Bishop, Martha Lynn v. The State of Texas--Appeal from 228th District Court of Harris County

Affirmed and Opinion filed  December 12, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-00-00792-CR

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MARTHA LYNN BISHOP, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 228th District Court

Harris County, Texas

Trial Court Cause No. 835,973

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 O P I N I O N   O N R E M A N D

Appellant, Martha Lynn Bishop, was convicted by a jury of possession of cocaine with intent to deliver. Tex. Health & Safety Code Ann. 481.112(f). The jury assessed punishment at sixty years confinement in the Texas Department of Criminal Justice. On original submission, appellant contended the trial court erred in denying her motion to suppress evidence and motion for mistrial. This court held appellant waived error with regard to her contention that the officer lacked reasonable suspicion to stop her vehicle because appellant failed to state in her affidavit that the search was warrantless. Bishop v. State, No. 14-00-00792-CR; (Tex. App. Houston [14th Dist.] August 9, 2001) (not designated for publication). On petition for discretionary review, the Court of Criminal Appeals held that because appellant stated in her motion to suppress that the search was without a warrant, and because the motion was submitted on affidavits alone, appellant had preserved error. Bishop v. State, 85 S.W.3d 819, 822 (Tex. Crim. App. 2002). The court remanded the case for consideration of appellant s first issue.

In her first issue, appellant contends the trial court erred in denying her motion to suppress evidence. Appellant incorrectly bases this contention on the State s failure to show probable cause for the initial traffic stop. When reviewing the trial court s ruling on a motion to suppress evidence, we give almost total deference to a trial court s determination of historical facts and review de novo the trial court s application of the law to the facts. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d 85, 88 89 (Tex. Crim. App. 1997). Because the trial court did not make explicit findings of historical fact in the instant case, we will review the evidence in a light most favorable to the trial court s ruling. See Carmouche, 10 S.W.3d at 327 28. We must examine the record as it existed at the time of the suppression hearing. O hara v. State, 27 S.W.3d 548, 551 (Tex. Crim. App. 2000). Therefore, we will review the trial court s decision in light of the affidavits submitted with the motion to suppress.

Background

On January 6, 2000, during the course of conducting narcotics surveillance, Officer Virgil Price observed appellant and suspected drug trafficker William Adare in a restaurant parking lot. Price witnessed a number of furtive interactions and transactions between appellant, Adare, and a third man. He followed appellant when she drove away from the meeting. Price observed appellant failing to maintain a single lane on several occasions. He contacted another officer driving a marked police vehicle and instructed him to stop appellant for the traffic violation. Price arrived at the scene where the officer was detaining appellant. Price stated, in his affidavit, that he obtained verbal permission from appellant to search the vehicle. Appellant denied she gave consent to search her vehicle. Officer Price discovered a large amount of cocaine during the search. Prior to trial, appellant filed a motion to suppress all evidence surrounding the contraband because Price seized it as the result of an unlawful traffic stop. The trial court denied appellant s motion after considering the evidence outlined in the affidavits submitted by appellant and Price.

Reasonable Suspicion

When a police officer stops a defendant without a warrant and without the defendant s consent, the State bears the burden at a suppression hearing to prove the reasonableness of the stop. Russell v. State, 717 S.W.2d 7, 9 10 (Tex. Crim. App. 1986). A police officer can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity may be afoot. Terry v. Ohio, 392 U.S. 1, 29, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). The reasonableness of a temporary detention must be examined in terms of the totality of the circumstances and will be justified when the detaining officer has specific articulable facts which, taken together with rational inferences from those facts, lead the officer to conclude the person detained is, has been, or soon will be, engaged in criminal activity. Woods v. State, 956 S.W.2d 33, 38 (Tex. Crim. App. 1997).

An officer may lawfully stop a motorist who commits a traffic violation. McVickers v. State, 874 S.W.2d 662, 664 (Tex. Crim. App. 1993). Section 545.060 of the Texas Transportation Code requires an operator on a roadway divided into two or more clearly marked lanes of traffic to (1) drive, as nearly as practical, entirely within a single lane; and (2) not move from the lane unless that movement can be made safely. Appellant contends the State failed to show appellant violated section 545.060 because it failed to show appellant s movement from lane to lane was not safe. In support of this argument, appellant contends her case is indistinguishable from Aviles v. State, 23 S.W.3d 74 (Tex. App. Houston [14th Dist.] 2000, pet. ref d).

In Aviles, this court found the police officer did not have reasonable suspicion to stop the defendant because he did not make an unsafe lane change in violation of section 545.060 of the Transportation Code. The defendant in Aviles signaled his intent to change lanes and deliberately moved across two lanes of traffic to avoid a collision with a vehicle on the shoulder. Here, appellant left her lane on several occasions, indicating erratic and careless driving rather than deliberate maneuvering. It was not unreasonable for Officer Price to conclude that appellant s erratic driving was unsafe. Price s affidavit stating that appellant left her lane of traffic several times constitutes sufficient evidence to justify an investigatory detention. Appellant s first issue is overruled.

The judgment of the trial court is affirmed.

/s/ Charles W. Seymore

Justice

Judgment rendered and Opinion filed December 12, 2002.

Panel consists of Justices Anderson, Hudson, and Seymore.

Do Not Publish Tex. R. App. P. 47.3(b).