No. 01-05-00236-CR
Opinion issued May 4, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 176th District Court, Harris County, Texas, Trial Court Cause No. 964,086.
Panel consists of Chief Justice RADACK and Justices JENNINGS and ALCALA.
TERRY JENNINGS, Justice.
A Harris County grand jury issued a true bill of indictment, accusing appellant, Kent Hampton, of the felony offense of possession with intent to deliver a controlled substance, namely cocaine, weighing at least 400 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, placed appellant on community supervision for ten years, and assessed a fine of $1,000. In two points of error, appellant contends that 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 and Article 1, Section 9 of the Texas Constitution. We affirm.
U.S. Const. amends. IV, XIV.
Factual Background
Houston Police Officer D.L. DeBlanc testified that, on October 7, 2003, he conducted surveillance of a home located at 3410 Lapstone in connection with a narcotics investigation. A police informant had arranged to buy cocaine from Luzmarina Hoyas, the resident of the home, at a nearby Kroger grocery store. At approximately 10:45 a.m., DeBlanc saw Luzmarina leave the home. Shortly thereafter, police officers arrested her in the Kroger parking lot as she attempted to deliver a kilogram of cocaine to the informant. DeBlanc heard, on his police radio, that police officers had arrested Luzmarina. After Luzmarina's arrest, at approximately 10:55 a.m., DeBlanc saw appellant, who was driving a Suburban truck, make a left-hand turn onto Lapstone Street without using his turn signal. Appellant parked in the driveway of 3410 Lapstone and exited his truck. At that point, DeBlanc drove toward the residence, exited his car, and began to question appellant regarding his business at the residence. DeBlanc denied initially approaching appellant with his hand on his gun. DeBlanc explained that appellant was "extremely nervous to the point of visibly shaking" and "very evasive." Appellant told DeBlanc that he was there to deliver something and that he did not know the occupants of the residence. Approximately three to five minutes later, while DeBlanc was still investigating appellant's connection to the location, another male, identified as Harold Hoyas, arrived at the residence. DeBlanc told appellant to remain where he was while DeBlanc questioned Harold. Harold identified himself as Luzmarina's son and told DeBlanc that appellant was his mom's boyfriend. DeBlanc explained that this contradiction further aroused his suspicions regarding appellant. Five to ten minutes after appellant's initial detention, DeBlanc radioed Houston Police Officer A. Vanderberry, the case agent at the location of the narcotics buy between Luzmarina and the informant, seeking additional information. Vanderberry told DeBlanc that the target of the undercover operation, Luzmarina, whom he had detained at the Kroger parking lot, had told him that appellant was "an ounce purchaser of cocaine." Based upon his observation of the traffic offense, the information obtained from Vanderberry, appellant's arrival at a "dope location" that was under surveillance, and appellant's inconsistent story, DeBlanc detained appellant until Vanderberry arrived at the home about ten minutes later. At approximately 11:25 a.m., appellant signed a voluntary consent to allow officers to search his truck. DeBlanc did not recover any contraband from the truck and did not participate in further questioning or interviewing of appellant. Officer Vanderberry testified that, on October 7, 2003, he saw Luzmarina, the initial target of the narcotics investigation, deliver one kilogram of cocaine to the informant. Vanderberry explained that DeBlanc subsequently contacted him to discuss certain individuals that had arrived at Luzmarina's residence. When Vanderberry asked Luzmarina about appellant, she told him that appellant purchases ounces of cocaine from her and is in the dump-truck business. Vanderberry then went to the Lapstone location where he made contact with DeBlanc and appellant and obtained appellant's consent to search his truck. Vanderberry explained that after he told appellant "we know what [is] going on," appellant admitted to Vanderberry that he buys cocaine from Luzmarina. Vanderberry also testified that, during his initial conversation with appellant, appellant told him that he had narcotics at his residence. Vanderberry then took appellant into the Hoyas' residence, gave appellant his legal warnings, and requested consent to search appellant's residence, which appellant gave. Officers took appellant to his home to conduct the search, which resulted in the seizure of the cocaine made the basis of appellant's indictment. Appellant testified that he drove to the home of Luzmarina, a business associate, to discuss dealings concerning their dump-truck company. When he arrived at 3410 Lapstone, appellant saw Officer DeBlanc "trotting" toward the driver's side of his truck with "his hand on his pistol." DeBlanc ordered appellant out of his truck, instructed him to stand on the curb, and told him that he could not leave. DeBlanc then took appellant's cellular telephone away from him. Appellant explained that after "close to 30 minutes" officer Vanderberry arrived. Appellant stated that he consented to a search of his truck because Vanderberry told him that he would be free to go following the search. After officers found no contraband in appellant's truck, Vanderberry then presented appellant with a consent form to search his home. Appellant explained that Vanderberry threatened that if appellant withheld consent to search his home, he would "have [appellant's] dump-trucks impounded," "bring the IRS in and seize [appellant's] bank accounts," and "drag [appellant's] god damn old wife through the house and throw her so far in jail that [appellant would] never see her again." After Vanderberry promised that he would leave appellant's wife alone and that appellant would receive probation, he signed the consent to search his residence. Appellant signed the consent to search his residence although he felt "like [Vanderberry was] violating some sort of rights." Standard of Review
A trial court's ruling on a motion to suppress evidence will not be set aside unless an abuse of discretion is found. Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App. 1996); State v. Derrow, 981 S.W.2d 776, 778 (Tex.App.-Houston [1st Dist.] 1998, pet. ref'd). We apply a bifurcated standard of review to a trial court's ruling on a motion to suppress evidence. Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). Almost total deference is given to a trial court's determination of historical facts and de novo review is given to a trial court's application of the law to those facts. Guzman, 955 S.W.2d at 89. "[T]he trial court is the sole trier of fact and judge of credibility of the witnesses and the weight to be given their testimony." State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000). In reviewing the trial court's decision, an appellate court does not engage in its own factual review; it determines only whether the record supports the trial court's fact findings. Corea v. State, 52 S.W.3d 311, 315 (Tex.App.-Houston [1st Dist.] 2001, pet ref'd). Where, as here, a trial judge does not make explicit findings of fact, we review the evidence in a light most favorable to the trial court's ruling. Walter v. State, 28 S.W.3d 538, 540 (Tex.Crim.App. 2000). Because we do not determine credibility, our de novo review of reasonable suspicion, probable cause, consent, and mixed questions of law and fact become a de novo review of legal questions. Derrow, 981 S.W.2d at 778 (citing Ornelas v. United States, 517 U.S. 690, 697-99, 116 S. Ct. 1657, 1661-62 (1996)). Preservation of Error
We note, initially, that the State argues that appellant has not preserved error with respect to his motion to suppress because the record does not expressly reflect a ruling by the trial court. To preserve error on a claim of an illegal search or seizure, an appellant must either obtain a ruling on a pretrial motion to suppress or object and obtain a ruling at trial. Tex.R.App.P. 33.1(a) (Vernon 2003); Thomas v. State, 884 S.W.2d 215, 216 (Tex.App.-El Paso 1994, pet. ref'd). The record must clearly reflect that the trial court, in fact, overruled the defendant's objection or error is waived. See Ramirez v. State, 815 S.W.2d 636, 643 (Tex.Crim.App. 1991). However, in some instances, "a trial court's ruling on a complaint or objection can be impliedly rather than expressly made." Rey v. State, 897 S.W.2d 333, 336 (Tex.Crim.App. 1995). An appellate court may find that a trial court made an implicit ruling on an objection when the objection was brought to the trial court's attention and the trial court's subsequent action clearly addressed the complaint. See id. (finding trial court implicitly overruled defendant's objection when defendant twice requested that trial court make ruling and then stated that court had denied his motion and neither trial court nor State corrected that statement); Chappell v. State, 850 S.W.2d 508, 510 (Tex.Crim.App. 1993) (holding defendant's objection to jury shuffle was overruled when trial court granted State's motion to shuffle); Ramirez, 815 S.W.2d at 650 (finding trial court implicitly overruled defendant's objection to State's question by directing that witness answer question). The Court of Criminal Appeals has explained that "[w]hile we require that a defendant's objections be specific enough to effectively communicate his complaint to the court, we are less stringent in our requirements of the trial court's ruling on an objection." Rey, 897 S.W.2d at 336. Although the record reflects that a hearing was held on the motion to suppress, no order expressly denying the motion appears in the record. On the same day of the hearing, appellant pleaded guilty to the indicted offense. Along with appellant's plea, the record includes the judgment and sentence, the trial court's certification of appellant's right of appeal, and appellant's notice of appeal. A hand-written notation on appellant's notice of appeal, signed by the trial court, indicated that appellant gave notice of appeal "as to the motion to suppress." The trial court's written sentence includes provisions that are "waived pending appeal." A docket entry reads "[a]t 10:05 a.m., came to be held defendant's motion to suppress hearing . . . [T]he court denied defense's motion to suppress." Given the particular circumstances of this case, the record supports a finding of an implied denial of appellant's motion. Cf. Flores v. State, 888 S.W.2d 193, 196 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd) (holding that signed docket entry evidences trial court's ruling on motion to suppress evidence even where denial of motion to suppress appears nowhere else in record). Next, the State argues that appellant presents nothing for review because he "failed to establish a warrantless search or seizure and therefore failed to meet his initial burden of proof." The State also asserts that appellant failed to timely object to his continued detention or the search of his home. A defendant seeking to suppress evidence on the basis of a Fourth Amendment violation must allege the basis for a Fourth Amendment claim, such as that the search or seizure occurred without a warrant. Russell v. State, 717 S.W.2d 7, 9 (Tex.Crim.App. 1986). The State must then establish either that the search or seizure was performed under the authority of a warrant or that the warrantless search or seizure was reasonable. Id. at 10; State v. Mercado, 972 S.W.2d 75, 78 (Tex.Crim.App. 1998). Here, the record reveals that appellant moved to suppress "any and all evidence obtained as a result of [appellant's] illegal, warrantless arrest." Moreover, at the hearing on the motion to suppress, the testimony of all the witnesses showed that appellant's truck and residence were searched as a result of appellant's consent and not the result of a warrant. Furthermore, at the conclusion of the motion to suppress hearing, appellant's trial counsel stated "[m]y argument would be simply at the time that Officer DeBlanc initially detained [appellant], . . . he did not have a reasonable suspicion based or articulable facts, which taken with rational inferences from those facts would give him reasonable suspicion." Counsel further asserted that "the consent to search the residence was not voluntary and that taint from the illegal detention was not attenuated." As the lawfulness of appellant's detention and search as well as the voluntariness of his consent were the main issues contested at the suppression hearing, we conclude that appellant has preserved these issues for appellate review. See Gallups v. State, 151 S.W.3d 196, 198 n. 1 (Tex.Crim.App. 2004) (holding that issue of consent was not waived because, though not included in defendant's written motion to suppress, consent "was main issue litigated at the suppression hearing," and stating that "we may . . . look to the issue actually litigated at a suppression hearing to determine what issues and claims were preserved"). Illegal Search and Seizure
In his two points of error, appellant argues that the trial court erred in denying his motion to suppress evidence because he was unlawfully detained without reasonable suspicion or probable cause. Appellant contends that "no reasonable suspicion for his further detention existed after a negative search of his vehicle and he should have been released." Appellant also contends that "there is insufficient evidence in the record to demonstrate that the consent was either voluntary or the independent act of free will." Reasonable Suspicion In general, a police officer's decision to stop an automobile is reasonable when the officer has probable cause to believe that a traffic violation has occurred. Walter v. State, 28 S.W.3d 538, 540 (Tex.Crim.App. 2000) (citing Whren v. United States, 517 U.S. 806, 810, 116 S. Ct. 1769, 1772 (1996)). With the presence of an objectively valid reason for stopping a car such as a traffic violation, the constitutional reasonableness of a traffic stop does not depend on the actual motivations of the individual officer involved. See Whren, 517 U.S. at 813, 116 S. Ct. at 1774. During this process, the officer may ask a motorist routine questions and the officer may act on whatever information is volunteered. Mohmed v. State, 977 S.W.2d 624, 628 (Tex.App.-Fort Worth 1998, pet. ref'd). If the responses of the detainee to the officer's questions and the totality of the circumstances give rise to suspicions unrelated to the traffic offense, an officer may broaden his inquiry and satisfy those suspicions. See Powell v. State, 5 S.W.3d 369, 378-79 (Tex.App.-Texarkana 1999, pet. ref'd). An investigative detention following a traffic stop "may last as long as is reasonably necessary to effectuate the purpose of the stop, including the resolution of reasonable suspicion." United States v. Brigham, 382 F.3d 500, 512 (5th Cir. 2004) (quoting United States v. Sharpe, 470 U.S. 675, 686, 105 S. Ct. 1568, 1575 (1985)). Reasonable suspicion exists if the officer has specific articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably suspect that a particular person has engaged, is engaged, or will soon engage in criminal activity. Garcia v. State, 43 S.W.3d 527, 530 (Tex.Crim.App. 2001). An officer may also draw upon his experience and training to assess the existence of reasonable suspicion. See United States v. Arvizu, 534 U.S. 266, 273, 122 S. Ct. 744, 751-52 (2002). Here, DeBlanc testified that he saw appellant commit the offense of turning without signaling and thus, he had probable cause to arrest or detain appellant for that offense. See Atwater v. City of Lago Vista, 532 U.S. 318, 121 S. Ct. 1536, 1557 (2000); State v. Gray, 158 S.W.3d 465, 469-70 (Tex.Crim.App. 2005). Appellant had also arrived at a location that was under surveillance in connection with an undercover narcotics investigation. DeBlanc explained that "based on [his] education, training, and experience, sometimes another person brings the drugs, the big quantity of drugs [to a narcotics buy]." At that point, it was not unreasonable for DeBlanc to ask appellant questions to determine his identity and to try to obtain information confirming or dispelling any suspicions DeBlanc may have had concerning whether appellant was engaged in, or soon would engage in criminal activity. See Davis v. State, 947 S.W.2d 240, 244 (Tex.Crim.App. 1997). Moreover, DeBlanc testified that appellant was "extremely nervous" and "very evasive" when he began to question him about the nature of his visit to the Lapstone residence. Although appellant stated that he was there to deliver something to the residence, he had nothing with him and stated that he did not know anybody there. While DeBlanc was conducting his initial investigation, Harold arrived, and DeBlanc's interview of Harold revealed inconsistencies in appellant's story. At that point, DeBlanc contacted Vanderberry to continue the investigation. DeBlanc stated that he detained appellant for "maybe five to ten minutes" before receiving information from Officer Vanderberry through Luzmarina that appellant was "an ounce purchaser of cocaine." At the suppression hearing, DeBlanc explained that the reason for his continued detention of appellant was a combination of the traffic violation, appellant's arrival at "a dope location that we had under surveillance," appellant's misrepresentations regarding his knowledge of and relationship with individuals at the residence, and Vanderberry's statement that the detained target of the narcotics investigation had told officers that appellant was a "purchaser of ounces of cocaine." When Vanderberry arrived at the Lapstone location, he told appellant, "we know what [is] going on," and appellant admitted that he buys cocaine from Luzmarina. Vanderberry explained that he continued to detain appellant, even after a negative search of his truck, because appellant told Vanderberry that "he had dope in his residence." Vanderberry testified that it was soon after the search of appellant's truck that appellant consented to the search of his home. As noted, an officer is entitled to rely on all of the information obtained during the course of his contact with the citizen in developing the articulable facts which would justify a continued investigatory detention. Mohmed, 977 S.W.2d at 628. Here, after the initial traffic stop, the facts obtained by DeBlanc and Vanderberry during their investigations justified the continued investigative detention of appellant. Voluntariness of Search A search after voluntary consent is not unreasonable. See Reasor v. State, 12 S.W.3d 813, 818 (Tex.Crim.App. 2000). When the State is relying upon consent to excuse the warrant requirement, it must prove by clear and convincing evidence that the defendant gave his consent freely and voluntarily. Corea, 52 S.W.3d at 315-16. Hence, the State must show that the consent was positive and unequivocal and not merely an acquiescence to a claim of lawful authority. Id. Here, Vanderberry testified that appellant told him that "he had dope at his residence." In contrast, appellant asserted that he agreed to give consent to search his home only after the officers made coercive threats. When asked whether he had told appellant that he would "not involve his wife" if appellant consented to a search of his home, Vanderberry testified, "[t]hat [was] not correct." Vanderberry also denied telling appellant that he would tell the district attorney about appellant's cooperation if he consented to the search of his home. Testimony by law enforcement officers that no coercion was involved in obtaining the consent is evidence of the consent's voluntary nature. Martinez v. State, 17 S.W.3d 677, 683 (Tex.Crim.App. 2000). It is the trial court's prerogative to resolve any inconsistencies and conflicts within the evidence. See id. "Appellate courts . . . 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." Guzman, 955 S.W.2d at 89. Giving almost total deference to the trial court's evaluation on the credibility and demeanor of the witnesses in this case, the trial court was free to disregard appellant's testimony and believe the police officers. See Martinez, 17 S.W.3d at 683. Viewing the totality of the circumstances surrounding the statement of consent, we conclude that the record supports a finding that appellant's consent was freely and voluntarily given. Given the above evidence, the trial court could have reasonably concluded that appellant was not unlawfully detained and that appellant voluntarily consented to the search of his residence. Accordingly, we hold that the trial court did not abuse its discretion in denying appellant's motion to suppress evidence.We overrule appellant's two points of error. Conclusion
We affirm the judgment of the trial court.