COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00497-CR
ANTHONY ZANE EATMAN APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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A jury convicted Appellant Anthony Zane Eatman of the offense of
possession of a controlled substance (methamphetamine) in an amount equal to
or greater than four grams but less than two hundred grams and assessed his
punishment at twenty-five years’ confinement. The trial court sentenced him
accordingly. In one point, Appellant contends that the trial court erred by denying
1
See Tex. R. App. P. 47.4.
his motion to suppress. Because we hold that the trial court did not err by
denying Appellant’s motion to suppress, we affirm the trial court’s judgment.
We review a trial court’s ruling on a motion to suppress evidence under a
bifurcated standard of review.2 We give almost total deference to a trial court’s
rulings on questions of historical fact and application-of-law-to-fact questions that
turn on an evaluation of credibility and demeanor, but we review de novo
application-of-law-to-fact questions that do not turn on credibility and demeanor. 3
In determining whether a trial court’s decision is supported by the record,
we generally consider only evidence adduced at the suppression hearing
because the ruling was based on it rather than evidence introduced later. 4 But
this general rule is inapplicable when the parties consensually relitigated the
suppression issue during trial on the merits.5 If the State raised the issue at trial
either without objection or with subsequent participation in the inquiry by the
2
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).
3
Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607 (Tex.
Crim. App. 2005); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App.
2002).
4
See Gutierrez v. State, 221 S.W.3d 680, 687 (Tex. Crim. App. 2007);
Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim. App.), cert. denied, 519 U.S.
1043 (1996).
5
Gutierrez, 221 S.W.3d at 687; Rachal, 917 S.W.2d at 809.
2
defense, the defendant is deemed to have elected to re-open the evidence, and
we may consider the relevant trial testimony in our review.6
The Fourth Amendment protects against unreasonable searches and
seizures by government officials.7 To suppress evidence because of an alleged
Fourth Amendment violation, the defendant bears the initial burden of producing
evidence that rebuts the presumption of proper police conduct. 8 A defendant
satisfies this burden by establishing that a search or seizure occurred without a
warrant.9 Once the defendant has made this showing, the burden of proof shifts
to the State, which is then required to establish that the search or seizure was
conducted pursuant to a warrant or was reasonable.10
Whether a search is reasonable is a question of law that we review
de novo.11 Reasonableness is measured by examining the totality of the
circumstances.12 It requires a balancing of the public interest and the individual’s
6
Rachal, 917 S.W.2d at 809.
7
U.S. Const. amend. IV; Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim.
App. 2007).
8
Amador, 221 S.W.3d at 672; see Young v. State, 283 S.W.3d 854, 872
(Tex. Crim. App.), cert. denied, 130 S. Ct. 1015 (2009).
9
Amador, 221 S.W.3d at 672.
10
Id. at 672–73; Torres v. State, 182 S.W.3d 899, 902 (Tex. Crim. App.
2005); Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005).
11
Kothe v. State, 152 S.W.3d 54, 62 (Tex. Crim. App. 2004).
12
Id. at 63.
3
right to be free from arbitrary detentions and intrusions. 13 A search conducted
without a warrant is per se unreasonable unless it falls within one of the
―specifically defined and well-established‖ exceptions to the warrant
requirement.14
Similarly, under the Fourth Amendment, a warrantless arrest is
unreasonable per se unless it fits into one of a ―few specifically established and
well delineated exceptions.‖ 15 A police officer may arrest an individual without a
warrant only if probable cause exists with respect to the individual in question
and the arrest falls within one of the exceptions set out in the code of criminal
procedure.16 An officer has probable cause to stop and arrest a driver if he
observes the driver commit a traffic offense. 17 Further, any peace officer may
make a warrantless arrest of any person found violating the ―Rules of the Road,‖
13
Id.
14
McGee v. State, 105 S.W.3d 609, 615 (Tex. Crim. App.), cert. denied,
540 U.S. 1004 (2003); see Best v. State, 118 S.W.3d 857, 862 (Tex. App.—Fort
Worth 2003, no pet.).
15
Minnesota v. Dickerson, 508 U.S. 366, 372, 113 S. Ct. 2130, 2135
(1993); Torres, 182 S.W.3d at 901.
16
Torres, 182 S.W.3d at 901; see Tex. Code Crim. Proc. Ann. arts. 14.01–
.04 (West 2005 & Supp. 2011).
17
State v. Gray, 158 S.W.3d 465, 467, 469–70 (Tex. Crim. App. 2005); see
State v. Ballman, 157 S.W.3d 65, 70 (Tex. App.—Fort Worth 2004, pet. ref’d).
4
that is, subtitle C of title 7 of the transportation code. 18 Finally, incident to a
lawful arrest, the police may lawfully search the arrestee’s person. 19
In his motion to suppress, Appellant requested the trial court to ―[s]uppress
all the evidence seized as a result of the stop and subsequent search‖ of his
person. He contended that no probable cause existed for the arrest and that the
stop was not supported by reasonable suspicion. He further contended that any
and all evidence seized or statements made resulted from ―an illegal stop, illegal
arrest, illegal detention and an illegal search.‖ He further alleged that the ―stop,
search, detention, and subsequent arrest . . . were pretextual and without a
sufficient factual basis.‖
When presenting Appellant’s motion, defense counsel stated that the
issues were ―the initial stop by the police officer, the contact made with the police
officer to go further and make the subsequent arrest.‖ At the hearing, Officer
John Romer testified that he saw Appellant, whom he identified at trial, drive a
mid-sized SUV into an intersection without stopping at the stop sign. The SUV
completely crossed the white stop line. Romer then activated his overhead
emergency lights to conduct a traffic stop. Appellant remained stopped in the
intersection. After eliciting this testimony, the prosecutor stated, ―Your Honor,
18
Tex. Transp. Code Ann. § 543.001 (West 2011).
19
See Gray, 158 S.W.3d at 470; Buitron v. State, No. 04-99-00343-CR,
2000 WL 84420, at *1 (Tex. App.—San Antonio Jan. 26, 2000, no pet.) (not
designated for publication) (upholding search incident to arrest after Buitron ran
stop sign).
5
because it’s the State’s understanding that the issue is the stop and only the stop
for this motion to suppress, we will pass the witness at this point because we
believe we’ve covered his issue.‖ On cross-examination in the suppression
hearing, defense counsel questioned Romer about a possible 911 call or some
other contact with a tipster. The trial court denied the motion to suppress.
At trial, Romer was the State’s first witness, and the prosecutor revisited
the circumstances of the stop, arrest, and search. Romer testified that when he
and his partner stopped Appellant, Appellant seemed extremely nervous and
very fidgety; was sweating profusely and acting very jittery; and was moving
around ―in a state of almost panic.‖ Romer testified that Appellant’s level of
anxiety was unusual for someone who had committed only a traffic violation.
Romer testified that he watched Appellant from the passenger side of the
stopped SUV while his partner conducted a records check. Romer testified that
Appellant kept looking around and reaching down toward his pockets, so Romer
asked him to get out of the car so he could perform a patdown search for
weapons. Appellant got out of the car but was noncompliant during the patdown
search. He kept trying to reach into his pockets with his hands despite Romer’s
verbal and physical commands to stay in position. Romer testified that Appellant
also ―just kept rambling‖ and ―just acted very, very strange.‖ Romer finally
arrested and handcuffed Appellant. Then Romer performed a search incident to
arrest. In the right front pocket of Appellant’s jeans, Romer found what appeared
to be marijuana and a methamphetamine pipe. In the left front pocket of
6
Appellant’s jeans, Romer found three little bags of what was later determined to
be methamphetamine.
On cross-examination at trial, Romer testified that five to ten minutes after
Appellant handed him his identification, he arrested Appellant for running the
stop sign. About thirty or forty-five minutes later, Appellant was transported to
jail.
On appeal, Appellant contends that the search of his person was not a
permissible search incident to arrest and that the evidence seized should
therefore be suppressed. Romer testified that he saw Appellant run the stop sign
and drive the SUV completely over the white line. Thus, Romer observed
Appellant commit a traffic violation.20 Romer therefore had probable cause and
statutory authority to arrest Appellant. 21 Because he had legal authority to arrest
Appellant and did arrest Appellant, Romer also had legal authority to conduct a
search of Appellant’s person incident to arrest.22 We therefore hold that the trial
court did not err by denying Appellant’s motion to suppress and overrule his sole
point.
20
See Tex. Transp. Code Ann. § 544.010(a), (c) (West 2011).
21
See id. § 543.001; Gray, 158 S.W.3d at 467, 469–70; Ballman, 157
S.W.3d at 70.
22
See Gray, 158 S.W.3d at 470; Buitron, 2000 WL 84420, at *1.
7
Having overruled Appellant’s sole point, we affirm the trial court’s
judgment.
LEE ANN DAUPHINOT
JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: December 8, 2011
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