IN THE

TENTH COURT OF APPEALS

No. 10-98-087-CR

&

No. 10-98-088-CR

     MICHAEL O’NEAL BATES,

                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                              Appellee

From the 77th District Court

Limestone County, Texas

Trial Court Nos. 8254-A & 8213-A

                                                                                                                

MEMORANDUM OPINION

                                                                                                                

      Michael O’Neal Bates appeals from judgments revoking his probation for the offenses of delivery and possession of less than twenty-eight grams of cocaine. Bates has filed motions to dismiss his appeals. In relevant portion, Rule 42.2 of the Texas Rules of Appellate Procedure states:

(a) At any time before the appellate court’s decision, the appellate court may dismiss the appeal if the appellant withdraws his or her notice of appeal. The appellant and his or her attorney must sign the written withdrawal and file it in duplicate with the appellate clerk, who must immediately send the duplicate copy to the trial court clerk.

Tex. R. App. P. 42.2(a).

      We have not issued decisions in these appeals. The motions are signed by both Bates and his attorney. Thus, the motions meet the requirements of the rules and are granted.

      Bates’ appeals are dismissed.

                                                                               PER CURIAM

Before Chief Justice Davis,

            Justice Cummings, and

            Justice Vance

Appeals dismissed

Opinion delivered and filed June 3, 1998

Do not publish    

. App. 2000); see Williams v. State, 118 Tex. Crim. 369, 371, 40 S.W.2d 142, 143 (1931).  “The quantum of information which constitutes probable cause” is “evidence which would ‘warrant a man of reasonable caution in the belief’ that a” crime “has been committed.”  Wong Sun v. United States, 371 U.S. 471, 479 (1963) (quoting Carroll v. United States, 267 U.S. 132, 162 (1925)); see Castro v. State, 227 S.W.3d 737, 742 (Tex. Crim. App. 2007); Parker v. State, 206 S.W.3d 593, 593 (Tex. Crim. App. 2006);  Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005); Jones v. State, 493 S.W.2d 933, 935 (Tex. Crim. App. 1973).

        We consider first Davis’s argument that the arresting officer’s initial stop of Davis “was not justified.”  (Br. at 10.)  Davis’s argument is as follows: “In this case, we are challenging the statements made by” the arresting officer, “as well as the historical facts of the case.  Once this court views the videotape (St. Ex. 1) it will determine the lack of probable cause for the initial pulling over of appellant.”^[1]  (Br. at 11.)  The trial court made findings of fact and conclusions of law.  Concerning the arresting officer’s stop of Davis’s car, the trial court found:

1.    That Officer Terry Mason stopped a motor vehicle driven by Jason Maltino Davis for a defective license plate light . . .

. . . 

14.  That Officer Mason is a credible witness, and the Court accepts as true his testimony regarding his observations of the defendant and his conversations with the defendant.

(I C.R. at 29-30; see id. at 30-31); Tex. Transp. Code Ann. §§ 542.301, 547.322(f) (Vernon 1999); Conde v. State, 135 S.W.3d 252, 257 (Tex. App.—Waco 2004, no pet.).  Officer Mason’s testimony supports the trial court’s finding.  For example, in describing the stop of Davis, Officer Mason testified as follows on direct examination by the State:

        Q.    Okay.  Do you recall stopping a vehicle about eleven o’clock or so at night?

        A.    Yes, I do.

        . . . .

        Q.    Okay.  And what was the reason for the traffic stop?

        A.    The reason for the traffic stop was a defective license plate light.

        . . . .

        Q.    Okay.  Can you describe the lighting for the Court . . . ?

        A.    In that area it’s pretty dark. . . .  There’s no street lights or anything in that area.

        Q.    And did you have any trouble spotting that the license plate light was not working?

        A.    No, sir, I did not.

(1 R.R. at 7.)  State’s Exhibit No. 1, a video recording of the stop of Davis, does not appear to show Davis’s license plate when not in the bright glare of the officer’s headlights, and thus does not show whether Davis’s license-plate light was defective.  Viewing the evidence in the light most favorable to the trial court’s finding, and giving due deference to the trial court’s credibility determinations, we hold that Davis does not show that the trial court’s findings were not supported by the record.

        We consider next Davis’s argument that Officer Mason’s search was “overbroad” in scope.  (Br. at 8.)  Concerning Officer Mason’s search of Davis’s car, the trial court found:

6.    That Officer Mason observed in plain view an open alcoholic beverage container in the passenger compartment of the motor vehicle on the floorboard behind the driver.

. . . 

8.    That Officer Mason conducted a search of the motor vehicle to look for additional open alcoholic beverage containers.

9.    That upon searching, Officer Mason discovered an additional open alcoholic beverage container under the driver’s seat of the motor vehicle.

10.  That upon searching Officer Mason discovered a white substance in the center console of the motor vehicle.

11.  That Officer Mason field tested the white substance discovered in the search and the result was positive for cocaine.

(I C.R. at 30; see id. at 30-31); Tex. Pen. Code Ann. § 49.031(b) (Vernon 2003).  Davis concedes that “[i]f probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.”  (Br. at 9 (quoting Wyoming v. Houghton, 526 U.S. 295, 301 (1999) (quoting United States v. Ross, 456 U.S. 798, 825 (1982)) (emphasis added in Houghton)).)  Davis argues, however, that Officer Mason “searched underneath a tray in the center console for open containers,” and argues “that this impermissibly exceeded the scope of the search for open containers, as an unopened container was not able to be secreted in the bottom of the console.”  (Br. at 10.)  But Officer Mason’s testimony supports the trial court’s finding.  For example, Officer Mason testified as follows on direct examination by the State:

        Q.    And upon searching the vehicle, what did you find, if anything?

        A.    . . . .  [W]hen I looked in the center console, I noticed a white, small plastic baggy containing a white, powdery substance and immediately beneath that I saw several white rocks.

        . . . .

        Q.    And your purpose for searching the console, what was that?

        A.    The center console was just another area where contraband can be hidden.  In that particular vehicle the console is fairly deep so you can hide anything else in there.

        Q.    Could you hide an alcoholic beverage in the console?

        A.    Yes, sir, you could.

(1 R.R. at 12-13.)  Davis does not point to any evidence supporting his argument.  We understand Davis to refer to the following testimony by Officer Mason on cross-examination concerning the tray in the console in Davis’s car:

       Q.   All right.  Do y’all—to get to the console to the drugs, you had to open the console, pull it up to the drugs, you had to open the console?

       A.    Yes, sir.

       Q.   Pull it up, the door on top of it?

       A.    Yes, sir.

       Q.   Okay.  Or did you pull up the whole compartment?

       A.    When I opened it, yes, sir, there’s a tray.  A tray that sits on top of it.

       Q.   It’s a tray and you opened it up.

       A.    Yes, sir.

(1 R.R. at 23.)  We do not understand that testimony to support Davis’s argument that an open container could not have been concealed inside the console.  Viewing the evidence in the light most favorable to the trial court’s finding, and giving due deference to the trial court’s credibility determinations, we hold that Davis does not show that the trial court’s findings were not supported by the record.  Nor, on the basis of those findings, did the trial court err in concluding that the search did not exceed its proper scope.

        Lastly, Davis also argues that the search of Davis’s car was not a valid search incident to arrest.  See Knowles v. Iowa, 525 U.S. 113, 116-17 (1998); Chimel v. California, 395 U.S. 752, 762-63 (1969);  State v. Gray, 158 S.W.3d 465, 469-70 (Tex. Crim. App. 2005); Corbitt v. State, 445 S.W.2d 184, 186 (Tex. Crim. App. 1969).  Because we do not hold that the search of Davis’s car was a search incident to arrest, we need not address that argument.

        The trial court did not abuse its discretion in overruling Davis’s motion.  We overrule Davis’s issue.

        Having overruled Davis’s sole issue, we affirm.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

        Justice Vance, and

        Justice Reyna

        (Justice Vance concurs in the judgment with a note)*

Affirmed

Opinion delivered and filed February 27, 2008

Do not publish

[CR25]

 

 

            * “(I do not believe that it is reasonable to infer that an open container could be secreted under the tray of the center console of an automobile.  The testimony of the officer was that an “alcoholic beverage” could be there, but an alcoholic beverage is not necessarily an open container.  There appear to be no Texas cases on the scope of a permissible search when the probable cause to search is possession of contraband in the form of an open container in violation of Penal Code Section 49.031.  Nevertheless, because I believe that the search was valid as incident to the arrest, I concur in the judgment.  State v. Oages, 227 S.W.3d 397, 400-01 (Tex. App.—Eastland 2007, pet. ref’d----) (citing Crittenden v. State, 899 S.W.2d 668, 678 (Tex. Crim. App. 1995)).)”