NO CR IN THE COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS

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1 NO CR IN THE COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS TYRONE CAMPBELL, APPEAL FROM THE 7TH APPELLANT V. JUDICIAL DISTRICT COURT THE STATE OF TEXAS, APPELLEE SMITH COUNTY, TEXAS MEMORANDUM OPINION Tyrone Campbell appeals the trial court s revocation of his deferred adjudication community supervision, following which he was sentenced to imprisonment for fourteen years for engaging in organized criminal activity. In two issues, Appellant argues that the trial court erred in denying his motion to suppress and determining that he had violated the terms and conditions of his community supervision. We affirm. BACKGROUND Appellant was charged by indictment with engaging in organized criminal activity. He pleaded guilty and stipulated that as a member of a criminal street gang, he intentionally or knowingly threatened several individuals with imminent bodily injury while using or exhibiting a firearm. The trial court deferred finding Appellant guilty and placed him on community supervision for ten years. While Appellant was on community supervision, some of his neighbors complained to Tyler police that they suspected Appellant was selling drugs out of his house. Specifically, the neighbors stated that individuals came to Appellant s house at all hours, stayed a few minutes, and left.

2 Subsequently, Tyler police officer Matt Riggle was in an area near Appellant s house one night when he observed Appellant driving a vehicle with a passenger, Gregory Kellum. Riggle further observed Appellant stop, have a brief conversation with an unidentified individual on the street, and drive away. Riggle followed the car and observed Appellant commit a traffic violation. Riggle initiated a traffic stop at 12:39 a.m. As Riggle approached the vehicle, he saw both Appellant and Kellum either reaching for something or reaching to put something away. Riggle made contact with Appellant and Kellum. Riggle asked for Appellant s driver s license. Appellant responded that he did not have his driver s license. He was, however, able to provide his driver s license number to Riggle. Thereafter, Riggle relayed the information to a police dispatch officer. Riggle believed Appellant and Kellum may have hidden narcotics under the seats or in the front passenger area. He radioed for assistance and, in response, was joined at the scene by Tyler police officer Timothy James Hutson and, later, by K-9 unit officer Steve Black. Hutson arrived and made contact with Kellum at 12:42 a.m. At 12:44 a.m., Riggle received word from a police dispatcher that Appellant had provided a valid driver s license number and had no outstanding warrants for his arrest. At 12:48 a.m., Hutson requested that Kellum provide his driver s license, and the officers relayed the license information to a police dispatch officer to determine whether Kellum had any outstanding warrants. The dispatch officer informed the officers on the scene that Kellum had no outstanding warrants. However, the dispatch officer further informed them that Kellum was a convicted felon with a significant criminal history. The K-9 unit arrived at 12:53 a.m. At 12:55 a.m., the officers asked Appellant and Kellum to exit the vehicle. At 12:57 a.m., the trained drug dog alerted, indicating that drugs were in the vehicle. As a result, the officers searched the vehicle and found marijuana. Ultimately, the officers arrested Appellant and Kellum for possession of marijuana. The State filed a motion to proceed to final adjudication, in which it alleged that Appellant had violated the terms and conditions of his community supervision by possessing marijuana and associating with Kellum, a convicted felon. Appellant filed a motion to suppress the evidence seized from his vehicle contending that Riggle s traffic stop was unnecessarily and improperly lengthened to allow the K-9 unit to conduct an open air sniff. The trial court denied Appellant s motion, and proceeded to conduct a hearing on the State s motion to proceed to final adjudication. 2

3 Ultimately, the trial court found that Appellant violated the terms of his community supervision by failing to obey the law in that he possessed a usable quantity of marijuana in an amount of two ounces or less and associated with a convicted felon. Thereafter, the trial court revoked Appellant s community supervision, adjudicated Appellant guilty of engaging in organized criminal activity, and sentenced him to imprisonment for fourteen years. This appeal followed. SUPPRESSION OF EVIDENCE In his first issue, Appellant argues that the trial court erred in denying his motion to suppress because the police officers unlawfully extended the traffic stop. Standard of Review We review a trial court s ruling on a motion to suppress under a bifurcated standard of review. Hubert v. State, 312 S.W.3d 554, 559 (Tex. Crim. App. 2010); Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). A trial court's decision to grant or deny a motion to suppress is generally reviewed under an abuse of discretion standard. Shepherd v. State, 273 S.W.3d 681, 684 (Tex. Crim. App. 2008). We give almost total deference to a trial court's determination of historical facts, especially if those determinations turn on witness credibility or demeanor, and review de novo the trial court's application of the law to facts not based on an evaluation of credibility and demeanor. Neal v. State, 256 S.W.3d 264, 281 (Tex. Crim. App. 2008). At a suppression hearing, a trial court is the exclusive trier of fact and judge of the witnesses credibility. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002). Accordingly, a trial court may choose to believe or to disbelieve all or any part of a witness's testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). We review a trial judge's ruling on a motion to suppress by viewing all of the evidence in the light most favorable to the ruling. State v. Castleberry, 332 S.W.3d 460, 465 (Tex. Crim. App. 2011). Therefore, the prevailing party is entitled to the strongest legitimate view of the evidence and all reasonable inferences that may be drawn from that evidence. Id. Since all evidence is viewed in the light most favorable to the trial court=s ruling, we are obligated to uphold its ruling on a motion to suppress if that ruling was supported by the record and was correct under any theory of law applicable to the case. Ross, 32 S.W.3d at 856; Carmouche, 10 S.W.3d at 327; State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999); Maysonet v. State, 91 S.W.3d 365, 369 (Tex. App. Texarkana 2002, pet. ref d). 3

4 Governing Law A routine traffic stop closely resembles an investigative detention. Powell v. State, 5 S.W.3d 369, 375 (Tex. App. Texarkana 1999, pet. ref d); see also United States v. Brigham, 382 F.3d 500, 506 (5th Cir. 2004). Because an investigative detention is a seizure that implicates the United States and Texas constitutions, the traffic stop must be reasonable. U.S. CONST. amend. IV; TEX. CONST. art. I, 9; Francis v. State, 922 S.W.2d 176, 178 (Tex. Crim. App. 1996). To determine the reasonableness of an investigative detention, we conduct the inquiry set forth by the United States Supreme Court in Terry v. Ohio: (1) whether the officer=s action was justified at its inception; and (2) whether it was reasonably related in scope to the circumstances that initially justified the interference. Terry v. Ohio, 392 U.S. 1, 19 20, 88 S. Ct. 1868, 1879, 20 L. Ed. 2d 889 (1968); Davis v. State, 947 S.W.2d 240, 242 (Tex. Crim. App. 1997). Under the first guideline, an officer=s reasonable suspicion justifies an investigative detention. Davis, 947 S.W.2d at Specifically, the officer must have a reasonable suspicion that some activity out of the ordinary is occurring or has occurred. Id. at 244 (citing Garza v. State, 771 S.W.2d 549, 558 (Tex. Crim. App. 1989)). 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. See Powell v. State, 5 S.W.3d at 376 (citing Drago v. State, 553 S.W.2d 375, (Tex. Crim. App. 1977)). Under the second guideline, the investigative stop can last no longer than necessary to effect the purpose of the stop. Kothe v. State, 152 S.W.3d 54, 63 (Tex. Crim. App. 2004). The issue is whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant. Id. at (quoting United States v. Sharpe, 470 U.S. 675, , 105 S. Ct. 1568, 1575, 84 L. Ed. 2d 605 (1985)). In relation to a traffic stop, an officer can conduct a license and warrants check. Kothe, 152 S.W.3d at 63. The officer may also seek the same information from any passengers. See id. at 64 n.36; Freeman v. State, 62 S.W.3d 883, 888 (Tex. App. Texarkana 2001, pet. ref d). Similarly, an officer may ask the driver and passengers to exit the vehicle. Strauss v. State, 121 S.W.3d 486, 491 (Tex. App. Amarillo 2003, pet ref d). Application In the instant case, Appellant does not challenge the validity of the initial traffic stop and admits that Riggle saw him commit a traffic violation. Rather, Appellant argues that the officers 4

5 unduly extended the stop. Appellant contends that the true purpose of the stop ended when he was cleared of any outstanding warrants at 12:44 a.m. In his brief, Appellant points out that the evidence indicates that (1) the officers did not smell marijuana in the vehicle, (2) Riggle and Hutson discussed that Appellant and Kellum were calm, but that their demeanor might change when the K-9 unit arrived, and (3) Riggle remarked that Hutson was just buying some time by talking to Kellum. We initially note that Riggle s remark concerning Hutson s buying time is troubling. But the trial court was not required to examine Riggle s statement in a vacuum. The officers were justified in checking whether there were any outstanding warrants for Kellum. See Kothe, 152 S.W.3d at 63. The traffic stop may have concluded more quickly if the officers had requested information on outstanding warrants for Appellant and Kellum at the same time. But the officers were under no obligation to investigate the situation in any particular order. See id. at 65. Riggle initiated the traffic stop at 12:39 a.m. Appellant told Riggle his driver s license number because he did not have his driver s license with him. Riggle testified that this caused his writing of the citation to take longer because he had to write down more information. While Riggle was completing the warning citation, Hutson made contact with Kellum. Sixteen minutes after the initial stop, the officers asked Appellant and Kellum to exit the vehicle. At 12:57 a.m., eighteen minutes after the detention began, the trained drug dog alerted, indicating that drugs were in the vehicle. Appellant admits that Riggle did not give Appellant his warning citation until after the drug dog alerted on the vehicle. Considering the foregoing facts, we conclude that the trial court reasonably could have determined that the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain Appellant. See id. at Having given due deference to the trial court s ruling, we hold that the trial court did not abuse its discretion by denying Appellant s motion to suppress. Appellant s first issue is overruled. SUFFICIENCY OF EVIDENCE In his second issue, Appellant argues that the evidence is legally insufficient to support the trial court s ruling that he violated a condition of his community supervision by associating with a convicted felon. 5

6 Standard of Review and Applicable Law The granting of community supervision is a contractual privilege afforded a defendant whereby the court agrees to extend clemency by granting community supervision in exchange for the defendant s agreement to abide by certain requirements. Speth v. State, 6 S.W.3d 530, (Tex. Crim. App. 1999). A trial court has broad discretion to determine the terms and conditions of community supervision to be imposed. See TEX. CODE CRIM. PROC. ANN. art , 11(a) (West Supp. 2011) ( The judge may impose any reasonable condition [of community supervision] that is designed to protect or restore the community, protect or restore the victim, or punish, rehabilitate, or reform the defendant. ); Speth, 6 S.W.3d at 533. At a hearing on an application to revoke community supervision, the trial court does not determine the defendant s original criminal culpability, but only whether the defendant violated the contract made with the trial court. Pierce v. State, 113 S.W.3d 431, 436 (Tex. App. Texarkana 2003, pet. ref'd). The state has the burden to establish by a preponderance of the evidence that the terms and conditions of community supervision have been violated. Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984). The preponderance of the evidence standard requires the greater weight of the credible evidence before the trial court supports a reasonable belief that a condition of community supervision has been violated. Rickels v. State, 202 S.W.3d 759, 764 (Tex. Crim. App. 2006). When the state has met its burden of proof and no procedural obstacle is raised, the decision whether to revoke community supervision is within the discretion of the trial court. Flournoy v. State, 589 S.W.2d 705, 708 (Tex. Crim. App. 1979). Thus, our review of the trial court s order revoking community supervision is limited to determining whether the trial court abused its discretion. Caddell v. State, 605 S.W.2d 275, 277 (Tex. Crim. App. 1980). When a trial court finds several violations of community supervision conditions, we affirm the revocation order if the proof of any single allegation is sufficient. See Hart v. State, 264 S.W.3d 364, 367 (Tex. App. Eastland 2008, pet. ref'd); Cochran v. State, 78 S.W.3d 20, 28 (Tex. App. Tyler 2002, no pet.). Similar to the traditional legal sufficiency analysis, we view the evidence in the light most favorable to the trial court's decision to revoke. Hart, 264 S.W.3d at 367. Further, in a revocation proceeding, the trial judge, as the sole trier of the facts, determines the credibility of the witnesses and the weight to be given to witnesses testimony. Diaz v. State, 516 S.W.2d 154, 156 (Tex. Crim. App. 1974); Aguilar v. State, 471 S.W.2d 58, 60 (Tex. Crim. 6

7 App. 1971). Application In the case at hand, Appellant challenges the trial court s finding that he associated with Kellum, a convicted felon. However, we have overruled Appellant s first issue, in which he argued that the trial court erroneously denied his motion to suppress evidence that marijuana was seized during the traffic stop. Therefore, evidence of the seizure was admissible at the revocation hearing. As such, the trial court properly determined that Appellant violated the terms of his community supervision by failing to obey the law because he possessed a usable quantity of marijuana in an amount of two ounces or less. Since the State s proof supports the revocation of Appellant s community supervision for at least one of the allegations in its motion, we need not examine the remaining alleged violation. See Hart, 264 S.W.3d at 367. Accordingly, we hold that the trial court did not abuse its discretion in revoking Appellant s community supervision. Appellant s second issue is overruled. DISPOSITION Having overruled Appellant s first and second issues, we affirm the trial court s judgment. BRIAN HOYLE Justice Opinion delivered August 8, Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J. (DO NOT PUBLISH) 7

8 COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT OF TEXAS JUDGMENT AUGUST 8, 2012 NO CR TYRONE LAMAR CAMPBELL, Appellant V. THE STATE OF TEXAS, Appellee Appeal from the 7th Judicial District Court of Smith County, Texas. (Tr.Ct.No ) THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being considered, it is the opinion of this court that there was no error in the judgment. It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the court below be in all things affirmed, and that this decision be certified to the trial court below for observance. Brian Hoyle, Justice. Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J. 8