                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-12-00171-CR


BRIAN MICHAEL LAMB                                               APPELLANT

                                        V.

THE STATE OF TEXAS                                                     STATE


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     FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY

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                       MEMORANDUM OPINION1

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                                  I. Introduction

      In three points, Appellant Brian Michael Lamb appeals his conviction of

possession of less than one gram methamphetamine. We affirm.

                  II. Factual and Procedural Background

      On May 18, 2011, around 11:30 p.m., Arlington Police Officer Justin

Mason was at a gas station conducting a routine patrol, which included running
      1
      See Tex. R. App. P. 47.4.
license plate checks for warrants, when he saw Lamb. Officer Mason said that

Lamb caught his eye because Lamb did a ―double take‖ when he saw Officer

Mason. Officer Mason ran Lamb’s license plate and discovered that Lamb had a

suspended driver’s license and an outstanding warrant for an expired vehicle

registration.

      Officer Mason testified that after he caught up with Lamb, pulled him over,

and confirmed Lamb’s identity as the individual listed on the arrest warrant, he

received confirmation that the warrant was valid. He also noted that when Lamb

stopped his truck, Lamb made ―furtive movements,‖ meaning Officer Mason

could see Lamb’s hands moving, but he could not see what Lamb was doing.

Officer Mason said that furtive movements generally indicate that the person is

reaching for a weapon. After confirming Lamb’s identity, Officer Mason went

back to his patrol car and waited for another officer to arrive before making the

arrest.

      Once Lamb was placed under arrest and handcuffed, but before Officer

Mason searched him, Officer Mason asked Lamb if he had any needles on his

person that would poke or stick him. Lamb replied, ―I don’t think I have any

points on me, but I dropped a syringe in the car when you pulled me over.‖

Officer Mason searched Lamb, placed Lamb into the rear seat of his patrol car,

and then returned to Lamb’s truck to complete an inventory search before the

tow truck arrived.

      Officer Mason testified that the driver’s side door of Lamb’s truck was


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already open and, after shining his flashlight inside, he saw the syringe that

Lamb had mentioned on the floorboard next to the gas pedal. Officer Mason

picked up the syringe and booked it into evidence on his return to the police

station. The syringe contained .14 grams of liquid methamphetamine. A grand

jury indicted Lamb with possession of a controlled substance. See Tex. Health &

Safety Code Ann. §§ 481.102(b), 481.115(a) (West 2010).

      Before trial, Lamb filed four motions to suppress, seeking to exclude

evidence—primarily, the syringe—because it was obtained as a result of a

detention and subsequent arrest that allegedly violated the Fourth Amendment.

The trial court denied Lamb’s motions without entering findings of fact or

conclusions of law, and Lamb did not request findings or conclusions.

      At trial, the syringe was admitted into evidence.      The jury found Lamb

guilty, the trial court assessed punishment at ten years’ confinement.          This

appeal followed.

                                 III. Suppression

      In his first point, Lamb complains that the trial court erred by overruling his

motions to suppress because Officer Mason did not rely on the expired

registration warrant in good faith. He argues that there was no showing that his

truck’s registration was expired when it was stopped or that Officer Mason saw

any traffic violation to otherwise support the stop. Lamb also complains that the

search of his truck was unreasonable under Arizona v. Gant, 556 U.S. 332, 344

129 S. Ct. 1710, 1719 (2009).


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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).

We give almost total deference to a trial court’s rulings on questions of historical

fact and application-of-law-to-fact questions that turn on an evaluation of

credibility and demeanor, but we review de novo application-of-law-to-fact

questions that do not turn on credibility and demeanor. Amador, 221 S.W.3d at

673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson v.

State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002).

      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 v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007); State

v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). When, as here, the record

is silent on the reasons for the trial court’s ruling, 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


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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. Unlawful-Search-and-Seizure Challenge

      The Fourth Amendment protects against unreasonable searches and

seizures by government officials. U.S. Const. amend. IV; Wiede, 214 S.W.3d at

24. As such, state law mandates that ―[n]o evidence obtained by an officer or

other person in violation of any provisions of . . . the Constitution or laws of the

United States of America, shall be admitted in evidence against the accused on

the trial of any criminal case.‖ Tex. Code Crim. Proc. Ann. art. 38.23(a) (West

2005); see Bell v. State, 169 S.W.3d 384, 391 (Tex. App.—Fort Worth 2005, pet.

ref’d). Stopping an automobile and detaining its occupants is a ―seizure‖ within

the meaning of the Fourth Amendment. Whren v. U.S., 517 U.S. 806, 809–10,

116 S. Ct. 1769, 1772 (1996). 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. Young v. State,

283 S.W.3d 854, 872 (Tex. Crim. App.), cert. denied, 130 S. Ct. 1015 (2009);

Amador, 221 S.W.3d at 672. A defendant satisfies this burden by establishing

that a search or seizure occurred without a warrant. Amador, 221 S.W.3d at 672.

C. Analysis

      1. Reasonable Suspicion

      Lamb first argues that he was illegally detained because Officer Mason


                                         5
lacked reasonable suspicion to make the traffic stop, thus tainting any evidence

obtained as a result. 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. Crain v.

State, 315 S.W.3d 43, 52 (Tex. Crim. App. 2010); Ford v. State, 158 S.W.3d 488,

492 (Tex. Crim. App. 2005). 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. Ford, 158 S.W.3d at 492. 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.; see also State v. Priddy, 321

S.W.3d 82, 88 n.9 (Tex. App.—Fort Worth 2010, pet. ref’d) (stating that once

officer received confirmation that defendant’s driver’s license was suspended, he

had probable cause to arrest her for that offense); Givens v. State, 949 S.W.2d

449, 451–52 (Tex. App.—Fort Worth 1997, pet. ref’d) (concluding that officer

acted with requisite probable cause when he arrested appellant for driving

without a license based on computer check indicating appellant’s license was

suspended). ―An investigatory detention or an arrest is not invalid merely


                                         6
because an officer relies upon reasonably trustworthy information that later

proves to be erroneous.‖ Mount v. State, 217 S.W.3d 716, 728 (Tex. App.—

Houston [14th Dist.] 2007, no pet.) (op. on reh’g); Brown v. State, 986 S.W.2d 50,

54 (Tex. App.—Dallas 1999, no pet.).

      Officer Mason testified that he ran Lamb’s license plate after Lamb did a

―double take‖ when he spotted Officer Mason at the gas station. The truck was

registered at a Fort Worth address to an individual named Brian Lamb. Officer

Mason searched the police database and discovered three individuals listed

under that name.     Officer Mason testified that only one individual matched

Lamb’s physical characteristics and also lived at the same address registered to

the truck. Officer Mason then ran a warrant check based on this information.

Officer Mason testified that he made the initial traffic stop based on two reports

he received from the warrant check: one report stated that Lamb had an

outstanding warrant for his arrest and the other stated that Lamb’s driver’s

license was suspended.

      Under transportation code section 521.457(a)(2), a person commits an

offense if he operates a motor vehicle when his license is suspended. Tex.

Transp. Code Ann. § 521.457(a)(2) (West 2013). In addition to the information

about the expired registration warrant, Officer Mason also received information

that Lamb had a suspended license; thus, the trial court could have found that

Officer Mason acted reasonably by relying on the information he had received.

See Brother v. State, 166 S.W.3d 255, 257 (Tex. Crim. App. 2005) (holding that


                                        7
factual basis for stopping a vehicle need not arise from the officer’s personal

observation but may be supplied by information acquired from other sources);

Brown, 986 S.W.2d at 52 (holding that computer database reports indicating

vehicle was stolen provided officers with probable cause to make warrantless

arrest of driver); Givens, 949 S.W.2d at 451–52 (holding that officer had probable

cause to stop and arrest defendant based on computer information indicating that

his license was suspended).         Because Officer Mason had information that

indicated that Lamb was committing the offense of driving while his license was

suspended, Officer Mason had specific, articulable facts that, coupled with his

own personal observations, gave him reasonable suspicion to stop Lamb to

investigate. See Tex. Transp. Code Ann. § 521.457(a)(2); Ford, 158 S.W.3d at

492. Therefore, Lamb’s temporary detention was legally permissible, and we

overrule this portion of Lamb’s first point.

      2. Arrest

      Although Lamb additionally complains that his arrest was illegal under the

expired registration warrant, we need not address this argument because the

record provides an objective basis for the stop and arrest based on Officer

Mason’s observing Lamb drive with a suspended license in violation of

transportation    code   section   521.457.2   See   Tex.   Transp.   Code   Ann.


      2
        Lamb argues that there was no showing that his license was suspended
at the time of the stop and that no attempt was made to confirm whether it was
suspended following the stop. However, in Givens, addressing the same
challenge Lamb now makes, we held that the State is not required to offer

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§ 521.457(a)(2); see also Tex. Code Crim. Proc. Ann. art. 14.01(b) (West 2005)

(―A peace officer may arrest an offender without a warrant for any offense

committed in his presence or within his view.‖); Givens, 949 S.W.2d at 452

(stating that when detained motorist is found driving with suspended license,

probable cause exists to arrest the driver for that offense). Because the record

provides sufficient support for the legality of Lamb’s arrest independent of the

expired registration warrant, we overrule this portion of Lamb’s first point without

reaching his argument on the no-registration warrant. See Stevens, 235 S.W.3d

at 740; Armendariz, 123 S.W.3d at 404; see also Tex. R. App. P. 47.1.

      3. Search

      The ―plain-view‖ doctrine requires that (1) law enforcement officials must

lawfully be where the object can be viewed plainly, (2) the incriminating character

of the object in plain view must immediately be apparent to the officials, and

(3) the officials must have the right to access the object. Keehn v. State, 279

S.W.3d 330, 334 (Tex. Crim. App. 2009); Walter v. State, 28 S.W.3d 538, 541

(Tex. Crim. App. 2000); see also Swarb v. State, 125 S.W.3d 672, 680 (Tex.


extrinsic proof that a motorist’s driver’s license was, in fact, suspended when the
arresting officer testifies that the arrest was made after a computer check
indicated the motorist’s driver’s license was suspended. 949 S.W.2d at 451.
Officer Mason testified that his police computer system indicated that Lamb’s
driver’s license was currently suspended and had expired in 2007. On cross-
examination, Lamb neither challenged this testimony nor asked Officer Mason
whether he confirmed the suspended license after making the stop. No
affirmative evidence was introduced that put this fact into question or challenged
the authenticity of this information. Therefore, Lamb’s argument is without merit.


                                         9
App.—Houston [1st Dist.] 2003, pet. dism’d).

      If an article is in plain view, neither its observation nor its seizure involves

any invasion of privacy. Swarb, 125 S.W.3d at 680. In Swarb, the court found a

vehicle search legal when officers, on their way to execute an arrest warrant,

approached the appellant’s vehicle in a parking lot and shone a flashlight into it,

revealing methamphetamine in plain view on the vehicle’s floorboard. Id. (stating

that looking inside vehicle, even with the use of flashlight, does not implicate

Fourth Amendment protections or prevent application of plain-view doctrine); see

also Hill v. State, 303 S.W.3d 863, 873–76 (Tex. App.—Fort Worth 2009, pet.

ref’d) (stating that Fourth Amendment privacy expectations were not implicated

when officers plainly could see, based on their experience and training, what they

immediately identified as crack cocaine between the vehicle’s seat and console).

      Here, Officer Mason testified that Lamb told him about the syringe in the

truck before he searched Lamb incident to the arrest and before he went to

Lamb’s truck to conduct an inventory search.3 He walked over to the truck, which

had its door already open, shone his flashlight into the truck, and saw the syringe

on the floorboard.    Officer Mason testified that he believed the liquid in the

syringe to be methamphetamine because he had seen liquid methamphetamine

like it before.   He also testified that before joining the Arlington Police

Department, he had been a K9 police officer in the Navy for four-and-a-half

      3
       Lamb does not argue that his response to Officer Mason’s question
should have been suppressed.


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years, using his dog to search for drugs. At the time that he stopped Lamb, he

was working with Arlington’s ―Hot Spot Enforcement and Assistance Team‖

(HEAT), a specialized unit addressing areas of the city having problems with

drugs, among other things. Because the trial court could have concluded based

on Officer Mason’s testimony that he seized the syringe, which was in plain view,

the search was supported by probable cause. See, e.g., Perez v. State, 514

S.W.2d 748, 749 (Tex. Crim. App. 1974) (holding police had probable cause for

warrantless search of defendant when he was found unconscious near drug

paraphernalia); Stephens v. State, No. 09-10-00488-CR, 2011 WL 2732253, at

*3 (Tex. App.—Beaumont July 13, 2011, no pet.) (mem. op., not designated for

publication) (probable cause for search of vehicle was established by officer’s

plain-view observation of crack pipe). We overrule the remainder of Lamb’s first

point.

                                  IV. Jury Charge

         In his second and third points, Lamb contends that the trial court erred by

overruling his requested jury-charge instructions and by overruling his objections

to the jury charge as submitted. Lamb complains that the trial court improperly

rejected his requested jury-charge instructions on (1) reasonable suspicion; (2)

probable cause; and (3) the application of code of criminal procedure article

38.23’s exclusionary rule because there was a factual dispute over the validity of

the basis for the stop, arrest, search, and seizure. Concomitantly, Lamb argues

that the trial court erred by overruling his objections to the jury charge that failed


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to include these requested instructions.

A. Standard of Review

      ―[A]ll alleged jury-charge error must be considered on appellate review

regardless of preservation in the trial court.‖ Kirsch v. State, 357 S.W.3d 645,

649 (Tex. Crim. App. 2012). In our review of a jury charge, we first determine

whether error occurred; if error did not occur, our analysis ends. Id.

B. Article-38.23 Instructions

      Code of criminal procedure article 38.23(a) prohibits the admission of

evidence against an accused in a criminal trial if the evidence was obtained in

violation of state or federal constitutions or laws. Tex. Code Crim. Proc. Ann. art.

38.23(a). The statute further provides:

      In any case where the legal evidence raises an issue hereunder, the
      jury shall be instructed that if it believes, or has a reasonable doubt,
      that the evidence was obtained in violation of the provisions of this
      Article, then and in such event, the jury shall disregard any such
      evidence so obtained.

Id.   A defendant's right to the submission of jury instructions under article

38.23(a) is limited to disputed issues of fact that are material to his claim of a

constitutional or statutory violation that would render evidence inadmissible.

Madden v. State, 242 S.W.3d 504, 509–10 (Tex. Crim. App. 2007).              To be

entitled to an article-38.23(a) instruction, the defendant must show that (1) an

issue of historical fact was raised before the jury, (2) the fact was contested by

affirmative evidence at trial, and (3) the fact is material to the constitutional or

statutory violation that the defendant has identified as rendering the particular


                                           12
evidence inadmissible. Robinson v. State, 377 S.W.3d 712, 719 (Tex. Crim.

App. 2012).

C. Analysis

      The record reflects that there was no disputed issue of fact relevant to the

stop but rather only a dispute as to whether Officer Mason had reasonable

suspicion to detain Lamb.      Additionally, the only dispute raised by Lamb

regarding the search concerned the legal question of probable cause.

      In reference to the alleged dispute surrounding the initial stop, Lamb’s

counsel stated:

      The factual dispute would be he didn’t know for a fact that that was
      Brian Lamb with the warrant. He’s just looking at the person driving
      this vehicle. The person driving this vehicle is registered to a Brian
      Lamb. He didn’t know for a fact that that person was Brian Lamb.
      And officer [Mason] testified that, that he didn’t know for a fact that
      was Brian Lamb, that he was making a guess. So he was assuming
      that was Brian Lamb.

The relevant uncontested facts leading up to the stop are as follows: Officer

Mason’s license-plate search revealed that the truck was registered to a Fort

Worth resident named Brian Lamb; Officer Mason’s police database query for

―Brian Lamb‖ listed three individuals by that name; only one of the listed

individuals had an address that matched the registered address of the truck and

matched Officer Mason’s observations of Lamb’s physical characteristics;4


      4
      Officer Mason testified that:

      [T]wo of them I ruled out because they were in their late 50’s and
      early 70’s, so they didn’t fit the description of the individual I was

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Officer Mason ran a warrant check on the matching individual; the returned

warrant check revealed that Brian Lamb had a suspended license, an expired

vehicle registration, and a warrant out for his arrest; and Lamb gave Officer

Mason a state identification card that contained the same information—and

social security number—as was listed for ―Brian Lamb‖ in the Arlington Police

Department’s computer database system.        Officer Mason presented the only

evidence at trial regarding the facts surrounding the traffic stop, and no

affirmative evidence puts these facts into question. See Madden, 242 S.W.3d at

513. Lamb challenges the trial court’s application of the law to the facts—not the

facts themselves. See Holmes v. State, 248 S.W.3d 194, 199 (Tex. Crim. App.

2008) (―There is, of course, nothing to instruct the jury about if the suppression

question is one of law only, and there is nothing to instruct the jury about unless

there is affirmative evidence that raises a contested fact issue.‖). Therefore,

Lamb was not entitled to a reasonable-suspicion instruction under article 38.23.

      The same can be said with regard to Lamb’s requested probable-cause

and exclusionary instructions under article 38.23. The jury heard Officer Mason’s

uncontroverted testimony that Lamb stated he had dropped a needle on the

floorboard of his truck; that the driver’s side door to the truck was already open;

and that Officer Mason shone his flashlight on the floorboard, spotted the syringe

      looking at. The individual I was looking at was about 5-11, 185
      pounds, and I found a Brian Lamb 5-11, 185 pounds, roughly, that I
      was looking at. And it also had an address out of Fort Worth that
      matched the same address on the vehicle.


                                        14
beside the gas pedal, and retrieved the syringe as evidence. This testimony

supports the trial court’s conclusion that Officer Mason conducted a legal search

of Lamb’s truck, and no affirmative evidence was raised that would put Officer

Mason’s testimony at issue. See Madden, 242 S.W.3d at 513. Therefore, Lamb

was not entitled to an exclusionary instruction or to a probable-cause instruction

under article 38.23.

      Having determined that the trial court did not err by denying Lamb’s

requested additions to the jury charge, we overrule Lamb’s second point.

Because we hold that the trial court committed no error by charging the jury

without Lamb’s requested jury-charge instructions, it is unnecessary for us to

reach Lamb’s third point. See Tex. R. App. P. 47.1.

                                 V. Conclusion

      Having overruled Lamb’s two dispositive points, we affirm the trial court’s

judgment.


                                                  BOB MCCOY
                                                  JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and MCCOY, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: October 10, 2013




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