01-10-00828-CR Kevin Dewayne Davis v. The State of Texas–Appeal from 183rd District Court of Harris County

The issue raised in this appeal is whether a police officer’s decision to arrest an individual for a traffic violation and the subsequent search of the vehicle were racially motivated. Appellant Kevin Dewayne Davis contends his arrest violates both the statutory prohibition against racial profiling and the Equal Protection Clause.[1] Based on the evidence in the record, we affirm.
Davis was pulled over and stopped for failure to signal a turn.[2] After arresting Davis, the police officers found cocaine in Davis’s car. The trial court denied both a motion to suppress evidence and a subsequent motion to reconsider the initial denial. Subject to his motions to suppress and reconsider, Davis pleaded nolo contendere to possession with intent to deliver between four and 200 grams of cocaine and true to two prior convictions for possession of a controlled substance.[3] The trial court deferred adjudication of Davis’s guilt and placed him on community supervision for ten years. Davis appeals the order of deferred adjudication based on the denial of his motions to suppress and reconsider.[4]
At the hearing on the motion to suppress, the State called the two Houston Police Department officers who participated in the arrest, Officers J. Rangel and T. Parker. Officer Rangel testified that both he and Parker were patrolling the same area in separate cars when he saw Davis make an “abrupt turn” without signaling. Officer Rangel activated his emergency lights, Davis stopped his car, and Officer Parker approached the car on the driver’s side while Officer Rangel approached the passenger’s side. Officer Rangel noticed that Davis’s hands were shaking and saw him reach towards the floorboard.
Officer Rangel stated that when Officer Parker asked to see a driver’s license Davis became agitated and outspoken. Officer Parker also noticed a scale in plain view in the floorboard area. When he asked Davis to get out of the car, Davis hesitated and asked why he was being arrested. Officer Parker told him that it was for the traffic offense of failing to signal. After Davis was placed in the back of one of the police cars, Officers Rangel and Parker inventoried Davis’s car and found a large amount of “rocks” that field tested positive for cocaine. On cross‑examination, Officer Rangel stated that he made no decision whether to arrest Davis until he and Parker made contact with Davis.
Officer Parker testified that Davis made furtive movements towards the center console area of the car and was nervous and shaking. Parker also saw the scale in plain view. On cross‑examination, Officer Parker was asked if he had decided to arrest Davis when the traffic offense was committed, but Parker responded that, at that time, he had only decided to conduct a traffic stop. Davis’s lawyer then asked Parker if he would have made the arrest and conducted an inventory search of the car if the trial judge had been the individual who had committed the traffic offense. Parker answered, “It’s at the officer’s discretion.”
The trial court denied the motion to suppress at the conclusion of the hearing. Davis filed a motion to reconsider a month later in which he claimed the officer “admitted that the decision to arrest Mr. Davis was based solely upon the facts that he was a black male driving an older model Chevrolet impala [sic] and did not signal a right turn.”
On appeal, Davis argues in two issues that the decision to arrest him for a fine-only misdemeanor violates both the statutory prohibition against racial profiling and the Equal Protection Clause. Davis neither substantively briefs these issues nor points to evidence in the record that would support his claim that he was arrested based on his race. Davis again asserts that the decision to arrest him was made at the time the traffic offense was committed, but this assertion is contrary to Officer Parker’s testimony. Davis also contends that the officers admitted “that they would not have made the decision to make a full-blown arrest for a fine-only traffic offense in other circumstances.”
When reviewing a trial court’s ruling on a pretrial motion to suppress, we should afford almost total deference to the trial court’s determination of the historical facts. State v. Elias, 339 S.W.3d 667, 673 (Tex. Crim. App. 2011) (quoting Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)). We agree with the State that no evidence exists in this record to support a finding that the officers’ decision to arrest Davis was based on his race. Accordingly, we overrule both issues.
We note that the trial court’s order of deferred adjudication incorrectly recites “APPEAL WAIVED. NO PERMISSION TO APPEAL GRANTED.” The trial court signed a certification of defendant’s right of appeal which correctly recites that “this criminal case is not a plea‑bargain case, and the defendant has the right of appeal.” Accordingly, we modify the order by deleting the words “APPEAL WAIVED. NO PERMISSION TO APPEAL GRANTED.”

Conclusion

We affirm the trial court’s order of deferred adjudication as modified.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Bland, and Sharp.
Sharp, J., concurring, opinion to follow.
Do not publish. Tex. R. App. P. 47.2(b).
[1] U.S. Const. amend. XIV, 1; Tex. Code Crim. Proc.Ann. arts. 2.131 (prohibiting peace officers from racial profiling), 3.05 (defining racial profiling) (Vernon 2005).
[2] Tex. Transp. Code Ann. 542.301 (creating misdemeanor offense for violation of provisions of Transportation Code title 7, subtitle C), 545.104(b) (requiring vehicle operator to signal turn) (Vernon 2011).
[3] Tex. Health & Safety Code Code Ann. 481.102(3)(D) (providing that cocaine is penalty group one substance), 481.112(a), (d) (providing that manufacturing, delivery, or possession with intent to deliver penalty group one substance in amount between four and 200 grams is first degree felony) (Vernon 2010).
[4] Tex. Code Crim. Proc. Ann. art. 42.12, 5(a), 23 (Vernon Supp. 2011).

 
Posted at: Thursday 10. May 2012
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