                           NUMBER 13-10-00638-CR

                              COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                        CORPUS CHRISTI - EDINBURG


JOSHUA SANTANA TIMMONS,                                                  Appellant,

                                          v.

THE STATE OF TEXAS,                                                        Appellee.


                   On appeal from the 329th District Court
                        of Wharton County, Texas.


                            MEMORANDUM OPINION

    Before Chief Justice Valdez and Justices Rodriguez and Garza
              Memorandum Opinion by Chief Justice Valdez

      Appellant, Joshua Santana Timmons, pleaded no contest to felony possession of

a firearm by a felon. See TEX. PENAL CODE ANN. § 46.04 (West 1999). The trial court

sentenced Timmons to confinement in the Institutional Division of the Texas Department

of Criminal Justice for six years with one hundred and thirty-nine days credit for time
served.      On appeal, Timmons challenges the trial court’s denial of his motion to

suppress. We affirm.

                                           I.     BACKGROUND

         On March 12, 2010, El Campo Police Officers, Clint Savino and J.D. Gingles,

were stationed under an overpass monitoring a frontage road stop sign when they

stopped a white Buick at the 1400 block of Palacios Street El Campo, Texas. Officer

Savino testified that the officers stopped the vehicle because it failed to stop at the

designated point at the stop sign intersection. According to Officer Savino, the Buick

stopped approximately three-quarters of the length past the stop sign. The Officer then

initiated a traffic stop of the vehicle.

         Officer Gingles approached the driver’s side of the Buick, and Officer Savino

approached the passenger side. Officer Savino testified that he used his flashlight to

look into the Buick and noticed what appeared to be marijuana leaves on the front

passenger’s shirt1. Officer Savino also stated that the back seat passenger, Timmons,

kept reaching down towards his pants, after being warned several times to keep his

hands up by Officer Gingles and Game Warden Byrd, who had just arrived on the

scene.       Timmons and Kearny were both removed from the vehicle and placed in

handcuffs and patted down for weapons.

         Officer Savino testified that Officer Gingles asked the owner of the vehicle,

Wright, if he had any contraband in the vehicle and then “do you have a problem with




         1
          The record reflects that the front passenger’s last name is “Kearney”; however, the record does
not state his first name.

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me checking the car?”2 Officer Savino stated that Wright consented to the search and

then asked the officers if they wanted to also look in the trunk.

        Officer Savino stated that he then searched the right front seat of the passenger

side and found a hand-rolled marijuana cigar. He placed Kearny under arrest. Next,

Officer Savino testified that he searched the backseat of the Buick and found a piece of

paper with marijuana inside and a Torres (Taurus) fun, .410, .45 pistol under the seat in

front of Timmons. Timmons was then arrested. Wright was subsequently arrested for

not having a driver’s license. At the police station, a blue latex glove with three .410

shells were found in Timmons pocket during the booking process search.

        On June 21, 2010, the trial court held a hearing on Timmons’ motion to suppress.

Timmons challenged the stop of the vehicle and the subsequent search of the vehicle.

The court denied his motion. On June 28, 2010, Timmons pleaded no contest to felony

possession of a firearm by a felon. On October 28, 2010, the trial court sentenced

Timmons to confinement in the Institutional Division of the Texas Department of

Criminal Justice for six years with one hundred and thirty-nine days credit for time

served. This appeal followed

                                       II.     STANDARD OF REVIEW

        We review a trial courts ruling on a motion to suppress under a bifurcated

standard of review: the trial courts findings of fact are given “almost total deference”

when its ruling relies on the credibility of witnesses, Carmouche v. State, 10 S.W.3d

323, 327 (Tex. Crim. App. 2000), while we apply a de novo standard of review to rulings

that do not depend on credibility. Id.; Castro v. State, 227 S.W.3d 737, 741 (Tex. Crim.


        2
           The record reflects that the owner of the vehicle’s name is “Wright”; however, the record does
not state his first name.

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App. 2000) (“A reasonable-suspicion determination is made by considering the totality

of the circumstances, giving almost total deference to the trial court’s determination of

historical facts and reviewing de novo the trial court’s application of the law to facts not

turning on credibility and demeanor.”). When the trial court does not enter findings of

fact “a reviewing court must 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 finding are supported by the record. Wiede v. State, 214

S.W.3d 17, 25 (Tex. Crim. App. 2007).

                                 III.   APPLICABLE LAW

       The Fourth Amendment of the United States Constitution guarantees:

           the right of the people to be secure in their persons, houses,
           papers, and effects, against unreasonable searches and seizures,
           shall not be violated, and no Warrants shall issue, but upon
           probable cause, supported by Oath or affirmation, and particularly
           describing the place to be searched, and the persons or things to
           be seized.

U.S. CONST. amend. IV. The Fourth Amendment protects individuals from unreasonable

seizures. Wong Sun v. United States, 371 U.S. 471, 484 (1963).

       A person is seized by the police and therefore entitled to challenge the

government’s action under the Fourth Amendment of the constitution when the officer

restrains the person’s freedom of movement. Florida v. Bostick, 501 U.S. 429, 434

(1991).

           Any reasonable passenger would have understood the officers to
           be exercising control to the point that no one in the car was free to
           depart without police permission. A traffic stop necessarily
           curtails a passenger's travel just as much as it halts the driver,
           diverting both from the stream of traffic to the side of the road, and
           the police activity that normally amounts to intrusion on privacy



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           does not normally (and did not here) distinguish between
           passenger and driver.

Brendlin, 551 U.S. at 250. Therefore, when police initiate a traffic stop, a passenger in

the car like the driver is seized under the Fourth Amendment and has standing to

challenge the constitutionality of the stop. Id. at 249. This is true regardless of whether

the passenger has a reasonable expectation of privacy. Lewis, 664 S.W2d at 348.

       Temporary custody of a vehicle that the police have probable cause to believe

has committed a traffic violation is consistent with the Fourth Amendment regardless of

whether a reasonable officer would have been motivated to stop the automobile. Whren

v. United States, 517 U.S.806, 810 (1996). “There is no requirement that a particular

statute is violated in order to give rise to reasonable suspicion.” Gajewski v. State, 944

S.W.2d 450, 452 (Tex. App.—Houston [14th Dist.] 1997, no pet.). The State only needs

to prove by testimony that the officer knew sufficient facts to reasonably believe that

appellant violated traffic laws. Whren, 517 U.S. at 809-10.

       A warrantless automobile stop is a Fourth Amendment seizure analogous to a

temporary detention and it must be justified by reasonable suspicion.        Berkemer v.

McCarty, 468 U.S. 420, 439, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984); Hernandez v.

State, 983 S.W.2d 867, 869 (Tex. App.—Austin 1998, pet. ref’d). The reasonableness

of a temporary detention must be examined in terms of the totality of the circumstances.

Woods v. State, 956 S.W.2d 33, 38 (Tex. Crim. App. 1997). A detaining officer must

have specific articulable facts that, taken together with rational inferences from those

facts, lead him to conclude that the person detained is, has been, or soon will be

engaged in criminal activity.   Id.; Hernandez, 983 S.W.2d at 869.        It is the State’s




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burden to prove that a warrantless detention was lawful.                State v. Huddleston, 164

S.W.3d 711, 716 (Tex. App.—Austin 2005, no pet.).

                                         IV.     STANDING

         By his first issue, Timmons contends that, as a passenger of the vehicle that was

stopped and searched by the police, he has standing to challenge both the vehicle stop

and the resulting search by the police.3

         When police officers signal that a driver should stop the vehicle, and in response

the driver actually stops the vehicle, then the driver and all passengers inside the

vehicle have been seized under the Fourth Amendment. Arizona v. Johnson, 555 U.S.

323 (2009); Brendlin v. California, 551 U.S. 249, 257 (2007). A passenger, therefore,

has standing to challenge his seizure as unconstitutional regardless of whether he has

an expectation of privacy. Lewis v. State, 664 S.W.2d 345, 34338 (Tex. Crim. App.

1984).

         Officer Savino and Gingles turned on the flashing lights and signaled that the

Buick should pull over, while Timmons was a passenger in the vehicle. Brendlin, 551

U.S. at 257. When the officers made the traffic stop of the vehicle, curtailing Timmons

travel, the officers’ activity was an intrusion on both the driver and Timmons.                     Id.

Therefore, Timmons has standing to challenge the constitutionality of the traffic stop by

police officers. Id. We sustain Timmons’ first issue.

                                 V.      REASONABLE SUSPICION



         3
          In accordance with the Texas Rules of Appellate Procedure 38.1(i), Timmons’ argument
challenging the search of the Buick will not be addressed because the brief did not contain a clear and
concise argument with appropriate citations to authorities and the record. See Tex. R. App. P. 38.1 (i)
(West 1999) (the appellant brief must contain a clear and concise argument for the contentions made,
with appropriate citations to authorities and to the record).

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        In his second issue, Timmons contends that El Campo Police did not have

reasonable suspicion to stop the vehicle because there was no clearly marked line at

the intersection where the officers stopped the Buick.

        In this case, the State argued that reasonable suspicion existed to stop Timmons

because Officer Savino suspected a violation of section 544.010 of the transportation

code. See TEX. TRANSP. CODE ANN. § 544.010 (West 1999). Section 544.010 provides

that:

            (a) [u]nless directed to proceed by a police officer or traffic-control
            signal, the operator of a vehicle or streetcar approaching an
            intersection with a stop sign shall stop as provided by Subsection
            (c).

            (b) If safety requires, the operator of a vehicle approaching a yield
            sign shall stop as provided by Subsection (c).

            (c) An operator required to stop by this section shall stop before
            entering the crosswalk on the near side of the intersection. In the
            absence of a crosswalk, the operator shall stop at a clearly
            marked stop line. In the absence of a stop line, the operator shall
            stop at the place nearest the intersecting roadway where the
            operator has a view of approaching traffic on the intersecting
            roadway.

Id. “However, there is no requirement that an actual traffic offense be committed, just

that the officer reasonably believed that a violation was in process.” Vasquez v. State,

324 S.W.3d 912,919 (Tex. App.—Houston [14th Dist.] 2010, no pet.)

        Officer Savino testified that they reasonably believed that a traffic violation had

occurred, when they observed the Buick fail to stop at the stop sign. See TEX. TRANSP.

CODE ANN. § 544.010 (West 1999). Officer Savino testified that he was very familiar with

the intersection because he drove through it on daily basis. Next, he stated that he saw

the Buick stop approximately three-quarters of the length of the car past the stop sign,



                                              7
and that at this particular intersection it is a violation of the traffic laws to go past the

stop sign to look into the intersection because there is a stop line. Officer Savino also

said he believed that the Buick had violated the traffic laws. Vasquez, 324 S.W.3d at

919.

       Officer Savino was shown pictures of the stop sign, which were admitted into

evidence.     Upon viewing the picture, Officer Savino stated, “The stop line is

there. . . . and at nighttime it’s reflective.”       Then when asked by Timmons’ defense

counsel “No, I’m asking you whether that’s a clearly marked stop line,” Officer Savino

replied, “It’s the remnants of a clearly marked stop line.” Timmons appears to argue

that Officer Savino’s statement proves that there was not a clearly marked line.

However, whether the line was clearly marked is a question of fact which the trial court

resolved in the State’s favor. See Castro, 227 S.W.3d at 741.

       After hearing the testimony of Officer Savino about the traffic stop, the line, and

viewing the pictures of the stop sign, the trial court could have decided to believe the

officer’s testimony that there was a clearly marked stop line. See Kelly v. State, 331

S.W.3d 541, 548 (Tex. App.—Houston [14th Dist.] 2011, no pet.). The trial court as the

resolver of facts could have determined that based on the totality of the circumstances

the officers had reasonable suspicion to stop the Buick for violating section 544.010 of

the transportation code. See Whren, 517 U.S. at 810. Therefore, viewing the evidence

in the light most favorable to the trial court's ruling, we conclude that the record supports

the trial court's determination to deny the motion to suppress. See Wiede, 214 S.W.3d.

at 28. We overrule Timmons’ second issue.




                                                  8
                                   VI.    CONCLUSION

      The judgment of the trial court is affirmed.

                                                       _____________________
                                                       ROGELIO VALDEZ
                                                       Chief Justice

Do not Publish.
TEX. R. APP. P. 47.2(b)
Delivered and filed the
14th day of July, 2011.




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