COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00520-CR
DIANA SUE WALL APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY
----------
MEMORANDUM OPINION1
----------
Introduction
The trial court denied Appellant Diana Sue Wall’s motion to suppress
evidence seized during and after the police stopped her car. Appellant reserved
her right to appeal the trial court’s ruling and pleaded guilty to possession of
methamphetamine with intent to deliver. Now, on appeal, she contends that the
1
See Tex. R. App. P. 47.4.
trial court abused its discretion by denying her motion because (1) the police did
not have reasonable suspicion to pull her over or to justify the canine sniff that
followed the stop, (2) the police forced her to consent to a search of her home,
and (3) the taint from these intrusions was not attenuated. We affirm.
Factual and Procedural Background
In August 2008, Fort Worth narcotics officer Jacob White started receiving
information from several different sources indicating that a white female, who
drove a silver Ford Mustang and who lived near Linkcrest Drive and Interstate
30, was selling large quantities of methamphetamine on the west side of Fort
Worth. On August 5, 2009, a confidential source (CS) familiar with the local drug
trade pointed out Appellant’s house on Linklea, which was near Linkcrest Drive in
Aledo, to Officer White and told him that Appellant was a white female who drove
a silver Ford Mustang displaying vanity license plates ―L80DI‖ and that Appellant
would be moving methamphetamine that day from the house to a location near
Interstate 30 and Las Vegas Trail in West Fort Worth. Officer White and Officer
Carolyn Gilmore set up surveillance near the house and waited for the silver
Mustang that was parked there and that matched the description given by CS to
leave.
After thirty minutes to an hour, the officers observed Appellant drive the
Mustang from the house and head north on Linkcrest toward Interstate 30.
Officer Gilmore stayed at the house to continue surveillance while Officer White
2
followed the Mustang to the intersection of Linkcrest and the freeway access
road. There, the Mustang turned right without signaling and entered Interstate
30. Officer White continued following as the car headed east toward Fort Worth.
Based upon the information Officer White had acquired over the past year
from numerous sources indicating that Appellant was dealing drugs and drove a
particular Ford Mustang, and the fact that CS had arranged for Appellant to
deliver drugs to a spot near Las Vegas Trail and the freeway, Officer White
believed that the car he was following contained illegal drugs. He radioed ahead
to patrol officers and requested that they execute a traffic stop.
The patrol officers stopped Appellant on Las Vegas Trail. Officer White
stopped his car a short distance behind and requested a nearby K-9 unit. K-9
Officer Harold Cussnick and his drug detection dog ―Kelev‖ arrived approximately
ten minutes later.
Kelev had been trained to alert when he detected the odor of illegal
narcotics; when Officer Cussnick brought him near Appellant’s car, the dog
alerted aggressively, nearly jumping through the open window on the driver’s
side. Officer Cussnick opened the car door and let Kelev inside, where he
alerted to a purse resting on the right front passenger seat. One of the patrol
officers removed the purse and set it on the ground behind the car, and when
Officer Cussnick deployed the dog nearby, Kelev alerted very aggressively,
3
swiping at the purse and trying to knock it away from the car. Officer White then
opened the purse and found manila envelopes containing narcotics.
Officer White asked Appellant where she lived; she said, ―3924 Linklea,‖
confirming the address provided by CS. Officer White asked whether Appellant
would consent to a search of her home. She said she would.
One of the patrol officers took Appellant back to her home. Officer Gilmore
and another officer were already there, talking with Appellant’s husband. When
Officer White arrived, he presented Appellant and her husband a consent-to-
search form, which Appellant signed.
Appellant then led the officers to a back bedroom in the house and
indicated that there were narcotics there. In the room, Officer White discovered
multiple bags containing a white crystalline substance, manila envelopes similar
to those found in Appellant’s purse at the stop, and a green leafy substance.
After receiving her statutory warnings, Appellant gave a written statement,
admitting possession of ―the white and green, ice and weed.‖
The State charged Appellant with possession of methamphetamine with
intent to deliver. Appellant filed a pretrial motion to suppress, which the trial court
denied after a hearing. Appellant reserved her right to appeal the trial court’s
ruling and entered an open plea of guilty. The trial court accepted her plea and
sentenced her to eight years’ confinement.
4
On appeal, Appellant brings a single point made up of three sub-points,
contending that the trial court abused its discretion by denying her pretrial motion
to suppress.
Standard of Review
We review a trial court’s ruling on a motion to suppress evidence under a
bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex.
Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).
In reviewing the trial court’s decision, we do not engage in our own factual
review. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Best v.
State, 118 S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, no pet.). The trial
judge is the sole trier of fact and judge of the credibility of the witnesses and the
weight to be given their testimony. Wiede v. State, 214 S.W.3d 17, 24–25 (Tex.
Crim. App. 2007); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000),
modified on other grounds by State v. Cullen, 195 S.W.3d 696 (Tex. Crim. App.
2006). Therefore, we give almost total deference to the trial court’s rulings on
(1) questions of historical fact, even if the trial court’s determination of those facts
was not based on an evaluation of credibility and demeanor, and (2) application-
of-law-to-fact questions that turn on an evaluation of credibility and demeanor.
Amador, 221 S.W.3d at 673; Montanez v. State, 195 S.W.3d 101, 108–09 (Tex.
Crim. App. 2006); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App.
2002).
5
Stated another way, when reviewing the trial court’s ruling on a motion to
suppress, we must view the evidence in the light most favorable to the trial
court’s ruling. Wiede, 214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808, 818
(Tex. Crim. App. 2006). When the trial court makes explicit fact findings, we
determine whether the evidence, when viewed in the light most favorable to the
trial court’s ruling, supports those fact findings. Kelly, 204 S.W.3d at 818–19.
We then review the trial court’s legal ruling de novo unless its explicit fact
findings that are supported by the record are also dispositive of the legal ruling.
Id. at 818.
We must 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. State v. Stevens, 235 S.W.3d 736, 740 (Tex.
Crim. App. 2007); Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App.
2003), cert. denied, 541 U.S. 974 (2004).
Reasonable Suspicion for the Stop
In sub-point (a), Appellant contends that the police lacked reasonable
suspicion to justify the traffic stop.
A detention, as opposed to an arrest, may be justified on less than
probable cause if a person is reasonably suspected of criminal activity based on
specific, articulable facts. Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880
(1968); Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000). An
6
officer conducts a lawful temporary detention when he or she has reasonable
suspicion to believe that an individual is violating the law. Crain v. State, 315
S.W.3d 43, 52 (Tex. Crim. App. 2010); Ford v. State, 158 S.W.3d 488, 492 (Tex.
Crim. App. 2005). Reasonable suspicion exists when, based on the totality of the
circumstances, the officer has specific, articulable facts that when combined with
rational inferences from those facts, would lead him to reasonably conclude that
a particular person is, has been, or soon will be engaged in criminal activity.
Ford, 158 S.W.3d at 492. This is an objective standard that disregards any
subjective intent of the officer making the stop and looks solely to whether an
objective basis for the stop exists. Id.
Appellant devotes much of her argument to her contention that the stop
was unjustified because the record is insufficient to show that Appellant
committed a traffic offense. Viewed under the appropriate standard of review,
however, the record supports the trial court’s finding that Appellant committed a
traffic violation by failing to signal a turn at the intersection to the access road.
Officer White testified that Appellant could have continued on Linkcrest and gone
under the overpass but that she turned at the intersection instead. He further
testified that a driver commits a traffic violation by failing to signal an intention to
turn at least 100 feet before entering an intersection.2 And although Appellant
argues in her brief that she committed no traffic violation because a turn signal
2
See Tex. Transp. Code Ann. § 545.104(b) (West 2011).
7
was unnecessary at that particular location, in response to questioning posed by
her counsel at the hearing she testified that she used a turn signal:
Q. Did you signal at the turn onto the service road?
A. Yes.
Q. And do you have any question in your mind about that?
A. No.
The trial court resolved this factual dispute against Appellant. Because we
are not in a better position than the trial court to assess factual issues that turn
on determinations of credibility and demeanor, and because the record supports
the trial court’s finding that Appellant committed a traffic violation, we defer to the
trial court’s resolution of this issue.
Moreover, because the officers had reasonable suspicion to believe
Appellant was delivering drugs in her car, in addition to having reasonable
suspicion to justify the traffic stop, they were also justified in detaining her for the
short time it took to summon the drug dog after the stop. See Florida v. Royer,
460 U.S. 491, 500, 103 S. Ct. 1319, 1325–26 (1983); Love v. State, 252 S.W.3d
684, 688 (Tex. App.—Texarkana 2008, pet. ref’d); Strauss v. State, 121 S.W.3d
486, 492 (Tex. App.—Amarillo 2003, pet. ref’d).
The officers reasonably suspected that Appellant was delivering drugs in
her car because (1) Officer White had received information from numerous
sources over the previous year that Appellant drove a silver Mustang with a
8
specific vanity license plate and that she had been selling methamphetamine on
the west side of Fort Worth; (2) CS, who was familiar with the local drug trade,
pointed out Appellant’s home and told Officer White that on that day Appellant
would deliver a quantity of methamphetamine to CS at a specified location in
West Fort Worth; and (3) Officer White observed Appellant’s car––a silver
Mustang with vanity plates––drive toward the location where the drug transaction
was to take place. Because we hold that this information is sufficient to show
that Officer White had reasonable suspicion to detain Appellant, we overrule sub-
point (a).
Consent to Search
In sub-point (b), Appellant contends that her consent to search was invalid
because the police obtained it by coercion. Officer White testified that Appellant
orally consented to a search of her home after she was pulled over at the traffic
stop and that she later signed a written consent form when they returned to her
house. Officer White further testified that Appellant received the proper warnings
and that her consent was voluntary and not induced by coercion. Appellant
testified to the contrary. The trial court expressly found that Appellant voluntarily
consented to the search. This is an issue of witness credibility that, under the
appropriate standard of review, is properly left to the trial court’s discretion. See
Wiede, 214 S.W.3d at 24–25. Because the record supports the trial court’s
finding, there is no abuse of discretion. Accordingly, we overrule subpoint (b).
9
In her third sub-point, Appellant contends that the taint from the
government’s intrusions was not attenuated. Because we have held that the
police actions in this case were proper, this sub-point is without merit and is
overruled.
Conclusion
Having overruled Appellant’s sole point, we affirm the judgment of the trial
court.
LEE GABRIEL
JUSTICE
PANEL: WALKER, MEIER, and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: February 16, 2012
10