Opinion
No. 4-05-00178-CR
Delivered and Filed: November 9, 2005. DO NOT PUBLISH.
Appeal from the 187th Judicial District Court, Bexar County, Texas, Trial Court No. 2004-CR-4009, Honorable Raymond Angelini, Judge Presiding. Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Catherine STONE, Justice, Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
James Otis Moody was charged with the offense of possession of a controlled substance. Moody pleaded no contest to the alleged offense, and the trial court sentenced him to two years imprisonment and fined him $2,000. We affirm. Moody's court-appointed appellate attorney filed a brief containing a professional evaluation of the record and demonstrating that there are no arguable grounds to be advanced. Counsel concludes that the appeal is without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967). A copy of counsel's brief was delivered to Moody, who was advised of his right to examine the record and to file a pro se brief. Moody filed a pro se brief. In six issues, Moody asserts the court abused its discretion in denying his motion to suppress in violation of his federal and state constitutional rights. At the suppression hearing, the trial court heard testimony from Moody and his arresting officers. Officer Reynaldo Montes testified that he was on patrol when he noticed the vehicle in which Moody was a passenger stopped in front of a house known for narcotics trafficking. As Officer Montes passed the vehicle, the vehicle drove off in the opposite direction. Officer Montes made a U-turn and followed the vehicle. Officer Montes observed that the vehicle had a defective rear light and initiated a traffic stop. Officer Montes testified he requested identification from all of the vehicle's occupants upon stopping them. According to Montes, Moody provided the officer with his name and birth date. When he ran a computer search on Moody, he discovered Moody had several outstanding warrants for his arrest. Based on the information from the computer search, Officer Montes instructed one of the other officers at the scene, Kevin Dorsey, to place Moody under arrest. When Officer Dorsey searched Moody incident to the arrest, he found a rock of crack cocaine in Moody's front pocket. Moody's testimony at the suppression hearing differed significantly from that of the arresting officers. Moody testified that he never volunteered any of his personal information to the officers. He further stated that he never saw the officers conduct a computer search for outstanding warrants. According to Moody, he was immediately handcuffed and searched by the officers upon being stopped. Lastly, Moody testified that all of the vehicle's rear lights were functioning properly at the time of the stop. We apply a bifurcated standard of review to a trial court's ruling on a motion to suppress, giving almost total deference to the trial court's determination of historical facts and reviewing de novo the court's application of the law. Maxwell v. State, 73 S.W.3d 278, 281 (Tex.Crim.App. 2002). The trial court is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given to their testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000). Accordingly, the trial court may believe or disbelieve all or any part of a witness's testimony, even if the testimony is not controverted. Id. When, as here, the trial court does not make findings of fact, we view the evidence in the light most favorable to the court's ruling and assume that the court made implicit findings that support its ruling, provided those implied findings are supported by the record. Id. We will sustain the trial court's ruling if the ruling is correct on any theory of law applicable to the case. Id. at 855-56. Moody argues the cocaine evidence was obtained in violation of his constitutional rights because it was obtained without a search warrant pursuant to an illegal detention. Even if Moody was illegally detained by the arresting officers, the trial court still properly denied his motion to suppress. The fruit of the poisonous tree doctrine generally prohibits the use of evidence obtained following an illegal detention. Welcome v. State, 865 S.W.2d 128, 133 (Tex.App.-Dallas 1993, pet. ref'd). The attenuation doctrine, however, provides that evidence is admissible if the connection between the initial illegality and the means through which the evidence was secured is so attenuated as to dissipate the taint. Id. Evidence is not classified as a fruit requiring exclusion merely because it would not have been discovered "but for" the primary invasion. Reed v. State, 809 S.W.2d 940, 944 (Tex.App.-Dallas 1991, no pet.). The issue is whether the evidence was obtained by exploitation of the primary illegality or instead by means sufficiently distinguishable to be purged of the primary taint. Id. In cases with facts similar to the instant case, several courts have held that the discovery of an outstanding warrant during an illegal detention breaks the connection between the primary taint and the subsequently discovered evidence. See Fletcher v. State, 90 S.W.3d 419, 420 (Tex.App.-Amarillo 2002, no pet.); Sims v. State, 84 S.W.3d 805, 810 (Tex.App.-Houston [1st Dist.] 2002, no pet.); Welcome, 865 S.W.2d at 134; Reed, 809 S.W.2d at 947-48. For example, in Reed v. State, the Fifth Court of Appeals determined that officers had, in effect, arrested the defendant without probable cause when they took him from the scene of a suspected drug transaction to the police station for identification purposes. 809 S.W.2d at 944. The defendant provided the authorities with his personal information while at the station, and the officers discovered the defendant had outstanding arrest warrants. Id. at 943. The defendant was arrested pursuant to the warrants, and a search incident to arrest uncovered cocaine on his person. Id. The Fifth Court reasoned that, because the probable cause for the arrest warrants was determined independently and judicially before the illegal detention, the legal arrest of the defendant under the warrants purged the taint of any illegality of the initial arrest. Id. at 947-48. The same reasoning applies in the instant case. The discovery of the outstanding warrants and Moody's subsequent arrest under those warrants were intervening circumstances breaking the connection between the alleged illegal detention and the discovery of the crack cocaine. The trial court therefore did not abuse its discretion in denying Moody's motion to suppress. Based on the foregoing, we agree with Moody's attorney that the appeal is frivolous and without merit. The judgment of the trial court is therefore affirmed. Furthermore, we grant counsel's motion to withdraw. Nichols v. State, 954 S.W.2d 83, 86 (Tex.App.-San Antonio 1997, no pet.); Bruns v. State, 924 S.W.2d 176, 177 n. 1 (Tex.App.-San Antonio 1996, no pet.).
Moody did not argue or provide any authority that the Texas Constitution gives him greater protection than the Fourth Amendment of the United States Constitution.
Officer Dorsey confirmed Officer Montes's testimony that Moody was arrested pursuant to the outstanding arrest warrants.