No. 05-08-01062-CR
Opinion issued December 11, 2009. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 4, Dallas County, Texas, Trial Court Cause No. F05-55861-MK.
Before Justices MORRIS, BRIDGES, and MURPHY.
Opinion By Justice BRIDGES.
Appellant Tiodoro Solis, Jr. appeals his felony conviction for unlawful possession with intent to deliver a controlled substance and his accompanying sentence. We affirm and reform the judgment.
Upon the State's motion and agreement of the parties, the indictment was amended to strike the words "intent to deliver" from the allegation of criminal conduct. However, the final judgment includes the words "intent to deliver." We reform the judgment to delete the words "intent to deliver." Tex. R. App. P. 43.2(b); Nelson v. State, 149 S.W.3d 206, 213 (Tex.App.-Fort Worth 2004, no pet.) (holding that an appellate court may modify a trial court judgment to make the judgment congruent with the record).
Background
Officer Aleman and his partner were patrolling the gang areas of Dallas in a "covert" car. They came into contact with an informant who said that a man named "Paul Eguia" had warrants out for his arrest and that he was going to be in a black Chrysler Concorde, four door, in the 100 block of South Hollywood. The informant further noted Eguia had previously escaped from the police and normally had drugs on his person. The police confirmed that Eguia had several outstanding felony warrants. The officers monitored the area, confirmed that the described Chrysler was parked on the 100 block of South Hollywood and communicated the information to other gang unit officers nearby so the car could be stopped. Officer Aleman relayed the descriptions provided by the informant, including that Eguia had a prior criminal history of carrying a weapon. Testimony revealed that the purpose of stopping the Chrysler was to determine which of the two occupants was Eguia, according to the description given by Officer Aleman, and arrest him. Corporal Torres and Officer Loera arrived at the described location and saw the Chrysler which matched the description, parked at the described address. Corporal Torres testified that a "felony stop" had to be made once he learned Eguia was wanted for a felony offense. Corporal Torres and Officer Loera parked behind the Chrysler, activated their lights and siren, and exited their car wearing police uniform. They parked in such a way that appellant was unable to move his car. The officers approached the Chrysler and yelled, "Dallas Police, Dallas Police, open the door, open the door." Four other assisting officers also joined the original officers and ordered the occupants of the Chrysler to show their hands. However, the driver, later identified as appellant, and the passenger, later identified as Eguia, refused to comply. The windows to the car were up and the doors were locked. Corporal Torres testified he witnessed appellant moving around, reaching, and "making furtive gestures towards the center console of the vehicle." Officer Loera broke the driver's side window, and appellant was removed from the car. Upon searching the center console, Corporal Torres found a baggie that contained methamphetamine. Appellant and Eguia were arrested, and appellant was indicted by a grand jury. Prior to the time of trial, appellant filed his motion to suppress evidence and fruits of unlawful detention and supporting brief. The court denied the motion and appellant was convicted. This appeal ensued. Analysis
In a single issue, appellant contends the trial court erred in overruling appellant's motion to suppress evidence and fruits of unlawful detention. Specifically, appellant argues "his liberty was unlawfully restrained by the police officers' show of force, that such restraint of liberty violated Appellant's constitutional and statutory rights, and that the evidence flowing from [the] unlawful arrest should have been suppressed by the trial court." We review a trial court's ruling on a motion to suppress under an abuse of discretion standard. Swain v. State, 181 S.W.3d 359, 365 (Tex. Crim. App. 2005). We give almost total deference to the trial court's determination of historical facts, but review the trial court's application of the law to these facts de novo. State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000). When, as here, the trial court makes no findings of fact, we review the evidence in the light most favorable to the trial court's ruling and assume that the record supports the trial court's implicit fact findings. Carmouche v. State, 10 S.W.3d 323, 327-28 (Tex. Crim. App. 2000). If the trial court's ruling is reasonably supported by the record and is correct on any theory of law applicable to the case, we must sustain it on review. Villareal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996); Mount v. State, 217 S.W.3d 716, 724 (Tex. App.-Houston [14th Dist.] 2007, no pet.). In reviewing the trial court's ruling, we generally consider only the evidence adduced at the suppression hearing because the ruling was based upon it rather than evidence introduced after the hearing. Gutierrez v. State, 221 S.W.3d 680, 687 (Tex. Crim. App. 2007). Here, the trial judge held a hearing on appellant's motion to suppress and, at the conclusion of the hearing, denied the motion. On appeal, appellant contends that the information upon which Officer Aleman and his partner acted was of "such insufficient detail and questionable reliability that, without more, it did not even give rise to a reasonable suspicion supporting an investigative detention" and there was no probable cause to support his warrantless arrest or search for drugs. Appellant further argues that "no reasonable definition of the term `investigative detention' could encompass a police assault wherein no fewer than eight heavily armed officers surround two men in an automobile." Law enforcement officers may stop and briefly detain persons suspected of criminal activity on less information than that required for probable cause to arrest. See Terry v. Ohio, 392 U.S. 1, 22 (1968); Chapnick v. State, 25 S.W.3d 875, 877 (Tex. App.-Houston [14th Dist.] 2000, pet. ref'd). An officer must have reasonable suspicion to justify an investigatory stop. See United States. v. Sokolow, 490 U.S. 1, 7 (1989); Chapnick, 25 S.W.3d at 877. Reasonable suspicion for an investigatory detention arises when an officer has specific articulable facts which, premised upon his experience and personal knowledge and coupled with the logical inferences from those facts, warrant intruding upon the detained citizen's freedom. Chapnick, 25 S.W.3d at 877. The validity of the stop is determined from the totality of the circumstances. Woods v. State, 956 S.W.2d 33, 35 (Tex. Crim. App. 1997); Id. (citing Sokolow, 490 U.S. at 8). In the instant case, the informant told Officer Aleman that Eguia, who had "warrants out for his arrest," would be in a black, four-door, Chrysler Concorde. The informant further indicated the Chrysler would be arriving at 100 block of South Hollywood and that Eguia had previously escaped from the police and normally had drugs on him. Officer Aleman corroborated the tip through outside sources. The informant provided the officer with Eguia's name and birth date, and the officers confirmed the tip's accuracy about Eguia having "several warrants out for his arrest" through a records search on their MBT. The informant's tip was also corroborated through Officer Aleman's observations. After confirming the tip as to Eguia's warrants, Officer Aleman and his partner drove to the 100 block of South Hollywood and saw the described Chrysler "coming to park" at 100 South Hollywood. After corroborating the informant's tip through independent police work, it was reasonable for Officer Aleman to believe that, because the informant was correct about Eguia's outstanding warrants and the prediction of future events, the informant was also more probably right about Eguia riding in the Chrysler, having drugs on him, and having escaped from the police. Alabama v. White, 496 U.S. 325, 330 (1990); Illinois v. Gates, 462 U.S. 213, 243-44 (1983). Further, when various police officers have cooperated and communicated during an investigation, the court reviews the totality of the information individually known to them to determine whether the seizing officer had probable cause to detain or arrest. Woodward v. State, 668 S.W.2d 337, 345 (Tex. Crim. App. 1982). With the information verified by Officer Aleman, a prudent person would have sufficient articulable facts to obtain reasonable suspicion that a fugitive, who carried drugs on his person, would be found in the described Chrysler at the described location. White, 496 U.S. at 330, Gates, 462 U.S. at 238-39. Appellant argues that the force used by the officers during the felony stop was unreasonable. As we have already discussed, the offices had a reasonable suspicion that Eguia, who as wanted for a felony offense, was in the Chrysler in question. The evidence at the suppression hearing demonstrates that the officers knew Eguia had a prior criminal history of carrying a weapon and had previously escaped from the police. Corporal Torres testified that the purpose of the felony stop was to have the occupants exit the car, identify Eguia, and arrest him under the active warrants. The record also demonstrates that the officers yelled several times, "Dallas Police, Dallas Police, open the door, open the door" and asked the occupants of the Chrysler to raise their hands, but neither occupant complied. Instead of complying with the officers' orders, appellant reached towards the middle console of the car and made furtive movements. These actions created a threat for the officers' safety in light of: (1) the inherent danger confronting an officer during an investigatory detention at close range; (2) the reasonable inference that wanted felons, gang members and persons who deal in drugs often arm themselves for protection; and (3) the officers' specific knowledge that Eguia had a history of carrying a weapon. See Michigan v. Long, 463 U.S. 1032, 1049-51 (1983); Adams v. Williams, 407 U.S. 143, 148 (1972). Under these circumstances, it was reasonable for the officers to park behind the Chrysler and for an officer to have a drawn weapon while approaching the vehicle. Further, Officer Loera's preventive measure of breaking the window to remove appellant from the car constituted a reasonable limited intrusion designed to ensure officer safety. Adams, 407 U.S. at 148. Therefore, the officers used reasonable force during the felony stop. Appellant next contends there was no probable cause to search the vehicle for drugs. But, if an officer, while conducting a legitimate Terry search of the interior of a vehicle, discovers contraband other than weapons, the Fourth Amendment does not require its suppression. Minnesota v. Dickerson, 508 U.S. 366, 374 (1993). An officer may conduct a protective search of a vehicle in those areas in which a weapon may be placed or hidden. Long, 463 U.S. at 1049-51; Terry, 392 U.S. at 24. The justification for this search rests on the danger that weapons, stored in a car, could be used against the officer or bystanders. Dickerson, 508 U.S. at 374. In this case, the record reflects the area of the stop was known for gang activity and that the officers knew that Eguia had a history of carrying a weapon. These facts, combined with appellant's furtive gestures after having refused to open the car door, created a reasonable inference that appellant had something to hide. See Pykes v. State, 755 S.W.2d 98, 109 (Tex. Crim. App. 1988). Here, Corporal Torres was in a lawful position to look in the middle console of the car because the Terry protective search entitled him to look for weapons. Long, 463 U.S. at 1052. In addition, at the suppression hearing, Corporal Torres testified that he "checked the area where the [appellant] was reaching, making those furtive gestures towards the center console and this is what I discovered, this baggie right here with what appeared to be crystal meth. . . ." Finally, Corporal Torres had a lawful right of access to the center console and to the baggie because his search was not independent from the initial intrusion to search for weapons. Dickerson, 508 U.S. at 375; Martinez v. State, 17 S.W.3d 677, 685 (Tex. Crim. App. 2000). Thus, the contraband was properly seized and the police had probable cause to arrest appellant. See Tex. Code Crim. Proc. Ann. art. 14.01(b) (Vernon 2005); Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007); Torres v. State, 182 S.W.3d 899, 901-02 (Tex. Crim. App. 2005). We, therefore, overrule appellant's only issue on appeal. We reform the judgment to delete the words "intent to deliver" and affirm the judgment of the trial court as modified.