Deidra M. McGraw v. State ( 2011 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-10-00126-CR
______________________________
DEIDRA M. MCGRAW, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 196th Judicial District Court
Hunt County, Texas
Trial Court No. 25790
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION
Deidra M. McGraw appeals from her conviction for possession of marihuana in the amount
of 2,000 pounds or less but more than fifty pounds, and resulting sentence of eighteen years‘
imprisonment. Her sole point of error contends that the trial court erred in denying her motion to
suppress the evidence. We affirm the trial court‘s judgment.
I. Standard of Review
We review a trial court‘s decision on a motion to suppress evidence by applying a
bifurcated standard of review. Graves v. State, 307 S.W.3d 483, 489 (Tex. App.—Texarkana
2010, pet. ref‘d); Rogers v. State, 291 S.W.3d 148, 151 (Tex. App.—Texarkana 2009, pet. ref‘d).
While we defer to the trial court on its determination of historical facts and credibility, we review
de novo its application of the law and determination on questions not turning on credibility.
Carmouche v. State, 10 S.W.3d 323, 332 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d
85, 89 (Tex. Crim. App. 1997); Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996);
Graves, 307 S.W.3d at 489.
We also afford deference to a trial court‘s ―application of law to fact questions,‖ also
known as ―mixed questions of law and fact,‖ if the resolution of those questions turns on an
evaluation of credibility and demeanor. Guzman, 985 S.W.2d at 89. Since all the evidence is
viewed in the light most favorable to the trial court‘s ruling, we are obligated to uphold the denial
of McGraw‘s motion to suppress if it was supported by the record and was correct under any
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theory of law applicable to the case. Carmouche, 10 S.W.3d at 327–28; State v. Ballard, 987
S.W.2d 889, 891 (Tex. Crim. App. 1999).
II. Scope of Detention
―No right is held more sacred, or is more carefully guarded, by the common law‖ than
freedom from unreasonable search and seizure as guaranteed by the Fourth Amendment to the
United States Constitution. Terry v. Ohio, 392 U.S. 1, 9 (1968); State v. Williams, 275 S.W.3d
533, 536 (Tex. App.––Texarkana 2008, no pet.). ―A search which is reasonable at its inception
may violate the Fourth Amendment by virtue of its intolerable intensity and scope.‖ Williams,
275 S.W.3d at 536 (citing Terry, 392 U.S. at 18). ―Thus, it is imperative that the scope or purpose
of a search be strictly tied to, and justified by, the circumstances which rendered an invasion
permissible in the first place.‖ Id. (quoting Florida v. Royer, 460 U.S. 491, 500 (1983); Terry,
392 U.S. at 19–20, 29).
Because a routine traffic stop implicates the United States and Texas Constitutions, the
traffic stop must be reasonable. Berkemer v. McCarty, 468 U.S. 420, 436–37 (1984); Francis v.
State, 922 S.W.2d 176, 178 (Tex. Crim. App. 1996); see U.S. CONST. AMEND. IV; TEX. CONST.
art. I, § 9. We employ the test developed in Terry to determine the reasonableness of an
investigative detention; thus, we inquire: ―(1) whether the officer‘s action was justified at its
inception; and, (2) whether it was reasonably related in scope to the circumstances which justified
the interference in the first place.‖ Davis v. State, 947 S.W.2d 240, 242 (Tex. Crim. App. 1997).
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―Under the first prong, ‗the police officer must be able to point to specific and articulable
facts which, taken together with rational inferences from those facts, reasonably warrant that
intrusion.‘‖ Davis, 947 S.W.2d at 242 (quoting Terry, 392 U.S. at 21). The specific, articulable
facts, along with rational inferences from those facts, must allow the officer to reasonably
conclude that the person detained actually is, has been, or soon will be engaged in criminal
activity. United States v. Sokolow, 490 U.S. 1, 10 (1989).
The second prong of Terry requires the scope of the detention to be ―like any other search,
[and it] must be strictly circumscribed by the exigencies which justify its initiation.‖ Davis, 947
S.W.2d at 243 (quoting Terry, 392 U.S. at 25–26). The officer, however, must diligently pursue a
means of investigation that lasts no longer than is necessary and should be the ―least intrusive
means reasonably available.‖ Id. at 245. A law enforcement officer may rely on information,
obtained in the course of his or her contact with a citizen, in justifying further detention. Powell v.
State, 5 S.W.3d 369, 377 (Tex. App.––Texarkana 1999, pet. ref‘d).
―If an officer has a reasonable basis for suspecting that a person has committed a traffic
offense, the officer may legally initiate a traffic stop.‖ Graves, 307 S.W.3d at 489; Zervos v.
State, 15 S.W.3d 146, 151 (Tex. App.—Texarkana 2000, pet. ref‘d); see TEX. CODE CRIM. PROC.
ANN. art. 14.01(b) (Vernon 2005). McGraw was stopped for following too close to the vehicle in
front of her and for speeding. McGraw does not contest the legality of the initial traffic stop.
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Rather, McGraw‘s complaint is that the duration of the traffic stop exceeded the
permissible scope. It is the State‘s burden to demonstrate that the seizure it seeks to justify was
sufficiently limited in scope and duration to satisfy the conditions of an investigative seizure.
Williams, 275 S.W.3d at 536 (citing Royer, 460 U.S. at 500). The following findings were
entered by the trial court:
1. On January 19, 2009, Deidra McGraw was stopped by Royse City Police
Officers for traffic violations.
2. After the initial stop and being asked very particular questions, Deidra
McGraw lied about facts in her response to the police officers.
3. Deidra McGraw lied about her criminal record to police officers.
4. Based upon this deceit, Royse City Police Officers had enough reasonable
suspicion to believe that there was a fair probability of inculpatory evidence
in Deidra McGraw‘s automobile.
III. Factual Background
Officers Shaun Meek, Rushing, and Mosely 1 were patrolling along Highway I-30 at
nighttime in three separate patrol units. Meek testified that two vehicles with ―out of state license
plate[s]‖ ―were following extremely close to each other‖ and ―speeding, 70 in a 65‖ when they
passed in front of the officers. The officers ―proceeded to follow up behind the vehicles,‖ which
continued to speed. Rushing pulled over the rental car driven by McGraw, and Mosely pulled
over the other vehicle.
From Meek‘s recollection, and the video recording of the stop, Rushing indicated McGraw
―had shaky hands on the steering wheel,‖ ―refused to make eye contact,‖ and ―had a nervous
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Rushing‘s and Mosely‘s first names are not mentioned in the record.
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appearance about her, by how fast and hard she was chewing her gum.‖ Rushing explained the
reason for the traffic stop and asked McGraw if she was following the vehicle in front of her.
Although McGraw agreed that she was driving too closely, she denied following the other vehicle,
stated she did not know the driver of the other vehicle, and claimed she was travelling alone.
Rushing asked for McGraw‘s driver‘s license and learned that she was from Austin.
McGraw stated that she was travelling to Tennessee to locate her father, although a Mapquest
printout observed by Rushing through the window depicted directions to Indiana, and the car in
front of McGraw had Indiana license plates. After telling McGraw that she would only be
receiving warnings for the traffic offense, Rushing went back to the patrol car to run her driver‘s
license number. In addition to the indicators of nervousness, Rushing was concerned that
McGraw seemed ―way too friendly.‖
Rushing was communicating with Mosely while running McGraw‘s license. Mosely
advised Rushing that the vehicle in front of McGraw was driven by Cornealius Neal, who was also
acting nervously. Although McGraw and Neal were driving out-of-state vehicles, they both
possessed Texas driver‘s licenses. Neal was also from Austin and contradicted McGraw‘s story
by claiming that he knew her. Rushing wrote the warnings for the traffic offenses, but did not
deliver them. McGraw‘s driver‘s license check came back ―unclear and that she had been
arrested several times for large amounts of illegal narcotics.‖ Because Rushing believed that he
caught McGraw in a lie, Rushing asked McGraw to step outside of her vehicle so that he could
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question her further about her relationship with Neal. Realizing that Neal claimed to know her,
McGraw changed her story and admitted that she knew him. However, when asked about her
criminal record, McGraw lied by stating she had only been arrested for theft by check.
McGraw denied consent for Rushing to search the vehicle. Rushing then called for a
Greenville canine unit. While waiting for the unit, McGraw stated that Neal was going to
Indiana, but that she was stopping in Tennessee. She claimed they had not been anywhere else
together, but Neal had confessed to travelling with McGraw to Abilene. The canine unit arrived,
alerted to McGraw‘s trunk, and officers located approximately eighty-one pounds of marihuana
inside several suitcases. The entire stop lasted approximately thirty minutes.
IV. Further Detention Was Warranted
The scope of an officer‘s inquiry is limited to investigation of the traffic violation and a few
routine inquiries. Williams, 275 S.W.3d at 536. McGraw argues that the traffic stop concluded
when she was told by Rushing that she would only receive warnings for the traffic offense.
However, because Rushing had not delivered the warnings and had not received the report on
McGraw‘s driver‘s license, the traffic stop had not concluded. Courts recognize that during a
traffic stop, the officer has a right to check for outstanding warrants and to examine the detainee‘s
driver‘s license, insurance, and identification. Id. (citing Cisneros v. State, 165 S.W.3d 853, 859
(Tex. App.––Texarkana 2005, no pet.)); Powell, 5 S.W.3d at 377. It is only after this computer
check is completed and the officer knows that this driver has a currently valid driver‘s license, no
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outstanding warrants, and the car is not stolen, that the traffic-stop investigation is fully resolved.
Kothe v. State, 152 S.W.3d 54, 63–64 (Tex. Crim. App. 2004).
Once a police officer makes a lawful traffic stop, he or she may also investigate any other
offense the officer reasonably suspects has been committed. Bachick v. State, 30 S.W.3d 549,
551–52 (Tex. App.—Fort Worth 2000, pet. ref‘d). Further detention for investigation beyond the
traffic violation requires the officer to have a reasonable suspicion of further criminal activity. To
be reasonable, a traffic stop must be temporary and last no longer than is necessary to effectuate
the purpose of the stop. Davis, 947 S.W.2d at 245. The propriety of the length of the detention is
judged by assessing whether the police diligently pursued a means of investigation that was likely
to quickly dispel or confirm their suspicions. United States v. Sharpe, 470 U.S. 675, 686 (1985).
Any continued detention must be based on articulable facts which, when taken together with
rational inferences from those facts, would warrant a person of reasonable caution in the belief that
a continued detention was justified, i.e., the detainee was or would soon be engaged in criminal
activity. See Davis, 947 S.W.2d at 244–45.
We find that while the traffic stop was ongoing, and through routine inquiries, Rushing
obtained information which gave him reasonable suspicion to suspect McGraw was engaged in
criminal activity. Upon initial contact, McGraw nervously stated she was travelling alone and
denied any knowledge of the driver of the vehicle she was following, but Rushing determined from
the other officer that the other driver acknowledged their acquaintanceship. McGraw told the
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officer she was travelling to Tennessee to see her father, but a Mapquest printout indicated
directions to Indiana. The license check was returned as ―unclear,‖ showing several arrests for
illegal substances, even though McGraw only admitted to one arrest for theft. Finally, McGraw
changed her story that she did not know the other driver and admitted that she knew Neal.
Rushing testified that training and experience showed that two vehicles may travel together during
the course of drug trafficking to allow one of the vehicles to act as a decoy; many times the officer
can only stop one vehicle. From Rushing‘s experience, the fact that both drivers knew each other,
but McGraw initially denied it, had changing and inconsistent stories, the vehicles were travelling
together at nighttime in rental cars with out-of-state license plates, together with McGraw‘s
suspicious driver‘s license report, led to a reasonable belief that McGraw and Neal were
transporting drugs. Finally, the delay for the further investigation by a canine unit was of
relatively short duration, as the entire stop lasted less than thirty minutes.
Giving the trial court appropriate deference in its finding that Rushing ―had enough
reasonable suspicion to believe that there was a fair probability of inculpatory evidence in Deidra
McGraw‘s automobile‖ based upon her ―deceit,‖ we conclude there was no error in the denial of
McGraw‘s motion to suppress.
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V. Conclusion
We affirm the trial court‘s judgment.
Jack Carter
Justice
Date Submitted: April 21, 2011
Date Decided: April 27, 2011
Do Not Publish
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