Briseno v. State

Full title: DAVID BRISENO, Appellant, v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Aug 28, 2003

No. 05-02-01630-CR (Tex. App. Aug. 28, 2003)

Opinion

No. 05-02-01630-CR.

Opinion Filed August 28, 2003. DO NOT PUBLISH. Tex.R.App.P. 47

Appeal from the 366th District Court, Collin County, Texas, Trial Court Cause No. 366-81518-01. Affirmed.

Before Chief Justice THOMAS, Justices O'NEILL, BASS¹.

1 The Honorable Bill Bass, Retired Justice, Twelfth District Court of Appeals, Tyler, Texas, sitting by assignment.

OPINION

Opinion By Justice BASS.

Appellant was charged with possession of cocaine in an amount less than one gram in a drug-free zone. In a motion to suppress, appellant challenged the legality of the search that discovered the cocaine. After the denial of his motion to suppress, appellant pleaded no contest to the charge. The trial judge found the evidence substantiated a finding of guilt, but deferred adjudicating guilt and placed appellant on five years community supervision. In his sole point of error, appellant contends the trial court erred in denying his motion to suppress. We affirm.

Facts

On May 2, 2001, appellant was a seventeen-year-old student at Vines High School in Plano. Assistant Principal Glen Strain approached appellant in the hallway of the school to find out why appellant was not in his next class. According to Strain, appellant's answers were evasive as to where his class was and he allowed Strain to accompany him to the wrong speech class on a different floor of the school from where he was supposed to be. After Strain ascertained that appellant's speech class was in the library, appellant said he needed to go to his locker to get materials for the class. Strain said that he thought appellant's evasiveness and desire to go by his locker was "very suspicious." They did not go to the locker. When they reached the library, appellant walked quickly to a table and dropped his backpack under a table by another student. Strain asked the speech teacher if appellant needed materials for class. The teacher replied appellant did not need anything for class that day. This information, when considered with appellant's evasiveness and attempts to separate himself from the backpack, led Strain to suspect appellant was hiding contraband in the backpack. Strain then told appellant to come into the library office and bring his backpack. Strain asked to search the backpack. Appellant argued with Strain about whether Strain had a right to search the backpack. According to Strain, appellant never denied him permission to search the backpack, and eventually told him, "That's cool." Strain found a ziplock plastic bag of what appeared to be marijuana inside a CD case. Strain then called Allen Breitenbuecher, the school's police officer liaison. Breitenbuecher searched appellant, making him take everything out of his pockets. Breitenbuecher found cocaine inside a package of chewing gum that had been in appellant's pocket. Appellant was arrested and charged with possession of cocaine. Appellant testified he wanted to go to his locker because his friend was carrying appellant's boom box there and appellant needed to provide his combination. Appellant told the court that he told Strain that Strain could not search his backpack, and that he never said, "That's cool," when asked for permission to search it.

Standard of Review

In a motion to suppress hearing, the trial court is the sole trier of fact and the judge of the credibility of the witnesses and the weight to be given their testimony. State v. Ballard, 987 S.W.2d 889, 891 (Tex.Crim.App. 1999). The judge may believe or disbelieve all or any part of a witness's testimony, even if that testimony is uncontroverted. See Mattias v. State, 731 S.W.2d 936, 940 (Tex.Crim.App. 1987); see also State v. Ross, 32 S.W.3d 853, 857-58 (Tex.Crim.App. 2000). The appropriate level of appellate review is set out in Guzman v. State:

[T]he appellate courts, including this Court, should afford almost total deference to a trial court's determination of the historical facts that the record supports especially when the trial court's fact findings are based on an evaluation of credibility and demeanor. The appellate courts . . . should afford the same amount of deference to trial courts' rulings on "application of law to fact questions," also known as "mixed questions of law and fact," if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor. The appellate courts may review de novo "mixed questions of law and fact" not falling within this category [citations omitted].

Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). In this case, the trial court made findings of fact. We, therefore, give almost total deference to those findings that are supported by the record, especially when they involve determinations of credibility and demeanor. See id.; see also Carmouche v. State, 10 S.W.3d 323, 327-28 (Tex.Crim.App. 2000). We will review de novo the court's application of the law to those facts. See Carmouche, 10 S.W.3d at 328.

Applicable Law

In his sole issue presented, appellant contends that his tardiness to speech class coupled with Strain's subjective feeling that appellant's behavior was suspicious did not constitute probable cause for Strain to search his backpack. The Fourth Amendment applies to searches of students by school authorities. See New Jersey v. T.L.O., 469 U.S. 325, 333 (1985). The accommodation of the privacy interests of children with the substantial need of teachers and administrators to maintain order does not require strict adherence to the requirement that searches be based on probable cause to believe the subject of the search had violated or is violating the law. See id. at 341. "Rather the legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search." Id. The reasonableness of the search depends on two factors:

(1) was the search justified at its inception; and (2) was the search as conducted reasonably related in scope to the circumstances that served as its initial justification. Id. A search is justified at its inception when there are reasonable grounds for suspecting the search will reveal evidence that the student has violated or is violating the law or the school rules.

Id. at 341-42. A search is within the permissible scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction. Id. at 342.

Analysis

Strain was justified in approaching appellant because appellant was truant or, at the very least, late to class and, therefore, in violation of school policy and possibly state law. Appellant was evasive about which class he was in and, in fact, allowed Strain to lead him to the wrong classroom; he insisted that he needed to go to his locker for speech class materials although it developed he did not need other materials; and instead of carrying his backpack to his own seat, he dropped it under a library table by another student. These circumstances constituted a reasonable basis for Strain's suspicion that appellant had contraband in the backpack. The search of appellant's backpack was reasonably related to Strain's suspicion that the backpack contained contraband. Given the nature and strength of Strain's suspicions, the search was the logical next step. The compact disk case in which the drugs were hidden was one of the first things Strain saw in the backpack. In Coronado v. State, 835 S.W.2d 636 (Tex.Crim.App. 1992), a case upon which appellant relies, the court did find the search unreasonable. In Coronado, as in the instant case, the principal approached the student to ascertain if he was truant. Coronado was subjected to a pat-down search. Id. at 638. When that revealed no contraband, he was told to remove his shoes and socks. Id. After this search revealed no contraband, Coronado was told to drop his pants; again, no contraband was found. Id. Coronado's locker was then searched with the same result. Finally, the principal and the school liaison officer took Coronado to the parking lot and searched his car where they discovered cocaine. Id. The court held that the progressively more intrusive searches went far beyond the scope justified by the principal's initial suspicion that Coronado was truant. Id. at 641. Appellant characterizes the facts in Coronado as virtually identical to this case. In both cases, the school officials suspected truancy. But the similarity ends there. Strain searched only appellant's backpack which reasonably became the focus of his suspicions because of appellant's conduct. Strain's search of appellant's backpack was justified in its inception and reasonably related in scope to the circumstances that justified the interference. Because the search of the backpack during which the marijuana was found was properly done, the seizure of the cocaine was not the fruit of the poisonous tree. Therefore, the trial court did not err in denying appellant's motion to suppress. The judgment is affirmed.