Opinion
No. 05-07-01371-CR
Opinion issued June 24, 2009. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 363rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F04-57951-W.
Before Justices MOSELEY, RICHTER, and FRANCIS.
OPINION
A jury convicted Carlos Armando Verde Reyes of possession with intent to deliver over 400 grams of methamphetamine and assessed punishment at twenty years in prison. In two issues, appellant contends the trial court erred in denying his motion to suppress and in allowing inadmissible hearsay at trial. We affirm. Dallas police arrested Javier Rangel for "manufacture and delivery, methamphetamine and cocaine." Rangel offered to "turn over" his supplier. Hours later, with detectives listening to his side of the conversation, Rangel called his supplier and arranged to meet him at a Racetrac gas station on Buckner Drive, between 9 and 9:30 p.m., to purchase one pound of methamphetamine. Rangel said his supplier would be driving a white 1995 Toyota Corolla. The investigating detectives drove Rangel to the location at the arranged time and saw a white 1995 Toyota Corolla at the Racetrac gas pump. Appellant was standing outside the car looking around; no one else was inside the car. Rangel identified appellant as his supplier. When appellant left the location, a marked police unit stopped him, searched his vehicle, and found a pound of methamphetamine in a Tupperware container on the front passenger floorboard. In his first issue, appellant contends the trial court erred in denying his motion to suppress the drugs because the police did not have probable cause to make a warrantless arrest. He argues the police had no reason to believe that Rangel, their informant, was a trustworthy source and no reason to believe appellant had committed or was committing an offense within their presence. We review a trial court's ruling on a motion to suppress evidence under a bifurcated standard of review. St. George v. State, 237 S.W.3d 720, 725 (Tex.Crim.App. 2007). We do not engage in our own factual review; rather, the trial judge is the sole trier of fact and judge of credibility of the witnesses and the weight to be given to their testimony. Id. We review the record to determine whether the trial court's ruling is supported by the record and correct under some theory of law applicable to the case. Id. In the case before us, the trial court did not make explicit findings of fact. Under these circumstances, we view the evidence in the light most favorable to the trial court's ruling and assume the trial court made implicit findings of fact supported by the record. Id. Under Texas law, a police officer must have both probable cause with respect to the person being arrested, plus statutory authority to make that arrest. Parker v. State, 206 S.W.3d 593, 596 (Tex.Crim.App. 2006). Under article 14.01(b), a peace officer may "arrest an offender without a warrant for any offense committed in his presence or within his view." Tex. Code Crim. Proc. Ann. art. 14.01(b) (Vernon 2005). To establish probable cause to arrest, the evidence must show that "at that moment [of the arrest] the facts and circumstances within the officer's knowledge and of which he had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the arrested person had committed or was committing an offense." Id. (quoting Beverly v. State, 792 S.W.2d 103, 104-05 (Tex.Crim.App. 1990)). A confidential tip, standing alone, does not constitute probable cause. See State v. Steelman, 93 S.W.3d 102, 109 (Tex.Crim.App. 2002) (citing Ebarb v. State, 598 S.W.2d 842, 845 (Tex.Crim.App. [Panel Op.] 1979)). But probable cause may arise from information supplied by a confidential informant provided the information is corroborated. Eisenhauer v. State, 678 S.W.2d 947 (Tex.Crim.App. 1984), overruled on other grounds by Heitman v. State, 815 S.W.2d 681 (Tex.Crim.App. 1991). When dealing with information obtained from informants, we apply the "totality of the circumstances" test set out in Illinois v. Gates, 462 U.S. 213 (1983). Dixon v. State, 206 S.W.3d 613, 616 (Tex.Crim.App. 2006). Although an informant's veracity, reliability, and basis of knowledge are highly relevant in determining the value of an informant's report, these elements are not independent requirements but are closely intertwined issues illuminating the overall question of whether there is probable cause. Gates, 462 U.S. at 230. A deficiency in one element may be compensated for by a strong showing as to another. Id. Although the officers had no prior dealings with Rangel before he gave them the information on appellant, their direct involvement in setting up the drug deal and independent corroboration of the information satisfied any reliability concerns. The evidence showed that Rangel, in the presence of Detectives Albert Chavez and Jeff Burge, made a recorded telephone call to his supplier. During the call, Rangel arranged to meet his supplier to purchase a pound of methamphetamine, and the meeting was set for less than an hour later at the Racetrac gas station at I-30 and Buckner Drive. Rangel told the detectives his supplier would arrive in a 1995 white Toyota Corolla. Detectives Chavez and Burge drove Rangel to the location; several cover units were also in the area. When the police arrived at the designated meeting place at the designated time, they saw a white 1995 Toyota Corolla at the gas pump. Appellant was standing outside the car looking around, and the officers never saw him pump gas. Rangel identified appellant as his supplier. The police waited several minutes for appellant to leave so that they could have him stopped, but appellant stayed at the location looking around. A patrol unit was sent to the station to "spook" appellant into leaving, but appellant did not. Detective Burge then had Rangel call appellant, tell him Rangel was nervous because he saw a squad car, and arrange to meet appellant down the street. At that point, appellant drove away from the station. Either Burge or Chavez notified the cover units to stop appellant, which they did just minutes later. The officer who stopped appellant searched his vehicle and found the drugs in a Tupperware container on the front passenger floorboard. Under the totality of the circumstances test, we conclude the facts and circumstances within the knowledge of the investigating officers, and of which they had reasonably trustworthy information, were sufficient to warrant their belief that appellant was committing the offense of possession of methamphetamine with the intent to deliver and the offense was being committed within their view. We therefore conclude the trial court did not err in denying appellant's motion to suppress the drugs found in appellant's car. We overrule the first issue. In his second issue, appellant contends the trial court abused its discretion in allowing Detective Burge to testify at trial regarding Rangel's statements made in Spanish to and translated by Detective Chavez. Relying on this Court's opinion in Saavedra v. State, No. 05-06-01450-CR, 2008 WL 44471 (Tex.App.-Dallas Jan. 3, 2008, pet. granted) (not designation for publication), he argues such statements were inadmissible hearsay. The evidence shows that Rangel spoke Spanish, and Detective Chavez, because he also spoke Spanish, assisted Detective Burge on the case. Detective Chavez, who no longer works for the Dallas Police Department, testified at the suppression hearing, but neither he nor Rangel testified at trial. Thus, the State relied on Burge's testimony at trial to establish probable cause. We review a trial court's ruling to admit evidence under an abuse of discretion standard. Sauceda v. State, 129 S.W.3d 116, 120 (Tex.Crim.App. 2004). Under this standard, an appellate court should not disturb the trial court's decision if the ruling was within the "zone of reasonable disagreement." Page v. State, 213 S.W.3d 332, 337 (Tex.Crim.App. 2006). In Saavedra, the complainant, a child, accused Jose Carmen Saavedra of sexually assaulting her. Police arranged a meeting with Saavedra, where he admitted, through an interpreter, that he might have accidentally touched the complainant inappropriately. At trial, the detective testified to what the interpreter told him. Relying on a previous opinion of this Court, the court in Saavedra concluded the detective's testimony was inadmissible hearsay. Saavedra, No. 05-06-01450-CR, at *2. In this case, unlike Saavedra, the complained-of testimony does not go to an element of the offense; instead, the complained-of testimony went only to probable cause. Hearsay testimony relating to the existence of probable cause is not admissible if that issue is not before the jury. Smith v. State, 574 S.W.2d 555, 557 (Tex.Crim.App. [Panel Op.] 1978). However, an officer's actions may be made an issue before the jury, and "thus it may be necessary for the officer to testify not only how he happened upon the scene, but also the specific information received so that the jury may resolve any issues regarding an officer's actions." Schaffer v. State, 777 S.W.2d 111, 115 n. 4 (Tex.Crim.App. 1989); see Tex. Code Crim. Proc. Ann. art. 38.23(a) (Vernon 2005). If the material issue before the jury is whether an officer had probable cause to arrest or search a person, the reasonableness of the officer's conduct is called into question, and the hearsay details of information that he received are admissible. Poindexter v. State, 153 S.W.3d 402, 408 n. 21 (Tex.Crim.App. 2005); Parks v. State, 858 S.W.2d 623, 633 (Tex.App.-Fort Worth 1993, pet. ref'd) (concluding that hearsay received by officer from informant and again overheard in telephone conversation between informant and party to drug sales was admissible before jury so jury could resolve issues regarding officer's actions). During his opening statement, appellant raised the issue of probable cause. When the State began to adduce evidence of the circumstances regarding probable cause, appellant objected to some of the evidence as being hearsay. The trial court overruled the objection "insofar as the officer may testify as to what information he was relying upon to give him probable cause to believe that this was the person he was looking for." In response to appellant's continued objections to hearsay, the court, outside the presence of the jury, asked if the defense "was requesting an instruction on probable cause, having the jury pass on probable cause," and appellant responded yes. The court told appellant it would allow hearsay "for the limited purposes of showing probable cause, if it does, that this officer had in ordering the stop of the defendant." In the charge, the trial court instructed the jury that Detective Burge's testimony "as to the statements by the informant Rangel as translated by Officer Chavez was admitted solely for the purpose of assisting the jury, if it does, in determining whether there was probable cause for the stop" of appellant. Before the charge was read, appellant reurged his motion to suppress "because I still feel that there was not probable cause to arrest him." Appellant argued lack of probable cause to the jury, focusing on the validity of the stop and arrest based "solely" on the testimony of Detective Burge. Probable cause was clearly an issue in this case. Finally, we note that appellant complains he was harmed "because Rangel allegedly identified him as the supplier he was supposed to meet when they arrived at the Racetrac; [appellant] was at the Racetrac in the white Toyota Corolla that the supplier allegedly told Rangel he would be in; and Reyes was at the Racetrac at the time Rangel allegedly arranged for the deal to occur." A review of the record, however, shows that most of the facts related to the drug deal and how it was set up were admitted at some point either without a hearsay objection, without any objection at all, or by appellant on cross examination of the State's witnesses. See Leday v. State, 983 S.W.2d 713, 717 (Tex.Crim.App. 1998) (explaining that erroneous admission of evidence will not require reversal if same or similar evidence admitted without objection at another point in trial). Specifically, Detective Burge testified Rangel was arrested and was brought to the narcotics division because he wanted to provide information to help himself "down the road;" Rangel made a telephone call to his supplier; a deal was arranged between Rangel and his supplier for Rangel to purchase one pound of methamphetamine; Rangel was to meet his supplier within the hour, at 9:15 p.m., at the Racetrac gas station at I-30 and Buckner Drive; and the supplier would arrive in a white 1995 Toyota Corolla. Detective Burge arrived at the location at the appointed time and observed a 1995 white Toyota Corolla at a gas pump; appellant was standing outside the car looking around; a patrol unit went to the station to "spook" appellant into leaving; Burge had Rangel call appellant on the phone; and appellant did not leave until he received the call from Rangel wanting to meet down the street. In sum, the evidence showed that Detective Burge personally observed matters that were the substance of the conversation between Detective Chavez and Rangel. The record shows appellant raised probable cause in his opening statement and that probable cause was the material issue in this case. The complained-of evidence went to that issue, and hearsay details were therefore admissible. Under these circumstances, we conclude the trial court's ruling was not erroneous. We overrule the second issue. We affirm the trial court's judgment.