No. 05-09-01093-CR
Opinion issued July 2, 2010. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 416th Judicial District Court, Collin County, Texas, Trial Court Cause No. 416-80040-07.
Before Justices O'NEILL, FRANCIS, and MURPHY.
MICHAEL J. O'NEILL, JUSTICE.
Appellant Edward Valadez pleaded guilty to possession of cocaine with intent to deliver, and the trial court sentenced him to fifteen years' confinement. On appeal, he challenges the trial court's denial of his motion to suppress and motion to quash.
Background
Robert Cobb worked with the Plano Police Department as a confidential informant. Shortly before June 20, 2006, he called appellant, whom he previously met through a friend, and asked for cocaine. Appellant agreed to provide the drugs. On June 20, Detective Jones picked up Cobb. While in the car and in Detective Jones's presence, Cobb called appellant to set up the meeting location. Detective Jones heard one end of this conversation. Detective Jones and Cobb then drove near the designated meeting place and waited. When Cobb saw appellant's truck drive by, he identified it for Detective Jones. Detective Jones then notified Officer Quinn of the location. Officer Quinn pulled appellant over for speeding on the service road of Interstate 75. Before approaching the car, he noticed appellant fidgeting with the center console. When asked for his driver's license and insurance card, appellant produced them; however, the addresses did not match. Appellant first said the address on his driver's license was his mother's address, and his permanent address was on his insurance card. Officer Quinn arrested him for failing to update his license. See Tex. Transp. Code Ann. § 521.054(b) (Vernon Supp. 2009) (person shall notify department of address change within thirty days of moving). After he was handcuffed, appellant claimed his driver's license contained his permanent address. Officer Quinn conducted a search incident to an arrest. He found an Altoid tin with a partially burnt marijuana cigarette in the center console. When he attempted to roll down the window, the control panel on the driver's side fell off. Inside he discovered plastic baggies with cocaine. He also discovered a large brick of cocaine under the driver's side back seat. Appellant was arrested and charged with possession with intent to deliver. Appellant filed a motion to suppress, which the trial court denied. Appellant pleaded guilty, and the court sentenced him to fifteen years' confinement. On appeal, he argues the trial court erred in denying his motion based on Arizona v. Gant, 129 S. Ct. 1710 (2009), and Officer Quinn relied on pretext for pulling him over. He also argues the trial court erred in denying his motion to quash based on a Brady violation. We affirm. Motion to Suppress
We review a trial court'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). We do not engage in our own factual review; rather, the trial judge is the sole trier of fact and judge of witness credibility and the weight to be given their testimony. Id. We review the record to determine if the trial court's ruling is supported by the record and correct under some theory of law applicable to the case. Id. Under Texas law, a police officer must have both probable cause with respect to the person being arrested, plus statutory authority to make the arrest. Parker v. State, 206 S.W.3d 593, 596 (Tex. Crim. App. 2006). Under article 14.01(b), a peace officer may "arrest an offender without a warrant for any offense committed in his presence or within his view." Tex. Code Crim. Proc. Ann. art. 14.01(b) (Vernon 2005). To establish probable cause to arrest, the evidence must show that "at that moment [of the arrest] the facts and circumstances within the officer's knowledge and of which he had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the arrested person had committed or was committing the offense." Parker, 206 S.W.3d at 596 (quoting Beverly v. State, 792 S.W.2d 103, 104-05 (Tex. Crim. App. 1990)). When dealing with information obtained from informants, we apply the "totality of the circumstances" test set out in Illinois v. Gates, 462 U.S. 213 (1983). Dixon v. State, 206 S.W.3d 613, 616 (Tex. Crim. App. 2006). Although an informant's veracity, reliability, and basis of knowledge are highly relevant in determining the value of an informant's report, these elements are not independent requirements but closely intertwined issues illuminating the overall question of whether probable cause exists. Gates, 462 U.S. at 230. A deficiency in one element may be compensated by a strong showing as to another. Id. Appellant does not challenge the "automobile exception" to the warrant requirement. See United States v. Ross, 456 U.S. 798, 823 (1982) (holding officers do not need a warrant to search a vehicle if there is probable cause to believe the vehicle is transporting contraband); Neal v. State, 256 S.W.3d 264, 282 (Tex. Crim. App. 2008), cert. denied, 129 S. Ct. 1037 (2009). Rather, he argues the search was impermissible in light of the Supreme Court's recent opinion in Arizona v. Gant. However, the Supreme Court specifically stated the automobile exception remains another "established exception[] to the warrant requirement" authorizing a vehicle search. Gant, 129 S. Ct. at 1721. Thus, we will review the record and determine if the trial court's ruling is supported and correct under the automobile exception based on information from the confidential informant. The Plano Police had used Cobb on two other transactions prior to his interaction with appellant. Thus, Detective Jones believed he was reliable. Further, although Detective Jones did not hear the initial conversation setting up the meeting between Cobb and appellant, he heard one side of a subsequent conversation after he picked up Cobb, in which Cobb told appellant to meet him in the Best Buy parking lot at a designated time. Cobb told Detective Jones appellant would be driving a black Dodge dually truck. When Detective Jones and Cobb reached the designated location, Cobb identified appellant in the black Dodge dually truck. Detective Jones then told Officer Quinn the type of truck to look for in the area and to find probable cause to pull him over and search for the drugs. After arresting appellant, Office Quinn searched the truck and found approximately five hundred grams of cocaine under the driver's side back seat. Under the totality of the circumstances test, we conclude the facts and circumstances within the knowledge of the investigating officers, and of which they had reasonably trustworthy information, were sufficient to warrant their belief that appellant was committing the offense of possession with intent to deliver cocaine. We conclude the trial court did not err in denying appellant's motion to suppress the drugs found in his truck. Further, because the trial court's ruling is supported by the record and correct under some theory of law applicable to the case, specifically, the "automobile exception" to the warrant requirement, we need not discuss whether the search incident to the arrest based on a discrepancy between appellant's driver's license and insurance card violated Gant. The officers had probable cause to stop and search appellant's car based on the confidential informant. As such, appellant's first issue is overruled. Likewise, appellant's second issue, that the officer's search based on a failure to change his address was pretextual, is overruled. Failure to Turn Over Brady Material
In his third issue, appellant argues the trial court erred by denying his motion to quash, in which he requested information regarding the Plano Police Department's use of a confidential informant. He claims the information withheld could have been used to weaken the State's case by "calling attention to both the use of an informant and the standard practice of the Plano Police Department to do whatever it takes to obtain probable cause to stop and search a vehicle of interest." The State responds a motion to quash is not the appropriate procedural vehicle to raise a Brady violation and even if it is, appellant received the necessary information in time to use it before entering his plea. Assuming without deciding a motion to quash can be used to raise a Brady issue, we conclude appellant has failed to show how he was prejudiced or harmed by the timing of the State's disclosure of information. When the prosecution withholds evidence favorable to the defendant, due process is violated when the evidence is material to either guilt or punishment, irrespective of the good faith or bad faith of the prosecution. Brady v. Maryland, 373 U.S. 83, 87 (1963); Wyatt v. State, 23 S.W.3d 18, 27 (Tex. Crim. App. 2000). However, there is no general right to discovery in a criminal case, and Brady does not create one. See Weatherford v. Bursey, 429 U.S. 545, 559 (1977). To invoke Brady, the accused must present evidence that (1) the prosecution suppressed or withheld evidence, (2) this evidence was favorable to the accused, and (3) this evidence would have been material to the accused's defense. Ex Parte Kimes, 872 S.W.2d 700, 702-03 (Tex. Crim. App. 1993). Favorable evidence is material if there is a reasonable probability that had the evidence been disclosed to the defense, the outcome of the proceeding would have been different. Id. at 703. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id. at 702. The mere possibility that undisclosed evidence may have helped the defense or affected the trial's outcome does not establish "materiality" in the constitutional sense. Hampton v. State, 86 S.W.3d 603, 612 (Tex. Crim. App. 2002). Whether the evidence is material is viewed in the context of the overall strength of the State's case. Id. at 613. Further, if Brady material is discovered during trial, the inquiry is whether the defendant is prejudiced by the late disclosure. Olivarez v. State, 171 S.W.3d 283, 290 (Tex. App.-Houston [14th Dist.] 2005, no pet.). If the defendant receives the material in time to put it to effective use at trial, his conviction should not be reversed simply because it was not disclosed as early as it might or should have been. Id.; see also United States v. McKinney, 758 F.2d 1036, 1050 (5th Cir. 1985). Under the present facts, appellant received information regarding the confidential informant in time to use it effectively. He knew of the informant's existence, identity, and contact information prior to the first evidentiary hearing because appellant subpoenaed him. The subpoena was executed December 1, 2008 and the first hearing was held on January 12, 2009. During the first hearing, Detective Jones brought an offense report and an arrest report to refresh his memory of events. Neither side had seen the reports, which included further information about the confidential informant. The trial court granted a recess for both sides to review the report. Although appellant did not receive this information as early as he might have liked it, he nonetheless learned of its existence and was able to review and use it in a timely manner. He also had an opportunity to cross-examine the confidential informant during the hearing. Finally, during the last hearing on March 19, 2009 and before his plea agreement, appellant agreed all discovery issues had been addressed and he had received everything he needed. Thus, appellant has failed to establish the State violated Brady by withholding any evidence regarding the confidential informant. He likewise failed to establish how evidence of the standard conduct of the Plano Police Department "to do whatever it takes to obtain probable cause to stop and search a vehicle of interest" was material and would have changed the outcome of his case. As previously noted, any pretext argument for the stop and search is irrelevant in light of the reliability of the confidential informant. Appellant's third issue is overruled. Conclusion
Having overruled appellant's issues, we affirm the trial court's judgment.