Torres, Fernando Vargas v. State ( 2003 )

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COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

FERNANDO VARGAS TORRES,

Appellant,

THE STATE OF TEXAS,

Appellee.

No. 08-02-00004-CR

Appeal from the

168th District Impact Court

of El Paso County, Texas

(TC# 20010D05295)

O P I N I O N

Fernando Vargas Torres was indicted for possession of a controlled substance--cocaine. He pleaded guilty pursuant to a plea-bargain, and has appealed the trial court=s refusal to suppress evidence, urging evidence was obtained as the result of an illegal traffic stop. The trial court granted permission to appeal. We affirm.

Facts

On August 21, 2001, Detective Monreal of the El Paso Police Department was working in plain clothes in an unmarked vehicle in an area of northeast El Paso known for narcotics trafficking. He observed a vehicle cruising the area, followed, and eventually observed the car, a silver Dodge Stratus, fail to signal its intent to turn left. He then observed the vehicle make a U-turn which the detective considered unsafe because it forced another car to slow while the Stratus cleared the intersection. Monreal did not stop the Stratus at that time because he was working in an unmarked capacity. Instead, he radioed a K-9 officer in a marked vehicle to make the stop. Monreal followed the unit until it stopped the Stratus. Eventually a search of the Stratus by the K-9 unit revealed a package containing approximately ten ounces of cocaine.

On August 21, 2001, Officer Martin Moncada received the call from Detective Monreal requesting that Moncada stop a silver Dodge Stratus. Moncada located the car, and noticed the two people inside the Stratus making furtive gestures as he approached. He conducted a pat-down search and called another unit for assistance. He directed the two people to return to their car, noticing they seemed extremely nervous. The passenger never glanced at Moncada, never acknowledged him or made eye contact. His hands were shaking. Based on Moncada=s training and experience, he believed this behavior was consistent with criminal activity. He then asked the driver if he would consent to a search by a dog trained to detect narcotics. He consented.

Moncada then conducted a search of the car with his dog. The dog alerted. After the dog alerted, Moncada physically searched the car. He found that an airbag had been removed and the resulting compartment filled with cocaine.

Moncada never observed the driver of the car commit a traffic violation. He stopped the car solely on the basis of Monreal=s request, with the information that Monreal had observed the vehicle fail to signal intent and violate the U-turn laws.

The court made the following findings of fact after hearing evidence:

1. Defendant did not cause a traffic hazard or other problem when he made a U-turn without making a left turn signal.

2. The stop for a Class C misdemeanor traffic violation of failure to signal a left turn, was legal though made by an officer who did not see the violation but was advised of it by a fellow officer.

3. There was no unreasonable time of detention between the stop and arrival of the officer who witnessed the traffic violation.

4. The dog alerted to controlled substances in the car.^{^[1]}

Standard of review

In reviewing the trial court=s ruling on a motion to suppress evidence, we apply a de novo review on legal questions such as reasonable suspicion and probable cause. Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001). As the facts here are undisputed, that is the only standard applicable in this case.

Were the search and arrest pursuant to a lawful stop?

In a single point of error, Vargas Torres urges that the stop of defendant=s vehicle was unlawful, and therefore the search of the car and arrest of defendant were likewise illegal. Within this point, Vargas Torres makes two claims: (1) that he did not commit a traffic violation in Monreal=s presence, as no traffic hazard or other problem was caused by his failure to signal; and (2) that Moncada did not have authority to stop him for a misdemeanor infraction which Moncada himself did not observe. We disagree with both contentions.

A. Causing a traffic hazard no longer an element of failure to signal.

The Texas Transportation Code provides that a vehicle operator shall use a signal to indicate an intention to turn, and such signal shall be continuous for at least 100 feet before the turn. Tex. Transp. Code Ann. ' 545.104(a)(b) (Vernon 1999). Failure to comply with this requirement is a misdemeanor. Tex. Transp. Code Ann. ' 542.301 (Vernon 1999). As the State correctly points out, it is not an element of the offense that the failure to signal cause a traffic hazard or otherwise affect traffic.

Thus, we find that Vargas Torres=s reliance on the case of Hall v. State, 488 S.W.2d 788 (Tex. Crim. App. 1973) is misplaced. That case was decided under an older traffic regulation, which provided that an operator should not turn without giving an appropriate signal Ain the event any other traffic may be affected by such movement.@ See Hall, 488 S.W.2d at 789 n.1 (quoting Art. 6701d, Sec. 68(a), Vernon=s Ann. R.C.S. (repealed 1995) (current version at Tex. Transp. Code Ann. ' 545.104)). It is a violation of the current regulation to make a turn without signaling, regardless of whether the turn was made safely or affected other traffic. See Markey v. State, 996 S.W.2d 226, 229 (Tex. App.--Houston [14th Dist.] 1999, no pet.). Thus, there was no requirement that the officer see a failure to signal that affected other traffic. In any event, there was evidence that Vargas Torres=s U-turn did interfere with other traffic, as Monreal saw an approaching car slow down to allow the Stratus to clear the intersection. This argument is without merit.

B. Moncada had authority to make the stop based on the observation of another officer.

Vargas Torres=s second argument is that the stop was unauthorized because it was made by an officer who had not personally seen defendant commit the misdemeanor of making a turn without signaling. This theory also fails.

Where probable cause or reasonable suspicion of a criminal act justify a stop, circumstances must establish that unusual activity is occurring or has occurred, that the detained person is connected with the activity, and that the unusual activity is related to commission of a crime. State v. Jennings, 958 S.W.2d 930, 933 (Tex. App.--Amarillo 1997, no pet.). The operative circumstances need not be only those known to the officer making the stop, but may include those known to other officers cooperating together at the time of the detention. Id. Where the detaining officer acted upon nothing other than a radio dispatch or request to apprehend, the focus necessarily lies with the information known to the requesting officer. Id. Although it is not required that the requesting officer testify, it must be shown that the officer who made the stop did so upon the request of someone who had reasonable suspicion or probable cause. Id.

Here, the requesting officer testified that he observed a traffic violation, and he did not make the stop himself because he was not in uniform or riding in a marked police car. This amply satisfies the burden of showing reasonable suspicion or probable cause for the stop.

Having examined both theories presented by Vargas Torres, we overrule his single point of error.

Conclusion

The trial court=s judgment is affirmed.

SUSAN LARSEN, Justice

January 9, 2003

Before Panel No. 3

Barajas, C.J., Larsen, and Chew, JJ.

(Do Not Publish)

^{^[1]}The trial court made several other findings, but we believe these are conclusions of law by which we are not bound.