                                    NO. 07-08-0073-CV

                              IN THE COURT OF APPEALS

                          FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL B

                                   JANUARY 13, 2009
                            ______________________________

                                 THE STATE OF TEXAS,

                                                                 Appellant

                                              v.

             1998 TOYOTA LAND CRUISER, OKLAHOMA TAG CMN-633
                          VIN JT3HT05J9W0007179,

                                                        Appellee
                           ________________________________

              FROM THE 47TH DISTRICT COURT OF RANDALL COUNTY;

                      NO. 58,915-A; HON. HAL MINER, PRESIDING
                         _______________________________

                                       Opinion
                           _______________________________

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

       The State appeals from the trial court’s denial of its motion to forfeit the 1998 Toyota

Land Cruiser of Cole Austin Donelson. We agree, reverse, and remand.

       Background

       The Land Cruiser was seized after Donelson was found selling marijuana from it.

Donelson sought to recover the vehicle. At issue was the propriety of the detention that

resulted in his arrest.
        In permitting Donelson to recover the Cruiser, the trial court determined, via written

conclusions of law, that the interaction between the arresting officer and Donelson was not

a consensual encounter but rather an “investigative stop.” “[T]here were no[] articulable

facts sufficient to give rise to a rational inference that a crime was being committed,” the

court continued. Thus, the “investigative detention . . . amounted to an illegal stop lacking

in sufficient articulable facts or probable cause.” Moreover, the smelling of marijuana by

an officer occurred “after the illegal investigative detention[,] and probable cause . . .

cannot be based on facts discovered after the illegal detention.” So, because the detention

was illegal, the State lacked basis to forfeit the vehicle.1 We have been asked by the State

to review this decision.

        Law and Its Application

        Whether the trial court’s decision regarding the nature of the detention is sound

depends upon whether it abused its discretion. According to the Texas Supreme Court,

we determine this by applying the standard of review developed by the Court of Criminal

Appeals in Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997). State v. $217,590.00

in U.S. Currency, 18 S.W.3d 631, 634 n.3 (Tex. 2000). Under that standard, great

deference is accorded the trial court’s interpretation of historical facts. Ford v. State, 158

S.W.3d 488, 493 (Tex. Crim. App. 2005), Guzman v. State, 955 S.W.2d at 87. This is so

because the trial court has the sole authority to assess the credibility of the witnesses;

simply put, it may choose who to believe. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim.



        1
          In a forfeiture proceeding, the State m ust show that the officer had probable cause to reasonably
believe that a substantial connection existed between the property to be seized and crim inal activity. State
v. $11,014.00, 820 S.W .2d 783, 784 (Tex. 1991).

                                                     2
App. 2000); State v. Ramirez, 246 S.W.3d 287, 289 (Tex. App.–Amarillo 2008, no pet.).

However, like deference is not afforded the trial court’s application of law to the facts or its

interpretation of the law. Ford v. State, 158 S.W.3d at 493. Those matters are reviewed

de novo. Id.; Guzman v. State, 955 S.W.2d at 87.

        Next, in support of the legal conclusions listed above, the trial court entered the

following findings of fact:

        5.      On May 11, 2007, Capt. Roger Short of the Randall County Sheriff’s Office
                was working the Sober program in an unmarked vehicle watching for alcohol
                violations and other offenses in the area of Paramount Street and South
                Western.

        6.      At approximately 10:40 p.m. . . . Short, while parked, observed a blue pick-up
                in the Mr. Gattis pizza parking lot.[2] The driver, later identified as Cooper
                Mark Hurst W/M 08-14-89, was sitting in the pick-up alone. As Short was
                watching, another vehicle, (a green 1998 Toyota Land Cruiser . . .), drove up
                next to the blue pick-up. Hurst got out of his pick-up and got into the . . .
                Land Cruiser. Capt. Short could see into the vehicle and saw the driver of
                the Toyota reach into the back seat of the vehicle and grab a camouflage
                back pack. Short could see Donelson [who was driving the Land Cruiser]
                retrieving items from the back pack. Short observed that Donelson would
                reach back and forth with his right hand from the back seat area and place
                something on the center console.[3] Short radioed several other officers who
                were in the area of the possible drug transaction. Short advised two
                uniformed officers to make contact with [the] occupants.

        7.      Deputy Bushef parked his patrol unit behind the Land Cruiser while Lt.
                Sheets parked his patrol unit in a position behind the cruiser. Captain
                Short’s vehicle was in front and to the side of the Land Cruiser.
                Simultaneously the officers approached the vehicle on each side, knocked
                on the window and ordered occupants [sic] to roll down his window. The
                Deputy claims to have smelled an odor of marijuana. He removed the
                passenger and did a pat down search. Later the officer searched the vehicle
                finding marijuana under four . . . ounces.

        2
         Short testified that the vehicle was parked som e distance from the restaurant’s entry which seem ed
odd to him .

        3
           The officer also testified to seeing an exchange of a $50 bill. How he could do so at night while
sitting in a different vehicle went unexplained.

                                                     3
       8.     Neither party consented to the search.

       9.     Captain Short never observed any illegal activity or illegal substance prior to
              ordering the two Deputies to make contact with the occupants.

These findings depict a situation wherein a peace officer, charged with watching for alcohol

related violations and other criminal offenses, saw Hurst sitting alone in a parked car at

10:40 at night waiting for Donelson. The officer also saw 1) Donelson arrive in the Land

Cruiser and park next to Hurst, 2) Hurst leave his vehicle and enter that of Donelson’s, 3)

Donelson secure a backpack from the rear of his car, and 4) Donelson repeatedly remove

items from the backpack and place them on the center console of the vehicle. Assuming

arguendo that these circumstances were insufficient to create probable cause to believe

a crime was in progress, they nevertheless were unusual given the time and place. And,

to an officer charged with conducting surveillance in the area for alcohol related and other

offenses, they were reminiscent of those performed in a drug transaction. Given that,

Short had reasonable suspicion to believe criminal activity was afoot. See Hall v. State,

74 S.W.3d 521, 525 (Tex. App.–Amarillo 2002, no pet.) (defining reasonable suspicion as

the presence of articulable facts which, when combined with rational inferences therefrom,

would allow an officer to reasonably suspect that a particular person has engaged, or is or

soon will be engaging, in criminal activity); State v. Jennings, 958 S.W.2d 930, 933 (Tex.

App.–Amarillo 1997, no pet.) (stating that reasonable suspicion arises when the

circumstances depict the occurrence of unusual activity, the existence of a nexus between

the detainee and the activity, and the likeness of the unusual activity to a crime).

       That Short did not specifically see any contraband or illegal activity matters not for

innocent activity may itself give rise to reasonable suspicion. Woods v. State, 956 S.W.2d


                                             4
33, 38-39 (Tex. Crim. App. 1997).          Indeed, the totality of the circumstances are

determinative, State v. Garcia-Cantu, 253 S.W.3d 236, 244 (Tex. Crim. App. 2008); State

v. Jennings, supra, even those which when viewed independently of each other could be

indicative of innocent action. As stated in Woods, the possibility of an innocent explanation

does not deprive the officer of the capacity to entertain reasonable suspicion of criminal

activity. Woods v. State, 956 S.W.2d at 37. It is “the principal function of [the officer’s]

investigation . . . to resolve that very ambiguity and establish whether the activity is in fact

legal or illegal.” Id. And, to facilitate that determination, the officer has the authority to

temporarily detain those engaged in the conduct. Johnson v. State, 912 S.W.2d 227, 235

(Tex. Crim. App. 1995). And, once the officer witnessing the activity gathers facts sufficient

to create reasonable suspicion, we know of nothing that prohibits him from having other

law enforcement personnel undertake the investigation. Short had and did as much here.

Thus, the officers were allowed to temporarily detain Donelson and Hurst by parking

behind them to investigate whether criminal activity was occurring.

       Additionally, approaching the Land Cruiser and directing Donelson to lower his

window was activity well within the range of permissible conduct once reasonable suspicion

to investigate arose; indeed, making contact with the detainee is often the best way to

secure information needed to resolve the ambiguity mentioned in Woods. Once Donelson

lowered his window and the officer purported to smell marijuana, probable cause arose to

believe a crime was occurring within the vehicle, and we so hold as a matter of law. In




                                               5
concluding otherwise the trial court erred, which error lead to improperly denying the

application for forfeiture.4

        Again, we note that a trial court may well opt to disbelieve the testimony of any

witness, whether controverted or not. State v. Ramirez, 246 S.W.3d at 289. Yet, that

truism has little importance here since our decision is founded upon the facts which the trial

court found to exist. So, we are not engaging in any effort to re-weigh the evidence or

resolve credibility issues. Instead, we merely applied the law to the facts, which we may

do de novo. Guzman v. State, 955 S.W.2d at 89.

        Accordingly, we reverse the judgment of the trial court and remand the proceeding.



                                                            Brian Quinn
                                                            Chief Justice

Hancock, J., dissents.




        4
          W e note that Donelson also argues that forfeiture of his Land Cruiser would am ount to excessive
punishm ent and violate the 8 th Am endm ent of the United States Constitution. Yet, the argum ent was not
raised below. Moreover, and unlike the circum stances in the case upon which he relies, i.e. One Car, 1996
Dodge X-Cab Truck W hite in Color 5YC-T17 VIN 3B7HC13Z5TG163723 v. State, 122 S.W .3d 422, 427 (Tex.
App.–Beaum ont 2003, no pet.), the vehicle’s involvem ent in the drug deal was not incidental here. Donelson
not only used his Land Cruiser to transport the m arijuana across state lines but also to provide the locale from
which to consum m ate the drug sales to at least one high school student.

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