COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-389-CR
RANDY SKYLER STEVENS APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 30TH DISTRICT COURT OF WICHITA COUNTY
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MEMORANDUM OPINION 1
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I. Introduction
Appellant Randy Skyler Stevens appeals from his conviction for
possession of a controlled substance with intent to deliver. In two issues,
Stevens argues that (1) the trial court erred by denying his motion to suppress
evidence and (2) the evidence is factually insufficient to support his conviction.
We affirm.
1
See Tex. R. App. P. 47.4.
II. Factual and Procedural Background
A. The Traffic Stop
On February 22, 2006, around 5:30 p.m., Officers Dwayne Powell and
Brad Sanchez of the Wichita Falls Police Department were driving northbound
on Harrison Street when they noticed that a Cadillac driving southbound had
very dark tint on its passenger side window. Officer Sanchez, believing the tint
to be illegal, turned the patrol unit around and activated the unit’s lights to
make a stop. The Cadillac continued on for a short distance, making a couple
of turns before stopping in an alleyway. As the Cadillac came to a stop, the
driver, later identified as Stevens, immediately flung the door open and exited
the vehicle. Officers Powell and Sanchez approached Stevens and informed
him that he had been stopped due to the window tint on the vehicle.
After a brief discussion, Officer Powell asked Stevens to step to the back
of the Cadillac so that he could perform a pat-down. As Officer Powell stepped
away to give Stevens room to move to the back of the vehicle, Stevens took
off running. Officer Powell managed to grab Stevens by his coat, but Stevens
twisted out of the coat and continued to run away. Officer Powell then
dropped the coat and, along with Officer Sanchez, took off after Stevens.
Officer Sanchez followed Stevens’s direct path through nearby backyards while
Officer Powell ran down the alley. About two minutes after the pursuit began,
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Stevens turned himself in. At that time, Officer Powell placed Stevens under
arrest for evading an officer, performed a pat-down on Stevens, and placed him
into the back of the patrol unit. Officer Powell then recovered Stevens’s coat
from the ground and searched the pockets. During the search, he discovered
a .25 semiautomatic pistol loaded with a magazine containing six rounds, two
clear bags containing a white powdery substance, and one large plastic bag
containing several small one-inch Ziploc bags.
The State charged Stevens with possession of a controlled substance
with intent to deliver. Stevens filed a motion to suppress evidence, claiming
that the seized evidence was the result of a warrantless search in violation of
his constitutional rights.
B. Hearing on the Motion to Suppress
On September 19, 2008, the trial court held a hearing on Stevens’s
motion to suppress. During the hearing, in addition to the facts stated above,
Officer Powell testified that he had been an officer for nineteen years and that,
on the night in question, he had been assigned to work overtime in the gang
suppression unit.2 He testified that when he saw the Cadillac, he thought that
the tint on the passenger side window was illegal and that to his knowledge the
2
During regular work hours, Officer Powell worked in the motorcycle
traffic unit.
3
only way to test window tint was to stop the vehicle and use a tint meter. In
response to questioning about the visibility on that night, Officer Powell stated
that it was “clear skies.” When asked whether he had reasonable suspicion
based on his experience and training to stop the vehicle for illegal window tint,
Officer Powell responded, “Yes, ma’am.” 3
Officer Powell also testified that he had not known who was driving the
Cadillac until after the vehicle had stopped. He stated that when Stevens
exited the vehicle, he recognized him by sight based on prior encounters.
Officer Powell testified that, on one of those occasions, Stevens had informed
him that he was a member of a gang. When questioned about the attempted
pat-down, Officer Powell stated that he had been concerned for officer safety
due to: (1) the traffic stop taking place in a gang affiliated territory, (2) his
experience with gangs and his personal knowledge of Stevens’s gang affiliation,
(3) Stevens’s actions prior to the stop—that is, continuing to drive and turning
into an alleyway, (4) Stevens’s clothing—that is, a big baggy coat, and (5) the
time of day. On cross-examination, Officer Powell testified that all but one of
his prior encounters with Stevens did not warrant a pat-down and that he did
not find any weapons the time he patted Stevens down.
3
Officer Powell testified that he had written numerous tickets for illegal
window tint and that he did not remember ever stopping a vehicle for illegal tint
when, in fact, it was not illegal.
4
In addition to offering testimony consistent with Officer Powell’s, Officer
Sanchez testified that he had been with the police department for fifteen years.
He testified that it is a Wichita Falls Police Department policy to inventory the
clothing of a person arrested, or the evidence obtained, prior to placing the
clothing or evidence into the patrol unit. When asked whether the tint on the
window had been tested, Officer Sanchez responded that he had attempted to
test the window tint but had been unable to roll the window down. 4 Finally,
Officer Sanchez testified that Stevens had been driving under a suspended
driver’s license.
At the close of evidence, the trial court denied Stevens’s motion to
suppress. No findings of fact or conclusions of law were requested or filed.
C. Trial on the Merits
During the trial on the merits, Officers Powell and Sanchez provided
similar testimony as that provided during the suppression hearing. In addition,
Kerry O’Bric, a forensic scientist for the DPS Crime Laboratory in Waco,
testified that the two bags found in Stevens’s coat contained a total of 5.85
grams of cocaine.
4
Testing requires the window to be rolled down a little bit. The tint
meter “slides down over the top of the glass and shoots the laser through it to
determine the amount of light transmission through it.”
5
Officer Kevin Folmar with the Wichita Falls Police Department testified
that he had been with the department for twelve-and-a-half years. During his
time at the department, he had spent almost three years on patrol, seven years
in narcotics, and he was currently assigned to the training unit. Officer Folmar
testified in detail about his experience and training in narcotics. He testified
that handguns are typically carried by drug dealers, not drug users. When
asked about the one-inch bags that were discovered in Stevens’s coat, Officer
Folmar responded, “usually when someone is in possession of this type of—of
packaging, it would indicate that they could be in the business of selling
narcotics, packaging it for resale.” Officer Folmar also testified that 5.85 grams
is more than a drug user typically buys at one time, and that a single usage
would be anywhere from .1 to .2 grams. On cross-examination, Officer
Folmar’s response to the question of whether scales are an important factor in
determining whether someone is dealing drugs was,
It could be. I mean, if you had a large amount of drugs and scales,
then yes, that would indicate to me that they were probably selling
it. Like in this case, he had a large amount of drugs and baggies.
That to me indicates he was selling with—you know, without the
presence of scales.
Officer Folmar was also asked, as an expert in the area of narcotics, what it
would be indicative of if someone had in his possession: (1) a semiautomatic
gun containing a magazine with six bullets, (2) numerous one-inch Ziploc
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baggies, (3) very little or no money, and (4) two eight-ball packages of cocaine
packaged separately. In response, Officer Folmar stated,
It would indicate to me that the—due to the presence of the
baggies, the presence of the gun, the presence of the amount of
cocaine that we’re talking about, in my opinion I would say that he
was possessing that with the intent to distribute. And just because
there—there is not a presence of money, could be maybe he just
made the purchase and he used up all the money that he had to
make the purchase.
At the close of trial, the jury found Stevens guilty of the offense of
possession of a controlled substance with intent to deliver. After a hearing, the
jury assessed punishment at thirty-five years’ confinement and a fine of
$5,000; the trial court sentenced Stevens accordingly. This appeal followed.
III. Motion to Suppress
In his first issue, Stevens asserts that the trial court erred by denying his
motion to suppress.
A. 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
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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). But when
application-of-law-to-fact questions do not turn on the credibility and demeanor
of the witnesses, we review the trial court’s rulings on those questions de
novo. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607
(Tex. Crim. App. 2005); Johnson, 68 S.W.3d at 652–53.
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 record is silent on the reasons for the trial
court’s ruling, or when there are no explicit fact findings and neither party
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timely requested findings and conclusions from the trial court, we imply the
necessary fact findings that would support the trial court’s ruling if the
evidence, viewed in the light most favorable to the trial court’s ruling, supports
those findings. State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App.
2008); see Wiede, 214 S.W.3d at 25. We then review the trial court’s legal
ruling de novo unless the implied fact findings supported by the record are also
dispositive of the legal ruling. Kelly, 204 S.W.3d at 819.
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).
B. Applicable Law
The Fourth Amendment protects against unreasonable searches and
seizures by government officials. U.S. Const. amend. IV; Wiede, 214 S.W.3d
at 24. 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. Amador, 221 S.W.3d at 672.
A defendant satisfies this burden by establishing that a search or seizure
occurred without a warrant. Id. Once the defendant has made this showing,
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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.
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).
An officer has probable cause to stop and arrest a driver if he observes
the driver commit a traffic offense. State v. Gray, 158 S.W.3d 465, 469–70
(Tex. Crim. App. 2005); see State v. Ballman, 157 S.W.3d 65, 70 (Tex.
App.—Fort Worth 2004, pet. ref’d). 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 officer conducts a lawful temporary detention
when he or she has reasonable suspicion to believe that an individual is
violating the law. Ford, 158 S.W.3d at 492. 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. Id. 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.
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C. Analysis
Randy argues that the trial court erred by denying his motion to suppress
evidence because Officer Powell and Officer Sanchez lacked probable cause to
stop his vehicle. Stevens’s argument and legal authority, however, discuss
reasonable suspicion, not probable cause. In response, the State argues that
to the extent Stevens asserts a “probable cause” argument it should be
overruled because the correct standard is reasonable suspicion, and that to the
extent Stevens asserts a “reasonable suspicion” argument it too should be
overruled on the basis that (1) he failed to preserve his complaint for review or
(2) there was reasonable suspicion to justify the stop.
At the suppression hearing, both Officer Powell and Officer Sanchez
testified that they had initiated the traffic stop based on their belief that the
window tint on Stevens’s vehicle was in violation of the transportation code.
Thus, the State’s burden was to demonstrate that reasonable suspicion, not
probable cause, existed to justify the stop. See Ford, 158 S.W.3d at 492. In
construing Stevens’s argument as one addressing reasonable suspicion, the
State argues that Stevens has failed to preserve this complaint for review.
However, assuming without deciding that Stevens has preserved this argument,
we hold that Officer Powell and Officer Sanchez testified to specific, articulable
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facts that would lead them to reasonably conclude that Stevens was
committing a traffic violation.
The transportation code provides that a person commits an offense that
is a misdemeanor if “a person . . . places on or attaches to the windshield or
side or rear window of a motor vehicle a transparent material that alters the
color or reduces the light transmission.” Tex. Transp. Code Ann
§ 547.613(a)(2) (Vernon Supp. 2009).
Stevens argues that the purpose of the window tint law “deals with being
able to see into a vehicle from the outside.” He claims that Officer Powell’s
testimony that Stevens’s vehicle had been traveling in the opposite direction,
resulting in Officer Powell’s observing the illegal tint on the passenger side
window through the front and driver’s side windows, is insufficient to justify
reasonable suspicion. That is, Officer Powell never testified that he had
observed the passenger window from the outside prior to the stop. Nor did the
State provide any evidence that the requisite acceptable percentages for light
transmission is the same for both inside and outside a vehicle. Stevens,
however, cites to no authority in support of his arguments, nor are we aware
of any.
As previously mentioned, both Officer Powell and Officer Sanchez
testified during the suppression hearing that they had stopped Stevens for what
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they believed was illegal tint on the passenger side window of his vehicle.
Officer Sanchez specifically testified that he had noticed a “silver Cadillac with
extremely dark tint on the front passenger widow.” Both Officer Powell and
Officer Sanchez testified that it had been “clear” and “sunny” when they
noticed the tint. When asked whether they had the ability to test the tint of a
vehicle without stopping the vehicle, both officers responded that, other than
personal experience, the only way to test the window tint on a vehicle is to
stop it and use a tint meter. When questioned about their experience, Officer
Powell testified that he had written “numerous tickets” for illegal window tint,
and Officer Sanchez stated that he had written tickets for illegal window tint
on “many occasions.” Based on these specific, articulable facts, we hold that
Officer Powell and Officer Sanchez had reasonable suspicion to believe that
Stevens was committing a traffic violation. See Tex. Dep’t of Pub. Safety v.
Fisher, 56 S.W.3d 159, 163 (Tex. App.—Dallas 2001, no pet.); see also Tex.
Dep't of Pub. Safety v. Chang, 994 S.W.2d 875, 877 (Tex. App.—Austin
1999, no pet.) (stating if an officer has a reasonable basis for suspecting a
person has committed a traffic offense, the officer may legally initiate a stop).
Therefore, the trial court did not err by denying Stevens’s motion to suppress.
Accordingly, we overrule Stevens’s first issue.
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IV. Factual Sufficiency
In his second issue, Stevens challenges the factual sufficiency of the
evidence to support his conviction. Specifically, Stevens argues that the
evidence is factually insufficient “to prove beyond a reasonable doubt [that he]
possessed cocaine with the intent to deliver.”
A. Standard of Review
When reviewing the factual sufficiency of the evidence to support a
conviction, we view all the evidence in a neutral light, favoring neither party.
Steadman v. State, 280 S.W.3d 242, 246 (Tex. Crim. App. 2009); Watson v.
State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006). We then ask whether
the evidence supporting the conviction, although legally sufficient, is
nevertheless so weak that the factfinder’s determination is clearly wrong and
manifestly unjust or whether conflicting evidence so greatly outweighs the
evidence supporting the conviction that the factfinder’s determination is
manifestly unjust. Steadman, 280 S.W.3d at 246; Watson, 204 S.W.3d at
414–15, 417. To reverse under the second ground, we must determine, with
some objective basis in the record, that the great weight and preponderance of
all the evidence, although legally sufficient, contradicts the verdict. Watson,
204 S.W.3d at 417.
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Unless we conclude that it is necessary to correct manifest injustice, we
must give due deference to the factfinder’s determinations, “particularly those
determinations concerning the weight and credibility of the evidence.” Johnson
v. State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000); see Steadman, 280 S.W.3d
at 246. Evidence is always factually sufficient when it preponderates in favor
of the conviction. Steadman, 280 S.W.3d at 247; see Watson, 204 S.W.3d
at 417.
B. Applicable Law
To establish an intent to deliver, the State must prove that the accused
intended to transfer, actually or constructively, a controlled substance to
another. Tex. Health & Safety Code Ann. § 481.002(8) (Vernon Supp. 2009),
§ 481.112(a) (Vernon Supp. 2009). Intent to deliver may be proved by
circumstantial evidence. Jordan v. State, 139 S.W.3d 723, 726 (Tex.
App.—Fort Worth 2004, no pet.) (citing Rhodes v. State, 913 S.W.2d 242,
251 (Tex. App.—Fort Worth 1995), aff’d, 945 S.W.2d 115 (Tex. Crim. App.),
cert. denied, 522 U.S. 894 (1997)). Additionally, intent to deliver may be
inferred from the quantity of drugs possessed and from the manner in which
they were packaged. Rhodes, 913 S.W.2d at 251. Expert testimony may be
introduced to prove intent to deliver. Jordan, 139 S.W.3d at 726.
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Courts use several factors when determining intent to deliver, including
the following: (1) the nature of the location where the defendant was arrested;
(2) the quantity of drugs the defendant possessed; (3) the manner of packaging
the drugs; (4) the presence or absence of drug paraphernalia for either use or
sale; (5) the defendant’s possession of large amounts of cash; and (6) the
defendant’s status as a drug user. Id.; see also Brown v. State, No.
02-04-00564-CR, 2006 WL 412466, at *3 (Tex. App.—Fort Worth Feb. 23,
2006, no pet.) (mem. op., not designated for publication) (applying “Jordan
factors” in legal and factual sufficiency analysis).
C. Analysis
Stevens argues that the evidence is factually insufficient to support his
conviction for possession with intent to deliver because the evidence as applied
to the Jordan factors is either too weak or nonexistent. Specifically, Stevens
argues that: (1) while he was arrested in what the officers called a “gang
affiliated area,” the officers did not testify that it was also an area for high drug
activity, (2) 5.85 grams of cocaine does not necessarily prove an intent to
deliver, (3) the cocaine was not broken down into individual units for resale, (4)
although there were multiple small baggies found in Stevens’s coat, there was
no evidence of other drug paraphernalia—such as scales, (5) there was no cash
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found on his person or in the vehicle, and (6) there is no evidence as to whether
he is or is not a drug user.
As recounted above, the State adduced the following evidence relevant
to the issue of intent: Officer Powell discovered 5.85 grams of cocaine in
Stevens’s coat pocket; the expert testified that 5.85 grams is more than a drug
user would typically buy at one time; the weight of a single usage is .1 or .2
grams, meaning 5.85 grams was sufficient to provide a single usage for up to
58 individual drug users; multiple one-inch Ziploc baggies, commonly used to
resell narcotics, were found in Stevens’s coat pocket; a loaded .25
semiautomatic pistol was found in Stevens’s coat; it is common for drug
dealers, but not drug users, to carry handguns; and the expert testified that the
lack of money on Stevens’s person might have been the result of Stevens
having just purchased the cocaine.
As the trier of fact, the jury was the sole judge of the weight of the
evidence. Johnson, 23 S.W.3d at 9. While the evidence or lack of evidence
cited by Stevens may be relevant to the factors listed in Jordan, it does not,
when considered in a neutral light alongside all of the other evidence, so tip the
scales in Stevens’s favor as to render the evidence of intent to deliver factually
insufficient. See Gilbert v. State, 874 S.W.2d 290, 298 (Tex. App.—Houston
[1st Dist.] 1994, pet. ref’d) (stating that the number of Jordan factors that are
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present is not as important as the “logical force” the factors have in
establishing the elements of the offense). That is, the evidence supporting the
intent for delivery is not so weak that the jury’s determination was clearly
wrong or manifestly unjust. Therefore, we hold that the evidence, when
viewed in a neutral light, is factually sufficient to support Stevens’s conviction.
Accordingly, we overrule Stevens’s second issue.
V. Conclusion
Having overruled both of Stevens’s issues, we affirm the trial court’s
judgment.
PER CURIAM
PANEL: MCCOY, WALKER, and MEIER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: March 18, 2010
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