Nos. 05-08-01291-CR, 05-08-01292-CR
Opinion Filed February 4, 2010. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the Criminal District Court No. 1, Dallas County, Texas, Trial Court Cause Nos. F08-55335-NH and F08-55336-NH.
Before Justices FITZGERALD, MURPHY, and MYERS.
Opinion By Justice MYERS.
Roberto Perez pleaded guilty to two aggravated robbery indictments and was sentenced to concurrent terms of eight years in prison. In two issues, he argues the trial court erred by denying his motions to suppress. We affirm the trial court's judgments.
Background
At the hearing before the trial court on appellant's motions to suppress, Dallas Police Department Officer Jeffrey Eggleston testified that, at approximately 1:00 a.m. on May 10, 2008, he was flagged down by a person who told him that he had been robbed at gunpoint by "two Latin males" armed with a shotgun. They were driving a 1990s model red Ford F-150 pickup truck. The robbery was committed in the vicinity of the Pines Point Apartments, near Webb Chapel Road and Northwest Highway. This was one of two armed robberies committed in the area of the Pines Point Apartments that night by two suspects in a red Ford pickup truck. The police did not locate either the suspects or their vehicle that evening. On May 11, 2008, Eggleston was on patrol with his partner in a marked police vehicle. At approximately 1:30 a.m., they received a dispatch regarding a "suspicious person" at an apartment complex located at 3246 Chapel Creek, which is near Webb Chapel Road. The initial call indicated that "two Latin males" in a red Ford pickup truck were behaving suspiciously near the laundry room of the apartment complex. The telephone call was made by an anonymous source at the apartment complex. At 1:32 a.m., two police units responded to the dispatch. The telephone caller, who remained on the line with the dispatcher, reported that the "two Latin males" saw the police and moved to an apartment complex across the street. The caller also reported that the two males in the red Ford pickup were the same two men who had assaulted a neighbor the previous day. Eggleston and his partner were on patrol nearby, and they arrived quickly at the apartment complex. When they pulled into the parking lot they noticed several red pickups, but none that matched the description of the vehicle they were attempting to locate. The officers drove through the parking lot, exited onto Chapel Creek, then circled around to the entrance on Webb Chapel Road. Eggleston testified that there had been a number of robberies, burglaries, and vehicle burglaries in that area. When they entered the apartment complex, they saw a truck that matched the description of the suspect vehicle roll very slowly through the parking lot towards them. It was moving more slowly than a car would normally drive through a parking lot. The officers could see "two Latin males" in the truck. The patrol car and the Ford pickup truck passed each other in the parking lot. Eggleston then pulled forward and made a u-turn to follow the truck. The officers saw the truck speed up noticeably, move rapidly over some speed bumps, drive behind some apartments, and then pull quickly into a parking space. The officers finished their turn and pulled up behind the pickup truck, which was now parked. The officers got out of their patrol car and walked towards the truck, with Eggleston approaching the driver's side and his partner approaching the passenger's side of the vehicle. The officers ordered the men out of the red Ford and conducted a Terry frisk for weapons. During the pat-down of the driver, who was later determined to be appellant, Eggleston felt what he immediately recognized as a shotgun shell in appellant's pocket. After finding the shotgun shell, he asked appellant if he had "anything that goes along with this, like a shotgun?" The passenger stated they had a shotgun "under the seat" of the truck. Officer Eggleston seized the shotgun for officer safety. The shotgun contained live rounds. A subsequent search of the vehicle revealed other items that were connected to the robbery. DiscussionTerry Stop
Appellant claims in his first issue the trial court erred by denying his motions to suppress because the officers lacked the reasonable suspicion necessary to justify the initial investigatory detention of appellant and his passenger.Standard of Review We review a trial judge'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); Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005); Randolph v. State, 152 S.W.3d 764, 769 (Tex. App.-Dallas 2004, no pet.). This standard of review gives almost total deference to a trial court's determination of historical facts, particularly when the trial court's fact findings are based on an evaluation of credibility and demeanor. See St. George, 237 S.W.3d at 725; Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997); Randolph, 152 S.W.3d at 769. We afford the same deference to mixed questions of law and fact if resolving those questions turns on an evaluation of credibility and demeanor. Guzman, 955 S.W.2d at 89. We apply a de novo review to mixed questions of law and fact not turning on an evaluation of credibility and demeanor. St. George, 237 S.W.3d at 725; Guzman, 955 S.W.2d at 89; see also State v. West, 20 S.W.3d 867, 870-71 (Tex. App.-Dallas 2000, pet. ref'd). When, as in this case, the trial court does not make explicit findings of fact, 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 that are supported by the record. Ford, 158 S.W.3d at 493. We will uphold the trial judge's decision provided it is correct under some theory of law applicable to the case. See St. George, 237 S.W.3d at 725; Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003); State v. Ross, 32 S.W.3d 853, 855-56 (Tex. Crim. App. 2000). Applicable Law When a police officer stops a defendant without a warrant, the State has the burden at a suppression hearing of proving the reasonableness of the stop. Ford, 158 S.W.3d at 492. Under the Fourth Amendment to the United States Constitution, an officer is justified in detaining a person for investigative purposes if the officer has a reasonable suspicion of criminal activity, even if the officer lacks probable cause. Woods v. State, 956 S.W.2d 33, 35 (Tex. Crim. App. 1997) (citing Terry v. Ohio, 392 U.S. 1, 29 (1968)). "Reasonable suspicion exists if the officer has specific, articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably conclude that a particular person actually is, has been, or soon will be engaged in criminal activity." Castro v. State, 227 S.W.3d 737, 741 (Tex. Crim. App. 2007); Brother v. State, 166 S.W.3d 255, 257 (Tex. Crim. App. 2005); Woods, 956 S.W.2d at 38. In determining what constitutes reasonable suspicion, "[w]e look only at those facts known to the officer at the inception of the stop-a stop or search unlawful at its inception may not be validated by what it turns up." State v. Griffey, 241 S.W.3d 700, 704 (Tex. App.-Austin 2007, pet. ref'd). The reasonableness of a temporary detention is examined in terms of the "totality of the circumstances" at its inception. See Woods, 956 S.W.2d at 38; Griffey, 241 S.W.3d at 703-04. We are not to consider individual circumstances in isolation, and the facts known to the officer must amount to something more than an inchoate and unparticularized suspicion or hunch. Woods, 956 S.W.2d at 35. The Supreme Court has explained that individual factors "quite consistent with innocent travel" may collectively amount to reasonable suspicion. See United States v. Arvizu, 534 U.S. 266, 274-75 (2002) (quoting United States v. Sokolow, 490 U.S. 1, 9 (1989)). The factual basis for stopping a vehicle need not arise from the officer's personal observation, but may be supplied by information from another person. Brother, 166 S.W.3d at 257. The reliability of a citizen-informant is generally shown by the very nature of the circumstances under which the incriminating information became known to him or her. Id. at 258. A stop based on facts supplied by a citizen-eyewitness, which are adequately corroborated by the arresting officer, does not violate the Fourth Amendment. Id. at 259. Corroboration does not mean the officer must personally observe the conduct that causes him to reasonably suspect a crime is being, has been, or is about to be committed. Id. at 259 n. 5. "To require officers who are appraised of detailed facts from citizen-eyewitnesses to observe suspects and wait until additional suspicious acts are committed, would be foolish and contrary to the balance of interests struck in Terry and its progeny." Id. "Rather, corroboration refers to whether the police officer, in light of the circumstances, confirms enough facts to reasonably conclude that the information given to him is reliable and a temporary detention is thus justified." Id. We distinguish information provided by an identified citizen from information from a purely anonymous tip. See Florida v. J.L., 529 U.S. 266, 270 (2000) (anonymous 911 telephone call lacked sufficient indicia of reliability for showing reasonable suspicion where caller reported that young man standing at particular bus stop wearing plaid shirt was carrying a gun). A tip by an unnamed informant of undisclosed reliability may justify initiation of an investigation but, standing alone, it rarely establishes the requisite level of suspicion necessary to justify an investigative detention. See id. at 269-70; Alabama v. White, 496 U.S. 325, 329 (1990); Johnson v. State, 146 S.W.3d 719, 721 (Tex. App.-Texarkana 2004, no pet.); Stewart v. State, 22 S.W.3d 646, 648 (Tex. App.-Austin 2000, pet. ref'd). However, there are situations in which the anonymous tip, suitably corroborated, exhibits sufficient indicia of reliability from which a police officer may reasonably conclude that a detention is justified. J.L., 529 U.S. at 270. The corroboration of details that do not indicate criminal activity will not lend support to the anonymous tip. See Johnson, 146 S.W.3d at 721; Stewart, 22 S.W.3d at 648. If it is to provide reasonable suspicion for a Terry investigatory stop, the anonymous tip must prove reliable in its assertion of unlawful conduct, not just in its tendency to identify a particular person. See J.L., 529 U.S. at 272; Johnson, 146 S.W.3d at 721. Analysis Appellant claims the anonymous tip in this case was too vague and lacked any predictive information, and, therefore, pursuant to the Supreme Court's opinion in J.L., the trial court should have held the detention based on the anonymous tip illegal and granted the motions to suppress. However, the investigative detention in this case was not based solely upon an anonymous tip. According to the record, Officer Eggleston had been working in the Webb Chapel area for over eighteen years and was familiar with the area and the apartment complexes at issue. At the time the officers were dispatched to investigate suspicious activity at an apartment complex involving "two Latin males" in a red Ford F-150 pickup truck, the officers were also aware that "two Latin males" in a red 1990s model Ford F-150 pickup truck had committed two robberies with a shotgun the night before. Both of these robberies occurred in the same general area as the suspicious activity at the apartment complex. When Eggleston first saw appellant he was driving through the parking lot of the apartment complex at a very slow rate of speed. Eggleston was aware that there had been numerous burglaries, robberies, and vehicle burglaries in that area. The suspect vehicle's slow rate of speed, coupled with the high crime location and the time of night, supported an inference that appellant and his passenger were looking for a vehicle to burglarize or a potential robbery victim. Once appellant noticed the patrol car, he sped up, moved rapidly over some speed bumps, turned a corner, and quickly pulled into a parking spot. This was also suspicious activity. The information in the officer's possession, coupled with his experience and his observations of appellant's behavior both before and after he noticed the police vehicle, provided Eggleston with reasonable suspicion to justify a temporary investigatory detention. We therefore overrule appellant's first issue. Terry Frisk
In his second issue, appellant claims Eggleston exceeded the scope of a Terry frisk for weapons when he seized the shotgun shell. The State argues that appellant failed to preserve error on this claim and, furthermore, that the officer's discovery and seizure of the shotgun shell did not exceed the scope of a valid Terry frisk. Preservation Appellant filed a motion to suppress in each case asserting that the evidence should be suppressed because it was discovered pursuant to an illegal, warrantless seizure. The trial court heard the motions in a single proceeding. At the close of evidence, appellant stated that he was only contesting the initial stop by the police and not anything that occurred afterwards. Appellant did not challenge the Terry frisk and did not object that the discovery of the shotgun shell in appellant's pocket exceeded the proper scope of a Terry frisk. To preserve error in the trial court for appeal, a party must have presented a specific objection at trial to the error asserted on appeal. See Tex. R. App. P. 33.1(a)(1); Martinez v. State, 17 S.W.3d 677, 682-83 (Tex. Crim. App. 2000); Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990). "An objection stating one legal basis may not be used to support a different legal theory on appeal." Rezac, 782 S.W.2d at 870. Doing so results in procedural default through the failure to preserve the asserted error on appeal. See Martinez, 17 S.W.3d at 683; Williams v. State, 883 S.W.2d 317, 320 (Tex. App.-Dallas 1994, pet. ref'd). Appellant's second issue does not comport with his motion to suppress or any other objection in the trial court. Accordingly, he failed to preserve the error asserted on appeal. Analysis Moreover, even if we were to conclude appellant's second issue was preserved for appellate review, the argument fails on the merits. Terry provides that an officer may conduct a limited search of the detainee's outer clothing for weapons when specific and articulable facts lead him to reasonably conclude the person is armed and dangerous. Terry, 392 U.S. at 19-20. Under the plain-feel doctrine, if a police officer lawfully pats down a suspect's outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there is no invasion of the suspect's privacy beyond that already authorized by the officer's search for weapons under Terry. Minnesota v. Dickerson, 508 U.S. 366, 375-76 (1993). Appellant claims Eggleston exceeded the permissible scope of a Terry search. Appellant argues it is unreasonable to believe the officer should have been able to recognize the contours of a shotgun shell merely by patting down appellant's outer clothes, but Eggleston testified that he immediately recognized the object was a shotgun shell. The trial court could have concluded that an experienced law enforcement officer, who is required as a part of his job to be familiar and proficient with firearms, would recognize ammunition. Because the officer was able to immediately identify the shotgun shell in the course of conducting a Terry frisk, the seizure of that shell did not constitute a constitutional violation and the trial court correctly denied appellant's motion to suppress the evidence obtained as a result of the seizure. We overrule appellant's second issue. We affirm the trial court's judgments.