                                  NO. 07-12-00098-CR

                             IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL B

                                  DECEMBER 27, 2012


                       DEMETRICK SANTAIL WARD, APPELLANT

                                             v.

                           THE STATE OF TEXAS, APPELLEE


              FROM THE 286TH DISTRICT COURT OF HOCKLEY COUNTY;

                  NO. 11-07-7382; HONORABLE PAT PHELAN, JUDGE


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


                               MEMORANDUM OPINION

       Appellant, Demetrick Santail Ward, appeals his conviction for the offense of

tampering with physical evidence, 1 and resulting sentence of 13 years’ incarceration in

the Institutional Division of the Texas Department of Criminal Justice. 2 We will affirm.




       1
           See TEX. PENAL CODE ANN. § 37.09 (West Supp. 2012).
       2
          While the offense of tampering with physical evidence, as indicted in this case,
is a third-degree felony, see id. § 37.09(c), appellant pleaded true to a prior final felony
conviction that enhanced the punishment range for the present offense to that of a
second-degree felony. See id. § 12.42(a) (West Supp. 2012).
                                      Background


      Because both of appellant’s issues relate to the trial court’s denial of his motions

to suppress evidence, we will discuss only those facts relevant to the issues raised by

those motions.


      On May 11, 2011, appellant was stopped for a traffic violation by Lt. Jeff Holder

of the Hockley County Sheriff’s Office.      The traffic violation that Holder observed

appellant commit was a failure to signal an intention to change lanes. See TEX. TRANSP.

CODE ANN. § 545.104(a) (West 2011).


      After effectuating the stop, Holder made contact with appellant to request his

license and registration.   When doing so, Holder noticed the smell of marijuana

emanating from appellant’s car. Appellant did not have his driver’s license but provided

Holder with his driver’s license number. When Holder called in a warrant check on

appellant, he requested backup. A few minutes later, Officer Johnny Sanchez arrived.

Holder asked appellant to step out of his vehicle, and appellant complied. Holder then

asked appellant, “Do you mind if I search you,” to which appellant responded by stating,

“No. No.” while extending his arms as if to give Holder access to search appellant’s

person.   In conducting the search of appellant’s person, Holder found a significant

amount of cash in appellant’s pocket. Holder also felt a small, round object under

appellant’s clothes in the perineum area. A few seconds after Holder discovered this

object, appellant said “that’s the weed.” Holder told appellant to put his hands on top of

his head and, when Holder reached for his handcuffs, appellant broke free from Holder



                                            2
and ran across a field on the side of the road. Appellant was subsequently captured

and arrested, and the marijuana that he had attempted to discard was recovered.


       Appellant was charged by indictment with the offense of tampering with physical

evidence. Before trial, the State filed a notice of intent to seek enhanced punishment on

the basis of two prior final felony convictions. Appellant filed two motions to suppress

which challenged the legality of Holder’s traffic stop of appellant and Holder’s search of

appellant’s person. Following hearings in December of 2011 and January of 2012, the

trial court overruled appellant’s motions as to these grounds. Following trial, a jury

found appellant guilty of the offense of tampering with evidence and, after appellant

pleaded true to the punishment enhancement paragraphs, the jury sentenced appellant

to 13 years incarceration.


       By this appeal, appellant presents two issues. While appellant’s issues overlap

to some extent, it is clear that appellant challenges the trial court’s denial of his motions

to suppress evidence based on the legality of Holder’s traffic stop of appellant and

subsequent search of appellant’s person.


                                    Standard of Review


       Both of appellant’s issues relate to the trial court’s rulings on his motions to

suppress.   We review a trial court's ruling on a motion to suppress for abuse of

discretion. Lujan v. State, 331 S.W.3d 768, 771 (Tex.Crim.App. 2011) (per curiam). In

reviewing the denial of a motion to suppress, we apply a bifurcated standard of review.

Hubert v. State, 312 S.W.3d 554, 559 (Tex.Crim.App. 2010). In doing so, we review de

novo a trial court's application of law to the facts while deferring to the trial court on
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questions of credibility and historical fact. Id. The trial court is "the sole trier of fact and

judge of the credibility of the witnesses and the weight to be given their testimony."

Valtierra v. State, 310 S.W.3d 442, 447 (Tex.Crim.App. 2010).


       When no findings of fact were requested or filed, as is the case here, the

reviewing court will view the evidence “in the light most favorable to the trial court's

ruling” and "assume that the trial court made implicit findings of fact that support its

ruling as long as those findings are supported by the record." Id. (quoting Harrison v.

State, 205 S.W.3d 549, 552 (Tex.Crim.App. 2006)). We will sustain the trial court's

ruling if it is "reasonably supported by the record and is correct on any theory of law

applicable to the case." Id. at 447-48 (quoting State v. Dixon, 206 S.W.3d 587, 590

(Tex.Crim.App. 2006)).


                                   Legality of Traffic Stop


       Appellant first challenges the trial court’s denial of his motion to suppress on the

basis that Holder’s traffic stop was not justified under the law. Appellant’s contention

relies on Holder’s police report which indicates that Holder initiated the traffic stop

because appellant did not signal his intent to change lanes for at least 100 feet before

changing lanes.      Appellant cites Texas Transportation Code section 545.104 as

establishing that a signal need only be used to indicate an intention to change lanes

whereas a turn requires the signal be active for 100 feet in advance. See TEX. TRANSP.

CODE ANN. § 545.104 (compare subsection (a) with subsection (b)). Because it is not a

violation of the traffic laws for a driver to fail to signal a lane change for 100 feet,



                                               4
appellant contends that Holder was not justified in stopping him and that, consequently,

all evidence obtained as a result of the stop should have been suppressed.


       A police officer may lawfully detain a person temporarily if there is reasonable

suspicion to believe that the detained person is violating the law. Neal v. State, 256

S.W.3d 264, 280 (Tex.Crim.App. 2008) (citing Ford v. State, 158 S.W.3d 488, 492

(Tex.Crim.App. 2005)).      Reasonable suspicion exists if the officer has specific,

articulable facts that, when combined with rational inferences from those facts, leads

him to reasonably suspect that a particular person has, or soon will be, engaged in

criminal activity. Id. (citing Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001)).

In making this determination, we must consider the totality of the circumstances. Id.

(citing Ford, 158 S.W.3d at 492, and Garcia, 43 S.W.3d at 530). But, we must afford

almost total deference to the trial court’s determination of historical fact, especially when

those determinations turn on the credibility or demeanor of witnesses. Id. at 281 (citing

Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997)).


       Appellant contends that there were no specific, articulable facts to support

Holder’s reasonable suspicion to stop appellant because the traffic offense that Holder

cited is not actually a traffic offense under the law. However, at the motion to suppress

hearing, Holder testified that he pulled appellant over after he saw appellant initiate a

lane change by crossing over the center stripe, and then turn his signal on such that it

flashed one time before appellant completed the lane change. This testimony does

provide specific, articulable facts that Holder saw appellant commit a traffic offense.

See TEX. TRANSP. CODE ANN. § 545.104(a) (“An operator shall use the signal . . . to

                                             5
indicate an intention to turn, change lanes, or start from a parked position.” (emphasis

added)). Further, the police report relied on by appellant does not clearly indicate that

no traffic offense had been committed before Holder stopped appellant. The report

states that “Holder observed the vehicle start the lane change movement . . . and

observed the right rear signal lamp flash only one time . . . .” (emphasis added). At

most, the police report is unclear regarding the sequence of lane change and signal.

However, it is reasonable to infer that, by putting the lane change movement before the

signal in his report, appellant did not signal his intention to change lanes until after he

had initiated the lane change. That Holder indicated in his police report that he stopped

appellant because of a failure to signal a lane change for 100 feet prior to changing

lanes is irrelevant since Holder did observe appellant commit a traffic offense. See York

v. State, 342 S.W.3d 528, 536 (Tex.Crim.App. 2011) (the reasonable suspicion

standard is objective, and the subjective intent of the officer conducting the detention is

irrelevant).


       Considering the totality of the circumstances, we conclude that the trial court did

not abuse its discretion in determining that the traffic stop of appellant was supported by

specific, articulable facts that a traffic violation had occurred. As such, we overrule

appellant’s first issue.


                              Search of Appellant’s Person


       By his second issue, appellant contends that the trial court erred in overruling

appellant’s motion to suppress evidence obtained from the search of appellant’s person



                                            6
because the search was not consensual and exceeded the scope of a Terry frisk. See

generally Terry v. Ohio, 392 U.S. 1, 29, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).


       The record clearly demonstrates that the search of appellant was conducted

without the benefit of a search warrant and is, therefore, per se unreasonable. See

Wiede v. State, 214 S.W.3d 17, 24 (Tex.Crim.App. 2007). One of the exceptions to the

warrant requirement recognized by the courts is the voluntary consent to search. See

Maxwell v. State, 73 S.W.3d 278, 281 (Tex.Crim.App. 2002). However, when a search

is founded upon consent, the State must show by clear and convincing evidence that

the consent was freely and voluntarily given. See Allridge v. State, 850 S.W.2d 471,

493 (Tex.Crim.App. 1991). The consent must be positive, unequivocal, and not the

result of coercion or duress. Id.


       In the present case, Holder testified that he asked appellant, “Do you mind if I

search you,” and that appellant responded by saying “No. No.” The State then clarified

that Holder’s question was phrased in a manner in which he asked appellant if he

minded if Holder searched him, rather than asking for permission to search. Holder

further testified that, immediately following appellant telling Holder that he did not mind

being searched, appellant raised both of his arms in a manner giving Holder access to

appellant’s body. Further, a video recording of the stop was made by Holder’s in-car

camera. This video recording was admitted at the hearing on the motion to suppress.

On this video, Holder can be heard to ask appellant “Do you mind if I search you right

quick,” to which appellant responds, “No. No.” Also, immediately after orally consenting

to the search of his person, appellant extends his arms in a manner consistent with

                                            7
giving Holder access to his body. Consequently, both the testimony of Holder and the

video recording of the stop establish that appellant freely and voluntarily consented to

Holder searching his person.


         Appellant contends that his response to Holder’s question asking whether

appellant minded if Holder searched his person could be interpreted as either consent

or refusal. Considering the totality of the circumstances, we fail to see how appellant’s

response can be seen as anything other than an unequivocal consent to search.

Because appellant consented to the search of his person, we need not determine

whether the scope of the search exceeded a search justified under Terry. See Barriere

v. State, No. 03-09-00026-CR, 2010 Tex.App. LEXIS 7060, at *10-11 (Tex.App.—Austin

Aug. 26, 2010, no pet.) (mem. op., not designated for publication) (consent to search

makes Terry’s reasonable-scope requirement inapplicable). We overrule appellant’s

second issue.


                                        Conclusion


         Having overruled each of appellant’s issues, we affirm the judgment of the trial

court.



                                                 Mackey K. Hancock
                                                     Justice


Do not publish.




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