Franklin Eduardo Rodriguez-Rubio v. State ( 2018 )

Opinion issued November 20, 2018
In The
Court of Appeals
For The
First District of Texas
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NO. 01-17-00463-CR
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FRANKLIN EDUARDO RODRIGUEZ-RUBIO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 180th District Court
Harris County, Texas
Trial Court Case No. 1470980
MEMORANDUM OPINION
A jury convicted appellant, Franklin Eduardo Rodriguez-Rubio, of
aggravated assault and assessed punishment at 30 years’ confinement. In two
issues on appeal, appellant contends that the trial court erred in denying his
motions to suppress (1) the evidence recovered from his person after what he
alleges was an unlawful detention or warrantless arrest, and (2) the out-of-court
identifications made by two eyewitnesses. We affirm.
BACKGROUND
On June 6, 2015, Cynthia Chavez and her mother, Rosa, went shopping at a
local shopping center. While Rosa went into a meat market, Cynthia waited in the
car. While she was waiting, Cynthia noticed a man leaning on the trunk of the car.
Cynthia tried to call her mother but was unable to do so. The man was making her
very nervous.
Rosa soon returned to the car and was placing her purchases in the back seat
when the man pulled out a gun, pointed it at her back, and told her to sit in the
driver’s seat. The man stood outside the car with his hand on the roof, bending
down and telling the women what he wanted them to give him. He even leaned his
head and part of his body into the car when he saw Cynthia trying to hide her cell
phone. The man took their money, Cynthia’s cell phone, Rosa’s cell phone, and
Rosa’s wallet, and then he left.
Cynthia and Rosa went to a nearby restaurant, where they borrowed a phone
to call Cynthia’s father, Adrian Chavez. Using a cell phone application, Chavez
was able to determine that Cynthia’s cell phone was still turned on.
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Cynthia and her mother then approached Houston Police Officer S. Calvit,
who was nearby, and explained to him what had happened. They also gave Calvit
a description of their assailant, which he conveyed to a dispatcher.
Officer P. Ungaro was dispatched to meet with Chavez, Cynthia’s father and
Rosa’s husband. Chavez explained that the application showed that Cynthia’s cell
phone was still turned on, and Ungaro began to use the cell phone application to
track the stolen phone. He soon received a “constant ping” of the cell phone at
6233 Gulfton, the Westwood Square Apartments.
Officers, including Officer E. Castillo, were dispatched to the Westwood
Square Apartments in an unmarked car. They had been given the following
description of the suspect: a Hispanic male, wearing a black t-shirt with white
lettering, dark pants, and black shoes. The officers located a group of men drinking
beer on the second floor of the apartment building, several of whom generally
matched the description of the assailant. The officers approached the group,
detained the men, and handcuffed them for officer safety because a weapon had
been used in the offense. No one tried to run.
Officer Castillo detained appellant and placed him in handcuffs. Of all of
the men detained, only appellant matched the description exactly. 1 Castillo also
believed that he could arrest appellant for public intoxication. He patted down
1
While the assailant had been described as wearing dark pants, Castillo said that
appellant’s dark shorts looked like pants because they came down to his shoes.
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appellant’s outer garments and felt a cell phone in each pocket. Castillo knew that
cell phones had been taken during the robbery. He removed the cell phones from
appellant’s pockets and one of them matched the description of Cynthia’s stolen
gold and white iPhone.
The officers then took the men to a nearby Denny’s restaurant for a “show-
up” line-up. Rosa and Cynthia remained in a police car while the men were pulled
out of a different police car. They were told that the person who committed the
robbery may or may not be shown to them and that they were only to identify a
suspect if they were sure it was the person who robbed them. When appellant was
removed from the car, both Rosa and Cynthia identified him immediately. Officer
Castillo thought appellant was the first person removed from the car, Cynthia could
not recall, and Rosa thought he was the second person removed from the car. Both
Rosa and Cynthia saw all of the men brought to the parking lot, but they only
identified appellant.
Based on Cynthia’s and Rosa’s identification, as well as the fact that the
stolen cell phone was recovered from his pocket, appellant was taken into custody.
During a search, police recovered a third cell phone from appellant. Officers
obtained a search warrant for the contents of appellant’s personal cell phone and
found pictures of him holding a gun that resembled the gun used in the robbery.
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At trial, appellant filed motions to suppress the cell phones that were
recovered from his pockets and the identifications of him by Cynthia and Rosa.
Both motions were denied, appellant was found guilty, and this appeal followed.
MOTIONS TO SUPPRESS
Appellant raises the following two issues on appeal:
1. The trial court erred by denying [appellant’s] Motion to Suppress
Evidence Obtained by Illegal Detention of the Defendant.
2. The trial court erred by denying [appellant’s] Motion [to Suppress]
Illegal Identification.
We address each issue, respectively.
Standard of Review
We review a trial court’s denial of a motion to suppress for an abuse of
discretion and apply a bifurcated standard of review. Furr v. State, 499 S.W.3d
872, 877 (Tex. Crim. App. 2016). We afford almost complete deference to the trial
court’s determination of historical facts, especially the court’s determinations that
are based on the assessment of credibility and demeanor. Id.; Crain v. State, 315
S.W.3d 43, 48 (Tex. Crim. App. 2010). We conduct a de novo review of mixed
questions of law and fact that do not hinge on determinations of credibility or
demeanor. Brodnex v. State, 485 S.W.3d 432, 436 (Tex. Crim. App. 2016); see
also Johnson v. State, 414 S.W.3d 184, 192 (Tex. Crim. App. 2013) (stating that
application of legal principles to specific set of facts is issue of law that we review
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de novo). When, as here, the trial court makes explicit fact findings, we determine
whether the evidence, when viewed in the light most favorable to the trial court’s
ruling, supports the fact findings. Johnson, 414 S.W.3d at 192. We will sustain the
trial court’s ruling if it is correct under any applicable theory of law. Furr, 499
S.W.3d at 877; Arguellez v. State, 409 S.W.3d 657, 662–63 (Tex. Crim. App.
2013). Generally, appellate review is limited to the record at the time of the
suppression hearing; however, appellate review may include evidence adduced at
trial when, as here, “the suppression issue has been consensually re-litigated by the
parties during the trial on the merits.” Rachal v. State, 917 S.W.2d 799, 809 (Tex.
Crim. App. 1996).
Evidence Seized
In his first issue, appellant argues that the search of his pockets was “not
lawful since there was no probable cause to arrest him for aggravated robbery just
because an aggravated robbery recently occurred (not at the location appellant was
found) and appellant matched a very broad description of the suspect.” He also
contends that the search of his pockets was not justified as a “pat-down” pursuant
to an investigatory detention because, under the “plain-feel” doctrine, the cell
phones were not immediately identifiable as contraband. The State responds that
“Officer Castillo’s search of appellant was [] justified as a search incident to arrest
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. . . given that [he] had probable cause to arrest appellant for aggravated robbery”
at the time the cell phones were seized. We agree with the State.
Article 14.03(a)(1) of the Code of Criminal Procedure provides that “[a]ny
peace officer may arrest, without warrant, persons found in suspicious places and
under circumstances which reasonably show that such persons have been guilty of
some felony . . . .” TEX. CODE CRIM. PROC. art. 14.03(a)(1). “Reviewing courts in
Texas have consistently used the totality of the circumstances test for deciding
whether an arrest is proper under Article 14.03(a)(1).” Dyar v. State, 125 S.W.3d
460, 468 (Tex. Crim. App. 2003). “First, probable cause that the defendant
committed a felony must be found and second, the defendant must be found in a
‘suspicious place.’” Id.
Probable Cause
Probable cause exists when the arresting officer possesses reasonably
trustworthy information sufficient to warrant a reasonable belief that a breach of
the peace has been or is being committed. See Amador v. State, 275 S.W.3d 872,
878 (Tex. Crim. App. 2009). Probable cause deals with probabilities; it requires
more than mere suspicion but far less evidence than that needed to support a
conviction or even that needed to support a finding by a preponderance of the
evidence. Guzman v. State, 955 S.W.2d 85, 87 (Tex. Crim. App. 1997). “The rule
of probable cause seeks to accommodate the sometimes opposing interests of
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safeguarding citizens from rash and unreasonable police conduct and giving fair
leeway to legitimate law enforcement efforts.” Id. Police broadcasts that are based
on probable cause and that report a felony and a description of the perpetrator
satisfy the requirements for a warrantless arrest. Law v. State, 574 S.W.2d 82, 84
(Tex. Crim. App. 1978).
In this case, the eyewitnesses, Rosa and Cynthia Chavez, described their
assailant to Officer Calvit, who in turn broadcast that description over the radio to
Officer Castillo. Accordingly, Officer Castillo was aware that he was looking for a
Hispanic male suspect wearing a black t-shirt with white lettering, dark pants, and
black shoes. Using an application on one of the stolen cell phones that uses global
position monitoring, Castillo was able to track the stolen cell phone to a nearby
apartment complex. At the apartment complex, Castillo located a group of five
men, all of whom generally matched the description given by Rosa and Cynthia
Chavez. However, only one of the five men, appellant, matched the description
exactly.2
2
Officer Castillo testified about this issue as follows:
Q: No, what color shirt are all of these men wearing
A: Black.
Q: Do they all have white lettering on their shirts?
A: Yes, ma’am the majority of them.
Q: The majority. You’re speaking broadly, and I want you to speak specifically.
A: Okay.
Q: Do they all have white lettering?
A: No.
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The Texas Court of Criminal Appeals has held that radioed police broadcasts
based on probable cause, reporting a felony and a description of the suspect are
sufficient to satisfy the probable cause requirement. See Guzman v. State, 521
S.W.2d 267, 268 (Tex. Crim. App. 1975) (holding probable cause for warrantless
arrest existed after victim described burglar to police, whose description was
relayed to dispatcher, who broadcast it to arresting officer, who located and
arrested man fitting description nearby); see also Law, 574 S.W.2d at 84 (holding
probable cause for warrantless arrest existed after arresting officer received radio
Q: Do they all have dark, long pants on?
A: No
Q: How many of them have dark, long pants on?
A: Pants, three.
Q: Do they all have black shoes on?
A: No.
Q: So[,] when you say that they all matched exactly; is that true?
A: No. No.
Q: How many of those men matched the had [sic] description exactly.
A: One
Officer Castillo further testified:
Q: What descriptions were you given for the suspect involved in that aggravated
robbery?
A: Hispanic male, black shirt with white lettering, dark pants, black shoes.
Q: And I know we hit on this previously, did [appellant], did he match that
description?
A: Yes.
Q: Did he match that description just generally or did he match that description
exactly?
A: Him, exactly.
Q: Now, did the other men that were there, did they match that description generally?
A: Generally, yes.
Q: Did those other men, did they match exactly like [appellant]?
A: No.
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broadcast of description of aggravated assault suspect and car and arrested
defendant, who matched description, a short time later and six miles away).
Here, Officer Castillo had more than the radio broadcast description that
“exactly” matched appellant, as described by the victims to Officer Calvit. He also
had information that the stolen cell phone was emitting a GPS signal from the
same location. And, although appellant suggests that more than one of the five men
matched the broadcast description of the assailant, that would not defeat probable
cause. See Hill v. California, 401 U.S. 797, 802–05, 91 S. Ct. 106, 1110-111
(1971) (concluding that officers with probable cause to arrest suspect did not
violate Fourth Amendment when they arrested another matching suspect’s
description); see also Totten v. State, No. PD-0483-15, 2016 WL 5118331, at *2
(Tex. Crim. App. Sept. 21, 2016) (“For probable cause purposes though, as long as
the car [the police] pulled over matched the description that [the witnessing
officer] provided, the car need not be the same.”).
Therefore, we conclude that the police had reasonably trustworthy
information that, when, considered as a whole, warranted a reasonable person to
believe that appellant had committed an offense. Guzman, 955 S.W.2d at 87.
Suspicious Place
To justify a warrantless arrest under article 14.03(a)(1), the State must prove
not only the existence of probable cause, but also that the defendant was found in a
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suspicious place; very few places are suspicious per se. Johnson v. State, 722
S.W.2d 417, 421 (Tex. Crim. App. 1986), overruled on other grounds, McKenna v.
State, 780 S.W.2d 797 (1989). A place may become suspicious, however, based
on the surrounding circumstances. Id. The facts available to the arresting officer at
the time, and reasonable inferences drawn from those facts, may render a place
suspicious to invoke article 14.03(a)(1). Muniz v. State, 851 S.W.2d 238, 251 (Tex.
Crim. App. 1993); Johnson, 722 S.W.2d at 421. A place can be suspicious
because: (1) an eyewitness or police officer connected the place to the crime; (2) a
crime occurred there or the police reasonably believed a crime occurred there; (3)
specific evidence directly connected the defendant or the place with the crime; or
(4) appellant’s behavior was a factor in determining whether a place was
suspicious. State v. Parson, 988 S.W.2d 264, 268–69 (Tex. App.—San Antonio
1998, no pet.); Goldberg v. State, 95 S.W.3d 345, 363 (Tex. App.—Houston [1st
Dist.] 2002, pet. ref’d).
Although an apartment complex is not an inherently suspicious place, the
fact that the GPS locator in the stolen cell phone showed that the phone and
appellant, who matched the witnesses’ description, were in the same location,
rendered this apartment complex a “suspicious place.” The “pinging” of the stolen
cell phone at the apartment complex tied appellant to the crime scene. See
Goldberg, 95 S.W.3d at 363 (holding that appellant’s father’s house was
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“suspicious place” because car that eyewitness identified at scene was parked there
and “connected the defendant to the crime scene”).
Because the police officers had probable cause to arrest appellant for
aggravated robbery and appellant was found in a “suspicious place,” appellant’s
warrantless arrest was authorized by article 14.03(a)(1). Considering our holding,
we need not address appellant’s contention that the search was an unauthorized
“plain-feel” search after an investigatory detention.
We overrule appellant’s first issue.
Out-of-Court Identification
In his second issue, appellant complains that the trial court should have
suppressed Rosa’s and Cynthia’s identifications of him because “[t]he show-up in
question was so unnecessarily suggestive and conducive to irreparable mistaken
identification as to constitute a denial of due process.”
“[A] pre-trial identification procedure may be so suggestive and conducive
to mistaken identification that subsequent use of that identification at trial would
deny the accused due process of law.” Barley v. State, 906 S.W.2d 27, 32–33 (Tex.
Crim. App. 1995) (citing Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967 (1967)).
“[T]he admissibility of an in-court identification is determined by a two-step
analysis: 1) whether the out-of-court identification procedure was impermissibly
suggestive; and 2) whether that suggestive procedure gave rise to a very substantial
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likelihood of irreparable misidentification.” Santiago v. State, 425 S.W.3d 437,
440 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d). “It is appellant’s burden to
prove the in-court identification is unreliable by proving both of these elements by
clear and convincing evidence.” Santos v. State, 116 S.W.3d 447, 451 (Tex.
App.—Houston [14th Dist.] 2003, pet. ref’d) “An analysis under these steps
requires an examination of the ‘totality of the circumstances’ surrounding the
particular case and a determination of the reliability of the identification.”
Santiago, 425 S.W.3d at 440 (citing Barley, 906 S.W.2d at 33). If the indicia of
reliability outweighs the influence of an impermissibly suggestive pretrial
identification, the identification testimony is admissible. Santos, 116 S.W.3d at
451.
Appellant claims that the show-up was impermissively suggestive because:
(1) both Rosa and Cynthia were in the same car when they identified appellant; (2)
Rosa may have had a language barrier; (3) Rosa and Cynthia were told they were
going to view someone who may have been involved in the offense, and (4)
appellant was the only suspect shown to the complainants.
However, we need not address whether appellant has demonstrated that the
show-up identification was impermissibly suggestive because we conclude that he
has not established that the show-up identification procedure “gave rise to a very
substantial likelihood of irreparable misidentification.” See, e.g., Santos, 116
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S.W.3d at 451 (recognizing appellant’s burden to demonstrate both that out-of-
court identification procedure was unduly suggestive and likely caused a
misidentification).
“The non-exclusive factors that we consider include: (1) the witness’s
opportunity to view the defendant at the time of the crime; (2) the witness’s degree
of attention; (3) the accuracy of the witness’s prior description of the criminal; (4)
the witness’s level of certainty at the time of confrontation; and (5) the length of
time between the offense and the confrontation.” Nunez–Marquez v. State, 501
S.W.3d 226, 235 (Tex. App.—Houston [1st Dist.] 2016, pet. ref’d). Application of
these factors does not demonstrate a likelihood of misidentification of the
appellant.
Opportunity to view the assailant
The trial court found, and the record supports a finding that, Cynthia “was
within arm’s length of the defendant for ten to fifteen minutes,” and that Rosa “was
able to see [appellant] face-to-face during the offense for approximately 15
minutes. Cynthia testified that it was daylight, and she had an unobstructed view
of appellant’s face because he was “two steps away.” Cynthia further testified that,
during the offense, appellant “got his head, half his body inside [the car],” as he
leaned over her mother, who was in the driver’s seat. Rosa also testified that
nothing covered the assailant’s face and that she got a good look at him. She was
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able to see his face and he was close enough to touch her when he leaned half his
body in her car.
Degree of attention
The trial court found, and again the record supports a finding that, Cynthia
“paid a high degree of attention to the defendant during the incident.” Cynthia
testified that nothing distracted her from appellant, who was holding a gun on her
and her mother. Also, the trial court found that Rosa “paid a high degree of
attention during the offense,” and based on her attention, she was able to provide
an accurate description of the assailant.
Accuracy of prior description
The trial court found that Cynthia “provided an accurate description of the
suspect’s clothing and the defendant was apprehended while wearing the same
clothing described by [Cynthia].” The trial court also found that Rosa “provided
an accurate description of the defendant.” Both gave information to police that the
assailant was wearing a black shirt with white letters, dark pants, and black shoes.
Appellant was arrested wearing clothes that matched this description. Both
accurately described him as Hispanic, with short dark hair. Cynthia testified that
appellant sounded like he was from El Salvador because she had friends from El
Salvador and recognized the accent. Appellant was indeed El Salvadoran.
Although when Cynthia testified at trial that the assailant had no facial hair, it is
15
her prior description, not her description at trial, that is relevant to this analysis.
See Nunez–Marquez, 501 S.W.3d at 235 (noting that third factor is “the accuracy
of the witness’s prior description of the criminal”).
Witnesses’ level of certainty
The trial court found that Cynthia “was sure that the person she saw during
the show-up was the same person who robbed her.” She testified that she did not
hesitate at all when she saw appellant, and that she would not have identified
anyone if she had not recognized him because she did not think that “would be
fair.” At trial, Cynthia testified, “I don’t quite remember if they was [sic] first,
second, or third. I don’t remember; but when I saw him, I was sure that was him.”
After identifying appellant, Cynthia saw the other men brought to the show-up and
she was confident that none of them were the robber. The trial court also found
that Rosa had a high degree of certainty when she identified appellant as the person
who robbed her. Rosa testified that when the police pulled several men out of the
police car, appellant was the second one and she recognized him immediately. She
testified that she recognized his face and clothes, saying, “I was sure.”
Length of time between offense and confrontation
The trial court found that “[l]ess than two hours passed between the time that
[Cynthia] observed appellant during the robbery and the time when she identified
him at the show-up.” While Rosa estimated that it was about four to five hours
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before she identified appellant at the show-up and stated that it “felt like a long
time,” the trial court, as factfinder, was entitled to believe Cynthia’s testimony that
it was only “two hours.”
We conclude that, even if we assume without deciding that the pre-trial
show-up identification procedure used in this case was impermissibly suggestive,
the totality of the circumstances demonstrates that this procedure did not give rise
to a “substantial likelihood of irreparable misidentification.” See Gamboa v. State,
296 S.W.3d 574, 581–82 (Tex. Crim. App. 2009).
We, therefore, hold that the trial court did not err in denying appellant’s
motion to suppress the pre-trial, show-up identifications, as well as the subsequent
in-court identifications.
Accordingly, we overrule issue two.
CONCLUSION
We affirm the trial court’s judgment.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Brown and Caughey.
Do not publish. TEX. R. APP. P. 47.2(b).
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