Opinion
No. 4-05-00290-CR
Delivered and Filed: January 11, 2006. DO NOT PUBLISH.
Appeal from the County Court at Law No. 4, Bexar County, Texas, Trial Court No. 837211, Honorable Sarah Garrahan-Moulder, Judge Presiding. Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Catherine STONE, Justice, Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
Manuel Rodriguez was found guilty of unlawfully carrying a weapon and sentenced to sixty days in jail, probated for six months, fined $200, and given forty hours of community service. Rodriguez presents two issues on appeal. First, he claims the trial court abused its discretion in denying his motion to suppress evidence. Second, he contends the trial court improperly denied his request for an Article 38.23 jury instruction. We overrule these issues and affirm the trial court's judgment.
Background
On December 13, 2002, Rodriguez was leaving the funeral of a fellow Bandido motorcycle club member along with several other Bandidos members. These individuals were all traveling on motorcycles when one member hit a pothole causing a flat tire. Rodriguez and the other members pulled into a gas station located at the intersection of Interstate Highway 35 and Southcross Boulevard to fill the tire with air. Bexar County Sheriff Deputy Joseph Martinez was responding to another call when he arrived at the gas station. He parked his patrol car in front of the motorcycles, called in for backup assistance, then asked the individuals for identification. While Martinez was running identification checks, Deputy Raul Garza arrived in a patrol car and Deputy John Perez, along with his partner, arrived in another patrol car. Deputy Perez, a member of the Sheriff's gang unit, approached the Bandidos group, specifically Rodriguez, in order to gather gang intelligence. Upon making contact with Rodriguez, Deputy Perez viewed the handle of a pistol under Rodriguez's open vest. At this point, the deputies treated the scene as a felony stop. Rodriguez was placed in handcuffs and subsequently arrested for unlawfully carrying a weapon.Motion to Suppress
A. Standard of Review When reviewing a trial court's decision to deny a motion to suppress: 1) almost total deference is given to the trial court's findings of fact, especially when those findings involve the evaluation of a witness's credibility or demeanor; and 2) the trial court's application of the law to those facts is reviewed de novo. Guzman v. State, 955 S.W.2d 85, 87 (Tex.Crim. App 1997); State v. Arriaga, 5 S.W.3d 804, 804 (Tex.App.-San Antonio 1999, pet. ref'd). When the trial court fails to make findings of fact, as in the instant case, we view the evidence in a light most favorable to the court's ruling and assume the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record. Carmouche v. State, 10 S.W.3d 323, 328 (Tex.Crim.App. 2000).B. Encounter or Investigative Detention?
A police officer may stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion that some activity out of the ordinary is occurring or has occurred. Shaffer v. State, 562 S.W.2d 853, 855 (Tex.Crim.App. 1978). Thus, reasonable suspicion exists if the officer has specific articulable facts which, taken together with rational inferences from such facts, reasonably justify the officer to believe that a particular person has engaged or is engaging in a criminal activity. Terry v. Ohio, 392 U.S. 1, 21 (1968). Namely, reasonable suspicion is whether the facts available to the officer at the time of the detention warrant a person of reasonable caution to believe that the action taken was appropriate. Davis v. State, 947 S.W.2d 240, 243 (Tex.Crim.App. 1997). Rodriguez contends reasonable suspicion did not exist in order to justify the detention. Specifically, the deputies had no information concerning any suspicious or criminal activity concerning Rodriguez or any articulable facts which would reasonably justify the deputies' belief that Rodriguez was or had engaged in criminal activity. Rodriguez asserts the Bandidos' jackets were the only facts the deputies utilized to justify the detention. The State argues that reasonable suspicion was not required because this was not an investigative detention. Not all interactions between officers and citizens implicate the United States and Texas Constitutions. Terry, 392 U.S. at 19 n. 16. Three categories of interaction are recognized between officers and citizens: encounters, investigative detentions, and arrests. State v. Perez, 85 S.W.3d 817, 819 (Tex.Crim.App. 2002). Both an investigative detention and an arrest involve a seizure, and thus implicate the United States and Texas Constitutions and require a certain level of suspicion to justify the seizure. Moore v. State, 55 S.W.3d 652, 655 (Tex.App.-San Antonio 2001, no pet.) The State argues the interaction between the deputies and Rodriguez began as an encounter, and therefore, reasonable suspicion or probable cause was not a requisite to the interaction. We agree. To engage in an encounter with a citizen, an officer need not show any particular level of suspicion because the citizen is not under any obligation to continue the interaction with the officer. Reno v. State, 2001 WL 1526806, at *4 (Tex.App.-Tyler 2001, pet. ref'd). An officer may approach a citizen to ask questions, request identification, or even to request consent to search as long as the officers do not convey the message that compliance with their requests is required. Hunter v. State, 955 S.W.2d 102, 104 (Tex.Crim.App. 1997) (citing Florida v. Bostic, 501 U.S. 429, 434 (1991)). An encounter becomes an investigative detention only if a reasonable person would believe he or she was not free to go, and he or she has yielded to the officer's show of authority or has been physically forced to yield. Johnson v. State, 912 S.W.2d 227, 235 (Tex.Crim.App. 1995). We consider the following factors in making a determination whether the interaction was an encounter:1) whether the officer was in uniform;
2) whether the officer exhibited a weapon;
3) the number of officers present;
4) whether the officer told the defendant he would get a warrant if the defendant did not comply;
5) whether the officer told the defendant he believed the defendant was carrying drugs; and
6) whether the officer told the defendant compliance was required.Ramirez v. State, 2001 WL 664771, at *2 (Tex.App.-Houston [1st Dist.] 2001, no pet.) (mem. op.) (citing Henderson v. State, 965 S.W.2d 710, 712 (Tex.App.-Houston[1st Dist.] 1998, pet. ref'd)); see also State v. Velasquez, 994 S.W.2d 676, 679 (Tex.Crim.App. 1999) (analyzing whether the officers advised the suspect that he had the right to refuse consent to any questioning or a search is also a factor to consider for an encounter determination). Here, all four deputies were in uniform, and each was carrying his weapon; however, no deputy exhibited his weapon prior to finding a handgun in Rodriguez's possession. None of the deputies told Rodriguez they would obtain a warrant if he did not comply or that compliance was even required. However, Rodriguez testified that he did not feel free to leave. Deputy Perez, a member of the Gang Task Force, testified that as part of his duties with that unit he would make contact with gang members on a daily basis for the purpose of gathering intelligence. He testified that on the night in question, after Deputy Martinez was already running their driver's licenses for an identification check, he began walking toward the Bandidos members. Perez stated that some of the Bandidos were freely walking around while others were still servicing the motorcycle with the flat tire. Perez's intention upon approaching the individuals was to "try to get some kind of intelligence." Additional evidence indicating this was an encounter came from Rodriguez's own testimony. After responding affirmatively about noticing the deputies pull into the gas station, defense counsel asked Rodriguez, "And did y'all — did y'all just go on about your business?" Rodriguez responded, "Oh, yeah. We sure did." Furthermore, Rebecca Tamez, Rodriguez's witness, who was also present the night in question, was asked what transpired when the deputies approached. She responded that the deputies "[j]ust started to talk to us. . . ." Because no findings of fact were provided, we review the evidence in the light most favorable to the court's ruling and assume the court made sufficient findings to support such ruling if it can be supported by the record. Carmouche, 10 S.W.3d at 328. The trial court denied the motion to suppress and the record supports the trial court's ruling. We overrule Rodriguez's first issue.
Denial of Jury Instruction
In Rodriguez's second issue, he argues the trial court erred in denying his motion for a jury instruction on reasonable suspicion in violation of Articles 36.14, 36.15, and 38.23. Article 38.23 states:No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.
In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.Tex. Crim. Proc. Code Ann. art. 38.23(a) (Vernon 2005). A fact issue about whether evidence was illegally obtained "may be raised by any source, and may be strong, weak, contradicted, unimpeached, or unbelievable." Wilkerson v. State, 933 S.W.2d 276, 280 (Tex.App.-Houston [1st Dist.] 1996, pet. ref'd). When a fact issue is raised, regardless of the level it rises to, the trial court is statutorily bound to submit an instruction to the jury. Boles v. State, 132 S.W.2d 881, 882-83 (Tex.Crim.App. 1939). Here, Rodriguez contends he raised a factual issue about whether the deputies had reasonable suspicion to conduct an investigative detention, and thus he is entitled to a jury instruction on the matter. We disagree. Rodriguez's argument assumes that the encounter equated to an investigative detention, thus requiring reasonable suspicion to detain him. However, in the time prior to handcuffing Rodriguez, reasonable suspicion was irrelevant because there was no investigative detention. The issue of reasonable suspicion does not arise where officers approach citizens to engage in conversation. See Velasquez, 994 S.W.2d at 678. The deputies, Rodriguez, and Tamez all testified that the deputies approached and engaged in conversation while some of the group with Rodriguez continued to work on the motorcycle tire and others walked about freely. The only factual dispute is in regard to the events leading to Rodriguez's arrest. Rodriguez's illustration of the facts is as follows: 1) Deputy Martinez waited until all the deputies arrived before asking for identification; 2) after the deputies approached the Bandidos group, a pocketknife was found on a member traveling with Rodriguez and deputies then began to place some of the group in handcuffs; and 3) before Rodriguez was handcuffed, Deputy Perez asked him whether he had any weapons, and he relinquished a pocketknife and then a handgun to Perez. On the other hand, the deputies testified that 1) Deputy Martinez had obtained driver's licenses of all the members before the other deputies arrived; 2) Deputy Perez approached Rodriguez to converse with him to gather gang intelligence; and 3) Rodriguez's vest was open allowing Perez to observe the handle of a pistol in plain view. Either version does not dispute the fact that the interaction was an encounter, not a detention. Rodriguez either voluntarily turned the handgun over according to his version or Deputy Perez observed the contraband in plain view; each situation provides an exception to reasonable suspicion or even probable cause. See Minnesota v. Dickerson, 508 U.S. 366, 374-75 (1993) (defining plain view as contraband left in open view and observed from a lawful vantage point so that no invasion of a legitimate expectation of privacy had occurred); Stone v. State, 147 S.W.3d 657, 660 (Tex.App.-Amarillo 2004, pet. ref'd) (stating that probable cause or reasonable suspicion is not required when the contraband is in plain view). Rodriguez has failed to raise any factual issue that the evidence was obtained illegally, therefore, we overrule his second issue. See Estrada v. State, 30 S.W.3d 599, 605 (Tex.App.-Austin 2000, pet. ref'd) (acknowledging that the defendant provided several reasons why he was entitled to an Article 38.23 jury instruction; however, he failed at trial to provide any factual issue concerning whether the evidence was obtained illegally).