Opinion
No. 01-03-00798-CR
Opinion Issued November 18, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 232nd District Court Harris County, Texas, Trial Court Cause No. 936239.
Panel consists of Justices TAFT, JENNINGS, and BLAND.
MEMORANDUM OPINION
The State charged appellant David Lopez with the felony offense of possession of cocaine, a controlled substance, with intent to deliver. Lopez moved to suppress evidence of the cocaine, and after an evidentiary hearing, the trial court overruled the motion. Lopez then waived his privilege against self-incrimination, his right to a trial by jury, and his right to confrontation. He entered into a stipulation of evidence, and pleaded not guilty. Based upon the stipulation, the trial court convicted Lopez and sentenced him to fifteen years' confinement and a fine of $100. Lopez contends that the trial court erred in denying his motion to suppress because: (1) the State presented insufficient evidence to demonstrate the reliability of its confidential informant; and (2) he did not voluntarily consent to the search of his vehicle. We affirm.
See Tex Health Safety Code Ann. § 481.112(f) (Vernon 2003). The indictment alleges that Lopez possessed at least 400 grams of cocaine.
Background
On January 15, 2003, a confidential informant told Officer Isaac Villareal of the Pasadena Police Department that an unspecified amount of cocaine would be transported in a red Dodge Dakota truck, then located at a Burger King on Kleckey Drive in Harris County. Villareal found the truck, and followed it as it traveled onto Interstate 45 and into the City of Houston. Villareal requested that uniformed Houston Police Department ("HPD") officers stop the vehicle because the vehicle had entered the City of Houston. Villareal followed the vehicle onto Loop 610 East, and then onto Interstate 10 East. HPD Officer Brian Davis observed the truck traveling on Interstate 10 East and approaching Uvalde. After Officer Davis observed Lopez change lanes illegally, he initiated a traffic stop. Officer Davis placed Lopez in his patrol car and ran a check of his criminal record. He discovered that Lopez was the subject of outstanding warrants with the City of Houston and placed him under arrest. Two additional HPD officers arrived shortly after Davis stopped Lopez's truck. Because Lopez had stopped his truck on the Interstate 10 shoulder, HPD Officer Eli Zepeda drove the truck off of the interstate, and into a McDonald's parking lot. Officer Villareal informed Lopez that the officers were conducting a narcotics investigation, and obtained Lopez's consent to search the truck. A narcotics dog alerted to a car battery located in the bed of the truck. The officers opened the battery and found three kilograms of cocaine wrapped in duct tape and grease.Standard of Review
In reviewing a trial court's ruling on a motion to suppress, we apply the bifurcated standard of review articulated in Guzman v. State, 955 S.W.2d 85 (Tex.Crim.App. 1997). We defer to a trial court's determination of historical facts, and review de novo the trial court's application of the law of search and seizure. Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000) (citing Guzman, 955 S.W.2d at 88-89). If the issue involves the credibility of a witness, we give greater deference to a trial court's ruling, as a trial court is in a better position to evaluate the credibility of witnesses before it. Guzman, 955 S.W.2d at 87-89. If the trial court is called upon to apply the law to the facts, and the ultimate resolution of the issue does not turn on an evaluation of credibility and demeanor of a witness, we review that issue de novo. Id. at 89. If, as here, a trial court makes no express findings of fact, we review the evidence in a light most favorable to the trial court's ruling as long as evidence in the record supports it. Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App. 2002); Dominguez v. State, 125 S.W.3d 755, 762 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd).The Stop of Lopez's Truck
Relying on Smith v. State, 58 S.W.3d 784 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd) and Carmouche v. State, 10 S.W.3d 323 (Tex.Crim.App. 2000), Lopez contends that the trial court erred in denying his motion to suppress, "because the informant provided insufficient information to generate probable cause." Lopez contends that, because the State failed to demonstrate the reliability of the informant's information, the police could not, in analyzing the totality of the circumstances, have justifiably detained him. Lopez's reliance on Smith and Carmouche is misplaced. The State conceded in Smith that a traffic violation was not the basis for the stop; thus, the issue was whether the police had a reasonable suspicion to stop a vehicle, based solely upon information obtained from an informant. Smith, 58 S.W.3d at 787 n. 2. Although Officer Davis admitted that the information he received from Officer Villareal "precipitated" the stop, Davis nonetheless testified that he stopped Lopez because he changed lanes without signaling, in moderate to heavy traffic. See Tex. Transp. Code Ann. § 545.104(a) (Vernon 2003) (requiring operator to use authorized turn signal to indicate intent to turn, change lanes, or start from a parked position); Tex. Transp. Code Ann. § 542.301 (providing violation of provisions of Title 7, Subtitle C of the Texas Transportation Code is an offense). Based upon his observation, Texas law authorized Officer Davis to stop Lopez. See Armitage v. State, 637 S.W.2d 936, 939 (Tex.Crim.App. 1982) (violation of traffic law sufficient authority for officer to stop vehicle); Dogay v. State, 101 S.W.3d 614, 618 (Tex.App.-Houston [1st Dist.] 2003, no pet.) (stop justified based upon officer's observation of vehicle speeding and changing lanes without proper turn signal). Similarly, in Carmouche, the arresting officer observed a traffic violation and then initiated a traffic stop, although the information he had received was the underlying motive for the stop. Carmouche, 10 S.W.3d at 326. The Court of Criminal Appeals evaluated the reliability of the confidential informant and concluded that the stop was justified based upon the informant's tip. It further observed, however, that the officer "was also justified in stopping the Camry once he observed a violation of the traffic laws." Id. at 328 n. 6 (citing Whren v. United States, 517 U.S. 806, 812-814, 116 S. Ct. 1769, 1774 (1996)). The Court of Criminal Appeals thus held that as long as an actual violation occurs, law enforcement officials may enforce traffic laws and detain an individual for a traffic violation, irrespective of the officer's subjective reasons for the detention. Id.; see also Garcia v. State, 827 S.W.2d 937, 944 (Tex.Crim.App. 1992) (holding that "appropriate limitation of an officer's discretion," for purposes of Fourth Amendment to the United States Constitution, is existence of law and actual commission of offense; officer's subjective intent is relevant only to credibility determination of stated reasons for stopping or arresting individual). At the suppression hearing, Officer Davis testified that he observed Lopez change lanes on the interstate highway without signaling. The trial court could believe or disbelieve all or any part of a witness's testimony, and we defer to its determination of historical facts. See State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000); Carmouche, 10 S.W.3d at 327; King v. State, 35 S.W.3d 740, 742 (Tex.App.-Houston [1st Dist.] 2000, no pet.). We thus conclude that the trial court did not err in denying Lopez's motion to suppress on the basis that he was subjected to an illegal stop.Consent to Search the Vehicle
Lopez further contends that the trial court erred in denying his motion to suppress because he did not voluntarily consent to the search of his truck. A voluntary consensual search is an exception to the probable cause and warrant requirements of the Fourth Amendment to the United States Constitution and Article I, Section 9 of the Texas Constitution. Reasor v. State, 12 S.W.3d 813, 817 (Tex.Crim.App. 2000). The State has the burden to prove by clear and convincing evidence, that a suspect freely and voluntarily gave his consent. State v. Ibarra, 953 S.W.2d 242, 245 (Tex.Crim.App. 1997). We defer to the trial court for fact findings, and review de novo the legal question of whether consent was voluntary. Ross, 32 S.W.3d at 856. Consent must not be the product of duress or coercion, express or implied. Reasor, 12 S.W.3d at 817 (citing Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043 (1973)). It must be positive and unequivocal, not merely acquiescence to a claim of lawful authority. Carmouche, 10 S.W.3d at 331 (citing Bumper v. North Carolina, 391 U.S. 543, 548, 88 S. Ct. 1788, 1792 (1968)). The fact that a defendant is in custody does not, however, dictate that his consent is per se involuntary. Reasor, 12 S.W.3d at 817-18. Whether consent is voluntary is determined from the totality of the circumstances. Id. at 818; see also Ohio v. Robinette, 519 U.S. 33, 40, 117 S. Ct. 417, 421 (1996). Lopez cites Reasor v. State, 988 S.W.2d 877 (Tex.App.-San Antonio 1999, rev'd, 12 S.W.3d 813 (Tex.Crim.App. 2000), as support for his contention that he did not voluntarily consent to the Officer's search of his truck. Four police officers arrested Reasor at gunpoint, and had handcuffed him when he consented to a search of his residence. Reasor, 988 S.W.2d at 879-80. Moreover, Reasor gave his consent only after the police had searched his vehicle and found illegal drugs. Id. at 881. Finally the police already had entered Reasor's residence illegally to conduct a protective sweep, and obtained Reasor's consent to a search only after taking him inside his residence. Id. at 880. The San Antonio Court of Appeals concluded that the "coercive elements" present when Reasor signed his consent thwarted the State's attempt to show that the consent had been freely and voluntarily given. Id. at 881. Lopez fails to note, however, that the Texas Court of Criminal Appeals reversed Reasor on the issue of voluntary consent. See Reasor, 12 S.W.3d at 819. The Texas Court of Criminal Appeals observed that the police gave Reasor his Miranda warnings both at the time of his arrest and at the time he gave consent, that he signed a Miranda warning and consent to search form, and that the officers repeatedly warned him that he had the right to remain silent as he escorted the officers through his residence and disclosed the location of contraband. Id. at 818-19. The Texas Court of Criminal Appeals concluded, "[w]ith the many warnings given and an appellant who comprehended those warnings, the record demonstrates that [Reasor] understood his legal rights and chose not to assert them at that time." Id. at 819. At the hearing in this case, Officers Davis, Zepeda, and Villareal testified that Lopez voluntarily consented to the search of his truck. Officer Davis testified that Lopez willingly signed the consent form, and that no one threatened Lopez or otherwise forced him to sign the consent form. Officer Villareal testified that he obtained Lopez's consent to search the truck. He explained to Lopez that he was investigating for narcotics, and advised him that he was entitled to refuse to sign the form, as "it was voluntary." Officer Villareal confirmed that Lopez could read English, and then removed Lopez's handcuffs and allowed him to read the form. He also offered to answer any questions Lopez might have about the form. The consent form describes the object to be searched, identifies the persons to whom consent has been given to search, and states in pertinent part:I understand that I have the right to refuse to consent to the search described above and to refuse to sign this form. I further state that no promises, threats, force, or physical or mental coercion of any kind whatsoever have been used against me to get me to consent to the search described above or to sign this form.
Lopez testified that he read, understood, and signed the consent form. Officer Zepeda testified that he observed Villareal explain the consent form to Lopez, that Lopez appeared to sign the form freely and voluntarily, and that Lopez was not under any threat of force when he signed the form. Lopez testified that he was very cooperative during the encounter and wanted to "get along" with the police officers. He testified that Villareal neither screamed at him, nor drew his weapon. Although he "was intimidated, like kind of afraid" because of the number of police officers who responded to the scene and thought that Villareal was "a little bit rude," Lopez admitted that this was not his first time to be handcuffed, arrested, and placed in the back of a police car. Lopez was aware that he was not required to sign the consent form, and testified that he made that fact known to Villareal by telling him, "I don't have to sign it." Lopez nevertheless signed the form, explaining "[Villareal] said it doesn't matter, that he will get a warrant out for it anyway. So I signed it. I thought I had no choice." "An otherwise voluntary consent is not vitiated by the fact that an officer asserts that he could or would obtain a search warrant if consent is refused." Grant v. State, 709 S.W.2d 355, 357-58 (Tex.App.-Houston [14th Dist.]1986, no pet.) (citing Stephenson v. State, 494 S.W.2d 900, 904-05 (Tex.Crim.App. 1973)). Considering that Lopez read and understood the consent to search form, and that he testified that before he signed the form, he informed Villareal that he knew he was not required to sign it, we conclude that Villareal's representation that he would at some point search Lopez's vehicle, regardless of whether he consented, does not vitiate Lopez's otherwise voluntary consent. Like the trial court in Reasor, the trial court here was within its discretion to conclude that Lopez understood his legal rights and chose not to assert them. See Reasor, 12 S.W.3d at 819. Affording proper deference to the determination of the trial court, we hold that the trial court did not abuse its discretion in concluding that Lopez freely and voluntarily consented to the search of his vehicle. See id.