Opinion
No. 06-04-00175-CR
Submitted: July 12, 2005.
Decided: August 31, 2005. DO NOT PUBLISH.
On Appeal from the 124th Judicial District Court, Gregg County, Texas, Trial Court No. 30927-B.
Before MORRISS, C.J., ROSS and CARTER, JJ.
MEMORANDUM OPINION
When Deputy Tracy Freeman of the Gregg County Sheriff's Office saw Terrance Lamont Lipscomb's car traveling along Interstate 20, Freeman believed Lipscomb was traveling in excess of the seventy mile-per-hour posted speed limit. Freeman verified his suspicions using radar, which indicated Lipscomb was traveling at seventy-five miles per hour. Freeman then initiated a traffic stop based on Lipscomb's speed. Events following the traffic stop resulted in Lipscomb being arrested for several offenses, including the one at issue in this case: unlawful possession of a firearm by a felon. See Tex. Pen. Code Ann. § 46.04 (Vernon Supp. 2004-2005). Lipscomb moved to suppress the State's evidence as the product of an illegal traffic stop. The trial court denied Lipscomb's motion after conducting a hearing, and Lipscomb subsequently pled guilty to the various charges without the benefit of a plea agreement. Lipscomb was sentenced in this case to ten years' confinement. He now appeals the trial court's denial of his motion to suppress evidence. For the reasons stated, we affirm the trial court's judgment. An appellate court reviews a trial court's ruling on a motion to suppress for abuse of discretion. Oles v. State, 993 S.W.2d 103, 106 (Tex.Crim.App. 1999); Maysonet v. State, 91 S.W.3d 365, 369 (Tex.App.-Texarkana 2002, pet. ref'd). A trial court abuses its discretion when it acts unreasonably or arbitrarily, if it acts outside the zone of reasonable disagreement, or if its decision is made without reference to guiding rules and principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex.Crim.App. 1990). As the finder of historical fact, the trial court is free to believe or disbelieve the testimony or evidence from any witness, even if that witness' testimony or a piece of evidence is otherwise not controverted by the opposing side. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000). An appellate court reviews the trial court's application of law to the lower court's findings of historical fact under a de novo standard. Id. at 856. If the trial court does not issue written findings of fact and conclusions of law regarding the ruling on a motion to suppress, the reviewing court should assume the trial court made implicit findings to support its ruling, so long as those implied findings are supported by the record. Id.; Maysonet, 91 S.W.3d at 369. If the trial court's decision can be upheld under any theory applicable to the case, the reviewing court must affirm that judgment. Ross, 32 S.W.3d at 855-56. (1) The Initial Traffic Stop Was Valid Lipscomb first contends Freeman was without probable cause to initiate a traffic stop. Lipscomb argues Freeman failed to testify that he properly used his radar unit in this case (in accordance with widely accepted police techniques), and that Freeman's failure to so testify violates the requirements set forth in this Court's opinion in Maysonet regarding the admissibility of radar evidence. Lipscomb next asserts that because there were other cars nearby, of which Freeman also checked the speed, it is possible Freeman's radar measured only the speed of these other cars and not the speed of Lipscomb's car. Because there was sufficient evidence to provide Freeman probable cause to believe Lipscomb was speeding, we reject these arguments. Freeman's testimony, if believed by the trial court — and we assume it was because the trial court ruled against Lipscomb — would support a finding that Lipscomb was committing a crime by speeding. Seventy miles per hour is the maximum lawful speed during daytime hours on Texas interstate roadways. Tex. Transp. Code Ann. § 545.352(b) (Vernon Supp. 2004-2005). Traveling in excess of that speed on a Texas interstate is unlawful. Tex. Transp. Code Ann. § 545.352(a) (Vernon Supp. 2004-2005). Freeman, a certified peace officer and a fourteen-year veteran of the sheriff's department, testified he first observed Lipscomb traveling at a speed Freeman believed to be in excess of the posted speed limit. Freeman also testified that, based on his experience, he "can get pretty close to telling that a vehicle is traveling faster than the normal flow of traffic." Freeman subsequently verified his suspicions using "calibrated" radar. Based on his visual observations and the confirmation he received from his radar unit, Freeman had specific information that would logically lead him to conclude Lipscomb was unlawfully speeding. We believe Freeman's testimony about using calibrated radar, testimony which the trial court could have properly interpreted to mean the radar was operating correctly, when combined with the officer's earlier testimony that he had visually estimated Lipscomb's speed to be excessive, was sufficient to satisfy the requirements we set forth in Maysonet. And, to the extent that there may have been conflicting evidence about which car Freeman's radar measured, the trial court resolved such factual conflicts against Lipscomb. Because, here, that conflict resolution is supported by the record, we will not disturb it. Accordingly, we cannot say the trial court erred by holding Freeman was authorized to stop Lipscomb for speeding. The initial traffic stop was, therefore, lawful. (2) The Traffic Stop Was of Reasonable Length In his second and third points of error, Lipscomb contends Freeman unnecessarily prolonged the traffic stop and searched Lipscomb's vehicle without valid consent. Officers are permitted to ask for identification, a valid driver's license, and proof of insurance during a traffic stop. Davis v. State, 947 S.W.2d 240, 245 n. 6 (Tex.Crim.App. 1997). Officers may also check for outstanding warrants. Id. The officer must, however, use "the least intrusive means reasonably available to verify or dispel his suspicion in a short period of time." Id. Under Davis, Freeman's detention of Lipscomb "was required to be temporary and could last no longer than was necessary" to satisfy or dispel the officer's original suspicion of speeding and to conclude the stop. Id. In this case, a videotape of the traffic stop was entered into evidence. A review of that videotape shows Freeman initiated the stop and made first contact with Lipscomb at 7:53 a.m. Freeman informed Lipscomb of the purpose of the stop, asked for Lipscomb's license and proof of insurance, and briefly inquired into Lipscomb's driving and criminal histories. This initial conversation lasted barely one minute. Freeman then returned to his patrol car, contacted a dispatcher, and requested a criminal and out-of-state license history on Lipscomb. Eight to nine minutes later, the dispatcher contacted Freeman with those histories, including verification that Lipscomb had spent time in the penitentiary for narcotics trafficking. Freeman then returned to the rear of Lipscomb's car and asked Lipscomb to step to the rear of that vehicle. Freeman then appears to tell Lipscomb he will receive only a warning citation, and Freeman then asks for consent to search, which Lipscomb provides. Consent to search is "one of the well-established exceptions to the constitutional requirements of both a warrant and probable cause." Carmouche v. State, 10 S.W.3d 323, 331 (Tex.Crim.App. 2000) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973); State v. Ibarra, 953 S.W.2d 242, 243 (Tex.Crim.App. 1997)). The videotape clearly shows Lipscomb gave willing consent to the officer's request to search the vehicle. Lipscomb's contention on appeal to the contrary is disingenuous and not supported by the evidence. Less than ten seconds passed between the time Freeman informed Lipscomb (at the rear of the car) that the latter would receive a warning citation and the moment when Lipscomb consented to a search of the vehicle. Thus, we cannot conclude, given the sequence of discrete facts of this case, that the lapse of ten seconds amounted to an unreasonable extension of the duration of the traffic stop. We therefore overrule Lipscomb's second and third points of error. (3) The Confession Was Admissible In his final point of error, Lipscomb contends his written custodial confession should have been inadmissible because it was taken before he was taken to a magistrate to receive the warnings required by Article 15.17 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 15.17 (Vernon 2005). "It is well settled that the failure to take an arrestee before a magistrate in a timely manner will not invalidate a confession unless there is proof of a causal connection between the delay and the confession." Renfro v. State, 958 S.W.2d 880, 887 (Tex.App.-Texarkana 1997, pet. ref'd) (citing Cantu v. State, 842 S.W.2d 667, 680 (Tex.Crim.App. 1992)). "Additionally, when a person is properly warned of his rights by the person taking his confession, the failure to take the accused before a magistrate before taking the confession does not invalidate the confession." Id. (citing Self v. State, 709 S.W.2d 662, 667 (Tex.Crim.App. 1986)). Lipscomb has made no effort to point to any evidence in the record showing a causal connection between the delay in being brought before a magistrate and his confession, nor has any been shown by our review of the record. Moreover, the first paragraph of Lipscomb's confession reads,
I, TERRENCE [sic] LAMONTE LIPSCOMB, do freely and voluntarily make the following statement to Investigator MIKE CLAXTON and Ranger RONNY GRIFFITH after having been warned by him on the 18th day of August 2003 at 9:30 AM at the Gregg County Sheriff's Office CID, that I have the right to remain silent and not make any statement at all and that any statement I make may be used against me at my trial; any statement I make may be used as evidence against me in court; I have the right to have a lawyer present to advise me prior to and during any questioning; [i]f I am unable to employ a lawyer, and I have the right to have a lawyer appointed to advise me prior to and during questioning; and I have the right to terminate the interview at any time. Knowing and intelligently understanding my rights, I freely and voluntarily wish to waive the above rights and do hereby make this statement. . . .The statement itself shows Lipscomb was warned of his rights before the statement was taken; Article 15.17 therefore does not bar the statement's admissibility. We overrule Lipscomb's final point of error. For the reasons stated, we affirm the trial court's judgment.
Shortly after Lipscomb exited his vehicle, a struggle ensued pitting Lipscomb against Freeman and several other police officers who had arrived at the scene. During the scuffle, Lipscomb was able to get an officer's service weapon and, using that weapon, threatened to commit suicide. Had it not been for the intervention of one of the officers, who was able to put his hand between the gun's firing pin and the hammer, Lipscomb might have succeeded in that suicide attempt.
Lipscomb has also appealed his conviction and sentence in five companion cases. Our disposition in those cases is presented by way of separate opinions. See Lipscomb v. State, No. 06-04-00176-CR (taking weapon from police officer); Lipscomb v. State, No. 06-04-00177-CR (possessing marihuana); Lipscomb v. State, No. 06-04-00178-CR (unauthorized use of motor vehicle); Lipscomb v. State, No. 06-04-00179-CR (possessing controlled substance with intent to deliver); and Lipscomb v. State, No. 06-04-00180-CR (assault on public servant).
In the five companion cases, Lipscomb was sentenced as follows: case number 06-04-00176-CR (taking weapon from police officer), twenty years' imprisonment; case number 06-04-00177-CR (possessing marihuana), eighteen months in a state jail facility; case number 06-04-00178-CR (unauthorized use of motor vehicle), eighteen months in a state jail facility; case number 06-04-00179-CR (possessing controlled substance with intent to deliver), life imprisonment; and case number 06-04-00180-CR (assault on public servant), twenty years' imprisonment, to run consecutively to the other sentences.
Radar "calibration" typically involves a two-step process. The first step, called "external" calibration, involves the use of one or more special tuning forks that are designed to resonate at specific, different frequencies. The tuning forks are struck and then placed in front of the radar unit. The vibrations from the forks resonate at predictable, specific frequencies. If the radar unit is operating properly, the unit will be able to detect the different, specific frequency generated by each tuning fork, which will then alert the officer whether the radar unit is operating properly. The second step, called "internal" calibration, is performed by pushing a button on the radar unit, which causes the unit to cycle through several internal checks and then display specific numbers on a display panel. The officer then verifies that these numbers indicate the radar unit is working properly. If the radar unit is properly calibrated, then the officer may assume the unit is in proper working order. See generally United States v. Charles, No. 03-15-SLR, 2003 U.S. Dist. LEXIS 13477, at *2-3 (D. Del. July 23, 2003) (not designated for publication) (describing process of using tuning fork to calibrate radar); Aurora v. McIntyre, 719 P.2d 727, 728-29 (Colo. 1986) (discussing process of certifying tuning forks); Connecticut v. Trantolo, 430 A.2d 465, 466 (Conn.Super.Ct. 1981) (using tuning fork to calibrate radar); State v. Tailo, 779 P.2d 11, 12 (Haw. 1989) (describing process of both external and internal calibration); Louisiana v. Creel, 490 So.2d 711, 714 (La.Ct.App. 1986); Mills v. State, 99 S.W.3d 200, 203 (Tex.App.-Fort Worth 2002, pet. ref'd) (discussing process of internal calibration); Untiedt v. Virginia, 447 S.E.2d 537, 539 (Va.Ct.App. 1994) (external calibration process).
The previous period of eight to nine minutes, between the time Lipscomb's driver's license and criminal history information were requested from the police dispatcher and the time the information was provided to the officer on the scene, is a legitimate period of investigation by the officer. See Davis, 947 S.W.2d at 245 n. 6.