                                 IN THE
                         TENTH COURT OF APPEALS

                                 No. 10-09-00363-CR

JASON DELANEY BLACKBURN,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee


                           From the 54th District Court
                            McLennan County, Texas
                           Trial Court No. 2008-406-C2


                          MEMORANDUM OPINION


      Jason Delaney Blackburn pled guilty to possession with the intent to deliver

methamphetamine in an amount greater than 4 grams but less than 200 grams. TEX.

HEALTH & SAFETY CODE ANN. § 481.112 (d) (Vernon 2010). He was sentenced to 12 years

in prison. The trial court gave Blackburn permission to appeal its denial of Blackburn’s

motion to suppress. We affirm.

      In his sole issue, Blackburn contends that the trial court erring in finding that the

search of the interior of Blackburn’s vehicle was justified under the theory of a

necessary protective sweep, thus denying Blackburn’s motion to suppress.
        In reviewing a motion to suppress, we review de novo a trial court's application

of law to the facts, but we defer to the trial court on determinations of credibility and

historical fact. Hubert v. State, 312 S.W.3d 554, 2010 Tex. Crim. App. LEXIS 636, *8 (Tex.

Crim. App. 2010). If, as in this case, a trial court does not enter findings of fact, we must

view the evidence in a light most favorable to the trial court's rulings and assume that

the trial court resolved any issues of historical fact or credibility consistently with its

ultimate ruling. Id.

        A protective sweep of the passenger compartment of an automobile is limited to

those areas in which a weapon may be placed or hidden. Michigan v. Long, 463 U.S.

1032, 1049, 103 S. Ct. 3469, 77 L. Ed. 2d 1201 (1983). The officer must have a reasonable

suspicion, based on specific and articulable facts, that his safety or the safety of others is

in danger before he may conduct a limited search for weapons. See id; Carmouche v.

State, 10 S.W.3d 323, 329 (Tex. Crim. App. 2000). A court looks to whether a reasonably

prudent officer in the same circumstances would be warranted in believing that his

safety or the safety of others is in danger. Long, 463 U.S. at 1050-51. Further, the

subjective beliefs of the officer performing the search are not determinative. See O'Hara

v. State, 27 S.W.3d 548, 551 (Tex. Crim. App. 2000).

        Officer Jeremiah Beavers testified at the hearing on Blackburn’s motion to

suppress that he stopped Blackburn for speeding at about midnight. While in the

process of stopping Blackburn’s vehicle, Beavers saw movement inside the vehicle that

caused him concern. To Beavers, it looked like Blackburn reached under the seat as if

he was putting something underneath the seat; and when he did, the vehicle swerved to

Blackburn v. State                                                                      Page 2
the side.     Beavers thought Blackburn was trying to hide something like a gun

underneath the seat.

        When Beavers made contact with Blackburn, Blackburn appeared a little

nervous. Beavers went back to his patrol car and requested a back-up unit because he

was afraid that Blackburn might have a weapon in the vehicle, concealed underneath

the seat. Beavers did not want to get Blackburn out of the vehicle and check if a

weapon was in the vehicle without another officer present. Once the back-up arrived,

Beavers approached Blackburn again and had him step out of his vehicle. Beavers

asked if there were any weapons or drugs in the vehicle. Blackburn responded that he

had a Gerber knife on the passenger seat. When Beavers looked in the vehicle, he found

the mentioned knife. Beavers also looked under the seat for a weapon. He then

checked in the center console for a weapon and found a gun holster and some drug

paraphernalia. Beavers also found another knife that Blackburn had not mentioned.

        Beavers then placed Blackburn in handcuffs to make sure that if Blackburn had a

weapon on him or in his vehicle, he could not hurt anyone with it. For safety reasons,

Beavers felt it was necessary to do a protective sweep of the vehicle within Blackburn’s

reach where Blackburn could have placed a weapon.

        Blackburn argues on appeal that Beavers’s testimony is not enough and that he

acted inconsistently with being in fear for his safety. After reviewing the record, we

find the trial court did not err in determining that the officer had a reasonable suspicion,

based on specific and articulable facts, that his safety or the safety of others was in

danger.     Further, Beavers’s actions are not determinative of whether a reasonably

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prudent officer in the same circumstances would be warranted in believing that his

safety or the safety of others is in danger. Accordingly, the trial court did not err in

denying the motion to suppress.

        Blackburn’s sole issue is overruled, and the trial court’s judgment is affirmed.



                                           TOM GRAY
                                           Chief Justice

Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Affirmed
Opinion delivered and filed September 1, 2010
Do not publish
[CR25]




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