Nos. 05-09-00777-CR
Opinion issued December 3, 2010. DO NOT PUBLISH. TEX. R. APP. P. 47.
On Appeal from the 204th Judicial District Court Dallas County, Texas, Trial Court Cause No. F08-54176-Q.
Before Justices O'NEILL, RICHTER, and LANG-MIERS.
Opinion By Justice RICHTER.
A Dallas County grand jury issued a true bill of indictment, accusing appellant, Mario Gonzalez, of the felony offense of possession with intent to deliver a controlled substance, namely heroin, weighing more than four grams but less than two hundred grams. After the trial court denied his motion to suppress evidence, appellant entered a plea of guilty. The trial court then deferred proceedings of appellant's guilt, placing appellant on community supervision for five years. In three points of error, appellant contends the trial court erred in denying his motion to suppress evidence in violation of his rights under the Fourth and Fourteenth Amendments to the United States Constitution, Article 1, Section 9 of the Texas Constitution, and Article 38.23 of the Texas Code of Criminal Procedure. We conclude the trial court did not err when it denied appellant's motion to suppress evidence. The trial court's judgment is affirmed.
MOTION TO SUPPRESS EVIDENCE
Appellant contends that because he was unlawfully detained and searched, the drugs found in his pants pocket and at his home should be suppressed as the product of an illegal detention. Appellant argues the initial stop was unreasonable because he was stopped based on non-specific information from the witnessing officer and the detaining officer failed to articulate a reason for stopping the vehicle over ten blocks from the site of the traffic violation. He asserts that even if the initial stop was justified, the stop became an illegal detention which exceeded the permissible scope for the traffic violation. Therefore, any consent to search obtained as a result of the prolonged detention was invalid. Finally, appellant argues the State failed to prove he consented to the search of his home, car and person by clear and convincing evidence. A. Standard of Review
We apply a bifurcated standard of review to a trial court's ruling on a motion to suppress evidence. See Hubert v. State, 312 S.W.3d 554, 559 (Tex. Crim. App. 2010); Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim App. 2010). We do not engage in our own factual review but give almost total deference to the trial court's determination of historical facts and review de novo the trial court's application of the law to those facts. See Hubert, 312 S.W.3d at 559; St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007). The trial judge is the sole trier of fact and judge of credibility of witnesses and the weight to be given to their testimony. See Valtierra, 310 S.W.3d at 447; St. George, 237 S.W.3d at 725. Where, as here, the trial court did not make explicit findings of fact, we view the evidence in the light most favorable to the trial court's ruling and assume the trial court resolved any issues of historical fact or credibility consistently with its ultimate ruling. See Hubert, 312 S.W.3d at 560; St. George, 237 S.W.3d at 725. We uphold the trial court's decision so long as it is reasonably supported by the record and correct under any theory of law applicable to the case. Valtierra, 310 S.W.3d at 447-48; St. George, 237 S.W.3d at 725. B. Applicable Law
When a police officer stops a defendant without a warrant, the State has the burden at a suppression hearing of proving the reasonableness of the stop. Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). Under the Fourth Amendment to the United States Constitution, an officer is justified in detaining a person for investigative purposes if the officer has a reasonable suspicion of criminal activity, even if the officer lacks probable cause. Woods v. State, 956 S.W.2d 33, 35 (Tex. Crim. App. 1997) (citing Terry v. Ohio, 392 U.S. 1, 29 (1968)); see also May v. State, 780 S.W.2d 866, 869 (Tex. App.-Dallas 1989, pet. ref'd) (because article I, section 9 of the Texas Constitution does not impose a greater restrictive standard than the fourth amendment of the United States Constitution, we are free to follow the lead of the United States Supreme Court). Reasonable suspicion exists if the officer has specific, articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably conclude that a person actually is, has been, or soon will be engaged in criminal activity. Castro v. State, 227 S.W.3d 737, 741 (Tex. Crim. App. 2007); Brother v. State, 166 S.W.3d 255, 257 (Tex. Crim. App. 2005); Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001). In determining the existence of reasonable suspicion, we look only at those facts known to the officer at the inception of the stop. State v. Griffey, 241 S.W.3d 700, 704 (Tex. App.-Austin 2007, pet. ref'd). The reasonableness of a temporary detention is examined in terms of the "totality of the circumstances" at its inception. See Woods, 956 S.W.2d at 38; Griffey, 241 S.W.3d at 703-04. The factual basis for stopping a vehicle need not arise from the officer's personal observation, but may be supplied by information from another person. See Brother, 166 S.W.3d at 257; Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim App. 2003). An investigative detention must last no longer than necessary to effectuate the purpose of the stop and must involve actual investigation. See Davis v. State, 947 S.W.2d 240, 244-45 (Tex. Crim. App. 1997). During a traffic stop, an officer may request identification, proof of insurance and car registration, check for outstanding warrants, and ask the driver where he is going and the purpose of the trip. Kothe v. State, 152 S.W.3d 54, 63 (Tex. Crim. App. 2004). An officer may also ask for consent to search, so long as the officer does not convey a message that compliance with his request is required. See Florida v. Bostick, 501 U.S. 429, 435 (1991); Hunter v. State, 955 S.W.2d 102, 104 (Tex. Crim. App. 1997); Noster v. State, Case No. 05-06-01451-CR, 2008 WL 283784, at *1 (Tex. App.-Dallas Feb. 4, 2008, pet. ref'd) (mem. op.). The Fourth Amendment protects individuals from unreasonable searches and seizures by law enforcement officers. See Hubert, 312 S.W.3d at 560; Valtierra, 310 S.W.3d at 448. Voluntary consent to search is a well-established exception to the warrant and probable cause requirements of the Fourth Amendment. Montanez v. State, 195 S.W.3d 101, 105 (Tex. Crim. App. 2006). Whether consent was given voluntarily is a fact question to be given deference. See Hubert, 312 S.W.3d at 559 (citing Ohio v. Robinette, 519 U.S. 33, 40 (1996)). Consent must be positive; however, it may be given orally or by action, or shown by circumstantial evidence. Valtierra, 310 S.W.3d at 448. The validity of an alleged consent is a question of fact to be determined from the totality of the circumstances. Id. The United States Constitution requires the State to show consent was voluntarily given by a preponderance of the evidence; the Texas Constitution requires the State to prove consent was given voluntarily by clear and convincing evidence. State v. Ibarra, 953 S.W.2d 242, 243 (Tex. Crim. App. 1997); Noster, 2008 WL 283784, at *1. C. Application of the Law to the Facts
Appellant argues the traffic stop was unreasonable because the detaining officers stopped him based on non-specific information relayed by the witnessing officer. Further, the detaining officers failed to articulate a reason for stopping his vehicle over ten blocks from the site of the traffic violation, failed to explain why they believed appellant's vehicle was the same vehicle referred to in the witnessing officer's report, and failed to provide any justification for the delay in the stop. At the suppression hearing, appellant testified he did not run the stop sign at Nomas Street. According to appellant, the officers told him they stopped him because he had paint on the license plate of his vehicle. The State contends that when undercover Officer Garcia saw appellant run the stop sign at Nomas street, he acquired probable cause to stop appellant. On April 14, 2008, Dallas Crime Response Team officers were investigating a citizen complaint that drugs were being sold at a residence located at 3314 Clymer Street. Officer Garcia was conducting undercover surveillance of the residence from an unmarked car. Officers Foster and Wagner were in a marked police squad car nearby. Officer Garcia testified he saw a man leave the house and get into a red 1981 Oldsmobile. As Officer Garcia watched, the man drove south, ran the stop sign at Nomas Street, and continued driving south on Clymer Street. Officer Garcia radioed the officers on the team and directed them to conduct a traffic stop of a red 1981 Oldsmobile, driven by a male, and traveling southbound on Clymer. Officers Foster and Wagner testified they began looking for the described vehicle and stopped a red 1981 Oldsmobile approximately ten blocks south of the intersection of Nomas Street and Clymer Street. We conclude that at the time of the stop, Officers Foster and Wagner had specific, articulable facts that, when combined with rational inferences from those facts, led them to reasonably conclude appellant committed the traffic violation witnessed by Officer Garcia. See Brother, 166 S.W.3d at 257; Garcia, 43 S.W.3d at 530. Appellant attacks the scope of the detention, arguing "the investigation shifted from enforcing the traffic laws to a narcotics investigation with nothing articulated by the officers to justify the continued detention." Appellant denies the officers asked him for his driver's license and asserts the scope and duration of the stop was prolonged so the arresting officers could conduct a fishing expedition. The State disputes appellant's contention that the stop was unreasonably prolonged, pointing out that during a routine traffic stop, an officer may request a driver's license, insurance papers, information regarding ownership of the vehicle, destination and purpose of the trip, and detain an individual while checking for outstanding warrants. In addition, the State argues a police officer may request permission to search a car, even after the purpose of the traffic stop has been accomplished, so long as the officer does not convey a message that compliance with his request is required. Officers Foster and Wagner testified that after stopping appellant's vehicle, they asked appellant to step out of the car. Officer Foster asked appellant for his driver's license but he did not have it. Officer Foster then asked appellant for consent to search his person and car for drugs. Both officers testified that appellant voluntarily consented to the search. During the search, Officer Foster found a small piece of foil containing cheese heroin in appellant's pants pocket. The officers placed appellant under arrest, read his Miranda warnings and asked where he lived. Appellant told the officers he lived at 3314 Clymer Street, the residence under surveillance by the Dallas Crime Response team. The evidence does not reflect the detention was unreasonably extended. See Kothe, 152 S.W.3d at 63; Noster, 2008 WL 283784, at *1. Appellant argues the searches were illegal because he did not give voluntary consent to the search of his person, car, or home. According to appellant, the officers did not ask for consent to search him or his car. Appellant testified the officers stopped his car, told him to get out of the car, and get down on his knees on the sidewalk. The officers then started looking in his car. Appellant also testified that by the time Officer Foster took him back to his house, other police officers were already inside the house. He argues the State failed to prove voluntary consent by clear and convincing evidence because the officer failed to use an available recording device to record the alleged consent to search appellant's person and vehicle, the recording does not reflect that the officer advised appellant he had a right to refuse the search, and the recording failed to reflect appellant's consent to search his home. Officer Foster testified that upon learning that appellant lived at the residence under surveillance by the Dallas Crime Response Team, he turned on a digital recorder in his pocket and asked appellant for consent to search his house for drugs. The State introduced an audio recording into evidence but portions of the recording were inaudible. Officer Foster's request for consent to search appellant's house for drugs can be heard but appellant's response cannot be heard. However, Officers Foster and Wagner both testified that appellant consented to the search of his house. A search of the house revealed more cheese heroin packaged in foil. The State contends that the totality of the circumstances, viewed objectively, shows that the searches of appellant's body, car and house were reasonable and that the State proved by clear and convincing evidence that appellant gave his consent voluntarily. The trial judge was the sole trier of fact and judge of credibility of witnesses and the weight to be given to their testimony. See Valtierra, 310 S.W.3d at 447. The trial judge was entitled to believe or disbelieve all or part of appellant's testimony because he observed appellant's demeanor and appearance. Id. Although the trial court did not make explicit findings of fact, the record clearly reflects the trial court did not find appellant's testimony credible. The trial court stated "I found the officers to be credible so they had a right to pull him over to give him a ticket for not stopping. Once they see that he doesn't have a license, they can give him a ticket for that. And if they just say, Hey, can we search it, your client says sure, then they can — they can search all they want." With respect to consent to search the house, the trial court stated the audio recording supported the police officers' testimony that they asked for consent and were given that consent. Based on the totality of the circumstances, we conclude the trial court could have reasonably determined appellant voluntarily consented to the search of his person, vehicle and house. Id. at 448. CONCLUSION
We conclude the trial court did not abuse its discretion in denying the motion to suppress. We overrule appellant's points of error and affirm the judgment of the trial court.