No. 13-03-00039-CR
Memorandum Opinion delivered and filed July 22, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On appeal from the 178th District Court of Harris County, Texas.
Before Chief Justice VALDEZ and Justices HINOJOSA and CASTILLO.
FEDERICO G. HINOJOSA, Justice.
Appellant, John Phillip Pineda, was charged by indictment with the offense of possession of a controlled substance with intent to deliver. After a pretrial hearing, the trial court denied appellant's motion to suppress the co-defendant's oral statement and evidence obtained from that statement. Appellant then pleaded guilty without a plea agreement. The trial court deferred adjudication and placed appellant on community supervision for a term of ten years. As a condition of community supervision, the trial court assessed a $2,000 fine and ordered appellant to serve thirty days in jail. The trial court has certified that this "is not a plea-bargain case, and the defendant has the right of appeal." See Tex.R.App.P. 25.2(d). In his sole point of error, appellant contends the trial court erred in denying his motion to suppress. We affirm.
A. Factual Background
On July 25, 2001, Officer Dale Scott Crawford of the Houston Police Department conducted a narcotics investigation based on information received from a confidential informant. The informant had ordered and arranged to purchase 300 tablets of Ecstasy at 4:30 p.m. at the Shell gas station located in west Houston, at the corner of Westheimer and Beltway 8. The informant told Crawford that two males would be in a red Honda Civic and gave the name of the co-defendant, Quinsaat. The informant gave Crawford the license plate number of the vehicle and told him that appellant and the co-defendant would be in possession of the Ecstasy. This informant had provided information to Crawford on previous occasions and the information had proved to be credible and reliable. Officers set up surveillance at the Shell station and at approximately 4:30 p.m., a vehicle matching the description provided by the informant arrived at the station. The informant walked up to the vehicle and met with the occupants of the vehicle. After meeting with the occupants, the informant returned to his own vehicle, and both vehicles left the station. Officer Crawford then called the informant, and the informant advised him that the Ecstasy tablets were inside the red Honda Civic. In an unmarked vehicle, Crawford followed behind until he observed the red Honda Civic change lanes without signaling. He then notified Officer Jesse Fite of the Houston Police Department. Officer Fite and Agent Mark Saltarelli of the Immigration and Naturalization Service were riding in a marked patrol car in the Galleria area as part of the narcotics investigation when they received Officer Crawford's call. Crawford gave the officers a description of the vehicle and told them that it had failed to signal a lane change. Fite and Saltarelli were several car lengths behind appellant's vehicle at the time. Fite pursued the vehicle and personally observed it moving back and forth between the lanes of traffic without signaling. Fite then initiated a traffic stop. After Officer Fite stopped the vehicle, he approached the driver's side of the vehicle, where he met appellant. Fite asked for and received appellant's driver's license and proof of insurance. At the same time that Fite approached appellant, Saltarelli approached the passenger side of the vehicle for officer-safety purposes. There, he met co-defendant Marvin Charles Quinsaat and asked him for identification. Quinsaat handed Saltarelli his Philippine birth certificate. Saltarelli then asked Quinsaat what his status was in the United States, and Quinsaat replied that he had come to the United States on a visitor's visa but he had overstayed his visa. Saltarelli then placed Quinsaat under arrest for immigration violation and overstay. Saltarelli did not give Quinsaat his Miranda warnings at that time. Upon taking him into custody, Saltarelli asked Quinsaat if he had anything on his person that Saltarelli needed to know about. Quinsaat said he had 300 tablets of Ecstasy under the front passenger's seat of the vehicle. Saltarelli recovered the Ecstasy from underneath the front passenger's seat, and appellant and Quinsaat were placed under arrest for possession of a controlled substance. B. Standard of Review
The standard of review for a trial court's ruling on a motion to suppress is abuse of discretion. Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000). The trial court is the sole trier of fact and judge of the credibility of the witnesses and weight to be given their testimony, and the reviewing court may not disturb supported findings of fact absent an abuse of discretion. State v. Ballard, 987 S.W.2d 889, 891 (Tex.Crim.App. 1999). When an appellate court reviews a motion to suppress, it gives great deference to the trial court's determination of historical facts when those fact findings involve an evaluation of the credibility and demeanor of the witnesses. Maestas v. State, 987 S.W.2d 59, 62 (Tex.Crim.App. 1999); Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). Mixed questions of law and fact that do not turn on an evaluation of credibility and demeanor are reviewed de novo. Guzman, 955 S.W.2d at 89. We will sustain the trial court's ruling admitting the evidence if the ruling is reasonably supported by the record and correct on any theory of law applicable to the case. Willover v. State, 70 S.W.3d 841, 845 (Tex.Crim.App. 2002). C. Motion to Suppress
In his sole point of error, appellant contends the trial court erred in denying his motion to suppress Quinsaat's oral statement because it was obtained pursuant to an illegal custodial interrogation, and the evidence discovered during the search of the appellant's vehicle was the fruit of the illegally obtained statement. The State asserts that Quinsaat's statement to the officer's routine question was res gestae to his arrest. In the alternative, the State argues that based on the information provided by the confidential informant, probable cause existed to believe Ecstasy was contained in the vehicle, independent of Quinsaat's oral statement. D. Analysis
A valid plea of guilty or nolo contendere waives or forfeits the right to appeal a claim of error only when the judgment of guilt was rendered independent of, and is not supported by, the error. Young v. State, 8 S.W.3d 656, 667 (Tex.Crim.App. 2000). Where error is predicated on the denial of a motion to suppress, as here, the judgment is not independent of the alleged error and is reviewable. See Jordan v. State, 112 S.W.3d 345, 347 (Tex.App.-Corpus Christi 2003, pet. ref'd); Ramirez v. State, 89 S.W.3d 222, 232 (Tex.App.-Corpus Christi 2002, no pet.); Guerrero v. State, 64 S.W.3d 436, 440 (Tex.App.-Waco 2001, no pet.) (per curiam). An accused seeking to suppress evidence on the basis of illegal police conduct bears the burden of proof to rebut the presumption of proper conduct. See McGee v. State, 105 S.W.3d 609, 613 (Tex.Crim.App. 2003). The accused may satisfy this burden by establishing that the police acted without a warrant. Id. The burden then shifts to the State to either produce evidence of a warrant or prove the reasonableness of the challenged conduct. Id. If the State produces a warrant, the burden of proof again shifts to the accused to show the invalidity of the warrant. Russell v. State, 717 S.W.2d 7, 9-10 (Tex.Crim.App. 1986) (op. on reh'g). If the State is unable to produce a warrant, it must prove reasonableness of the search and seizure. Id. The State may demonstrate reasonableness by proving probable cause. See McGee, 105 S.W.3d at 613 (noting that State meets burden in suppression hearing by proving one of statutory exceptions to warrant requirement contained in article 14.01 of code of criminal procedure). The State must prove probable cause by a preponderance of the evidence. Perez v. State, 130 S.W.3d 881, 885 (Tex.App.-Corpus Christi 2004, no pet.). Whether Quinsaat's oral statement was the product of an illegal custodial interrogation may be determined by resolving whether Saltarelli's question was interrogation; and if it was interrogation, whether Quinsaat's response was relevant to the question. Statements and evidence obtained as a result of a custodial interrogation are inadmissible unless the State can prove that procedural safeguards were employed to prevent self-incrimination. Miranda v. Arizona, 384 U.S. 436, 444 (1966); see Tex. Code Crim. Proc. Ann. art. 38.22, § 3 (Vernon Supp. 2004). Custodial interrogation means questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. Miranda, 384 U.S. at 444. Interrogation refers not only to express questioning, but also to any words or actions on the part of the police — other than those normally attendant to arrest and custody — that the police should know are reasonably likely to elicit an incriminating response from the suspect. Jones v. State, 795 S.W.2d 171, 174 (Tex.Crim.App. 1990). Routine questions incident to arrest, broad general questions, and questions mandated by public-safety concerns do not constitute interrogation. Id. Salteralli testified that he did not give Quinsaat his Miranda rights when he arrested him and took him into custody. Saltarelli asked Quinsaat if he had anything on his person that he needed to know about. Saltarelli testified that he generally asks suspects if they have guns or bombs or anything of that nature on their person. The trial judge found it was preferable for an officer to ask a suspect this question, which would give the suspect an opportunity to relinquish anything before being searched. Under these facts, we conclude that Agent Saltarelli's question was not interrogation, but a routine question attendant to arrest and custody. Therefore, we hold that Quinsaat's oral statement, and evidence derived from that statement, are not the products of an illegal custodial interrogation. Moreover, the police officers had probable cause for a warrantless arrest and search of appellant's vehicle independent of Quinsaat's statement. Probable cause to make the arrest may arise from information supplied by a confidential informant provided the information is corroborated. Johnston v. State, 99 S.W.3d 269, 272 (Tex.Crim.App. 2003). Under a totality of the circumstances test, an informant's veracity, reliability, and basis of knowledge are relevant in determining whether there is a fair probability that contraband will be found in a particular location. Rodriguez v. State, 838 S.W.2d 780, 782 (Tex.App.-Corpus Christi 1992, no pet.). One way of proving an informant's reliability is to show that the informant has provided truthful information in the past. Id. When an informant has given reliable and credible information in the past, and all of the details of the informant's tip are corroborated except the question of whether the accused was carrying the controlled substance, the police have probable cause to arrest and search the accused under the totality of the circumstances test. Whaley v. State, 686 S.W.2d 950, 951 (Tex.Crim.App. 1985). Officer Crawford testified that the confidential informant had provided information to him on previous occasions and this information had proved to be credible and reliable. In this case, the informant said he had ordered 300 tablets of Ecstasy from two males. In addition, he described the location of the drug transaction in detail, i.e., when it would take place — 4:30 p.m. — and where it would take place — the Shell gas station at the corner of Westheimer and Beltway 8. He described the make, model, and color of the appellant's car and stated that two males would be occupying the car. When Officer Crawford and his team set up surveillance at the gas station, at approximately the same time that the transaction was scheduled to take place, a car matching the informant's description with two male occupants drove into the gas station. Officer Crawford witnessed the informant approach the vehicle and talk with appellant and the co-defendant. He then witnessed the informant and appellant and the co-defendant drive away from the gas station; and after calling the informant, the informant confirmed that the Ecstasy tablets were in the vehicle. Thus, under the totality of the circumstances, we conclude that the information supplied by the confidential informant was corroborated; giving the officers probable cause for a warrantless arrest and search of appellant's vehicle. Accordingly, we hold the trial court did not err in denying appellant's motion to suppress. Appellant's sole point of error is overruled. The judgment of the trial court is affirmed.