Christy Nicole Tibbs v. State ( 2008 )

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Opinion issued February 14, 2008

In The

Court of Appeals

For The

First District of Texas

____________

NO. 01-06-00991-CR

____________

CHRISTY NICOLE TIBBS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 184th District Court

Harris County, Texas

Trial Court Cause No. 1056730

MEMORANDUM OPINION

          Appellant, Christy Nicole Tibbs, appeals her conviction for the felony offense of possession of a controlled substance, namely 3,4-methylenedioxy methamphetamine (ecstasy), weighing more than one gram and less than four grams. See Tex. Health & Safety Code Ann. § 481.103(a) (Vernon Supp. 2007). After the trial court denied a pretrial motion to suppress evidence, appellant pleaded guilty pursuant to a plea bargain. In accordance with the plea bargain, the trial court deferred adjudication of guilt, placed appellant on deferred-adjudication community supervision for two years, and imposed a $200 fine. In two issues, appellant contends that the trial court erred in overruling her motion to suppress evidence seized after unlawfully stopping appellant for speeding in violation of (1) Article I, section 9 of the Texas Constitution and (2) the Fourth Amendment of the United States Constitution. See U.S. Const. Amend. IV; Tex. Const. Art. I, § 9. We affirm.

Background

          Officer Cortez stopped appellant for speeding around 2:00 a.m. Cortez saw appellant exceeding the posted 40-mile-per-hour speed limit on the I-10 East Freeway service road and verified through the use of a radar, which he had been trained to use, that appellant was speeding. Although sure that appellant was exceeding the speed limit, Cortez could not recall appellant’s exact speed. Cortez explained that, because he placed appellant under arrest for possession of a controlled substance, he did not issue her a citation for speeding and, therefore, did not make a note of her speed.

          While talking to appellant through the driver’s window, Cortez smelled what he recognized as the odor of marijuana emitting from the car. After obtaining appellant’s driver’s license, Cortez asked appellant to step out of the car. He then saw a marijuana cigar in plain view on the driver’s side armrest. Cortez then arrested appellant for possession of marijuana and placed her in the back of his patrol car. Cortez asked appellant if she had any more marijuana, and she admitted having both marijuana and ecstasy, the substance that she was convicted of possessing in this case. Cortez found both marijuana and ecstasy in appellant’s purse.

          Appellant filed a motion to suppress, in which she alleged that Cortez lacked probable cause to stop her for speeding and interrogated her in violation of Miranda v. Arizona. The court granted appellant’s motion to suppress any oral statements that she made, but denied appellant’s motion to suppress the drugs found in her purse.

Motion-to-      Suppress Standard of Review

          In reviewing the trial court’s ruling on a motion to suppress evidence, we apply a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000); Blake v. State, 125 S.W.3d 717, 722 (Tex. App.—Houston [1st Dist.] 2003, no pet.). We give almost total deference to the trial court’s determination of historical facts that depend on credibility, while we conduct a de novo review of the trial court’s application of the law to those facts. Carmouche, 10 S.W.3d at 327. If the trial court’s determination is correct on any theory of law applicable to the case, we will uphold the determination. Id.

Unlawful Detention

          In two issues, appellant contends that the evidence was illegally obtained because she was unlawfully detained for a traffic violation.

          An officer may lawfully stop and detain a person for a traffic violation if the officer has a reasonable basis for suspecting that an offense has been committed. See Whren v. United States, 517 U.S. 806, 810, 116 S. Ct. 1769, 1772 (1996); McVickers v. State, 874 S.W.2d 662, 664 (Tex. Crim. App. 1993). The officer must articulate specific facts that, in light of his experience and personal knowledge, together with inferences from those facts, would reasonably warrant the intrusion on the freedom of the person detained. Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968).           Under the appropriate standard of review, we must view the evidence in the light most favorable to the trial court’s decision. See State v. Gray, 158 S.W.3d 465, 467 (Tex. Crim. App. 2005). Officer Cortez observed appellant speeding on the service road prior to entering the on-ramp to the Interstate. Appellant contends that there was no evidence that her speed “was not reasonable and prudent under circumstances then existing.” See Tex. Transp. Code Ann. § 545.351(a), (b) (Vernon 1999). However, Cortez testified that appellant exceeded the posted speed limit. “A speed in excess of the limits . . . is prima facie evidence that the speed is not reasonable and prudent and that the speed is unlawful.” Id. § 545.352 (Vernon Supp. 2007).

          Appellant contends that, although proof of excessive speed is sufficient for a jury to infer a finding that the speed was not reasonable and prudent, it does not conclusively establish such. Appellant asserts that, based on the record in this case, in which weather conditions may have been good and Officer Cortez could not recall appellant’s speed and could not testify that his radar had been calibrated, “no objective person could conclude that the speed Appellant was traveling was unreasonable and imprudent under the circumstances then existing.”

          Cortez testified that appellant’s speed was not reasonable or prudent under the existing conditions. It was unnecessary for the State to “conclusively establish” this fact. Rather, the State had to show that Cortez had a reasonable belief that a violation was occurring. See Hesskew v. Tex. Dep’t. of Pub. Safety, 144 S.W.3d 189, 191 (Tex. App.—Tyler 2004, no pet.). Based on his observations, the trial court did not err in concluding that Cortez was justified in detaining appellant for speeding. See McAfee v. State, 204 S.W.3d 868, 870 (Tex. App.—Corpus Christi 2006, pet. ref’d); Icke v. State, 36 S.W.3d 913, 915–16 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d).

          Appellant does not contest that Cortez had probable cause to search the car and to arrest appellant once he smelled the odor of marijuana and observed the marijuana cigar in plain view. See Davis v. State, 74 S.W.3d 90, 96 (Tex. App.—Waco 2002, no pet.) (holding that probable cause to arrest existed when marijuana cigarette in plain view was proximate and accessible to appellant); Joseph v. State, 3 S.W.3d 627, 634-35 (Tex. App.—Houston [14th Dist.] 1999, no pet.) (stating that “[t]he odor of marijuana may, by itself, supply probable cause for a warrantless arrest” and that search of appellant’s wallet following that arrest was lawful); Hillsman v. State, 999 S.W.2d 157, 162 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d) (holding that probable cause for warrantless arrest existed when officer saw what officer believed to be crack cocaine that was in plain view in appellant’s vehicle); Carr v. State, 904 S.W.2d 882, 885 (Tex. App.—Eastland 1995, pet. ref’d) (holding that smell of marijuana gave probable cause to make warrantless arrest). Thus, the court was within its discretion to determine that the evidence was legally obtained.

          We hold that the trial court did not abuse its discretion by overruling the motion to suppress filed by appellant. We overrule issues one and two.

   Conclusion

          We affirm the judgment of the trial court.

                                                                        Tim Taft

Justice

Panel consists of Justices Taft, Keyes, and Alcala.

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