MARK BROWN v. THE STATE OF TEXAS--Appeal from 351st District Court of Harris County

   NUMBER 13-05-243-CR

   COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

MARK BROWN, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 351st District Court of Harris County, Texas.

MEMORANDUM OPINION

Before Justices Hinojosa, Ya ez, and Garza

Memorandum Opinion by Justice Ya ez

 

Following the trial court=s denial of his motion to suppress, appellant, Mark Brown, pleaded guilty to felony possession of a controlled substance (cocaine),[1] enhanced by two prior felony convictions. Pursuant to a plea bargain, the trial court found him guilty and sentenced him to twenty-five years= imprisonment. In a single issue, appellant contends the trial court erred in denying his motion to suppress evidence because (1) the arresting officer was not justified in conducting a Apat down@ search of appellant under Terry v. Ohio,[2] and (2) even if justified, the Apat-down@ search exceeded the scope of a limited search for weapons. We affirm.

Standard of Review

 

A trial court=s ruling on a motion to suppress is generally reviewed for abuse of discretion.[3] In a suppression hearing, the trial judge is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given to their testimony.[4] In reviewing a trial court=s ruling on a motion to suppress, we afford almost total deference to the trial court=s determination of the historical facts that the record supports, especially when the trial court=s findings turn on evaluating a witness=s credibility and demeanor.[5] When, as in this case, the trial court makes no explicit findings of historical fact, we presume it made those findings necessary to support its ruling, provided they are supported in the record.[6] We afford almost total deference to the trial court=s ruling on Aapplication of law to fact questions,@ also known as Amixed questions of law and fact,@ if resolving those ultimate questions turns on evaluating credibility and demeanor.[7] We review de novo questions of law and Amixed questions of law and fact@ that do not turn on an evaluation of credibility and demeanor.[8] We uphold a trial court=s ruling on a suppression motion if it is reasonably supported by the record and is correct on any theory of law applicable to the case.[9]

The totality of the circumstances test is the current reasonableness standard for reviewing reasonable suspicion arising in warrantless arrests.[10] Determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal although great weight should be given to the inferences drawn by the trial court and law enforcement officers.[11] An accused seeking to suppress evidence on the basis of illegal police conduct bears the burden of proof to rebut a presumption of proper police conduct.[12]

Applicable Law

 

A police officer may arrest an individual without a warrant only if (1) there is probable cause with respect to that individual and (2) the arrest falls within one of the statutory exceptions.[13] One of those exceptions, article 14.01(b) of the code of criminal procedure, provides that A[a] peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view.@[14] AThe test for probable cause for a warrantless arrest under [article 14.01(b)] is whether at that moment the facts and circumstances within the officer's knowledge and of which he had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the arrested person had committed or was committing an offense.@[15]

Section 551.104(b) of the transportation code provides, in part, that

A person may not operate a bicycle at nighttime unless the bicycle is equipped with:

(1) a lamp on the front of the bicycle that emits a white light visible from a distance of at least 500 feet in front of the bicycle; . . .[16]

 

With certain exceptions not applicable here, an officer may arrest without a warrant a person he finds committing a traffic violation.[17] Operating a bicycle at night without a light is a traffic violation.[18]

When a valid arrest has been made, an arresting officer may conduct a search of the arrested person that is not limited to searching only for weapons.[19] A search incident to a lawful arrest requires no additional justification.[20]

Analysis

Here, the arresting officer, Houston Police Officer Ray Rodriguez, testified at the suppression hearing that around 3:00 a.m. on August 6, 2004, he observed appellant riding a bicycle without a headlight across several lanes of traffic. Officer Rodriguez testified that he questioned appellant and decided to arrest him after appellant was unable to produce any identification. According to Rodriguez, he conducted a Apat-down@ search of appellant and felt a lump Aconsistent with cocaine@ in appellant=s pants. Appellant admitted the substance was crack cocaine. Rodriguez testified that the bike appellant was riding was a Agirl=s blue mountain bike@ that did not have a headlight.

At the hearing, appellant testified that when arrested, he was riding a men=s green mountain bike with a light mounted on the handlebars and that the light was on when he was approached by Officer Rodriguez. Two friends of appellant=s also testified that the bike appellant was riding that evening had an operational handlebar light.

 

As noted above, on a motion to suppress, the trial judge is the sole and exclusive trier of fact and judge of the credibility of the witnesses and the weight to be given to their testimony.[21] Thus, the trial court is free to believe or disbelieve the testimony of any witness.[22] If the trial court=s findings are supported by the record, this Court is not at liberty to disturb them.[23]

Although appellant characterizes his Apat-down@ search as pursuant to Terry, we conclude Officer Rodriguez had probable cause to arrest appellant for violations of the transportation code before he conducted the search of appellant=s person.[24] Accordingly, the search was pursuant to a valid arrest.[25]

We hold that the trial court did not err in denying appellant=s motion to suppress evidence. We overrule appellant=s sole issue and affirm the judgment of the trial court.

LINDA REYNA YA EZ,

Justice

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

Memorandum opinion delivered and filed

this the 20th day of July, 2006.

 

[1] See Tex. Health & Safety Code Ann. ' 481.115 (d) (Vernon 2003).

[2] See Terry v. Ohio, 392 U.S. 1, 30-31 (1968).

[3] See Ford v. State, 26 S.W.3d 669, 672 (Tex. App.BCorpus Christi 2000, no pet.) (citing Oles v. State, 933 S.W.2d 103, 106 (Tex. Crim. App. 1999)).

[4] State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999).

[5] State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

[6] See Carmouche v. State, 10 S.W.3d 323, 327-28 (Tex. Crim. App. 2000).

[7] Ross, 32 S.W.3d at 856; Guzman, 955 S.W.2d at 89.

[8] Ross, 32 S.W.3d at 856; Guzman, 955 S.W.2d at 89.

[9] Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996).

[10]State v. Cerny, 28 S.W.3d 796, 798 (Tex. App.BCorpus Christi 2000, no pet.).

[11] Guzman, 955 S.W.2d at 87 (citing Ornelas v. United States, 517 U.S. 690, 699 (1996)).

[12] Moreno v. State, 124 S.W.3d 339, 344 (Tex. App.BCorpus Christi 2003, no pet.) (citing McGee v. State, 105 S.W.3d 609, 613 (Tex. Crim. App. 2003)).

[13] State v. Steelman, 93 S.W.3d 102, 107 (Tex. Crim. App. 2002).

[14] Id.; see Tex. Code Crim. Proc. Ann. art. 14.01(b) (Vernon 2005).

[15] Steelman, 93 S.W.3d at 107 (citing Beverly v. State, 792 S.W.2d 103, 104 05 (Tex. Crim. App. 1990)).

[16] Tex. Transp. Code Ann. ' 551.104 (b)(1) (Vernon Supp. 2005).

[17] State v. West, 20 S.W.3d 867, 871 (Tex. App.BDallas 2000, pet. ref=d); see Tex. Transp. Code Ann. ' 543.001 (Vernon 1999); Tex. Code Crim. Proc. Ann. art. 14.01(b) (Vernon 2005). An officer is required to release a Class C misdemeanor offender upon citation only for speeding and open container violations. See Tex. Transp. Code Ann. ' 543.004(a) (Vernon Supp. 2005); Tex. Code Crim. Proc. Ann. art. 14.06(b) (Vernon Supp. 2005).

We note that in Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001),the United States Supreme Court held that A[i]f an officer has probable cause to believe that an individual has committed a very minor criminal offense [punishable by fine only] in his presence, he may, without violating the Fourth Amendment, arrest the offender.@ Id. In Lago Vista, the issue was whether the warrantless custodial arrest of an individual for a first-time seat belt offense (a misdemeanor offense punishable by fine) was an unreasonable seizure under the Fourth Amendment. Id. at 324-25. In concluding that such arrests do not violate the Fourth Amendment, the majority noted that Asurely the country is not confronting anything like an epidemic of unnecessary minor-offense arrests.@ Id. at 353. However, Justice O=Connor, writing for the dissent, concluded that A[g]iving police officers constitutional carte blanche to effect an arrest whenever there is probable cause to believe a fine-only misdemeanor has been committed is irreconcilable with the Fourth Amendment=s command that seizures be reasonable.@ Id. at 365-66 (J. O=Connor, dissenting). Justice O=Connor notes that under the Court=s holding, Aa relatively minor traffic infraction may often serve as an excuse for stopping and harassing an individual.@ Id. at 372. She further notes that A[a]fter today, the arsenal available to any officer extends to a full arrest and the searches permissible concomitant to that arrest.@ Id. We note that in light of the circumstances in this case, we agree with Justice O=Connor=s concern that A[s]uch unbounded discretion carries with it grave potential for abuse.@ See id.

[18] See Tex. Transp. Code Ann. ' 551.104 (b)(1) (Vernon Supp. 2005).

[19] See Williams v. State, 726 S.W.2d 99, 101 (Tex. Crim. App. 1986) (en banc).

[20] See West, 20 S.W.3d at 871 (citing United States v. Robinson, 414 U.S. 218, 235 (1973)).

[21] Ballard, 987 S.W.2d at 891; Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990).

[22] Green v. State, 892 S.W.2d 217, 219 (Tex. App.BTexarkana 1995, pet. ref=d).

[23] Id.

[24] See West, 20 S.W.3d at 871; Williams, 726 S.W.2d at 101.

[25] See West, 20 S.W.3d at 871.