Cashin, Herschel Pumparey v. The State of Texas--Appeal from 228th District Court of Harris County

Affirmed and Memorandum Opinion filed April 28, 2005

 Affirmed and Memorandum Opinion filed April 28, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-03-01140-CR

NO. 14-03-01141-CR

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 HERSCHEL PUMPAREY CASHIN, Appellant

V.

 THE STATE OF TEXAS, Appellee

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On Appeal from 228th District Court

Harris County, Texas

Trial Court Cause Nos. 939672 & 939673

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M E M O R A N D U M O P I N I O N

Appellant Herschel Pumparey Cashin was charged with two felony offenses of possession of a controlled substance, namely cocaine and heroin. The trial court denied appellant=s motion to suppress and appellant then entered pleas of guilty in both cases.[1] The trial court deferred findings of guilt, placed appellant on community supervision for two years, and assessed a $5,000 fine in each case. On appeal, appellant argues the trial court erred in denying his motion to suppress because the initial traffic stop was illegal and thus rendered any seized evidence inadmissible. We affirm.

I. Factual and Procedural Background

While on patrol, Houston police officers Eric Newman and his partner, Bridget Lummus, observed a white Mercedes vehicle stopped in the right hand lane of a four-lane road, a short distance from the intersection, blocking a moving lane of traffic. Newman also observed a group of adolescent boys speaking with the Mercedes=s occupants. The boys appeared to Newman to be apprehensive during the exchange with the car=s occupants. Based on these observations, the officers decided to make a traffic stop.

When the patrol vehicle=s lights were activated, the Mercedes did not immediately stop, but continued traveling along the road. During that time, the officers observed the driver, later determined to be appellant, reaching toward the passenger seat, Amoving around frantically as if grabbing for something.@ Lummus also observed the driver throwing something out of the driver=s side window. Once stopped, the officers found, in plain view on the floorboard of the vehicle, a clear plastic bag containing cocaine and a bottle with heroin residue. Heroin was also discovered on the top of the driver=s side door, next to the window. Appellant and the passenger[2] were both arrested.

II. Analysis

In his sole issue on appeal, appellant argues that the trial court erred in denying his motion to suppress because the traffic stop was unreasonable, violating his constitutional rights. According to appellant, the officers acted unreasonably in stopping his vehicle because other vehicles were able to move around the Mercedes and the car=s engine was running during the fifteen second period in which the officers observed the vehicle. Given these circumstances, appellant claims that section 42.03 of the Penal Code, the traffic violation appellant asserts Newman relied on, does not apply.[3] Appellant contends that because the initial traffic stop was unreasonable, the evidence seizedBBeven if in plain viewBBwas Afruit of the poisonous tree.@ We examine whether the officers= decision to initiate the traffic stop was reasonable under the Fourth Amendment.[4]

1. Standard of Review

In a motion to suppress hearing, the trial court is the sole trier of fact and the sole judge of the credibility of the witnesses and the weight to be given their testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000) (en banc). The court is free to believe or disbelieve all or any part of a witness=s testimony, even if the testimony is uncontroverted. Id. Thus, a trial court=s ruling on a motion to suppress is reviewed under a bifurcated standard of review, giving almost total deference to the trial court=s determination of historical facts that the record supports and reviewing de novo the court=s application of search and seizure law to those facts. Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002); Porath v. State, 148 S.W.3d 402, 407 (Tex. App.CHouston [14th Dist.] 2004, no pet.). We also afford almost total deference to the trial court=s rulings on mixed questions of law and fact when resolution of those questions turns on an evaluation of credibility and demeanor. Ross, 32 S.W.3d at 856.

When the trial court does not make explicit findings of fact, as in this case, we view the evidence in the light most favorable to the trial court=s ruling and assume that the trial court made implicit findings of fact supported in the record. Balentine, 71 S.W.3d at 768. Further, if the trial court=s decision is correct on any theory of law applicable to the case, the decision will be sustained. Ross, 32 S.W.3d at 855B56; Cook v. State, 63 S.W.3d 924, 927 (Tex. App.CHouston [14th Dist.] 2002, pet. ref=d).

2. Search and Seizure Law

A traffic stop is a Fourth Amendment seizure resembling an investigative detention. See Whren v. United States, 517 U.S. 806, 809B10 (1996). An officer may stop and briefly detain someone for investigative purposes if the officer has a reasonable suspicion that the individual may be involved in criminal activity. James v. State, 102 S.W.3d 162, 170 (Tex. App.CFort Worth 2003, pet. ref=d) (citing Terry v. Ohio, 392 U.S. 1, 29 (1968)). Reasonable suspicion exists if the officer has specific articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably suspect that an individual has, is, or soon will be, engaged in illegal conduct. Id. The reasonableness of the investigative detention must be evaluated in objective terms by examining the totality of the circumstances. Kothe v. State, 152 S.W.3d 54, 63 (Tex. Crim. App. 2004). In examining reasonableness under the Fourth Amendment, bright-line rules are avoided; instead, the emphasis is on the fact-specific nature of the inquiry. Id.

An officer may lawfully stop a motorist who commits a traffic violation. Powell v. State, 5 S.W.3d 369, 376 (Tex. App.CTexarkana 1999, pet. ref=d). Further, the principles announced in Terry apply in determining whether a traffic violation has occurred just as they do in relation to other crimes. Id. Thus, if an officer has a reasonable basis for suspecting that a traffic violation was in progress or has occurred, the officer may legally initiate a traffic stop. Id. at 376B77 (citing Drago v. State, 553 S.W.2d 375, 377B78 (Tex. Crim. App. 1977)). The State is not required to show that a traffic offense was actually committed, only that the officer reasonably believed a violation was in progress. Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001); Green v. State, 93 S.W.3d 541, 545 (Tex. App.CTexarkana 2002, pet. ref=d).

When a police officer stops a defendant without a warrant and without the defendant=s consent, it is the State=s burden to prove the reasonableness of the stop at the suppression hearing. Cook, 63 S.W.3d at 927.

3. Application of Law to Facts

In this case, Officer Newman was the only witness to testify at the motion to suppress hearing. Appellant did not present any witnesses at the hearing, though Newman was cross-examined. Appellant did, however, submit an affidavit in support of his motion.[5]

According to his affidavit, appellant was dropping off a client, the passenger in the car, on his way to meet with another client when he saw some people in a parking lot. Appellant stated that he pulled into the parking lot to ask directions, but then realized the people were very young, so he left the parking lot after a few seconds and proceeded onto the four-lane road. He also stated that traffic was very light at that time.

According to Newman=s testimony, his attention was first drawn to appellant=s Mercedes because it was blocking traffic. He and his partner observed the vehicle stopped in the inside lane of a four-lane road, blocking a moving lane of traffic, just short of the intersection. Newman described the traffic that evening as moderate to heavy. He testified that he observed several vehicles stop behind the Mercedes and wait to merge into the other lane of traffic to continue along the road. He observed the Mercedes stopped in the roadway, blocking traffic, for approximately fifteen seconds when he decided to conduct the traffic stop. According to Newman=s testimony, the Mercedes was Acreating a road hazard at that time based on where it was parked, the traffic conditions, the proximity to the [] intersection.@

Although appellant asserts that Newman Acharacterized@ the traffic regulation violated as section 42.03 of the Texas Penal Code, Newman did not specify which statute or traffic regulation he relied on in initiating the stop. Under section 42.03, a person commits an offense if he intentionally, knowingly, or recklessly obstructs a public highway or street, regardless of the means of obstruction. See Tex. Pen. Code Ann. ' 42.03(a)(1) (Vernon 2003). AObstruct@ is defined in that section as Ato render impassable or to render passage unreasonably inconvenient or hazardous.@ Id. ' 42.03(b) Assuming without deciding that Newman was initiating the traffic stop based on a violation of this section, Newman=s testimony, taken as true, supports the claim that he reasonably believed appellant was obstructing traffic in violation of the provision. See, e.g.,Haye v. State, 634 S.W.2d 313, 315B16 (Tex. Crim. App. 1982) (finding gravamen of offense under section 42.03 is obstruction of public passageway and affirming conviction under that section based on testimony that a pedestrian had to exit the sidewalk and walk in a muddy median due to appellant=s blocking of the sidewalk);Valencia v. State, 820 S.W.2d 397, 400 (Tex. App.CHouston [14th Dist.] 1991, pet. ref=d) (finding valid traffic stop, noting issue is not whether offense was actually committed, but whether the officer had probable cause to believe the appellant committed the offense).[6]

Appellant argues, however, that section 42.03 generally involves picketing or demonstrations, where a defendant purposefully obstructs a street to call attention to his Aprotected speech activities.@ He also asserts that a vehicle stopped for fifteen seconds cannot be a violation of the regulation. The plain language of section 42.03 does not indicate it is only applicable to picketing activities. See Haye, 634 S.W.2d at 314B15 (finding violation of section 42.03 in non-picketing situation). If an individual intentionally, knowingly, or recklessly, obstructs a public highway or street, he may be guilty of violating the provision. See Tex. Pen. Code Ann. ' 42.03(a)(1); Haye, 634 S.W.2d at 315B16. In this case, Newman=s testimony supports a reasonable belief appellant was violating section 42.03.

Moreover, as argued by the State, Newman=s testimony also supports a reasonable belief that appellant was violating section 545.363 of the Transportation Code, which provides that an operator may not drive so slowly as to impede the normal and reasonable movement of traffic. See Tex. Transp. Code Ann. ' 545.363(a) (Vernon 1999); Green v. State, 773 S.W.2d 816, 818B19 (Tex. App.CSan Antonio 1989, no pet.) (interpreting section 545.363 to apply to stationary vehicles). Under either of these legal bases, Newman=s testimony evidences that he had a reasonable belief a traffic violation had occurred. See Cook, 63 S.W.3d at 927 (stating we must uphold the trial court=s decision if it is correct on any theory of law applicable to the case).

Viewing the record evidence in the light most favorable to the trial court=s ruling, under the totality of the circumstances, Newman had a reasonable suspicion to initiate the traffic stop. See, e.g., Powell, 5 S.W.3d at 376B77; see also Drago, 553 S.W.2d at 377B78; James, 102 S.W.3d at 171B72; Cook, 63 S.W.3d at 928B29; Valencia, 820 S.W.2d at 399. Thus, the trial court did not err in denying appellant=s motion to suppress. Accordingly, we overrule appellant=s sole issue and affirm the judgment of the trial court.

/s/ Eva M. Guzman

Justice

Judgment rendered and Memorandum Opinion filed April 28, 2005.

Panel consists of Justices Yates, Edelman, and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).

[1] The trial court certified appellant=s right to appeal.

[2] The record reflects the passenger was arrested for illegally possessing prescription drugs.

[3] Section 42.03 provides, in part, that a person commits an offense if he intentionally, knowingly, or recklessly obstructs a highway, street, or exit, used by the public, regardless of the means of creating the obstruction. See Tex. Pen. Code Ann. ' 42.03 (Vernon 2003).

[4] The issue before this court is narrowly drawn. Neither the State nor appellant makes any argument regarding appellant=s actions prior to the moment the vehicle was actually stopped and the evidence discovered; that is, they do not include any arguments concerning appellant=s failure to immediately stop, the officers= observations of appellant=s Afrantic@movements, his throwing something out of the window, nor the fact that the evidence was found in plain view.

[5] When a hearing on a motion to suppress evidence is granted, the court has the discretion to determine the merits of the motion based on the motion itself, upon opposing affidavits, or upon oral testimony. Tex. Code Crim. Proc. Ann. art. 28.01 ' 1(6) (Vernon 1989). We apply a deferential standard of review to the trial court=s resolution of historical facts even if submitted by affidavit rather than live testimony. See Whitehead v. State, 130 S.W.3d 866, 875 n.42 (Tex. Crim. App. 2004).

[6] But see Morrison v. State, 71 S.W.3d 821, 828B29 (Tex. App.CCorpus Christi 2002, no pet.) (finding passage was not unreasonably inconvenient because one lane of traffic was not obstructed). In Morrison, however, the evidence indicated there was no traffic at the time the vehicle was stopped. Here, the evidence establishes that there was moderate to heavy traffic and, because the vehicle was stopped so close to the intersection, it created a hazard for cars turning onto that street.