Miguel Hugo Barraza v. State ( 2017 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-15-00728-CR
Miguel Hugo BARRAZA,
Appellant
v.
The STATE of Texas,
Appellee
From the 144th Judicial District Court, Bexar County, Texas
Trial Court No. 2014CR4160
Honorable Lorina I. Rummel, Judge Presiding
Opinion by: Rebeca C. Martinez, Justice
Sitting: Karen Angelini, Justice
Marialyn Barnard, Justice
Rebeca C. Martinez, Justice
Delivered and Filed: February 1, 2017
AFFIRMED
Miguel Hugo Barraza was charged with possession of a controlled substance after he was
detained by a security guard at a nightclub and police found cocaine during a search incident to
arrest for public intoxication. A jury convicted Barraza and he timely appealed. We affirm the
trial court’s judgment.
BACKGROUND
The trial evidence showed that on the evening of December 6, 2013, Barraza attempted to
enter the Lucky Monkey nightclub. The club employed a commissioned and uniformed security
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guard, Raymond Reyes, 1 who was tasked with conducting pat-downs to look for drugs and
weapons on patrons before they were permitted to enter the club. When Barraza approached,
Reyes asked him to turn around and submit to a pat-down. As Barraza was turning, Reyes noticed
a plastic bag sticking out of Barraza’s front “fifth coin pocket.” As Reyes’s pat-down moved to
Barraza’s front right coin pocket, Barraza grabbed Reyes’s wrist, which Reyes took as a sign of
aggression. Reyes began trying to push Barraza out the front door while Barraza tried to force his
way inside, telling Reyes it was “nothing” and he came to the club all the time. Reyes stated that
during their struggle Barraza was reaching “for whatever substance was in his pocket or for a
weapon,” but Reyes did not know which. Reyes succeeded in forcing Barraza out of the front door
and Reyes stated he intended to detain Barraza at that point and give him a criminal trespass
warning so that if Barraza returned, he could be arrested on sight. But, Barraza continued to
struggle with Reyes, grabbing on to Reyes’s shirt and trying to push him down. Reyes resisted
and in turn tried to push Barraza down, but Barraza slipped out of Reyes’ grip and ran into the
parking lot. Barraza slipped and fell and Reyes caught up to him. Reyes put his weight on top of
Barraza, told him he was being detained, and handcuffed him. Reyes then called the police, along
with EMS because Barraza complained that he had hurt his leg. Reyes testified he detained
Barraza and called the police because Barraza had committed offenses within Reyes’s view by
assaulting him (Reyes) and by committing criminal trespass by forcing himself inside the club.
Reyes testified he did not arrest Barraza but merely detained him until the police arrived.
When the police officers arrived, Reyes stated he told them what had happened and also
mentioned the plastic bag he had seen protruding from Barraza’s coin pocket. After speaking with
Reyes, Officer Freddy Rodriguez questioned Barraza about the night’s events while he was in the
1
Reyes testified he was not a law enforcement officer, but had completed the training to receive his commission from
the Texas Department of Public Safety as a security guard.
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ambulance and observed that Barraza was “highly intoxicated.” Both Officer Rodriguez and his
partner Officer Mario Montoya testified that they believed Barraza was a danger to himself or
others in his current state. Officer Montoya placed Barraza under arrest for public intoxication
and stated he intended to give Barraza a ticket and allow his brother to take him home. However,
when Officer Montoya conducted a search of Barraza’s person with Barraza’s consent and incident
to his arrest, he found a plastic baggie containing a white substance inside the fifth pocket of
Barraza’s pants. The substance tested positive as cocaine and Barraza was charged with possession
of a controlled substance.
Barraza testified at trial that it was Reyes who was initially aggressive with him during the
pat-down. Barraza decided to leave the club and ran into the parking lot. Barraza stated that Reyes
pursued him and pushed him down, put his knee on his neck, and handcuffed him. According to
Barraza, Reyes reached inside Barraza’s pockets, took his wallet out and stole some of his money,
and planted the plastic baggie with cocaine in his front coin pocket. Barraza’s friend also testified
and corroborated Barraza’s version of the events.
A jury found Barraza guilty of possession of a controlled substance, less than one gram of
cocaine. See TEX. HEALTH & SAFETY CODE ANN. § 481.115(a), (b) (West 2010) (state jail felony).
The trial court sentenced Barraza to two years’ confinement in state jail and imposed a $1,500 fine.
The court suspended the term of confinement, however, and placed Barraza on community
supervision for a period of three years. Barraza now appeals.
ANALYSIS
On appeal, Barraza argues the trial court erred in denying his pre-trial motion to suppress
the drug evidence because the security guard, Reyes, conducted a warrantless arrest which was not
authorized by article 14.01 of the Code of Criminal Procedure because no felony was committed
within Reyes’s view and there was no breach of the peace by Barraza. TEX. CODE CRIM. PROC.
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ANN. art. 14.01(a) (West 2015) (“A peace officer or any other person, may, without a warrant,
arrest an offender when the offense is committed in his presence or within his view, if the offense
is one classed as a felony or as an offense against the public peace.”). Alternatively, Barraza argues
that Reyes conducted a temporary detention which was not supported by reasonable suspicion of
criminal activity.
To be preserved, Barraza’s arguments on appeal must comport with the grounds for
suppression he raised in the trial court. TEX. R. APP. P. 33.1(a); Swain v. State, 181 S.W.3d 359,
367 (Tex. Crim. App. 2005); Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002). A trial
objection based on one legal theory may not be used to support a different legal theory on appeal.
Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990).
In his motion to suppress, Barraza asserted that the security guard had no right to detain or
arrest him outside the premises of the nightclub. He cited no legal authority in support of his
contention. With respect to the security guard’s actions, Barraza’s motion asserted, “[t]he Security
Guard is not a member of law enforcement and has no right to arrest or detain a person outside the
premises of the club if the person was not attempting to enter the club,” and “[i]f the Defendant
had entered the club without permission or caused a disturbance in the club, the guard would have
had the right as an agent of the business to detain the Defendant” but “[o]utside the club he had no
such right.” Barraza’s motion made no reference to article 14.01 or to the authority of a non-peace
officer to make a warrantless arrest for a felony offense committed in his presence or for an offense
against the public peace. TEX. CODE CRIM. PROC. ANN. art. 14.01(a). 2
2
Barraza’s motion to suppress also alleged that the SAPD officer had no right to detain or arrest him for public
intoxication because his brother and friend were present and could have taken him home, so he did not pose a danger
to himself or others. Barraza waived this ground at trial and therefore presents no appellate argument based on the
police officer’s conduct.
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The trial court did not conduct a separate suppression hearing, but instead carried the
motion with the trial. After the State rested, the trial court heard argument on the motion to
suppress. Consistent with the ground stated in the motion, Barraza argued that the security guard
was not law enforcement and had no authority to detain Barraza after he left the club’s premises,
i.e., he had no right to pursue Barraza into the parking lot and hold him until the police arrived.
Barraza’s counsel never referred to article 14.01 or to the authority of a citizen to make an arrest
for a felony or breach of the peace committed in their presence — the argument he now seeks to
raise on appeal. The State did argue that Reyes’s detention of Barraza was legal under article
14.01 because Reyes’s testimony showed he had a good faith belief that Barraza’s assault on him
while he was in uniform was considered a felony, i.e., assault on a public servant, and that
Barraza’s criminal trespass into the club constituted a breach of the peace. In addition, the State
asserted that Reyes’s testimony showed he also had a reasonable suspicion that Barraza was in
possession of a weapon and drugs. In denying the motion to suppress, the trial court relied on
article 14.01 and found that “the security guard had the right to detain [Barraza] because the assault
[against Reyes] . . . is an offense against public peace.” The trial court also stated that the assault
could arguably be considered a felony because as a commissioned, uniformed security guard,
Reyes could be considered a public servant. See TEX. PENAL CODE ANN. § 22.01(b)(1), (e)(3)
(West Supp. 2015) (defining felony offense of assault against a public servant).
The arguments raised by Barraza on appeal, that Reyes was not authorized under article
14.01 to arrest him and lacked reasonable suspicion to detain him, were not set forth in his motion
to suppress nor were they argued by defense counsel to the trial court. By not raising these legal
theories until his appeal, Barraza has procedurally defaulted these issues. TEX. R. APP. P. 33.1(a);
Swain, 181 S.W.3d at 367; Wilson, 71 S.W.3d at 349; Rezac, 782 S.W.2d at 870.
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CONCLUSION
Based on the foregoing reason, we affirm the trial court’s judgment.
Rebeca C. Martinez, Justice
DO NOT PUBLISH
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