The State of Texas v. Donna M. Hardacker--Appeal from 25th Judicial District Court of Guadalupe County

MEMORANDUM OPINION
No. 04-02-00643-CR
The STATE of Texas,
Appellant
v.
Donna M. HARDACKER,
Appellee
From the 25th Judicial District Court, Guadalupe County, Texas
Trial Court No. 01-1033-CR
Honorable Gus J. Strauss, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Paul W. Green, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: April 23, 2003

AFFIRMED

The State appeals the trial court's order granting Donna M. Hardacker's motion to suppress. Hardacker moved to suppress marijuana evidence seized during the search of a vehicle in which she was a passenger. The trial court's order is affirmed.

At the hearing on the motion to suppress, Officer Richard T. Sanchez testified that he had stopped the vehicle for alleged traffic violations, but because of Hardacker's and the driver's nervousness and their inconsistent accounts of their travels, he requested permission to search the vehicle for contraband. After hearing Sanchez's testimony and watching a videotape of the traffic stop, the trial court granted the motion to suppress.

We review a trial court's ruling on a motion to suppress evidence for an abuse of discretion. Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002). In this review, the trial judge is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony; accordingly, the judge may believe or disbelieve all or any part of a witness's testimony, even if that testimony is not controverted. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). The trial court can make first-hand observations of the demeanor and appearance of a witness, as opposed to an appellate court which can only read an impersonal record. Id.

When the trial court fails to file findings of fact, as in this case, we review the evidence in the light most favorable to the trial court's ruling and assume that the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record. Id. If the trial judge's decision is correct on any theory of law applicable to the case, the decision will be sustained. Id. at 855-56.

Assuming Sanchez's testimony was credible and not contradicted by the videotape, it would have established that he was justified in detaining Hardacker after the initial traffic stop. See State v. Cardenas, 36 S.W.3d 243, 246 (Tex. App.--Houston [1st Dist.] 2001, pet. ref'd) (noting that the driver's nervousness was sufficient to arouse suspicion); Estrada v. State, 30 S.W.3d 599, 603 (Tex. App.--Austin 2000, pet. ref'd) (concluding that the driver's and passenger's nervousness and inconsistent stories were sufficient to justify their continued detention). Because the trial court granted the motion to suppress, the trial court must have considered Sanchez's testimony to be not credible. (1) "The trial court may have disbelieved the officer on at least one material fact, or the trial court may be in a situation in which it does not know what exactly the facts are, but it does know (on the basis of demeanor, appearance, and credibility) that they are not as the witness describes." Ross, 32 S.W.3d at 856. Absent findings of fact, we must give almost total deference to the trial court's ruling. Id. Because Sanchez's testimony, if believed, would support the continued detention, the trial court's order must be upheld on the theory that the trial court did not find Sanchez's testimony to be credible based on his demeanor and appearance as a witness. See id. at 858.

We affirm the order of the trial court.

Karen Angelini, Justice

Do Not Publish

1. The videotape of the traffic stop does not contradict Sanchez's testimony; however, credibility assessments are dependent on visual and auditory cues that are not usually found in the record, so the presence or absence of contradiction or inconsistency is not dispositive. See Ross, 32 S.W.3d at 857 n.25.