No. 01-03-00383-CR.
Opinion issued March 25, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 179th District Court, Harris County, Texas, Trial Court Cause No. 923356.
Panel consists of Chief Justice RADACK and Justices ALCALA and BLAND.
ELSA ALCALA, Justice.
Appellant, Michael Ray Hawthorn, pleaded no contest, without an agreed punishment recommendation from the State, to the felony offense of possession with intent to deliver a controlled substance, namely, cocaine weighing more than four grams and less than 200 grams by aggregate weight, including any adulterants and dilutants. The trial court deferred adjudication of appellant's guilt for six years and assessed a $1,000 fine. In three points of error, appellant contends that the trial court erred in denying his motion to suppress evidence. We affirm.
Motion to Suppress
Appellant's three points of error allege that the trial court erred in denying his motion to suppress evidence because the evidence was seized without a warrant and without probable cause, in violation of the Fourth and Fourteenth Amendments to the United States Constitution, article 1, section 9 of the Texas Constitution, and article 38.23 of the Code of Criminal Procedure. See U.S. Const. amends. IV, XIV; Tex. Const. art. 1, § 9; Tex. Code Crim. Proc. Ann. § 38.23 (Vernon Supp. 2004). Appellant limits his three issues on appeal to the claim that his affidavit and photographs established that Deputy John Palermo, a peace officer with the Harris County Sheriff's Department for 11 years, could not have seen through the heavily tinted windows of appellant's vehicle to determine whether appellant was wearing a seatbelt and, therefore, that Palermo had no authority to stop appellant's vehicle. The trial court heard appellant's motion to suppress by considering evidence in the form of affidavits from Deputy Palermo and appellant. According to Deputy Palermo's affidavit, on September 5, 2002, at approximately 8:00 pm, he observed appellant driving a pickup truck on the East Sam Houston Parkway in East Harris County, Texas without being secured by a safety belt and initiated a traffic stop. When Deputy Palermo approached appellant's pickup truck, he saw appellant make a furtive movement by reaching his right hand behind the front passenger seat. Deputy Palermo approached the passenger side of appellant's vehicle and detected an odor of an alcoholic beverage coming from the interior of the vehicle. After Deputy Palermo asked appellant to exit the pickup truck, he observed appellant walking towards him with a part of a cellophane package protruding from the right coin pocket of appellant's pants. During a pat-down of appellant, Deputy Palermo felt several small bulges in appellant's right coin pocket. Appellant was asked if the bulges were cocaine, and appellant responded that they were. Deputy Palermo recovered four cellophane packages of cocaine from appellant's pocket and an additional cellophane bag of cocaine in appellant's vehicle. Appellant's affidavit stated that Deputy Palermo could not have seen whether he was wearing a seatbelt because the windows in appellant's truck were heavily tinted. Photographs of the truck were attached to appellant's affidavit.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). We give almost total deference to the trial court's determination of historical facts, and we conduct a de novo review of the court's application of the law to those facts. Id.; see also Manzi v. State, 88 S.W.3d 240, 241 (Tex.Crim. App. 2002) (holding that deferential review applies even when trial court's factual determination is based solely upon affidavits). When, as here, the trial court does not make explicit findings of historical facts, 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 are supported by the record. Balentine, 71 S.W.3d at 768. A police officer may lawfully stop a motorist who commits a traffic violation. McVickers v. State, 874 S.W.2d 662, 664 (Tex.Crim.App. 1993). The Transportation Code makes it an offense for a person at least 15 years of age not to be secured by a safety belt when riding in the front seat of a passenger vehicle while the vehicle is being operated, provided that the seat that he is in is equipped with a safety belt. Tex. Transp. Code Ann. § 541.413(a) (Vernon 1999). Thus, a law enforcement officer who observes an individual unsecured by a safety belt while riding in the front seat of a vehicle when the vehicle is being operated has reasonable suspicion to make a traffic stop to investigate further whether an offense has been committed. Davis v. State, 947 S.W.2d 240, 244-45 (Tex.Crim.App. 1997). The conflicting affidavits regarding whether Deputy Palermo was able to see inside appellant's vehicle required the trial court to evaluate the credibility of the affiants and to make a determination of historical facts. See Manzi, 88 S.W.3d at 244. Because the trial court made no explicit findings of historical facts, we review the affidavits and photographs in the light most favorable to the trial court's ruling and assume that the trial court implicitly found that Deputy Palermo was more credible than appellant. See Balentine, 71 S.W.3d at 768. We do not agree with appellant's characterization of the photographs and defer instead to the trial court's determination of the facts. We conclude, therefore, that the trial court correctly applied the facts to the law, which allows a peace officer to detain a motor vehicle for the traffic violation of failure to wear a seatbelt. See id. We overrule appellant's points of error one, two, and three. Conclusion
We affirm the order of the trial court.