Felipe Jesus Juarez v. State ( 2006 )

Affirmed and Opinion filed February 9, 2006

Affirmed and Opinion filed February 9, 2006.

In The

Fourteenth Court of Appeals

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NOS. 14-05-00196-CR;

            14-05-00197-CR;

          14-05-00198-CR

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FELIPE JESUS JUAREZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court at Law No. 9

Harris County, Texas

Trial Court Cause Nos. 1263519; 1263518; 1263517

O P I N I O N

Appellant Felipe Jesus Juarez appeals after pleading guilty to carrying a weapon, possession of a controlled substance, and possession of marijuana under two ounces, pursuant to a plea bargain.  The trial judge sentenced appellant to thirty days= confinement in the Harris County jail with credit given for two days already served. In his sole point of error, appellant contends that the trial court erred by denying his motions to suppress evidence obtained during a warrantless search.  We affirm.

Background

On the night of October 10, 2004, Deputy John Palermo of the Harris County Sheriff=s Department was patrolling a local public park.  At the suppression hearing, Palermo testified that he noticed appellant=s car in the center of a dark parking lot.  Palermo testified that although appellant was not committing any traffic violations, his car was not parked in a designated space, and its headlights were turned off.  Aware that other deputies had arrested people in the park for various offenses, including buying and selling narcotics, Palermo became suspicious. Palermo testified that he parked his patrol car so that it was facing appellant=s car, but not so as to block appellant=s exit.  Unable to see the interior of appellant=s car, Palermo shined his spotlight to determine if anyone was inside.  Palermo testified that he used only his spotlight and headlights; he did not activate his red and blue lights.

According to Palermo, appellant, who was in the driver=s seat, bent at the waist and leaned forward in a Afurtive movement@ when the light shined into his car.  Palermo testified that using his normal voice, he asked appellant to step out of the vehicle.  Accompanied only by his canine partner, Palermo remained in the patrol car as appellant approached.  Palermo testified that he was concerned that appellant might have a weapon or that another person might be hiding in appellant=s car or in the surrounding area.

Palermo testified that he engaged appellant in conversation.  When Palermo asked appellant what he was doing at the park, appellant replied that he had been talking on his cell phone to his girlfriend.  Palermo then asked appellant if he was carrying any weapons or illegal items. According to Palermo, appellant responded that he had a handgun in his waistband, but he did not produce the gun. Palermo testified that at that point, he asked appellant to turn around, handcuffed him, and retrieved the gun. Palermo testified that he arrested appellant after he had retrieved the gun.  After arresting appellant, Palermo performed an inventory search of appellant=s vehicle and found narcotics.

Appellant was charged by complaint and information with the offenses of carrying a weapon, possession of a controlled substance, and possession of marijuana under two ounces. The trial court denied appellant=s motions to suppress in all three cases.  On appeal, appellant argues that (1) Palermo lacked reasonable suspicion for the initial investigatory stop; and (2) Palermo violated appellant=s rights under the Texas Constitution by arresting him without a warrant.^[1]

Standards of Review

We review a trial court=s ruling on a motion to suppress under an abuse of discretion standard.  Villareal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996). Under this standard, we give almost total deference to a trial court=s determination of historical facts supported by the record, especially when the trial court=s fact findings are based on an evaluation of credibility and demeanor.  Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).  We give the same amount of deference to a trial court=s ruling on Aapplication of law to fact questions@Calso known as Amixed questions of law and fact@Cif the resolution of those ultimate questions turns on an evaluation of credibility and demeanor.  Id.  We review de novo mixed questions of law and fact that do not turn on an evaluation of credibility and demeanor.  Id.

When, as in this case, the trial court makes no explicit findings of historical fact, we presume that it made those findings necessary to underpin its ruling, provided that they are supported in the record.  Carmouche v. State, 10 S.W.3d 323, 327-28 (Tex. Crim. App. 2000). We review a trial court=s decisions regarding detention and reasonable suspicion de novo.  Loserth v. State, 963 S.W.2d 770, 773 (Tex. Crim. App. 1998).

Encounter v. Detention

Appellant characterizes his initial interaction with Palermo as a temporary detention unsupported by reasonable suspicion.  We hold that the interaction was a consensual encounter, not a detention.

Under the Fourth Amendment to the United States Constitution and Article I, Section 9 of the Texas Constitution, in either an investigative detention or an arrest, a seizure has not occurred until (1) a reasonable person would believe that he or she was not free to leave and (2) that person has yielded to the officer=s show of authority or has been physically forced to yield.  Johnson v. State, 912 S.W.2d 227, 236 (Tex. Crim. App. 1995).  A temporary detention must be supported by reasonable suspicion, whereas an arrest must be supported by probable cause.  Id. at 235.  In contrast to a seizure, a law enforcement officer may approach a citizen without reasonable suspicion or probable cause in order to ask questions or even to request consent to search.  Id. (citing Florida v. Royer, 460 U.S. 491, 497-98 (1983)). In these situations, the citizen is free to not answer the questions, and the encounter is consensual as long as a reasonable person would feel free Ato disregard the police and go about his business.@  Id. (quoting California v. Hodari D., 499 U.S. 621, 628 (1991)).

In appellant=s case, the evidence does not suggest that there was such a display of authority that a reasonable person would not have felt free to leave or to decline Palermo=s request to step out of the car.  Additionally, there is no evidence that appellant was physically forced to yield to Palermo.  Although he was driving an official patrol car, Palermo testified that he did not flash his red and blue lights and that he used his normal voice when asking appellant to exit the car.  Furthermore, Palermo testified that he did not park close enough to appellant=s car to restrict appellant=s ability to leave the scene.  Finally, there is no evidence that Palermo drew his weapon or otherwise indicated that appellant was required to comply with his request, or that appellant felt compelled to comply.  See Brewer v. State, 932 S.W.2d 161, 168 (Tex. App.CEl Paso 1996, no pet.) (holding that consensual encounter occurred when a uniformed officer approached defendant in parking lot, did not block defendant=s path or order him to stop, and did not indicate that defendant was required to comply with request to step back from car door); Ashton v. State, 931 S.W.2d 5, 7 (Tex. App.CHouston [1st Dist.] 1996, pet. ref=d) (holding that no investigatory detention occurred when unidentified officer approached defendant, who was sitting in a parked car in a public place, and asked her to roll down the window); Reyes v. State, 899 S.W.2d 319, 323 (Tex. App.CHouston [14th Dist.] 1995, pet. ref=d) (noting that no seizure occurred when officer identified himself and asked to speak to defendant but did not display a gun, tell defendant that he was a narcotics agent, order defendant to comply, or ask to search defendant=s bag).  Therefore, the trial court did not err by denying appellant=s motions to suppress.

Validity of Arrest

Appellant also argues that the warrantless arrest by Palermo violated his rights under the Texas Constitution because it occurred without probable cause and cannot be justified  under any exception to the warrant requirement.^[2]  We disagree.

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).  When asked by Palermo if he was carrying any weapons or Aanything illegal,@ appellant replied that he had a handgun in his waistband. Palermo arrested appellant only after appellant had made this admission and Palermo had retrieved the gun.  Therefore, Palermo lawfully arrested appellant for carrying a weapon. Because we hold that no seizure occurred and that Palermo lawfully arrested appellant, we overrule appellant=s sole point of error and affirm his convictions.

/s/      Adele Hedges

Chief Justice

Judgment rendered and Opinion filed February 9, 2006.

Panel consists of Chief Justice Hedges and Justices Yates and Anderson.

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

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^[1]  The Texas Constitution protects citizens against unreasonable searches and seizures by government officials.  See Tex. Const. art. I, ' 9.

^[2]  Appellant also makes several references to Palermo=s having  questioned appellant without reading him his Miranda rights. However, we need not discuss the implications of Miranda because appellant was not under arrest or in custody at the time the complained-of questioning occurred.  See Miranda v. Arizona,  384 U.S. 436 (1966).