant also acknowledged she had been driving in the extreme left lane before she saw Officer Ashby's vehicle. In addition, she stated she knew the extreme left lane was designated for "faster traffic."

C. Ruling of the Trial Court

The trial court found, after reviewing all the evidence and from a totality of the circumstances, that Officer Ashby lawfully stopped appellant's vehicle. The trial court noted that the facts did not justify a stop for failing to drive in a single marked lane, but found violations of Transportation Code sections 472.022 ⁽¹⁾ and 544.011, ⁽²⁾ based on Officer Ashby's entire testimony and other facts presented during the hearing. Although Officer Ashby did not advance these violations as the reason for the traffic stop, the trial court further noted,

'[T]he fact that the officer does not have the state of mind hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action taken as long as the circumstance[s], viewed objectively, justify that action.['] Scott v. United States, 436 U.S. 128, 138, 98 S. Ct. 1717, 1723 (1978); Williams v. State, 726 S.W.2d 99, 101 (Tex. Crim. App. 1986); Cedano v. State, 24 S.W.3d 406, 410 (Tex. App.--Houston [1st Dist.] 2000, no pet.).

Analysis

In her sole point of error, appellant contends the trial court abused its discretion by denying her motion to suppress because Officer Ashby's stop was illegal. This Court will not set aside a ruling on a motion to suppress unless the trial court clearly abused its discretion. Cedano, 24 S.W.3d at 410. In reviewing a ruling on a motion to suppress, we afford almost total deference to a trial court's determination of historical facts supported by the record. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997); Cedano, 24 S.W.3d at 410; Gonzales v. State, 4 S.W.3d 406, 413 (Tex. App.--Waco 1999, no pet.). In addition, we view the record evidence and all reasonable inferences from the evidence in the light most favorable to the trial court's ruling and will sustain the trial court's ruling, provided it is reasonably supported by the record and is correct on any theory of law applicable to the case. Gonzales, 4 S.W.3d at 413-14.

Appellant attempts to distinguish her case from the Scott, Williams, and Cedano decisions. She argues that, because Officer Ashby could not positively testify that he saw the infraction the trial court based its ruling on, and, because he could not testify that he saw any other infraction (except failing to maintain a single marked lane of traffic), Ashby did not have the requisite underlying motive or subjective intent for the stop. Appellant further contends that upholding the trial court's ruling in this case would broaden the scope of the Scott decision to the point that its objectivity requirement could be compromised by a trial court's subjective assumptions.

Appellant's argument attempts to impose a requirement that only the officer can testify to the circumstances that justify the stop or search. Nothing in Scott suggests or supports this addition. Scott states, "the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action." Scott, 436 U.S. at 138, 98 S. Ct. at 1723. As the Supreme Court further held, an officer's subjective intent alone does not render an otherwise lawful action illegal or unconstitutional. 436 U.S. at 136, 98 S. Ct. at 1723. Moreover, this Court has held that appellate courts may properly uphold a trial court's ruling on a motion to suppress on a ground not articulated by the arresting officer in his testimony. See Cedano, 24 S.W.3d at 410.

Although Officer Ashby did not testify that he stopped appellant because she violated Transportation Code sections 472.022 and 544.011, both appellant and Boyle acknowledged that the vehicle had been traveling in the extreme left lane for a distance of eight or nine miles since last passing a vehicle. Ashby was not required to have this reason as his subjective intent for effectuating the stop or to articulate this as his reason for the stop during his testimony. See Cedano, 24 S.W.3d at 410. The testimony by appellant and Boyle, that the vehicle appellant was driving had remained in the extreme left hand lane for a period of time while exceeding the "passing only" limitation imposed by the posted signs, was sufficient evidence, viewed objectively, to justify Officer Ashby's actions. Another way of analyzing the situation is that appellant and Boyle did not have a reasonable expectation not to be stopped for a traffic violation. Thus, the record reasonably supports the trial court's ruling, which qualifies as a correct theory of law applicable to the case. The trial court did not abuse its discretion by denying the motion to suppress.

We overrule appellant's sole point of error.

Conclusion

We affirm the judgment of the trial court.

Tim Taft

Justice

Panel consists of Justices Taft, Radack, and Price. ⁽³⁾

Do not publish. Tex. R. App. P. 47.4.

1. Tex. Transp. Code § 472.022. Obeying Warning Signs

(a) A person commits an offense if the person disobeys the instructions, signals, warnings, or markings of a warning sign.

Tex. Transp. Code Ann. § 472.022 (Vernon Supp. 2002).

2. Tex. Transp. Code § 544.011. Lane Use Signs

If, on a highway having more than one lane with vehicles traveling in the same direction, the Texas Department of Transportation or a local authority places a sign that directs slower traffic to travel in a lane other than the farthest left lane, the sign must read "left lane for passing only."

Tex. Transp. Code Ann. § 544.011 (Vernon Supp. 2002).

3. The Honorable Frank C. Price, former Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.