
    Matthew Lee BARNETT, Appellant v. The STATE of Texas, State
    NO. 02-13-00609-CR
    Court of Appeals of Texas, Fort Worth.
    DELIVERED: June 18, 2015
    
      Mark B. Dewitt, Granbury, for Appellant.
    
      Robert T. Christian, Hood County District Attorney; Megan Chalifoux, Asst. District Attorney for Hood County, Granbury, for State.
    PANEL: DAUPHINOT, GARDNER, and MEIER, JJ.
   OPINION

BILL MEIER, JUSTICE

I. Introduction

Appellant Matthew Lee Barnett appeals his convictions for possession of less than one gram of methamphetamine and delivery of between four and 200 grams of methamphetamine. In one point, Barnett argues that the trial court abused its discretion by denying his motion to suppress evidence discovered after police stopped him, arrested him, and searched his vehicle and person. We will affirm.

II. Background

The State’s charges against Barnett stem from a series of events in which undercover police officers conducted a narcotics purchase from two of Barnett’s associates. The fruits of the resulting arrests in that transaction led police to Barnett. After stopping Barnett’s vehicle in Gran-bury, Texas, police arrested him. Following the State’s indictment, Barnett filed a motion to suppress evidence stemming from that stop. At the suppression hearing, the State stipulated that they did not stop and search Barnett and his vehicle pursuant to a warrant.

Ray Miller, a narcotics investigator with the Hood County Sheriffs Office, testified that on September 7, 2012, he texted with and then arranged to meet William Young-strom and Travis Duval in Cresson, Texas, to conduct an undercover narcotics purchase. The deal was for Miller, playing his role as an undercover officer, to meet Youngstrom and Duval at a convenience store, get into Duval’s vehicle, and purchase a quarter ounce of methamphetamine for $550. As Miller got into Duval’s vehicle, he overheard Duval say to someone on his cellphone, “He just got in.” Miller bought methamphetamine from Youngstrom and Duval and then immediately arrested them. Because Youngstrom and Duval were found in possession of 8.5 grams of methamphetamine during the arrest and because they sold the methamphetamine to Miller, both were arrested for delivery of a controlled substance weighing between four and 200 grams, a first-degree felony. See Tex. Health & Safety Code § 481.112 (West 2010). During these arrests, Miller confiscated both Youngstrom’s and Duval’s cellphones. Soon after, Duval’s phone rang and the name “Matt” appeared on the screen. Miller did not answer the call.

Shortly thereafter, however, Young-strom’s phone rang with the same name appearing on the screen. Miller answered this call. According to Miller, the person on the other end of the phone claimed ownership of the methamphetamine and expressed to Miller that Miller owed him money for the drugs. Miller said that during this phone conversation, he left “Matt” with the impression that he had “robbed his couriers.”

Miller then transferred “Matt”[’s] number to his own phone and began texting with him. Through a series of texts between “Matt” and Miller, the contents of which the State introduced at the suppression hearing, “Matt” indicated again that Duval and Youngstrom were his couriers, that he assumed Miller had robbed them, and that he was willing to do business with Miller “if [they] could get past this particular setback and [Matt] could get his money.”

Miller arranged to meet “Matt” in- Gran-bury, a city approximately thirteen miles from Cresson. Approximately five hours after Youngstrom’s and Duval’s arrests, “Matt” texted that he was ready to meet with Miller. Through texts, “Matt” instructed Miller that he was in a Classic Inn motel in Granbury “five minutes away from Walmart”; that he was on his way to meet Miller at a local restaurant to collect the money regarding the transaction with Youngstrom and Duval; and that he would be driving a “blue Suzuki SUV.” Miller said that he and fellow officers were very familiar with this area of Granbury.

During this time, Miller said he was in constant contact with other Hood County Sheriffs officers, relaying them all of this information. Miller said that he had instructed other officers to stop “Matt” before the arranged meetup because, through texts, Miller had come to believe that “Matt” might be in possession of guns and because Miller was concerned that if the meetup occurred, officer safety would be an issue.

Richard Odom, a patrol sergeant for the Hood County Sheriffs Office, also testified at the suppression hearing. He said that he worked with Miller during the events of September 8, 2012. According to Odom, Miller had advised him of the meetup with “Matt.” Odom specifically testified that Miller had relayed to him that “Matt” would be in a blue Suzuki SUV near a specific hotel in Granbury and that this vehicle was related to the earlier drug buy involving Youngstrom and Duval. Odom said that he relayed this information to fellow officers, who were also working in conjunction with Miller, and that he witnessed one of the officers, pursuant to Miller’s instructions, stop a vehicle matching the description Miller had given in the area where Miller said it would be. Odom said that he was trailing Hood County Sheriffs Deputy Josh Lane as Lane initiated the stop of the blue Suzuki SUV.

Lane also testified at the suppression hearing. Lane said that he began tailing Barnett’s vehicle on the night of September 8, 2012, because it matched the description of a vehicle that he had been informed needed to be stopped. Specifically, Lane said that he had “[rjeceived information that a subject was coming into Granbury by the name of Matt, [who] was supposed to be driving a blue Suzuki, [and] supposed to be coming into town in regards to a ... narcotics arrest made earlier in the day in Cresson.” Lane said that he initially followed the “blue Suzuki SUV” because it was near “a hotel ... about five minutes from the local Walmart,” a location he had learned from other officers would be where “Matt” would be found. Like the other officers who testified, Lane said that he was very familiar with that area of Granbury. Lane averred that he followed Barnett for a short time to see if he would commit a traffic violation.

According to Lane, as Barnett neared “the location where [he] was supposed to go to meet” Miller, he initiated a traffic stop, ostensibly because Barnett had failed to maintain driving in a single lane. After stopping Barnett, Lane “ran the license plate” and discovered that Barnett’s first name was “Matthew.” From there, Lane asked Barnett if he would consent to a vehicle search. By Lane’s account, Barnett initially replied that he did not want Lane to “tear up his car,” but after Lane reassured him that he would not tear up the vehicle, Barnett consented to a search.

While searching Barnett’s vehicle, another deputy discovered an unlocked safe in the trunk of the vehicle. Upon opening the safe, Lane said he “detected the strong odor of marijuana” emanating from the safe. He also found “plastic spoons, needles, [and] cut-off straws with a crystal-like substance inside them.” He then placed Barnett under arrest. Further searching of the vehicle, revealed marijuana seeds and a cigarette pack found in the passenger area containing 0.23 grams of methamphetamine.

At the close of the suppression hearing, the trial court denied Barnett’s motion to suppress. In its findings of fact and conclusions of law, the trial court specifically found that at the time of the stop, Lane had received enough information from other officers to have formed a reasonable suspicion that Barnett was a party to the transaction that occurred earlier - that day in Cresson, and that therefore Lane had reasonable suspicion that Barnett was engaged in criminal activity. The trial court also specifically found that Barnett had “freely and voluntarily consented to the officers’ search of his vehicle.”

A jury returned a verdict of guilty on both of the State’s charges — possession of a controlled substance less than one gram and, as a party to the offense, delivery of a controlled substance between four and 200 grams. The jury assessed punishment at two years’ confinement for the possession charge and forty years’ confinement for the delivery charge. The trial court entered judgment accordingly, ordering the sentences to run concurrently, and this appeal followed.

III. Discussion

In his sole point, Barnett states that he is contesting “the validity of the traffic stop and its duration.” Among the arguments contained in his sole point regarding his contention that the trial court erred by not suppressing the evidence, Barnett argues that he did not commit a traffic offense in Lane’s presence; that the duration of Lane’s detention, based on an alleged traffic violation, surpassed the necessary time to obtain his consent to search his vehicle; and that Lane did not have probable cause to arrest him for his involvement in the arrests, earlier in the day in Cresson. Barnett goes on to argue that because the evidence he sought to suppress “was the basis of the charges for which [he] was convicted,” his convictions should be reversed. We disagree.

We first note that Barnett did not argue at the trial court specifically what evidence the trial court should have suppressed. See Miller v. State, 312 S.W.3d 162, 166 (Tex.App.-Fort Worth 2010, no pet.) (“Nowhere,' though, has Appellant identified the specific items of evidence or categories of evidence he sought to exclude by challenging the three search warrants.”); see also Brennan v. State, 140 S.W.3d 779, 781 (Tex.App.-Houston [14th Dist] 2004, pet. ref'd) (holding global request to suppress “all evidence seized or obtained” from alleged illegal searches and failure “to identify what, if any,' evidence was ruled upon by the denial” presented nothing for appellate review). In his suppression motion filed in the trial court, Barnett requested that “[a]ll evidence, both physical evidence as well as statements by [Barnett], collected as a result of the traffic stop in this case should be suppressed.” On appeal, Barnett has requested that this court reverse the trial court’s order denying his motion to suppress and hold that the trial court should have suppressed “any items found in the SUV or on [his] person after the traffic stop, including but not limited to: phones, straws, baggies and scales.” Thus, there is authority to suggest that- Barnett has not preserved his point for our review. See Swain v. State, 181 S.W.3d 359, 365 (Tex.Crim.App.2005), cert. denied, 549 U.S. 861, 127 S.Ct. 145, 166 L.Ed.2d 106 (2006) (“Appellant’s global statements in his pretrial- motion to suppress were not sufficiently specific to preserve the arguments he now makes on appeal.”).

But even considering Barnett’s argument that all the evidence gathered from his vehicle, “as well as statements [made]” after Lane detained him, should have been suppressed, Barnett’s sole point on appeal must be overruled because he fails to challenge a ground stated by the trial court in its findings of fact and conclusions of law as to why Lane’s stopping of Barnett was in fact constitutionally firm — that Lane had reasonable suspicion that Barnett was a party to the methamphetamine sale that occurred in Cresson prior to Lane having stopped him.

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, 956 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).

It is a longstanding rule that an appellate court must uphold the trial court’s order on a motion to suppress “on any theory of law applicable to the case.” See State v. Esparza, 413 S.W.3d 81, 85 (Tex.Crim.App.2013) (citing Calloway v. State, 743 S.W.2d 645, 651-52 (Tex.Crim.App.1988)); see also Alford v. State, 400 S.W.3d 924, 929 (Tex.Crim.App.2013) (holding that conclusions of law are reviewed de novo so that trial court’s order is upheld under any legal theory supported by the facts).

B. Lane’s Reasonable Suspicion

Even though Lane testified that one of the reasons he initiated a traffic stop of Barnett’s vehicle was because Barnett had failed to maintain a single lane of traffic, the trial court did not make such a finding. Instead, the trial court specifically found that Lane had reasonable suspicion to stop Barnett based on the information he had received from fellow officers regarding Barnett’s involvement in the arrests of Youngstrom and Duval. This finding is supported by the law and the facts as determined at the suppression hearing.

Under the Fourth Amendment, a warrantless detention of a person that amounts to less than a full-blown custodial arrest must be justified by reasonable suspicion. Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex.Crim.App.), cert. denied, — U.S. -, 132 S.Ct. 150, 181 L.Ed.2d 67 (2011). A police officer has reasonable suspicion to detain if he has specific, artic-ulable facts that, combined with rational inferences from those facts, would lead him to reasonably conclude that the person detained is, has been, or soon will be engaged in criminal activity. Id. This standard is an objective one that disregards the actual subjective intent of the arresting officer and looks, instead, to whether there was an objectively justifiable basis for the detention. Id. It also looks to the totality of the circumstances — those circumstances may all seem innocent enough in isolation, but if they combine to reasonably suggest the imminence of criminal conduct, an investigative detention is justified. Id. The relevant inquiry is not whether particular conduct is innocent or criminal, but the degree of suspicion that attaches to particular noncriminal acts. Woods v. State, 956 S.W.2d 33, 38 (Tex.Crim.App.1997). Moreover, the detaining officer need not be personally aware of every fact that objectively supports a reasonable suspicion to detain; rather, the cumulative information known to the cooperating officers at the time of the stop is to be considered in determining whether reasonable suspicion exists. Derichsweiler, 348 S.W.3d at 914.

Here, despite Barnett’s contention that the only reason Lane gave at the suppression hearing for stopping him was a perceived traffic violation, Lane testified that other cooperating officers had relayed to him specific, articulable facts that, when combined with rational inferences, would have led him to believe that Barnett was involved in the transaction that led to the arrests of Youngstrom and Duval earlier that day. Lane testified that he had received information that a “Matt” was coming into Granbury “in regards to a transaction or narcotics arrest made earlier in the day in Cresson.” Lane also testified that he stopped Barnett’s “blue Suzuki SUV” because it was near “a hotel ... about five minutes from the local Walmart,” a location he had learned from other officers would be where Barnett’s vehicle would be found. And like the other officers who testified, Lane said that he was very familiar with that area of Granbury. In its findings of fact, the trial court found this testimony to be credible.

We hold that the trial court did not abuse its discretion by finding that Lane had reasonable suspicion to stop Barnett’s vehicle. See Orsag v. State, 312 S.W.3d 105, 114 (Tex.App.-Houston [14th Dist.] 2010, pet ref'd) (holding that officer had reasonable suspicion to stop defendant’s vehicle for speeding after receiving information from fellow officer describing the make, model, and location of defendant’s vehicle); see also Francis v. State, No. 08-03-00316-CR, 2005 WL 1208142, at *2 (Tex.App.-El Paso May 19, 2005, no pet.) (not designated for publication) (“The undercover officer had first-hand knowledge of the offense and relayed that knowledge to his fellow officers.”).

C. Barnett Consented to Lane’s Search of His Vehicle

In another portion of Barnett’s sole point, he contends that the duration of Lane’s stop exceeded the necessary duration applicable to a traffic violation. Again we note that the trial court did not make an explicit finding of fact or conclusion of law that Lane stopped Barnett for a traffic violation. We do, however, conclude that the trial court’s finding of fact that Barnett consented to an unlimited search of his vehicle is supported by the facts adduced at the suppression hearing.

We also find support in the record for the trial court’s conclusion of law that Barnett “freely and voluntarily consented to the officers’ search of his vehicle” and that such consent was “positive and unequivocal.” This conclusion is based on Lane’s testimony that Barnett expressly consented to the search, which the trial court found to be true. See James v. State, 102 S.W.3d 162, 173 (Tex.App.-Fort Worth 2003, pet. refd) (“[Rjeasonable suspicion is not required for a police officer to request consent to search an automobile after the reason for an initial stop is concluded as long as a message is not conveyed that compliance is required.”).

IV. Conclusion

We hold that the trial court did not abuse its discretion by denying Barnett’s motion to suppress. Thus, we overrule Barnett’s sole point and affirm the trial court’s judgments.

Dauphinot, J., filed a dissenting opinion.

LEE ANN DAUPHINOT, JUSTICE,

dissenting.

I must respectfully dissent from the opinion of the conscientious majority for more than one reason.

The majority, relying on Swain v. State, holds that Barnett did not preserve his suppression issue for appellate review. The Swain court stated,

In his written “Motion to Suppress Evidence,” appellant generally argued “[t]hat any statements made by Defendant were obtained in violation of his right to counsel and his right against self-incrimination as guaranteed by U.S. Const, amends. V, VI, and XIV, and Tex. Const, art. I, §§ 10 and 19.” He also generally argued in his motion to suppress that his statements were inadmissible under Article 38.23. These arguments were global in nature and contained little more than citations to constitutional and statutory provisions. At the hearing on the motion to suppress, appellant failed to complain about being questioned after asserting his right to counsel, and instead simply objected that his statements were inadmissible because the police illegally arrested him and failed to comply with the requirements of Articles 38.22, 14.03, and 14.06. Appellant’s global statements in his pretrial motion to suppress were not sufficiently specific to preserve the arguments he now makes on appeal.

Swain turns on the fact that Swain argued constitutional rights generally in the trial court but only on appeal did he raise the fact that he had requested counsel and was denied access to counsel. Thus, the Swain trial court was not put on notice of his true complaint.

In the case now before this court, both in the trial court and on appeal, Barnett complained of the admission of the fruits of the poisonous tree: that “[a]ll evidence, both physical evidence as well as [his] statements ..., collected as a result of the traffic stop in this case should be suppressed.” It is true that after trial, Barnett was able to list the specific items that had been admitted into evidence during the trial, but the trial court was on notice of the items Barnett sought to suppress— his statement and the items the police seized when they searched the car and Barnett — as well as the reasons for which they should be suppressed. The posture of this case is not that of Swain. I would hold that Barnett sufficiently preserved his suppression issue for appellate review.

I would also hold that the warrantless detention of Barnett was not justified. “The Fourth Amendment to the United States Constitution permits a warrantless ' detention of a person, short of a full-blown custodial arrest, if the detention is justified by reasonable suspicion.” The legality of traffic stops for Fourth Amendment purposes is subject to analysis under the Terry standard, that is, whether the officer’s action was justified at its inception and whether the seatch and seizure were reasonably related in scope to the circumstance's that justified the stop in the first place.

Barnett argues that Deputy Lane saw no real traffic offense. The trial, court did not find or conclude that Barnett committed a traffic- offense in Lane’s presence. The majority essentially holds that because Barnett did not challenge one of the grounds for denying the criminal version of summary judgment, he loses:

Barnett’s sole point on appeal must be overruled because he fails to challenge a ground stated by the trial court in its findings of fact and conclusions of law as to why Lane’s stopping of Barnett was in fact constitutionally firm — that Lane had reasonable suspicion that Barnett was a party to the methamphetamine sale that occurred in Cresson prior to Lane having stopped him.

Respectfully, the term “reasonable suspicion” is not a magic talisman that suspends the protections of the Fourth Amendment’s warrant requirement. As Justice Marshall explained in his Sokolow dissent,

The reasonable-suspicion standard is a derivation of the probable cause command, applicable only to those brief detentions which fall short of being full-scale searches and Seizures and which are necessitated by law enforcement exigencies such as the need to stop ongoing crimes, to prevent imminent crimes, and to protect law enforcement officers in highly charged situations.

The timeline of events was

• 2:30 p.m. — meeting for methamphetamine sale
• 2:52 p.m. — initial negotiations to meet for drug transaction with Appellant
• 6:30 p.m. — Appellant said they could meet at 10:00 p.m.
• 11:15 p.m. — Officer Miller told patrol officer to stop Appellant.

If the ground justifying the seizure of Barnett was that he was a party to the methamphetamine sale that occurred nine hours earlier in Cresson, why is there no warrant? Miller, the undercover officer, arranged to meet with Appellant five hours before the arrest. What is the warrant exception that justifies suspending the warrant requirement? Again, the trial court did not find that the officer viewed a traffic violation; the record therefore clearly reflects that the purpose of stopping Barnett was to search and arrest him.

Reasonable suspicion will not support an arrest. A warrantless arrest must be founded on probable cause plus a recognized exception to the warrant requirement. Probable cause is a higher standard than reasonable suspicion. Probable cause will support a warrant. In the more than five hours that the police waited for Barnett, they made no effort to secure a warrant. Nor does the State suggest any impediment to securing the warrant. There is also no evidence of an exigency.

Somehow, we seem to have concluded in Texas that reasonable suspicion takes the place of the constitutional warrant requirement. This is simply not true. Reasonable suspicion supports an investigation into whether a crime has been or is being committed. If, as the trial court found and the majority accepts, the police were justified in arresting Barnett because he had been a party to the drug transaction, what evidence of that transaction did the police expect to find when they stopped his car and detained him? What was the exigency that prevented their seeking a warrant during the five hours they did not act? There is no evidence in the record that Barnett was in possession of evidence of the drug transaction that he would destroy as soon as the timer hit five hours. There is no evidence that he would flee when the timer hit five hours. There is a mention of officer safety because Barnett could have had a gun or guns. But why were the guns less of a danger to a lone officer than to officers trained to execute warrants? Why did the threat of danger suddenly arise after five hours expired? Why did the exigency arise only after five hours of doing nothing to seek a warrant?

In this case, the arresting officer admitted that he was looking for a pretext to stop Barnett and search his car. As Barnett argues,

Under cross-examination, Lane stated that the reason for the traffic stop was the driver’s violation of Texas Transportation Code § 545.060(a)(1). Lane testified that he had committed in his mind to pull over Appellant’s vehicle for some traffic offense, based on the information that he had received from Sgt. Odom.
Lane testified that Appellant’s crossing of the white line occurred for just a few seconds and a short distance (18 inches) into the other lane. Lane testified that there were no cars in the lane beside the lane in which Appellant was driving, nor was there a car in the lane adjacent to that lane or even in the lane to the right of that lane. Lane’s in-car video shows the Appellant’s car as it negotiated the left hand turn as it was being stopped by the officer.
Lane had not returned Appellant’s license and had not said that Appellant was free to leave prior to the time that he asked to search Appellant’s vehicle. [Record citations omitted.]

But as the majority points out, the trial court did not find that the police based the detention on a perceived traffic violation. The trial court found only that the police detained Barnett for the reported drug offense:

Even though Lane testified that one of the reasons he initiated a traffic stop of Barnett’s vehicle was because Barnett had failed to maintain a single lane of traffic, the trial court did not make such a finding. Instead, the trial court specifically found that Lane had reasonable suspicion to stop Barnett based on the information he had received from fellow officers regarding Barnett’s involvement in the arrests of Youngstrom and Duval. This finding is supported by the law and the facts as determined at the suppression hearing.

The issue is not whether the police had sufficient information to provide probable cause. The issue is why no request for a warrant was submitted to the scrutiny of a detached, neutral magistrate. Nothing in the record suggests that no magistrate was available. The majority does not explain what “law enforcement exigency]” necessitated this warrantless detention or which exception to the warrant requirement justifies the warrantless detention. Because the majority does not explain how the warrantless detention based on information that Barnett had acted as a party to a crime five hours earlier is “constitutionally firm,” I must respectfully dissent. 
      
      . 181 S.W.3d 359 (Tex.Crim.App.2005), cert. denied, 549 U.S. 861, 127 S.Ct. 145, 166 L.Ed.2d 106 (2006).
     
      
      . Id. (citing Tex.R.App. P. 33.1).
     
      
      . Johnson v. State, 414 S.W.3d 184, 191 (Tex.Crim.App.2013).
     
      
      . Terry v. Ohio, 392 U.S. 1, 28, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889 (1968).
     
      
      . See Kothe v. State, 152 S.W.3d 54, 62 (Tex.Crim.App.2004).
     
      
      . Maj. Op. at 250.
     
      
      . United States v. Sokolow, 490 U.S. 1, 12, 109 S.Ct. 1581, 158.8, 104 L.Ed.2d 1 (1989) (Marshall, J., dissenting):
     
      
      . Wade v. State, 422 S.W.3d 661, 667 (Tex.Crim.App.2013) (‘‘[A]rrests, the most intrusive of Fourth Amendment seizures, ... are reasonable only if supported by probable cause.”).
     
      
      
        .Rhoades v. State, 84 S.W.3d 10, 15 n. 2 (Tex.App.—Texarkana 2002, no pet.) (“The rule in Terry permits 'stop and frisk’ searches for guns, knives, clubs, or other weapons for the purpose of protecting the police officer and others nearby on the basis of reasonable suspicion that the subject of the search might be armed and dangerous, rather than demanding that officers meet the higher standard of probable cause.”).
     
      
      . Maj. Op. at 250.
     