                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-10-00497-CR


ANTHONY ZANE EATMAN                                                  APPELLANT

                                        V.

THE STATE OF TEXAS                                                         STATE


                                     ----------

          FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY

                                     ----------

                         MEMORANDUM OPINION1

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      A jury convicted Appellant Anthony Zane Eatman of the offense of

possession of a controlled substance (methamphetamine) in an amount equal to

or greater than four grams but less than two hundred grams and assessed his

punishment at twenty-five years’ confinement.      The trial court sentenced him

accordingly. In one point, Appellant contends that the trial court erred by denying



      1
       See Tex. R. App. P. 47.4.
his motion to suppress.     Because we hold that the trial court did not err by

denying Appellant’s motion to suppress, we affirm the trial court’s judgment.

      We review a trial court’s ruling on a motion to suppress evidence under a

bifurcated standard of review.2 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. 3

      In determining whether a trial court’s decision is supported by the record,

we generally consider only evidence adduced at the suppression hearing

because the ruling was based on it rather than evidence introduced later. 4 But

this general rule is inapplicable when the parties consensually relitigated the

suppression issue during trial on the merits.5 If the State raised the issue at trial

either without objection or with subsequent participation in the inquiry by the




      2
        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).
      3
       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).
      4
       See Gutierrez v. State, 221 S.W.3d 680, 687 (Tex. Crim. App. 2007);
Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim. App.), cert. denied, 519 U.S.
1043 (1996).
      5
       Gutierrez, 221 S.W.3d at 687; Rachal, 917 S.W.2d at 809.


                                         2
defense, the defendant is deemed to have elected to re-open the evidence, and

we may consider the relevant trial testimony in our review.6

      The Fourth Amendment protects against unreasonable searches and

seizures by government officials.7 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. 8 A defendant

satisfies this burden by establishing that a search or seizure occurred without a

warrant.9 Once the defendant has made this showing, the burden of proof shifts

to the State, which is then required to establish that the search or seizure was

conducted pursuant to a warrant or was reasonable.10

      Whether a search is reasonable is a question of law that we review

de novo.11      Reasonableness is measured by examining the totality of the

circumstances.12 It requires a balancing of the public interest and the individual’s

      6
       Rachal, 917 S.W.2d at 809.
      7
      U.S. Const. amend. IV; Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim.
App. 2007).
      8
       Amador, 221 S.W.3d at 672; see Young v. State, 283 S.W.3d 854, 872
(Tex. Crim. App.), cert. denied, 130 S. Ct. 1015 (2009).
      9
       Amador, 221 S.W.3d at 672.
      10
        Id. at 672–73; Torres v. State, 182 S.W.3d 899, 902 (Tex. Crim. App.
2005); Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005).
      11
          Kothe v. State, 152 S.W.3d 54, 62 (Tex. Crim. App. 2004).
      12
          Id. at 63.


                                         3
right to be free from arbitrary detentions and intrusions. 13 A search conducted

without a warrant is per se unreasonable unless it falls within one of the

―specifically    defined   and   well-established‖   exceptions   to   the   warrant

requirement.14

      Similarly, under the Fourth Amendment, a warrantless arrest is

unreasonable per se unless it fits into one of a ―few specifically established and

well delineated exceptions.‖ 15 A police officer may arrest an individual without a

warrant only if probable cause exists with respect to the individual in question

and the arrest falls within one of the exceptions set out in the code of criminal

procedure.16 An officer has probable cause to stop and arrest a driver if he

observes the driver commit a traffic offense. 17 Further, any peace officer may

make a warrantless arrest of any person found violating the ―Rules of the Road,‖




      13
        Id.
      14
       McGee v. State, 105 S.W.3d 609, 615 (Tex. Crim. App.), cert. denied,
540 U.S. 1004 (2003); see Best v. State, 118 S.W.3d 857, 862 (Tex. App.—Fort
Worth 2003, no pet.).
      15
        Minnesota v. Dickerson, 508 U.S. 366, 372, 113 S. Ct. 2130, 2135
(1993); Torres, 182 S.W.3d at 901.
      16
       Torres, 182 S.W.3d at 901; see Tex. Code Crim. Proc. Ann. arts. 14.01–
.04 (West 2005 & Supp. 2011).
      17
        State v. Gray, 158 S.W.3d 465, 467, 469–70 (Tex. Crim. App. 2005); see
State v. Ballman, 157 S.W.3d 65, 70 (Tex. App.—Fort Worth 2004, pet. ref’d).


                                          4
that is, subtitle C of title 7 of the transportation code. 18 Finally, incident to a

lawful arrest, the police may lawfully search the arrestee’s person. 19

      In his motion to suppress, Appellant requested the trial court to ―[s]uppress

all the evidence seized as a result of the stop and subsequent search‖ of his

person. He contended that no probable cause existed for the arrest and that the

stop was not supported by reasonable suspicion. He further contended that any

and all evidence seized or statements made resulted from ―an illegal stop, illegal

arrest, illegal detention and an illegal search.‖ He further alleged that the ―stop,

search, detention, and subsequent arrest . . . were pretextual and without a

sufficient factual basis.‖

      When presenting Appellant’s motion, defense counsel stated that the

issues were ―the initial stop by the police officer, the contact made with the police

officer to go further and make the subsequent arrest.‖ At the hearing, Officer

John Romer testified that he saw Appellant, whom he identified at trial, drive a

mid-sized SUV into an intersection without stopping at the stop sign. The SUV

completely crossed the white stop line.       Romer then activated his overhead

emergency lights to conduct a traffic stop. Appellant remained stopped in the

intersection. After eliciting this testimony, the prosecutor stated, ―Your Honor,

      18
        Tex. Transp. Code Ann. § 543.001 (West 2011).
      19
        See Gray, 158 S.W.3d at 470; Buitron v. State, No. 04-99-00343-CR,
2000 WL 84420, at *1 (Tex. App.—San Antonio Jan. 26, 2000, no pet.) (not
designated for publication) (upholding search incident to arrest after Buitron ran
stop sign).


                                          5
because it’s the State’s understanding that the issue is the stop and only the stop

for this motion to suppress, we will pass the witness at this point because we

believe we’ve covered his issue.‖      On cross-examination in the suppression

hearing, defense counsel questioned Romer about a possible 911 call or some

other contact with a tipster. The trial court denied the motion to suppress.

      At trial, Romer was the State’s first witness, and the prosecutor revisited

the circumstances of the stop, arrest, and search. Romer testified that when he

and his partner stopped Appellant, Appellant seemed extremely nervous and

very fidgety; was sweating profusely and acting very jittery; and was moving

around ―in a state of almost panic.‖ Romer testified that Appellant’s level of

anxiety was unusual for someone who had committed only a traffic violation.

      Romer testified that he watched Appellant from the passenger side of the

stopped SUV while his partner conducted a records check. Romer testified that

Appellant kept looking around and reaching down toward his pockets, so Romer

asked him to get out of the car so he could perform a patdown search for

weapons. Appellant got out of the car but was noncompliant during the patdown

search. He kept trying to reach into his pockets with his hands despite Romer’s

verbal and physical commands to stay in position. Romer testified that Appellant

also ―just kept rambling‖ and ―just acted very, very strange.‖       Romer finally

arrested and handcuffed Appellant. Then Romer performed a search incident to

arrest. In the right front pocket of Appellant’s jeans, Romer found what appeared

to be marijuana and a methamphetamine pipe.            In the left front pocket of


                                         6
Appellant’s jeans, Romer found three little bags of what was later determined to

be methamphetamine.

         On cross-examination at trial, Romer testified that five to ten minutes after

Appellant handed him his identification, he arrested Appellant for running the

stop sign. About thirty or forty-five minutes later, Appellant was transported to

jail.

         On appeal, Appellant contends that the search of his person was not a

permissible search incident to arrest and that the evidence seized should

therefore be suppressed. Romer testified that he saw Appellant run the stop sign

and drive the SUV completely over the white line.            Thus, Romer observed

Appellant commit a traffic violation.20 Romer therefore had probable cause and

statutory authority to arrest Appellant. 21 Because he had legal authority to arrest

Appellant and did arrest Appellant, Romer also had legal authority to conduct a

search of Appellant’s person incident to arrest.22 We therefore hold that the trial

court did not err by denying Appellant’s motion to suppress and overrule his sole

point.




         20
          See Tex. Transp. Code Ann. § 544.010(a), (c) (West 2011).
         21
       See id. § 543.001; Gray, 158 S.W.3d at 467, 469–70; Ballman, 157
S.W.3d at 70.
         22
          See Gray, 158 S.W.3d at 470; Buitron, 2000 WL 84420, at *1.


                                           7
      Having overruled Appellant’s sole point, we affirm the trial court’s

judgment.




                                             LEE ANN DAUPHINOT
                                             JUSTICE

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

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

DELIVERED: December 8, 2011




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