Home/Court of Appeals of Texas/State v. 1998 Toyota Land Cruiser Oklahoma Tag CMN 633 VIN JT3HT05J9W0007179 (Cole Austin Donelson)

State v. 1998 Toyota Land Cruiser Oklahoma Tag CMN 633 VIN JT3HT05J9W0007179 (Cole Austin Donelson)

CourtCourt of Appeals of Texas
DecidedJanuary 13, 2009
Docket07-08-00073-CV
StatusPublished

This text of State v. 1998 Toyota Land Cruiser Oklahoma Tag CMN 633 VIN JT3HT05J9W0007179 (Cole Austin Donelson) (State v. 1998 Toyota Land Cruiser Oklahoma Tag CMN 633 VIN JT3HT05J9W0007179 (Cole Austin Donelson)) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. 1998 Toyota Land Cruiser Oklahoma Tag CMN 633 VIN JT3HT05J9W0007179 (Cole Austin Donelson), (Tex. Ct. App. 2009).

Opinion

NO. 07-08-0073-CV


IN THE COURT OF APPEALS


FOR THE SEVENTH DISTRICT OF TEXAS


AT AMARILLO


PANEL B


JANUARY 13, 2009

______________________________


THE STATE OF TEXAS,


                                                                                                 Appellant


v.


1998 TOYOTA LAND CRUISER, OKLAHOMA TAG CMN-633

VIN JT3HT05J9W0007179,


                                                                                                 Appellee

________________________________


FROM THE 47TH DISTRICT COURT OF RANDALL COUNTY;


NO. 58,915-A; HON. HAL MINER, PRESIDING

_______________________________


Opinion


Before QUINN, C.J. and CAMPBELL and HANCOCK, JJ.

          The State appeals from the trial court’s denial of its motion to forfeit the 1998 Toyota Land Cruiser of Cole Austin Donelson. We agree, reverse, and remand.

          Background

          The Land Cruiser was seized after Donelson was found selling marijuana from it. Donelson sought to recover the vehicle. At issue was the propriety of the detention that resulted in his arrest.

          In permitting Donelson to recover the Cruiser, the trial court determined, via written conclusions of law, that the interaction between the arresting officer and Donelson was not a consensual encounter but rather an “investigative stop.” “[T]here were no[] articulable facts sufficient to give rise to a rational inference that a crime was being committed,” the court continued. Thus, the “investigative detention . . . amounted to an illegal stop lacking in sufficient articulable facts or probable cause.” Moreover, the smelling of marijuana by an officer occurred “after the illegal investigative detention[,] and probable cause . . . cannot be based on facts discovered after the illegal detention.” So, because the detention was illegal, the State lacked basis to forfeit the vehicle. We have been asked by the State to review this decision.

          Law and Its Application

          Whether the trial court’s decision regarding the nature of the detention is sound depends upon whether it abused its discretion. According to the Texas Supreme Court, we determine this by applying the standard of review developed by the Court of Criminal Appeals in Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997). State v. $217,590.00 in U.S. Currency, 18 S.W.3d 631, 634 n.3 (Tex. 2000). Under that standard, great deference is accorded the trial court’s interpretation of historical facts. Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005), Guzman v. State, 955 S.W.2d at 87. This is so because the trial court has the sole authority to assess the credibility of the witnesses; simply put, it may choose who to believe. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000); State v. Ramirez, 246 S.W.3d 287, 289 (Tex. App.–Amarillo 2008, no pet.). However, like deference is not afforded the trial court’s application of law to the facts or its interpretation of the law. Ford v. State, 158 S.W.3d at 493. Those matters are reviewed de novo. Id.; Guzman v. State, 955 S.W.2d at 87.

          Next, in support of the legal conclusions listed above, the trial court entered the following findings of fact:

          5.      On May 11, 2007, Capt. Roger Short of the Randall County Sheriff’s Office was working the Sober program in an unmarked vehicle watching for alcohol violations and other offenses in the area of Paramount Street and South Western.

 

          6.       At approximately 10:40 p.m. . . . Short, while parked, observed a blue pick-up in the Mr. Gattis pizza parking lot.[ ] The driver, later identified as Cooper Mark Hurst W/M 08-14-89, was sitting in the pick-up alone. As Short was watching, another vehicle, (a green 1998 Toyota Land Cruiser . . .), drove up next to the blue pick-up. Hurst got out of his pick-up and got into the . . . Land Cruiser. Capt. Short could see into the vehicle and saw the driver of the Toyota reach into the back seat of the vehicle and grab a camouflage back pack. Short could see Donelson [who was driving the Land Cruiser] retrieving items from the back pack. Short observed that Donelson would reach back and forth with his right hand from the back seat area and place something on the center console.[ ] Short radioed several other officers who were in the area of the possible drug transaction. Short advised two uniformed officers to make contact with [the] occupants. 

          7.       Deputy Bushef parked his patrol unit behind the Land Cruiser while Lt. Sheets parked his patrol unit in a position behind the cruiser. Captain Short’s vehicle was in front and to the side of the Land Cruiser. Simultaneously the officers approached the vehicle on each side, knocked on the window and ordered occupants [sic] to roll down his window. The Deputy claims to have smelled an odor of marijuana. He removed the passenger and did a pat down search. Later the officer searched the vehicle finding marijuana under four . . . ounces.

          8.       Neither party consented to the search.

          9.       Captain Short never observed any illegal activity or illegal substance prior to ordering the two Deputies to make contact with the occupants. 


These findings depict a situation wherein a peace officer, charged with watching for alcohol related violations and other criminal offenses, saw Hurst sitting alone in a parked car at 10:40 at night waiting for Donelson. The officer also saw 1) Donelson arrive in the Land Cruiser and park next to Hurst, 2) Hurst leave his vehicle and enter that of Donelson’s, 3) Donelson secure a backpack from the rear of his car, and 4) Donelson repeatedly remove items from the backpack and place them on the center console of the vehicle. Assuming arguendo that these circumstances were insufficient to create probable cause to believe a crime was in progress, they nevertheless were unusual given the time and place.

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Related

Ford v. State
158 S.W.3d 488 (Court of Criminal Appeals of Texas, 2005)
Hall v. State
74 S.W.3d 521 (Court of Appeals of Texas, 2002)
State v. Ramirez
246 S.W.3d 287 (Court of Appeals of Texas, 2008)
State v. $217,590.00 in United States Currency
18 S.W.3d 631 (Texas Supreme Court, 2000)
In Re Butler
270 S.W.3d 757 (Court of Appeals of Texas, 2008)
State v. Jennings
958 S.W.2d 930 (Court of Appeals of Texas, 1997)
In Re Coronado
980 S.W.2d 691 (Court of Appeals of Texas, 1998)
Woods v. State
956 S.W.2d 33 (Court of Criminal Appeals of Texas, 1997)
Johnson v. State
912 S.W.2d 227 (Court of Criminal Appeals of Texas, 1995)
State v. Garcia-Cantu
253 S.W.3d 236 (Court of Criminal Appeals of Texas, 2008)
State v. Ross
32 S.W.3d 853 (Court of Criminal Appeals of Texas, 2000)
Guzman v. State
955 S.W.2d 85 (Court of Criminal Appeals of Texas, 1997)

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Bluebook (online)
State v. 1998 Toyota Land Cruiser Oklahoma Tag CMN 633 VIN JT3HT05J9W0007179 (Cole Austin Donelson), Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-1998-toyota-land-cruiser-oklahoma-tag-cmn-633-vin-texapp-2009.