Opinion
No. 05-08-01224-CR
Opinion issued July 8, 2010. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 401st District Court, Collin County, Texas, Trial Court Cause No. 401-80112-08.
Before Justices BRIDGES, FITZGERALD, and FILLMORE.
MEMORANDUM OPINION
Leroy Hill appeals his conviction for possession of methamphetamine in an amount less than one gram. Following the trial court's denial of appellant's motion to suppress, appellant pled guilty. Appellant was sentenced to two years' confinement in the state jail and a fine of $3000. The trial court suspended appellant's sentence and placed him on community supervision for three years. In a single issue, appellant argues the evidence against him should have been suppressed because no valid consent was secured prior to the search of his vehicle. We affirm the trial court's judgment. At the hearing on appellant's motion to suppress, Plano police officer Michael Atkins testified he and officer Jason Moses were in uniform driving through a Motel 6 parking lot just before 6:00 a.m. on November 17, 2007. Atkins testified he had frequently seen criminal activity at this location, and he included the parking lot in his patrol every night. Upon entering the parking lot, the officers saw a truck parked across three or four parking spaces, directly next to another truck with a box trailer. The officers saw a light, which was not the truck's interior dome light, inside the truck. Moses used a spotlight to light the interior of the truck so they could see whether anyone was inside the truck. The officers saw appellant making furtive movements in the truck, and it appeared he was trying to hide something in the door. The officers approached the truck to speak with appellant. Atkins walked directly to the closest side, which was the passenger's side, while Moses crossed in front of the truck to get to the driver's side. Appellant started to drive away but stopped to avoid running into Moses, who was directly in front of the vehicle. Appellant got out of the truck by barely opening the door and squeezing through the opening. Once outside the vehicle, appellant kept himself between the officers and the truck, shielding the officers' view. Atkins asked appellant if there was anything illegal in the truck, and appellant replied that he did not consent to a search of the truck. The officers asked appellant what was going on, and he said he had just left his ex-wife's room, Room 206. The officers confirmed with the motel clerk that Room 206 had been vacant for approximately three hours. Moses further testified that he and Atkins asked appellant about his criminal history, and appellant told the officers he had been arrested once. After checking appellant's criminal history, the officers verified that appellant had three prior arrests. Appellant provided the officers with the truck's proof of insurance by barely opening the door and again squeezing through the opening to retrieve the card. The officers then discovered that the truck was owned and insured by appellant's employers, Richard and Karen Forbes. The truck's insurance card provided an address, and the officers used the information to get a phone number for the Forbeses. Atkins called the number and spoke to both Richard and Karen Forbes, who said that the truck was not supposed to be at the Motel 6, and they gave their consent to allow the officers to search the vehicle. Ms. Forbes stayed on the phone while the search was conducted so she would be able to revoke her consent at any time. After the search was completed, an officer obtained written consent from Ms. Forbes. During the search, the officers found drugs and a weapon in the side door of the truck, which was the location where the officers observed appellant's furtive gestures just prior to their approach. Appellant argued that his attempt to drive away was an exercise of his right to decline to speak to the officers and that the officers exceeded the right to temporary investigation. Further, appellant argued that he asserted his right to deny consent to search the vehicle, and the officers did not have authority to search. The trial court denied appellant's motion to suppress. The trial court issued findings of fact and conclusions of law stating that appellant's motion to suppress was denied because the officers had reasonable suspicion to support their initial approach, sufficient reason to temporarily detain appellant and investigate, and probable cause to search the vehicle. The initial approach was supported by the criminal history of the parking lot, the light in the truck, and appellant's movements within the truck. The temporary detention and investigation were supported by appellant nearly hitting Moses with the truck. Finally, the search was supported by appellant's lack of veracity with respect to his criminal history and his actions to use himself as a shield around the truck. The court held that, because there was probable cause to justify a search of the truck, consent from the Forbeses was unnecessary. The court did not issue a decision on whether people with superior legal right to a vehicle have the ability to give consent to a search if the driver or operator of the vehicle does not consent. Following appellant's guilty plea and imposition of sentence, the trial court certified appellant's right to appeal. This appeal followed. In a single issue, appellant argues his motion to suppress should have been granted. Specifically, appellant argues the facts showed his warrantless arrest was based on a stop with no specific articulable facts that he actually was, had been, or soon would be engaged in criminal activity in violation of both the Fourth Amendment of the United States Constitution and Article 1, Section 9 of the Texas Constitution. Further, appellant argues that telephone consent by the wife of the owner of the vehicle with no facts to show mutual use or right to possession of appellant's vehicle was not valid. When a brief does not clearly separate state and federal constitutional issues, we review using statutes passed by the Texas Legislature and decisions rendered by the Texas Court of Criminal Appeals. Brown v. State, 830 S.W.2d 171, 174 (Tex. App.-Dallas 1992, pet. ref'd). The United States Constitution provides basic rights that states must provide, and a state's constitution may increase its citizens' rights. Id. We review a trial court's denial of a motion to suppress for abuse of discretion. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000); Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999). An abuse of discretion is seen when the ruling is so clearly wrong as to be outside that zone within which reasonable persons might disagree. Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim. App. 1992). We afford almost total deference to a trial court's determination of the historical facts that the record supports, especially when the trial court's fact findings are based upon an evaluation of credibility and demeanor. State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000). We afford the same amount of deference to the trial court's rulings on mixed questions of law and fact, if the resolution of those questions turns on an evaluation of credibility and demeanor. Carmouche, 10 S.W.3d at 332; Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We review de novo the trial court's application of law to those facts in the determination of reasonable suspicion and probable cause. Carmouche, 10 S.W.3d at 327; Guzman, 955 S.W.2d at 89. If a trial court's decision is correct on any theory of law applicable to the case, the decision will be sustained. Randolph v. State, 152 S.W.3d 764, 769 (Tex. App.-Dallas 2004, no pet.). Law enforcement may justifiably detain a suspect for investigation if a reasonable suspicion of criminal activity exists, even if there is not sufficient probable cause to make an arrest. Terry v. Ohio, 392 U.S. 1, 22-23 (1968). In Terry, an officer watched two men take turns walking past a storefront, pausing to look at the store, and then meeting each other to talk a dozen times in a row. Id. at 6. Using his experience in law enforcement, the officer interpreted the activity as suspicious and indicative of someone "casing" the store for a "stick-up." Id. The court held that the officer justifiably detained the individuals for investigation. Id. at 23. An investigative detention is reasonable so long as it lasts no longer than is necessary for the purpose of the stop. Kothe v. State, 152 S.W.3d 54, 63 (Tex. Crim. App. 2004). For example, if a law enforcement officer stopped a person on suspicion of driving while intoxicated, the detention may not continue once the officer determined the person was not intoxicated. Id. Here, the officers initially approached the vehicle because appellant was engaged in suspicious activity, and they suspected criminal activity. Atkins and Moses saw appellant in a high-crime parking lot moving furtively within his truck, using a light other than the interior dome light, while parked across three of four parking spaces directly next to another truck with a box trailer. Atkins relied on his experience in law enforcement to conclude that appellant's activity was suspicious and justified an investigative detention. During the approach, appellant began moving the truck directly towards a uniformed officer, further raising the officers' suspicions. Once the officers engaged appellant in conversation, he did not provide accurate information to the officers about his criminal history or his reason for being at the motel. Appellant's claim that he was at the motel to meet his ex-wife was a question of fact, which the trial court found to be unlikely. We accept all findings of fact by the trial court to be true because it is in a better position to determine the credibility and demeanor of the witnesses. See Guzman, 955 S.W.2d at 89. Additionally, appellant twice squeezed himself through a barely open door and used his body as a shield between the officers and the truck. The officers initially stopped appellant to determine whether there was any criminal activity occurring. Throughout the encounter, appellant's actions continued to increase the officers' suspicions of criminal activity. The officers' actions during the detainment were for the purpose of the initial stop, which was to determine whether appellant was engaged in criminal activity. Thus, the detainment was reasonable. See Kothe, 152 S.W.3d at 63. It is well established that consent to search is an exception to constitutional requirements for a warrant or probable cause. Carmouche, 10 S.W.3d at 331. Because the truck was a company vehicle, appellant had no justifiable expectation that the truck would be free from inspection by the Forbeses or police acting with the Forbeses' consent. See Boyle v. State, 820 S.W.2d 122, 143 (Tex. Crim. App. 1991) (op. on reh'g). In Boyle, the court reasoned that, because the employer owned the truck, paid for gas while the employee used it, and paid the employee for work done while using the truck, the employer maintained a supervisory authority over the truck. Id. Here, similar to the employer in Boyle, the Forbeses owned the truck, paid insurance on the truck, and paid the employee for work done while using the truck. Further, the Forbeses indicated that they had control over where the truck was to be used when they told the officers the truck was not supposed to be at the Motel 6. Under these circumstances, the Forbeses maintained a supervisory authority over the truck and had the power to consent to a search despite appellant's objections. See Id. Accordingly, the trial court did not abuse its discretion in denying appellant's motion to suppress. See Carmouche, 10 S.W.3d at 327; Guzman, 955 S.W.2d at 89; Randolph, 152 S.W.3d at 769. We overrule appellant's issue. We affirm the trial court's judgment.