                                  NO. 07-08-0427-CR

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                       PANEL C

                                JANUARY 13, 2010
                         ______________________________

                        THE STATE OF TEXAS, APPELLANT

                                           V.

                         GREGORY THORNTON, APPELLEE
                       _________________________________

           FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;

             NO. 2008-419888; HONORABLE JIM B. DARNELL, JUDGE
                      _______________________________


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


                              MEMORANDUM OPINION


      The State appeals the trial court’s ruling suppressing evidence of a crack pipe after

the stop of appellee, Gregory Thornton. We reverse and remand for further proceedings.


                                      Background


      On April 11, 2008, appellee was walking with another individual along the 2000

block of Avenue M in Lubbock, Texas. As appellee was walking, Officer Jordan Roberts

of the Lubbock Police Department was on patrol and observed the two individuals walking
in the roadway.     According to Roberts, he decided to stop the two individuals for

jaywalking. Roberts lifted his shirt and displayed his badge and ordered the individuals to

stop. As Roberts exited his vehicle, he noticed that appellee had dropped an object. After

securing the individuals, Roberts walked to the dropped object and found a shattered crack

pipe. Roberts then checked for outstanding warrants and, upon finding an outstanding

warrant, arrested appellee on the outstanding warrant as well as cited him for possession

of drug paraphernalia.     Appellee’s present case is for the offense of tampering with

evidence.


       At a suppression hearing, appellee contended that Roberts did not have sufficient

reasonable suspicion to stop appellee. To support his position, appellee questioned

Roberts about the “jaywalking” provisions.1 Under section 552.005, appellee argued that

he did not violate the statute because “a pedestrian shall yield the right of way to a vehicle

. . . at a place other than a marked crosswalk.” TEX . TRANSP . CODE ANN . § 552.005(a)

(Vernon 1999). Appellee believes he complied with this statute because there was no

testimony that appellee obstructed or interfered with traffic. Furthermore, under section

552.006, appellee agreed that “if a sidewalk is not provided, a pedestrian walking along the

and on a highway shall if possible walk on the left side of the roadway or the shoulder of

the highway facing oncoming traffic.” TEX . TRANSP . CODE ANN . § 552.006(b) (Vernon Supp.

2009). Appellee contends he did not violate this statute because he was crossing the




       1
        Texas does not have a statute prohibiting “jaywalking.” However, the parties
discussed section 552.005, Crossing at Point Other Than Crosswalk, and section 552.006,
Use of Sidewalk, of the Texas Transportation Code during the proceedings.

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street rather than walking along the street. At the conclusion of the hearing, the trial court

found that appellee violated the law but then excluded the evidence.


                                    Standard of Review


       In a motion to suppress hearing, the trial court is the sole trier of fact and judge of

witness credibility and may believe or 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 the trial court's ruling

on a motion to suppress evidence for abuse of discretion. See Villarreal v. State, 935

S.W.2d 134, 138 (Tex. Crim. App. 1996). "At the hearing on the motion the trial court is

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

Id. In reviewing the record, we defer to the trial court's determination of facts, particularly

when the trial court's findings turn on an evaluation of the credibility and demeanor of the

witnesses. See Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). We apply the

same deference in reviewing the trial court's rulings on mixed questions of law and fact to

the extent that the rulings turn upon a similar credibility evaluation. Id. If a mixed question

of law and fact does not turn on a witness's credibility and demeanor, however, we review

the trial court's determination de novo. Id.


       When the trial court has not made a finding on a relevant fact, we imply the finding

that supports the trial court's ruling, so long as it finds some support in the record. See

State v. Kelly, 204 S.W.3d 808, 818-19 (Tex.Crim.App. 2006); see also Moran v. State,

213 S.W.3d 917, 922 (Tex.Crim.App. 2007). We will uphold the trial court's ruling if it is




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reasonably supported by the record and is correct under any theory of law applicable to the

case. State v. Dixon, 206 S.W.3d 587, 590 (Tex.Crim.App. 2006).


Law and Analysis


       In this cause, the trial court entered findings of fact and conclusions of law.

Specifically, the trial court found that


       1. Officer Roberts stated that he observed [appellee] and another individual
       walking in the street.
       2. As he [Officer Roberts] approached the individuals, Officer Roberts stated
       [appellee] reached into his pocket and threw something to the ground.
       3. Officer Roberts then found object [appellee] had dropped, and he testified
       it was broken pieces of what appeared to be a crack pipe.
       4. The officer’s only reason for approaching these two individuals was that
       they were jaywalking.


       Although the trial court then made a conclusion of law regarding the sufficiency of

the evidence to support a conviction for tampering with physical evidence, the trial court

did not make a conclusion of law regarding the legality of the initial stop. The only relevant

conclusion of law made by the trial court is that “[j]aywalking is a violation of the law

(Section 552.006 of the Transportation Code).”


       From the trial court’s findings, and giving deference to the trial court, we conclude

the trial court found that the police officer made the stop based on violation of section

552.006 of the Texas Transportation Code. Although appellee raised the possibility that

appellee did not violate section 552.006 because appellee was crossing the street rather



                                              4
than walking in the street, the trial court made no such finding.2 In reviewing the record,

we defer to the trial court's determination of facts, particularly when the trial court's findings

turn on an evaluation of the credibility and demeanor of the witnesses. See Guzman, 955

S.W.2d at 89. With these trial court findings, will now review the trial court’s conclusions

of law de novo. Id.


       Since Roberts observed a violation of the law, Roberts had sufficient reasonable

suspicion to initiate an encounter and, therefore, performed a legal stop. See Ford v. State,

158 S.W.3d 488, 492-94 (Tex.Crim.App. 2005) (objective standard rather than the

subjective intent of the officer is used to determine the legality of a stop). As long as an

actual violation occurred, law enforcement officials are free to enforce the laws and detain

a person for that violation regardless of the officer's subjective reason for the detention.

See Garcia v. State, 827 S.W.2d 937, 943-44 (Tex.Crim.App. 1992). Having deferred to

the trial court’s finding that the facts supported a finding that appellee had violated the law,

we conclude that it was improper for the trial court to suppress evidence discovered during

the legal encounter initiated after Roberts observed a violation of a traffic law.




        2
         In fact, after stating that jaywalking is a violation of section 552.006, the trial court
further made the statement that “it is a statute that is rarely enforced except when officers
want to circumvent probable cause to stop someone they suspect may possess drugs or
stolen property.” Although this statement is not based on any evidence, it would appear
consistent with a trial court finding that appellee, indeed, violated section 552.006.

                                               5
      For the foregoing reasons, we reverse and remand to the trial court for further

proceedings consistent with this ruling.




                                               Mackey K. Hancock
                                                  Justice



Do not publish.




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