Nevels, Connie Lee v. State ( 2004 )

Affirmed and Memorandum Opinion filed April 13, 2004

Affirmed and Memorandum Opinion filed April 13, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-03-00497-CR

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CONNIE LEE NEVELS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 230th District Court

Harris County, Texas

Trial Court Cause No. 919,119

M E M O R A N D U M   O P I N I O N

A jury found appellant, Connie Lee Nevels, guilty of aggravated robbery.  His sole issue on appeal is that the trial court erred in denying his motion to suppress a videotaped lineup and any testimony relating to the lineup because they were procured as a result of an illegal arrest, and his conviction should be reversed.  Because all dispositive issues are clearly settled in law, we issue this memorandum opinion and affirm.  See Tex. R. App. P. 47.4.

Background

On July 15, 2002, Shelby Haizlip was in the parking garage of his apartment complex when he was approached by two men.  One of the men produced a handgun and demanded Haizlip=s wallet and car keys; then the two men drove away in his car.  Haizlip reported the incident to the police.

On July 19, 2002, while on patrol, a Houston Police officer drove past Haizlip=s car and entered the license plate number into the patrol car computer.  Two police databases, the National Crime Information Center (NCIC) and Texas Crime Information Center (TCIC), indicated the car had been stolen in a robbery.  The officer decided to stop the car, but while he was looking down at the incoming NCIC and TCIC reports, he lost sight of the car when the driver turned without stopping at a stop sign.  Approximately thirty minutes later, the officer observed the car again and stopped it. Upon approaching the vehicle, the officer observed appellant in the driver=s seat and a passenger inside the car.  A towel was draped over the steering wheel.  The officer requested appellant and the passenger to step out of the car, and he handcuffed and placed them in separate patrol cars for questioning.  During questioning, the two men gave the officer conflicting statements regarding the true owner of the vehicle.  Meanwhile, the officer obtained a description of the men who had robbed Haizlip, and he thought that appellant and the passenger had similar characteristics. Thereafter, appellant was arrested, taken to jail and placed in a videotaped lineup with five other individuals. After the lineup, appellant was interviewed and released.  Haizlip later viewed the videotaped lineup and identified appellant as one of the men who robbed him.

Discussion

In his sole issue, appellant claims the trial court erred in denying his motion to suppress the videotaped lineup and related testimony because the officer had no probable cause to arrest him.  We review a trial court=s ruling on a motion to suppress for an abuse of discretion.  Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999). In a suppression hearing, the trial court is the sole trier of fact as well as the judge of the credibility of witnesses and the weight to be given their testimony.  State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999). We afford almost total deference to the trial court=s ruling on application of law to fact questions if the resolution of those questions turns on an evaluation of credibility and demeanor.  Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).  We review determinations of reasonable suspicion and probable cause de novo pertaining to the facts.  Id. at 87.

An officer may make a warrantless arrest when (1) probable cause for the arrest exists, and (2) the arrest falls within one of the statutory exceptions to the warrant requirement.   Stull v. State, 772 S.W.2d 449, 451B52 (Tex. Crim. App. 1989); see Tex. Code Crim. Proc. Ann. art. 14.01B.04 (Vernon 1977).  The first requirement for a warrantless arrest, the existence of probable cause, is present when at the moment of arrest, the facts and circumstances within the officer=s knowledge and of which the officer had reasonably trustworthy information would warrant a prudent person in believing that the arrested person had committed or was committing a crime.  Id.

One of the statutory exceptions to the arrest warrant requirement as set forth in article 14.01, provides that a peace officer may arrest an offender without a warrant for any offense committed in his presence.  Tex. Code Crim. Proc. Ann. art. 14.01.  As the reviewing court, we consider the totality of the circumstances to determine whether the facts were sufficient to give the officer probable cause to arrest the defendant.  See Guzman, 955 S.W.2d at 88.

The arresting officer in this case knew that NCIC and TCIC records revealed that the car driven by appellant was stolen.  An NCIC report that a car was stolen is sufficient to support probable cause.  Brown v. State, 986 S.W.2d 50, 52 (Tex. App.CDallas 1999, no pet.) (stating that the court was unaware of any case that has failed to accept an NCIC report or Ahit@ of a stolen car as sufficient to support probable cause to arrest an individual possessing it).  In addition, in this case, the arresting officer had knowledge of several other factors that supported probable cause: (1) the driver of the car ran a stop sign and took evasive action to avoid police; (2) a towel was draped over the steering wheel which the officer believed was used by appellant to avoid leaving fingerprints on the wheel; (3) appellant and the passenger gave conflicting stories concerning the owner of the vehicle; and (4) appellant and the passenger appeared similar to the reported descriptions of the two robbers.  

Under the totality of the circumstances, we hold that the facts were sufficient for the officer to believe appellant had been involved in the reported robbery, and that he was committing the felony offense of unauthorized use of a vehicle.  See Tex. Pen. Code Ann. ' 31.07 (Vernon 2003).  We find that the officer had  probable cause to arrest appellant.  We hold the trial court did not abuse its discretion in denying appellant=s motion to suppress the videotaped lineup.

The judgment of the trial court is affirmed.

/s/        Jackson B. Smith, Jr.

Senior Justice

Judgment rendered and Memorandum Opinion filed April 13, 2004.

Panel consists of Justices Fowler, Edelman, and Smith.^[1]

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  Senior Justice Jackson B. Smith, Jr. sitting by assignment.