Darrion J. Gardner v. State ( 2013 )

Opinion issued August 27, 2013.
In The
Court of Appeals
For The
First District of Texas
————————————
NOS. 01-12-00624-CR
01-12-00625-CR
01-12-00626-CR
———————————
DARRION J. GARDNER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 396th District Court
Tarrant County, Texas
Trial Court Case Nos. 1109055W, 1109056W, and 1109058W
MEMORANDUM OPINION
In 2008, a Tarrant County grand jury charged Darrion Gardner with three
felony offenses of burglary of a habitation. 1 In accordance with Gardner’s plea
1
Pursuant to its docket equalization authority, the Texas Supreme Court transferred
this appeal from the Fort Worth Court of Appeals to this Court. See TEX. GOV’T
agreement with the State, the trial court deferred entering findings of guilt in each
case and placed Gardner on five years’ community supervision. In February 2012,
the State petitioned to adjudicate Gardner’s guilt. The trial court adjudicated
Gardner’s guilt and sentenced him to twelve years’ confinement and payment of
restitution. Gardner challenges the evidentiary basis for the revocation and further
contends that the trial court erred in denying his motion to suppress certain
evidence. Finding no error, we affirm.
Background
The petition to adjudicate guilt enumerated several violations of the terms
and conditions of Gardner’s community supervision. Following an administrative
hearing on the petition, the trial court found that Gardner had violated two of the
conditions listed in the State’s petition by: (1) committing aggravated robbery and
(2) failing to attend a scheduled visitation with his community supervision officer.
Gardner’s community supervision was subject to the following terms and
conditions:
• Commit no offense against the laws of this State.
• Abstain from the illegal use of controlled substances, marijuana,
cannabinoids, or excessive consumption of any alcoholic beverage.
CODE ANN. § 73.001 (West 2013) (“The supreme court may order cases
transferred from one court of appeals to another at any time that, in the opinion of
the supreme court, there is good cause for the transfer.”).
2
• Permit the community supervision officer to visit you at your home or
elsewhere at any time.
• Work faithfully at suitable, full time employment, and furnish proof of
your employment to your supervision officer.
• Own or possess no firearms.
The trial court supplemented Gardner’s conditions of community supervision in
October 2008 to add conditions prohibiting Gardner from carrying or possessing a
firearm or other dangerous or deadly weapons. The supplemental conditions also
required Gardner to voluntarily submit to search and seizure by a peace officer
investigating an offense that involves a firearm or narcotics. Gardner signed the
supplemental conditions form, acknowledging that he received his conditions of
community supervision. In December 2011, the court imposed additional
conditions on Gardner’s community supervision, requiring him to observe a curfew
and prohibiting him from using, possessing, or consuming any alcoholic beverage.
In its petition to adjudicate Gardner’s guilt, the State charged that Gardner
violated the terms and conditions of his community supervision by, among other
things, committing a new criminal offense, namely, aggravated robbery. At the
revocation hearing, Sandra Rodriguez testified that, as she arranged shopping carts
near the end of her shift at a Tarrant County Walgreens, Gardner entered the store.
Gardner wore a black and gray hooded jacket with the hood pulled up, a wig with
long, shiny black hair, and a black ski mask over his face. Gardner approached
3
Rodriguez, and pointed a gun directly at her face. Gardner ordered Rodriguez to
take him to the safe. Rodriguez went to a door at the back of the store that opened
into a vestibule in front of the manager’s office door. Rodriguez entered the code
on the keypad to unlock it. Rodriguez tried to slip in and close the door quickly,
but Gardner managed to get his head inside before it closed. Rodriguez pulled off
Gardner’s ski mask. He quickly covered his face, ducked down, and fled. After
Gardner left the store, Rodriguez knocked on the store manager’s office door. He
responded, and Rodriguez told him that someone was trying to rob the store. He
ran out into the store, telling Rodriguez to stay in the office. Rodriguez used the
telephone to call 911. She reported the robbery and described the suspect to police.
At the revocation hearing, Rodriguez confirmed that she had reviewed the
Walgreens surveillance video. It depicted the events as she remembered them.
The trial court also heard testimony from Detective B. Jones of the Arlington
Police Department. In January 2011, he was working as a patrol officer during the
midnight-to-7:00 A.M. shift when he received an emergency call reporting an
armed robbery in progress at the Walgreens. When Detective Jones arrived at the
address, he noticed a vehicle parked at the carwash next to the Walgreens. Its hood
was raised, and Gardner was standing in front of the car and looking inside the
hood.
4
Another police officer, Officer Vo, detained Gardner, and Detective Jones
went inside the Walgreens, viewed the surveillance video, and spoke with
Rodriguez about the incident. He returned outside to speak with Gardner. Gardner
explained that his car had broken down at a nearby intersection, but he managed to
get it to the car wash. Gardner signed a form consenting to the officers’ search of
his car. Detective Jones discovered a loaded handgun and a black curly wig in the
trunk.
Because the suspect had been wearing the wig, his face had been covered,
and he held a gun to Rodriguez’s face, she was uncertain that Gardner was the
suspect. But she confirmed that the wig and the gun retrieved from Gardner’s car
trunk were the ones used during the robbery.
Revocation of Community Supervision
I. Standard of review
A community supervision revocation proceeding is neither criminal nor civil
in nature—rather, it is an administrative proceeding. Cobb v. State, 851 S.W.2d
871, 873 (Tex. Crim. App. 1993); Canseco v. State, 199 S.W.3d 437, 438 (Tex.
App.—Houston [1st Dist.] 2006, pet. ref’d). At a revocation hearing, the State
must prove by a preponderance of the evidence that the defendant has violated a
condition of his community supervision. Rickels v. State, 202 S.W.3d 759, 763–64
(Tex. Crim. App. 2006) (quoting Scamardo v. State, 517 S.W.2d 293, 298 (Tex.
5
Crim. App. 1974)); Canseco, 199 S.W.3d at 438. Showing “a single violation is
sufficient to support a revocation.” Canseco, 199 S.W.3d at 439.
Our review of an order adjudicating guilt and revoking community
supervision is limited to determining whether the trial court abused its discretion in
ruling that the defendant violated the terms of his community supervision; in other
words, if the greater weight of the credible evidence would create a reasonable
belief that the defendant has violated a condition of his community supervision.
Rickels, 202 S.W.3d at 763 (quoting Cardona v. State, 665 S.W.2d 492, 493 (Tex.
Crim. App. 1984)); Duncan v. State, 321 S.W.3d 53, 56–57 (Tex. App.—Houston
[1st Dist.] 2010, pet. ref’d). We examine the evidence in the light most favorable to
the trial court’s order. Duncan, 321 S.W.3d at 57; Canseco, 199 S.W.3d at 439.
“The trial court is the exclusive judge of the credibility of the witnesses and
determines if the allegations in the motion are sufficiently demonstrated.” See id.;
Galvan v. State, 846 S.W.2d 161, 162 (Tex. App.—Houston [1st Dist.] 1993, no
pet.).
II. Evidentiary complaints
A. Admission of statement
Gardner contends that the trial court should have suppressed his statement to
police that he was having car trouble because he made the statement during a
custodial interrogation before he was read his Miranda rights. We evaluate a trial
6
court’s ruling on a motion to suppress under a bifurcated standard of review. Ford
v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005). The trial judge is the sole
trier of fact and judge of the weight and credibility of the evidence and testimony.
Weide v. State, 214 S.W.3d 17, 24–25 (Tex. Crim. App. 2007). Accordingly, we
defer to the trial court’s determination of historical facts if the record supports
them. Ford, 158 S.W.3d at 493. We review de novo the trial court’s application of
the law to those facts. Id. “[T]he prevailing party is entitled to ‘the strongest
legitimate view of the evidence and all reasonable inferences that may be drawn
from that evidence.’” State v. Castleberry, 332 S.W.3d 460, 465 (Tex. Crim. App.
2011) (quoting State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App.
2008)). A trial court’s ruling will be sustained if it is “reasonably supported by the
record and correct on any theory of law applicable to the case.” Laney v. State, 117
S.W.3d 854, 857 (Tex. Crim. App. 2003) (citing Willover v. State, 70 S.W.3d 841,
845 (Tex. Crim. App. 2002)).
A person’s Fifth Amendment rights do not come into play before an
investigation reaches a custodial stage. Melton v. State, 790 S.W.2d 322, 326 (Tex.
Crim. App. 1990). Miranda’s required warnings arise when a person being
questioned by law enforcement officials has been “taken into custody or otherwise
deprived of his freedom of action in any significant way.” Miranda, 384 U.S. at
444; Herrera v. State, 241 S.W.3d 520, 525 (Tex. Crim. App. 2007). In
7
determining whether an individual was in custody, we examine the circumstances
surrounding the interrogation to determine whether the law enforcement official
had formally arrested the individual, or had otherwise restrained his freedom of
movement “to the degree associated with a formal arrest.” Stansbury v. California,
511 U.S. 318, 322 (1994). We also consider the questions the officer poses,
because not all statements are products of interrogation. See Innis, 446 U.S. at 303;
Jones v. State, 795 S.W.2d 171, 174 n.3 (Tex. Crim. App. 1999). General and
routine questions do not constitute interrogation. Ruth v. State, 167 S.W.3d 560,
571 (Tex. App.—Houston [14th Dist.] 2005, pet. denied).
Detective Jones asked Gardner what he was doing at the car wash.
Responses to this type of preliminary question by police at the scene of the crime
while police are assessing and securing the scene are not testimonial. Id. at 568–69;
see also Jones, 795 S.W.2d at 174 n.3 (“For example, routine inquiries, questions
incident to booking, broad general question such as ‘what happened’ upon arrival
at the scene of a crime, and questions mandated by public safety concerns[,] e.g.
‘where did you hide the weapon’ when the weapon has just been hidden in the
immediate vicinity.”). The trial court did not err in admitting Gardner’s
explanation for his presence at the car wash.
Gardner complains that the State failed to offer evidence that justifies a
detention, beyond determining the reason that the car was parked at the car wash.
8
But Gardner neglects to consider other contemporaneous circumstances that gave
rise to the officer’s reasonable suspicion—namely, that the officers had just arrived
at the location in response to an emergency call about an armed robbery in
progress at the Walgreen’s next door, Gardner was the only person in the area, and
Gardner’s explanation about how he pushed his stalled car, without any assistance,
from a nearby intersection into the carwash bay—the bay closest to the
Walgreen’s—did not make sense. “The propriety of the stop’s duration is judged
by assessing whether the police diligently pursued a means of investigation that
was likely to dispel or confirm their suspicions quickly.” Sims v. State, 98 S.W.3d
292, 295 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). We hold that these
circumstances authorized the officers present to prolong Gardner’s detention.
B. Admission of evidence found in Gardner’s car
Gardner complains that the trial court should have excluded the handgun and
wig found in the trunk of his car, because he did not validly consent to the officers’
search of his car. We disagree. As a term of his community supervision, Gardner
agreed to submit to search and seizure by any peace officer investigating any
offense involving a firearm. As a result, he waived his right to invoke his
constitutional protection against unreasonable search and seizure. Cf. Grubbs v.
State, 177 S.W.3d 313, 318–19 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d)
(by residing in college dormitory, defendant agreed to adhere to university policies,
9
including the provision allowing university officials and staff to “enter rooms to
fulfill their daily duties, in cases of emergencies, or in cases of reasonable
suspicion of activity endangering the individual or the community,” and thereby
waived his right to challenge university’s inspection of his room after resident
assistant detected marijuana odor emanating from room). If Gardner had refused to
consent to the search, he would have violated a condition of his community
supervision. Whether he felt coerced into consenting to the search, therefore, does
not affect the outcome of his case. See Canseco, 199 S.W.3d at 439.
III. Support for finding that Gardner violated the terms of his community
supervision by committing the robbery
Gardner challenges the evidence in support of the trial court’s findings of
true with respect to the State’s allegations of violations of his community
supervision. Relying on Moore v. State, 640 S.W.2d 300 (Tex. Crim. App. 1982),
Gardner complains that the finding that he committed the robbery is flawed,
because the circumstantial evidence adduced at trial did not exclude the possibility
that another person was involved or committed the robbery. Moore, however, is no
longer the rule in Texas. See Geesa v. State, 820 S.W.2d 154, 158 (Tex. Crim.
App. 1991), overruled on other grounds by Paulson v. State, 28 S.W.3d 570, 573
(Tex. Crim. App. 2000); see also Laster v. State, 275 S.W.3d 512, 521 (Tex. Crim.
App. 2009) (explaining that “[c]ourts and juries no longer face the difficult task of
excluding every reasonable hypothesis other than the defendant’s guilt,” and
10
observing that circumstantial evidence is reviewed under the same standard as
direct evidence).
The charge against Gardner alleges that he, “on or about the 22[nd] day of
January 2012, in the County of Tarrant and State of Texas, did then and there
intentionally or knowingly, while in the course of committing theft of property and
with intent to obtain or maintain control of said property, threaten or place Sandra
Rodriguez in fear of imminent bodily injury or death, and the defendant used or
exhibited a deadly weapon, to wit: a firearm.” This charge accurately tracks the
first-degree felony offense of aggravated robbery set forth in the Texas Penal
Code. See TEX. PENAL CODE ANN. § 29.03 (West 2011).
The evidence before the trial court shows that Gardner held Rodriguez at
gunpoint, demanded that she open the safe, and fled the store only after she
uncovered his head, in an apparent effort to escape detection. The police found him
near the Walgreens and found the loaded gun and the wig he used to disguise
himself in the trunk of his car. Rodriguez identified the wig and the gun as having
been used in the robbery and accurately described the robber’s height and his
clothing. The trial court did not abuse its discretion in concluding that the greater
weight of the credible evidence created a reasonable belief that Gardner violated a
condition of his community supervision by committing aggravated robbery.
11
IV. Support for finding that Gardner violated the terms of his community
supervision by failing to be present for the supervisory officer’s home visit
Gardner further contends that the evidence that he violated the home visit
condition of his probation is ambiguous and, therefore, insufficient to support the
trial court’s finding. Officer J. Durand, who had served as Gardner’s probation
officer, testified that the field officers were required to visit the probationers at
their home at least once a month. He explained that the visits could be scheduled
or random. The probation records demonstrated that a field officer attempted to
meet with Gardner at his home on November 30, 2011, but Gardner was not
present. Gardner complains that the officer was scheduled to arrive at 4:00 P.M.,
but did not arrive until almost two hours later. Gardner did not answer the door to
permit the visit. He complains that the evidence was not clear whether the officer
had scheduled the appointment for 4:00 P.M. or whether he instructed Gardner to
be available sometime after 4:00 P.M. Because we have already determined that
the trial court reasonably could have concluded that Gardner violated the terms of
his community supervision by committing a robbery, we need not address
Gardner’s argument with respect to the home visit. See Canseco, 199 S.W.3d at
439.
12
Conclusion
We hold that the trial court acted within its discretion in adjudicating
Gardner’s guilt based on the evidence presented. We therefore affirm the judgment
of the trial court.
Jane Bland
Justice
Panel consists of Justices Keyes, Higley, and Bland.
Do not publish. TEX. R. APP. P. 47.2(b).
13