Opinion
No. 05-10-00120-CR
Opinion Filed August 24, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.2(b)
On Appeal from the 416th Judicial District Court, Collin County, Texas, Trial Court Cause No. 416-80545-09.
Before Justices MORRIS, MOSELEY, and FITZGERALD.
MEMORANDUM OPINION
Christopher Eugene Hooper was charged with possession-with intent to deliver-of more than one gram but less than four grams of cocaine. The jury found him guilty of the lesser included offense of possession of more than one gram but less than four grams of cocaine. Hooper pleaded true to three enhancement allegations, the trial court found the allegations true and sentenced Hooper to thirty years' imprisonment. Hooper raises two points of error on appeal; both concern the trial court's denial of his motion to suppress evidence. He argues the trial court erred because: (1) the evidence was obtained during an illegal frisk and Hooper's actions during the frisk did not attenuate the taint of illegality; and (2) the arresting officer lacked reasonable suspicion of the commission of a crime when he stopped Hooper's vehicle. The background of the case and the evidence adduced at trial are well known to the parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex. R. App. P. 47.2(a), 47.4. We affirm the trial court's judgment as modified. Whether a specific search or seizure was reasonable is a mixed question of law and fact and is reviewed de novo. Kothe v. State, 152 S.W.3d 54, 62-63 (Tex. Crim. App. 2004). When reviewing a trial court's ruling on a motion to suppress, we apply an abuse of discretion standard of review giving almost total deference to the trial court's determination of the historical facts that the record supports, and a de novo standard for the legal components of the trial court's decision. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000); see also State v. Woodard, 341 S.W.3d 404, 410 (Tex. Crim. App. 2011). We uphold the trial court's ruling if it is supported by the record and correct under any theory of law applicable to the case, even if the trial court gave the wrong reason for its ruling. Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003). We begin with the second point of error which argues the arresting officer did not have reasonable suspicion to stop Hooper. "A routine traffic stop closely resembles an investigative detention." Martinez v. State, 29 S.W.3d 609, 611 (Tex. App.-Houston [1st Dist.] 2000, pet. ref'd). An officer may briefly detain a person for investigative purposes if, under the totality of the circumstances, the officer has reasonable suspicion supported by facts that the person detained is, has been, or soon will be engaged in criminal activity. Terry v. Ohio, 392 U.S. 1, 22 (1968); Crain v. State, 315 S.W.3d 43, 52 (Tex. Crim. App. 2010). The record reflects that Officer Nelson Walter was on patrol near the Stonebriar Mall at night when a car in the next lane drifted into Walter's lane, causing him to brake to avoid a collision. After this, the car slowed and did not return to normal speed. Walter activated his in-car camera; the video recording shows Hooper's vehicle slightly ahead of Walter's vehicle with one tire on the lane marker. Walter pulled his patrol car behind Hooper's auto and activated his emergency lights to stop Hooper. Hooper did not stop until traffic in front of him stopped at a traffic light. Walter parked, approached Hooper, and asked him to roll down the window. Walter told Hooper he was being stopped for nearly crossing over and hitting Walter's fender. From this and other evidence in the record, Walter could have reasonably suspected that Hooper moved from his lane when it was not safe to do so. See Tex. Transp. Code Ann. § 545.060(a) (West 2011) (driver shall drive as nearly as practical entirely within a single lane and may not move from the lane unless that movement can be made safely). This evidence supports the trial court's implied finding that Walter reasonably suspected that Hooper had committed a traffic violation and was justified in stopping the vehicle. See Martinez, 29 S.W.3d at 611-12. We overrule Hooper's second point of error. Hooper's first point of error claims the trial court erred by denying his motion to suppress because the frisk for weapons was illegal and Hooper's actions during the frisk did not attenuate the taint of illegality. After the State rested, the trial court stated there were not sufficient articulable facts to lead a reasonable officer to conclude Hooper may have possessed a weapon, but the court denied the motion to suppress because Hooper's conduct after the frisk began attenuated the taint of the improper frisk. Hooper contends on appeal that the State may not question the trial court's determination that the frisk was not justified because the State did not appeal that ruling. See Tex. Code Crim. Proc. Ann. art. 44.01(c) (West Supp. 2010) ("The state is entitled to appeal a ruling on a question of law if the defendant is convicted in the case and appeals the judgment."). We disagree. The ruling on appeal is the trial court's denial of Hooper's motion to suppress. On appeal, we will uphold the trial court's denial of the motion to suppress if it was supported by the record and correct under any theory of law applicable to the case and even if the trial court "gave the wrong reason for its ruling." See Armendariz, 123 S.W.3d at 404. The State need not appeal the trial court's reasons for ruling in its favor. Therefore, we will review whether the trial court's denial of the motion to suppress was correct, regardless of the reason it gave for the ruling. After a suspect is lawfully detained, a police officer may conduct a limited search for weapons if he can point to "specific articulable facts which reasonably lead him to conclude that the suspect might possess a weapon." Terry, 392 U.S. at 27; Carmouche, 10 S.W.3d at 329. We distinguish between the reasonable suspicion of criminal activity required to justify the initial stop and detention of the suspect and the additional concerns for officer safety that justify a brief frisk for weapons. See Carmouche, 10 S.W.3d at 329-30 ("the additional intrusion that accompanies a Terry frisk is only justified where the officer can point to specific and articulable facts which reasonably lead him to conclude that the suspect might possess a weapon."). The record indicates Hooper stopped in the left-turn lane of a busy street at night. Walker approached Hooper's vehicle and asked for Hooper's driver's license and insurance. Hooper looked in the glove compartment and rummaged around the center console of the vehicle for several seconds. Walter testified Hooper was very nervous and would not make eye contact. When the vehicle started to roll forward, Walter believed Hooper was considering driving away and twice told him to put the car in park before Hooper complied. Walter testified and the video recording indicates that Hooper was slow to respond to directions. Hooper continued looking for his license and insurance, again returning his attention to the same areas he had already searched. Walter was concerned because the glove box and console areas were common places to hide weapons. When Hooper could not locate his driver's licence after some time, Walter told him to get out of the car. Walter again asked Hooper where his license was and Hooper said it was inside the car. Walter allowed Hooper to reach back inside the car and look under the front seat and console. The backup officer can be heard on the video recording saying something to the effect that, "He's not doing anything but moving that seat back and forth." Walter testified Hooper wore baggy pants and a jacket, clothing that made it very easy to hide a weapon. Walter was concerned because it should not take so long for a person to produce their license and when Hooper was reaching under the front seat it raised his concern that Hooper was "considering something else." Walter felt unsafe and decided to do a pat-down search for weapons. He told Hooper to go to the rear of the car and put his hands on the trunk. Hooper put his right hand on the trunk, but kept his left hand at his side, shielding his left side from the officer. Walter put a handcuff on Hooper's right wrist, but had to struggle with Hooper to get his left wrist handcuffed. After handcuffing Hooper, Walter patted Hooper's outer clothing. During the pat-down, Hooper twisted around and was able to put his left hand in the pocket of his jacket and grasp something. Walter told Hooper to let go and take his hand out of his pocket, but Hooper did not comply. Walter took Hooper's left wrist and pulled it out of the pocket. In Hooper's left hand was a partially-opened brown paper sack. Inside the sack was a plastic bag with several smaller plastic bags inside containing a white powder. Based on this and other evidence in the record, it is objectively reasonable under the circumstances that an officer would be concerned for his safety because the suspect might possess a weapon. See Terry, 392 U.S. at 27; Carmouche, 10 S.W.3d at 329. Thus, Walter's pat-down search of Hooper was justified. Because this supports the trial court's ruling denying the motion to suppress, we need not consider the trial court's conclusion that Hooper's conduct during the frisk attenuated the taint of the supposedly illegal search. See Armendariz, 123 S.W.3d at 404. We overrule Hooper's first point of error. The State requests us to modify the trial court's judgment to state correctly that Hooper was found guilty of the lesser included offense of possession, that he pleaded true to the enhancement paragraphs, and the trial court found those paragraphs to be true. The record supports these modifications. See Tex. R. App. P. 43.2(b); Collier v. State, 999 S.W.2d 779, 782 (Tex. Crim. App. 1999) (court of appeals may reform a judgment to reflect conviction of a lesser included offense if evidence is sufficient to support conviction of the lesser included offense and the jury was instructed on the lesser included offense); French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992). Accordingly, we modify the trial court's judgment to reflect that the offense for which defendant was convicted is possession of a controlled substance, namely: cocaine, in an amount more than one (1) gram but less than four (4) grams. We further modify the judgment to reflect that defendant pleaded true to the three enhancement paragraphs and the trial court found those paragraphs true. As modified, we affirm the trial court's judgment.