Christopher Michael Graves v. State of Texas--Appeal from 132nd District Court of Scurry County

Opinion filed August 23, 2007

In The

Eleventh Court of Appeals

__________

   No. 11-05-00395-CR

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   CHRISTOPHER MICHAEL GRAVES, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 132nd District Court

Scurry County, Texas

Trial Court Cause No. 8984

O P I N I O N

Christopher Michael Graves was indicted for possession of four grams or more, but less than 200 grams, of cocaine. The trial court denied a motion to suppress, and Graves pled guilty to the indictment and true to two enhancement paragraphs. The jury assessed his punishment at confinement for seventy-five years and a fine of $5,000. Graves challenges his conviction with a single issue contending that the trial court erred by overruling his motion to suppress. We affirm.

We must afford great deference to the trial court=s findings of historical facts as long as the record supports the findings. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). Because the trial court is the exclusive fact-finder, the appellate court reviews evidence adduced at the suppression hearing in the light most favorable to the trial court=s ruling. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). We also give deference to the trial court=s rulings on mixed questions of law and of fact when those rulings turn on an evaluation of credibility and demeanor. Guzman, 955 S.W.2d at 89. Where such rulings do not turn on an evaluation of credibility and demeanor, we review the trial court=s actions de novo. Id.

Snyder Police Corporal Jason Randall Quigley stopped Graves for speeding at 3:30 in the morning. Corporal Quigley asked Graves to get out of his vehicle. Graves held up a hunting knife and said, AI have this knife.@ Corporal Quigley stepped back and ordered Graves to drop the knife and place his hands on the dash. After several requests, Graves complied. Corporal Quigley asked Graves to step to the back of the vehicle and stay with Sergeant Dennis Keith Young B who had arrived in the interim and was acting as backup. Graves consented to a search of his vehicle and Corporal Quigley checked for other weapons. No weapons were found and Corporal Quigley started to frisk Graves. When he attempted to pat Graves=s pockets, Graves resisted by pushing Corporal Quigley=s hands away and by attempting to pull away. The officers forcibly restrained Graves and placed him in handcuffs. Corporal Quigley had felt something hard in Graves=s right front pocket. He asked Graves what was in his pocket and was told a pack of cigarettes. The object did not feel like cigarettes, and Corporal Quigley suspected that it might be a weapon. After Graves was secured, Corporal Quigley checked the pocket and found three packages of cocaine.

Graves argues that the trial court erred by not suppressing the cocaine because its discovery does not fall within the Aplain feel@ exception to the Fourth Amendment=s warrant requirement. See Minnesota v. Dickerson, 508 U.S. 366, 375 (1993) (analogizing object whose identity is immediately apparent by touch to objects in plain view). Graves points to Corporal Quigley=s suppression hearing testimony where he agreed that the hard object was not readily identifiable by touch and contends that, because Corporal Quigley did not know what was in Graves=s pocket when he felt it, it was unreasonable for him to look in the pocket. We need not determine whether the Aplain feel@ doctrine applies in this instance because Corporal Quigley=s search was permissible either as a search incident to arrest or as a search for weapons during a lawful detention.

The trial court found that Corporal Quigley had probable cause to stop Graves=s vehicle. That finding is unchallenged. This court has previously noted that, if an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may arrest the offender and conduct a search incident to arrest. See Dew v. State, 214 S.W.3d 459, 462 (Tex. App.CEastland 2005, no pet.). It does not matter if the arrest occurs immediately before or after the search as long as the officer has sufficient probable cause to arrest before the search. Id. (citing Rawlings v. Kentucky, 448 U.S. 98, 111 (1980)). Because Corporal Quigley lawfully detained Graves for speeding, he was authorized to search Graves and the trial court did not err by denying the motion to suppress.

We also note that because Graves was lawfully detained, the officers had the authority to conduct a limited search for weapons. See Terry v. Ohio, 392 U.S. 1, 38 (1968). The trial court found that Corporal Quigley=s discovery of Graves=s knife and the manner and means in which Graves exhibited it justified additional action by the officers. Corporal Quigley testified that he patted Graves down for officer safety. When he felt something hard in Graves=s pocket and when Graves gave an apparently false description of that object, he suspected that it might be a weapon. The trial court did not abuse its discretion by at least implicitly holding that the follow-up search of Graves=s pocket was reasonable to determine if he was armed.

The judgment of the trial court is affirmed.

RICK STRANGE

JUSTICE

August 23, 2007

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

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.