BRYAN O'NEAL WARREN, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion Filed October 29, 2009
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-08-01431-CR
............................
BRYAN O'NEAL WARREN, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 422nd Judicial District Court
Kaufman County, Texas
Trial Court Cause No. 26877-422
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OPINION
Before Chief Justice Thomas and Justices Bridges and Lagarde   See Footnote 1 
Opinion By Justice Lagarde
        Bryan O'Neal Warren appeals the trial court's judgment.   See Footnote 2  In a sole issue, appellant contends the trial court abused its discretion by denying his pretrial motion to suppress. Appellant claims the arresting officer lacked authority to stop him for speeding because his speed, although in excess of the posted speed limit, was not unsafe, and thus did not violate the speeding statute. For reasons that follow, we affirm the trial court's judgment.   See Footnote 3 
Standard of Review
        The court of criminal appeals recently reiterated the proper standard of review of a motion to suppress. See State v. Iduarte, 268 S.W.3d 544, 548 (Tex. Crim. App. 2008). In relevant part, it stated:
        When reviewing the trial court's ruling on a motion to suppress, we view the evidence in the light most favorable to the trial court's ruling. State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). When the trial court makes explicit fact findings, we determine whether the evidence, when viewed in the light most favorable to the trial court's ruling, supports those findings. Id. at 818-19. We review the trial court's legal ruling de novo. We uphold the trial court's ruling if it is supported by the record and correct under any theory of law applicable to the case. See St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007) (quoting Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003)); State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000).
 
        We afford a great deal of deference to a trial judge's rulings on questions of historical fact, and also on rulings that both apply the law to facts and turn on an evaluation of credibility and demeanor. See Ross, 32 S.W.3d at 856. Nonetheless, mixed questions of law and fact may be reviewed de novo when they do not depend on credibility or disputed facts. Guzman, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).
 
Id. at 548-49. In reviewing a ruling on a motion to suppress, an appellate court must review the record and all reasonable inferences therefrom in a light most favorable to the ruling, and sustain the ruling if it is reasonably supported by the record and correct under any theory of law applicable to the case. See Ramos v. State, 245 S.W.3d 410, 417-18 (Tex. Crim. App. 2008).
 
Motion to Suppress/Exclude Evidence   See Footnote 4 
        Essentially, appellant's motion seeks to suppress all evidence resulting from what he deems to be an unlawful traffic stop and his subsequent detention, search, and arrest. The thrust of appellant's argument is that the arresting officer stopped him for speeding but the prima facie evidence presumption that he drove his vehicle at a speed greater than is reasonable and prudent under the conditions was rebutted by the arresting officer himself. Thus, appellant argues no reasonable suspicion existed he was involved in criminal activity and his detention was unjustified.
Burden of Proof
        The State concedes there was no search warrant and that it had the burden to show reasonableness of the search based on an exception to a search and seizure without warrant. A warrantless search is per se unreasonable unless it falls into an exception to the warrant requirement. State v. Arriaga, 5 S.W.3d 804, 805 (Tex. App.-San Antonio 1999, pet. ref'd). The odor of marijuana emitting from a defendant or a defendant's vehicle is an exception to the warrant requirement. See Ross v. State, 486 S.W.2d 327, 328 (Tex. Crim. App. 1972).
Facts
        On February 6, 2008, State Trooper David Burnett was traveling westbound on Interstate 20 in a marked squad car when he observed a vehicle he thought to be speeding. The posted speed limit at that location was sixty-five miles per hour. Radar confirmed the vehicle was traveling at seventy miles per hour. Burnett stopped the vehicle, which appellant was driving.   See Footnote 5 
        During the ensuing stop and investigation, Burnett learned the following facts. As Burnett approached the vehicle, he smelled an odor of marijuana emitting from the vehicle and from appellant; appellant was fidgety; Burnett saw in plain view inside the vehicle, pills commonly associated with drug users; and appellant volunteered he had a prior criminal history of possession of a firearm during drug trafficking. For officer safety, Burnett frisked appellant. Burnett explained that during a frisk he automatically pats down around the ankle. When he patted around appellant's ankle he felt something that felt like peanut brittle. Based on his training and experience, it “reminded” him of a crack cocaine cookie as soon as he felt it. When Burnett looked at appellant's foot “it was hanging out, so [he] pulled it out and looked at it, and sure enough recognized what it was.” Burnett recognized it as a lump of crack cocaine. Burnett “basically just dropped it, grabbed his hand.” Appellant was arrested for possession with intent to deliver cocaine.
Findings of Fact and Conclusions of Law
        At the conclusion of the suppression hearing, the trial judge made detailed written findings of fact and conclusions of law as follows:
        a. That Trooper David Burnett had reasonable suspicion to stop the defendant based upon his training and experience and visual observations that a traffic offense was occurring.
 
        b. The underlying scientific principles of radar are valid as a matter of law.
        
        c. Trooper Burnett was trained and qualified to operate radar devices.
 
        d. Trooper Burnett understood the technique to apply and use a radar.
 
        e. Trooper Burnett properly applied and used the radar device to confirm defendant's speed.
        f. After the stop of defendant, Trooper Burnett detected the odor of burnt marijuana emitting from the defendant and the vehicle being driven by defendant.
 
        g. Based on his additional training and experience, Trooper Brad Brewer also detected the odor of marijuana emitting from the defendant's vehicle and person.
 
        h. Trooper Burnett had a reasonable belief to be concerned for officer safety based on several factors which included: the smell of burnt marijuana, the demeanor of the defendant, defendant's belief that he had a warrant for his arrest, defendant's criminal history which included drug and weapons charges, the observation of detoxifying pills by defendant, documentation provided by defendant indicating that he had previously failed urinalysis, defendant's statement that another trooper had taken his license, and defendant's statement that marijuana had previously been smoked in his vehicle. As such a continued detention and Terry frisk of defendant was authorized.
 
        i. Continued detention of defendant was further authorized in that a warrant return or license check had not been completed at the time of the Terry Frisk or search of defendant's person.
 
        j. Trooper Burnett had probable cause to search defendant and the vehicle driven by defendant based on his training, experience, and observations, which included: the smell of burnt marijuana coming from defendant and defendant's vehicle, the demeanor of the defendant, defendant's belief that he had a warrant for his arrest, defendant's criminal history which included drugs and weapons charges, the observations of detoxifying pills, documentation provided by defendant indicating that he had previously failed urinalysis, defendant's statement that another trooper had taken his license, and defendant's statement that marijuana had previously been smoked in his vehicle.
 
        k. During the frisk of defendant, Trooper Burnett felt an object that he immediately recognized by sight and feel as crack cocaine. Said object then fell through defendant's pant leg and into plain view. Trooper Burnett lawfully arrested defendant for possession of suspected crack cocaine.
 
Based on its findings and conclusions, the trial court denied appellant's motion to suppress.
        On appeal, we must determine whether the evidence, when viewed in the light most favorable to the trial court's ruling, supports those findings. State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). We review the trial court's legal ruling de novo. Id.
Appeal
        On appeal, appellant contends the evidence shows that Burnett initially stopped him because he was speeding. Appellant cites section 545.351 of the Texas Transportation Code.   See Footnote 6  Then, relying on Floeck v. State, 34 Tex. Crim. R. 314, 30 S.W. 794 (1895), appellant argues that evidence showing his speed was five miles over the speed limit and, thus presumptively not reasonable or prudent, can be rebutted by contrary evidence. Appellant then argues the State's evidence rebutted such presumption. He points to record excerpts where Burnett testified he did not observe appellant driving unsafely and that he, Burnett, had operated his own vehicle at speeds of 110 miles per hour or more at the same location. Appellant ultimately concludes the evidence conclusively shows that he did not drive his vehicle in an unreasonable and imprudent manner, and thus Burnett had no justification for stopping him. Consequently, appellant contends, all evidence from the search, as well as any testimony regarding the search, must be suppressed, and that by not granting his motion to suppress, the trial court abused its discretion.
        We disagree. Appellant was not tried for speeding. Nor was the State required to prove beyond a reasonable doubt that appellant was speeding in order to show Burnett had reasonable suspicion to stop appellant's vehicle and, later, that he had probable cause to search appellant.
Law
        A law enforcement officer may lawfully detain one whom he has reasonable suspicion to believe is violating the law. Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002). Reasonable suspicion exists when an officer has specific, articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably suspect that one actually is, has been, or soon will be, engaged in criminal activity. Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001). The reasonable suspicion standard is objective, not subjective. Id. If an officer has a reasonable basis for suspecting a person has committed a traffic offense, the officer may legally initiate a traffic stop. McVickers v. State, 874 S.W.2d 662, 664 (Tex. Crim. App. 1993), superseded by rule on other grounds as stated in Granados v. State, 85 S.W.3d 217, 227-30 (Tex. Crim. App. 2002).
Analysis
 
        Burnett's visual observation of appellant's vehicle made him reasonably suspicious that appellant was speeding. Radar confirmed Burnett's suspicion. Those facts constituted prima facie evidence that the speed of appellant's vehicle was unsafe and imprudent, thus giving Burnett reasonable suspicion to believe appellant was violating the speeding statute. See Tex. Transp. Code Ann. § 545.352(a). Appellant does not dispute that he was driving seventy miles per hour in a sixty-five mile-per-hour speed zone. In fact, appellant told Burnett he had his cruise control set at seventy miles per hour. Appellant disputes only that his speed was unsafe and imprudent under then existing circumstances.
        But appellant was not being tried for speeding, nor was the State required to prove he was speeding in order to meet its burden of showing that Burnett had reasonable suspicion to stop his vehicle. See Drago v. State, 553 S.W.2d 375, 377-78 (Tex. Crim. App. 1977). The State was required to show only that Burnett reasonably believed appellant was violating the speeding statute. Powell v. State, 5 S.W.3d 369, 376 (Tex. App.-Texarkana 1999, pet. ref'd). “A stop that meets the test for reasonable suspicion is lawful even if the facts supporting the stop are ultimately shown to be inaccurate or false.” Icke v. State, 36 S.W.3d 913, 916 (Tex. App.-Houston [1st Dist.] 2001, pet. ref'd (citing Kelly v. State, 721 S.W.2d 586, 587 (Tex. App.-Houston [1st Dist.] 1986, no pet.)).
        We have reviewed the record before us and it supports the findings of fact made by the trial court in support of its ruling on appellant's motion to suppress. Inasmuch as Burnett was justified in his initial stop of appellant's vehicle based on reasonable suspicion, and because ensuing events and facts elevated that reasonable suspicion to probable cause to search and arrest, the record before us does not show the trial court abused its discretion in denying appellant's motion to suppress.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          SUE LAGARDE
                                                          JUSTICE, ASSIGNED
 
Do Not Publish
Tex. R. App. P. 47
081431F.U05
 
Footnote 1 The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Footnote 2 Appellant was indicted for possession, with intent to deliver, of cocaine, in an amount of four grams or more but less than 200 grams, enhanced. After the trial court denied his motion to suppress, appellant entered a non-negotiated plea of guilty. The trial court assessed appellant's punishment at twenty-five years' confinement and a $5,000 fine.
Footnote 3 We note the State's brief “prays that the trial court's order granting the motion to suppress be reversed and the case be remanded to the trial court.” Inasmuch as the trial court denied the motion to suppress and the State is before this court as the appellee, we conclude this is simply an error on the State's part.
Footnote 4         Although the State argues on appeal that appellant's complaint is not preserved for this Court's review because his motion stated one legal theory at trial and asserts a different legal theory on appeal, we will review appellant's complaint.
 
        Appellant's attorney, Michael Ray Harris, originally filed a motion to suppress physical evidence on September 3, 2008, and a hearing was held on that motion on October 1, 2008. Because the trial court agreed with the State that the motion did not allege a challenge to the validity of the initial stop, the trial court permitted appellant to amend his suppression motion to include such an allegation. The second motion was filed on October 3, 2008, and a hearing was held on that motion on October 15, 2008. That motion purports to give notice to the State that appellant was challenging every aspect of his detention, the search of his person, and the search of his vehicle.
 
        The State also argues that, assuming arguendo, appellant's complaint is preserved, the State presented sufficient evidence to justify the initial stop of appellant's vehicle.
Footnote 5 Appellant told Burnett that he had set his cruise control for seventy miles per hour.
Footnote 6 In relevant part, section 545.351 states:
 
 
(a) An operator may not drive at a speed greater than is reasonable and prudent under the circumstances then existing.
 
 
 
(b) An operator:
 
 
 
(1) may not drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard for actual and potential hazards then existing; . . . .
 
Tex. Transp. Code Ann. § 545.351 (Vernon 1999).
 
        Section 545.352 further states, “A speed in excess of the limits established . . . is prima facie evidence that the speed is not reasonable and prudent and that the speed is unlawful.” Tex. Transp. Code Ann. § 545.352(a) (Vernon Supp. 2009).