Alejandro Castro v. State , 2012 Tex. App. LEXIS 2614 ( 2012 )


Menu:
  •                                                   OPINION
    No. 04-11-00312-CR
    Alejandro CASTRO,
    Appellant
    v.
    The STATE of Texas,
    Appellee
    From the 399th Judicial District Court, Bexar County, Texas
    Trial Court No. 2010CR12777A
    Honorable Juanita A. Vasquez-Gardner, Judge Presiding
    Opinion by:       Marialyn Barnard, Justice
    Sitting:          Rebecca Simmons, Justice
    Steven C. Hilbig, Justice
    Marialyn Barnard, Justice
    Delivered and Filed: April 4, 2012
    AFFIRMED
    After the trial court denied his motion to suppress, appellant Alejandro Castro pled nolo
    contendere to two counts of second-degree robbery. 1 The trial court sentenced Castro to five
    years imprisonment and imposed a $1,500.00 fine. On appeal, Castro challenges the denial of
    his motion to suppress, contending his arrest was unlawful. We affirm the trial court’s judgment.
    1
    Despite his plea, Castro is entitled to appeal the denial of his motion to suppress. See TEX. R. APP. P. 25.2(2)(A)
    (stating that in plea bargain case, defendant may appeal matters raised by written motion filed and ruled on before
    trial).
    04-11-00312-CR
    BACKGROUND
    The evidence shows that in September 2010, David Martinez and Joseph Zamarippa were
    waiting for a bus outside Travis Park in downtown San Antonio. As they waited, a group of
    young men approached and demanded Martinez’s wallet and Zamarippa’s skateboard. The
    testimony showed Zamarippa gave the men the skateboard, but Martinez attempted to walk
    away. As Martinez walked away, one of the men threatened to hit Martinez with the skateboard
    if he refused to turn over his cell phone. Despite the threat, Martinez refused to turn over his
    wallet or his cell phone. After Martinez refused, he was hit over the head with the skateboard,
    knocked to the ground, punched, and kicked.           One of the men took Martinez’s wallet.
    Zamarippa was also attacked but was able to escape.
    Officer Glenn Barrow, a seventeen-year veteran of the San Antonio Police Department,
    was on bike patrol near Travis Park. While he was writing a citation in an unrelated matter,
    Zamarippa approached and told Officer Barrow there was a fight in Travis Park. After he
    finished writing the citation, Officer Barrow headed toward Travis Park.
    On his way to the park, Officer Barrow saw two “Latin” men heading away from the
    park. Both men were wearing white t-shirts, and one was holding a skateboard. Officer Barrow
    stated that when he first saw the men, he had no reason to believe they were involved in any
    “wrongdoing.” As the officer approached the park, an unidentified man stopped him, stating
    four “Latin” men, two wearing white t-shirts and two wearing black t-shirts, were “beating up a
    man in the park.” The witness described the men and indicated one of the men in white was
    carrying a skateboard. Realizing the description he received matched the two men he had seen
    on his way to the park, Officer Barrow turned around and attempted to find the men in the white
    t-shirts; however, he was unsuccessful.
    -2-
    04-11-00312-CR
    Almost immediately thereafter, Officer Barrow saw two “Latin” men wearing black
    t-shirts. The men matched the description given to him by the unidentified witness. Officer
    Barrow stopped the men and placed them in handcuffs. He identified the men as Edward
    Hinojosa and Jonathan Vasquez. Officer Barrow called for additional officers to assist him, and
    remained with Hinojosa and Vasquez until other officers arrived.
    After officers arrived and took Hinojosa and Vasquez into custody, another officer went
    to Travis Park to see if he could find the victim, Martinez. Martinez was found nearby, and
    Officer Barrow headed over to speak to him. While on his way to speak to the victim, Officer
    Barrow passed a restaurant and just happened to look inside. Through the window he saw one of
    the “Latin” men he had seen earlier. Officer Barrow went inside the restaurant. He stated the
    man was still wearing a white t-shirt and carrying a skateboard. He also stated the man matched
    the description given by the unidentified witness. Officer Barrow spoke to the man who was
    identified as Alejandro Castro. When asked if Castro was under arrest, Officer Barrow stated
    “[h]e was detained until I found out what exactly was going on.” Officer Barrow took Castro
    outside. When a San Antonio Park Police Officer arrived at the restaurant, he placed Castro in
    handcuffs.
    Once Castro was handcuffed and detained, Officer Barrow went back inside to look for
    the second “Latin” male in a white-t-shirt. Officer Barrow did not see the man, but the restaurant
    manager pointed toward the restroom. Officer Barrow went to the restroom, knocked on the
    door and identified himself. Officer Barrow ordered the individual out of the restroom. The man
    was now wearing a black t-shirt, but Officer Barrow stated he saw a white t-shirt next to a
    backpack at the table where Castro had been sitting. The second man refused to identify himself,
    but was later determined to be Victor Ruiz. Officer Barrow found the victim’s wallet in Ruiz’s
    -3-
    04-11-00312-CR
    pocket. Officers inventoried the backpack, and both Castro and Ruiz were taken separately to
    where the other two “Latin” males in black t-shirts were being detained.
    Martinez, the victim, spoke to officers and reported he was robbed by four “Latin” males.
    Martinez told officers all four men hit, kicked, and beat him with a skateboard. Martinez stated
    two of the men took the skateboard with them when they left.
    A detective with the San Antonio Police Department conducted one-on-one line-ups in
    the field. Martinez and Zamarippa positively identified Hinojosa, Vasquez, Ruiz, and Castro as
    the four men who beat and robbed them. Zamarippa stated the skate board taken by the men was
    his, and Martinez identified the wallet found in Ruiz’s pocket. The property was returned to the
    victims.
    On cross-examination, Officer Barrow stated the men were placed in handcuffs “for my
    safety and theirs.” He specifically denied he had “immediately arrested them,” but stated he
    “detained them.” Officer Barrow admitted he wrote in his report that he placed Castro “under
    arrest,” but explained that it was a detention because it was “not final.” Officer Barrow admitted
    the men followed his instructions and never attempted to flee after they were detained.
    On redirect, Officer Barrow explained his intent was to detain Castro and “further
    investigate his involvement, if any.” Officer Barrow testified that roughly twenty-five minutes
    had elapsed from the first report of the fight until the time he detained Castro.
    Castro was ultimately indicted for second-degree robbery. He filed a motion to suppress.
    After an evidentiary hearing, the trial court denied the motion to suppress. Once the motion was
    denied, the parties entered into a plea pursuant to which Castro pled nolo contendere to second-
    degree robbery. Castro requested the trial court make findings of fact and conclusions of law,
    which the court issued. He then perfected this appeal.
    -4-
    04-11-00312-CR
    ANALYSIS
    In his single point of error, Castro maintains the trial court erred in denying his motion to
    suppress the evidence obtained by officers after he was detained by Officer Barrow, including
    the on-site identification by the victim. He argues his detention was, in actuality, an unlawful
    warrantless arrest, and therefore, all evidence obtained after the arrest should have been
    excluded.
    Standard of Review
    We review the trial court’s ruling on a motion to suppress under the abuse of discretion
    standard and overturn the trial court’s ruling only if it falls “outside the zone of reasonable
    disagreement.” Martinez v. State, 
    348 S.W.3d 919
    , 922 (Tex. Crim. App. 2011); accord Arizpe
    v. State, 
    308 S.W.3d 89
    , 91 (Tex. App.—San Antonio 2010, no pet.). We further apply a
    bifurcated standard of review, according almost total deference to the trial court to determine
    historical facts and those facts which depend upon witness credibility. Amador v. State, 
    221 S.W.3d 666
    , 673 (Tex. Crim. App. 2007). We review a trial court’s legal conclusions, and facts
    that do not depend on witness credibility, under a de novo standard of review. State v. Kelly, 
    204 S.W.3d 808
    , 818 (Tex. Crim. App. 2006).
    When, as in the case before us, the trial court enters findings of fact after denying a
    motion to suppress, we must determine whether the evidence supports those facts by viewing the
    evidence in favor of the trial court’s ruling. Keehn v. State, 
    279 S.W.3d 330
    , 334 (Tex. Crim.
    App. 2009) (citing 
    Kelly, 204 S.W.3d at 818
    ).         Furthermore, we review the trial court’s
    conclusions of law de novo, upholding the ruling if it is supported by the record and falls under
    any correct legal theory applicable to the case. State v. Iduarte, 
    268 S.W.3d 544
    , 549 (Tex.
    Crim. App. 2008); Beechum v. State, 
    346 S.W.3d 5
    , 8 (Tex. App.—San Antonio 2011, no pet.).
    -5-
    04-11-00312-CR
    Application
    We must first determine whether the detention in this instance amounts to an arrest, or
    was merely an investigatory detention, because the nature of the detention determines the
    applicable constitutional parameters. See Amores v. State, 
    816 S.W.3d 407
    , 411 (Tex. Crim.
    App. 1991). The amount of information required for law enforcement to stop and detain an
    individual for investigative purposes is less than what is constitutionally required for probable
    cause to arrest an individual. See 
    id. An investigative
    detention is a seizure, but is characterized by a lesser amount of restraint
    on an individual. See Berkemer v. McCarty, 
    468 U.S. 420
    , 437–40 (1984); Francis v. State, 
    922 S.W.2d 176
    , 178 (Tex. Crim. App. 1996). An investigative detention occurs when an individual
    is temporarily detained by law enforcement officials for purposes of an investigation. State v.
    Garcia, 
    25 S.W.3d 908
    , 911 (Tex. App.—Houston [14th Dist.] 2000, no pet.) (citing Johnson v.
    State, 
    912 S.W.2d 227
    , 235 (Tex. Crim. App. 1995)). To detain an individual for investigatory
    purposes, i.e., without a warrant, a police officer need only have a reasonable, articulable
    suspicion that the individual has been, or soon will be engaged in criminal activity. Ford v.
    State, 
    158 S.W.3d 488
    , 492 (Tex. Crim. App. 2005).            This is an objective standard that
    disregards any subjective intent of the officer making the stop, and therefore we consider only
    whether an objective basis for the stop exists. 
    Id. In making
    a determination as to the existence
    of reasonable suspicion, we consider the totality of the circumstances. 
    Id. at 492–93.
    An arrest, however, imposes a greater degree of restriction on an individual’s freedom of
    movement than an investigatory detention. State v. Sheppard, 
    271 S.W.3d 281
    , 290 (Tex. Crim.
    App. 2008). Accordingly, an arrest must be justified by probable cause as opposed to reasonable
    suspicion. 
    Amores, 816 S.W.2d at 411
    .
    -6-
    04-11-00312-CR
    To determine whether a detention is merely for investigatory purposes or amounts to an
    arrest, Texas courts use a totality of the circumstances approach. 
    Sheppard, 271 S.W.3d at 291
    ;
    Curtis v. State, 
    238 S.W.3d 376
    , 379 (Tex. Crim. App. 2007). In making this determination,
    courts are to consider:
    [T]he amount of force displayed, the duration of a detention, the efficiency of the
    investigative process and whether it is conducted at the original location or the
    person is transported to another location, the officer’s expressed intent—that is,
    whether he told the detained person that he was under arrest or was being detained
    only for a temporary investigation, and any other relevant factors.
    
    Sheppard, 271 S.W.3d at 291
    .
    When reviewing the amount of force utilized, we look to the reasonableness of the
    officer’s actions from the perspective of the officer present at the scene. Rhodes v. State, 
    945 S.W.2d 115
    , 118 (Tex. Crim. App. 1997). In evaluating the type of detention associated with
    handcuffing, a bright-line test is rejected in favor of allowing “ordinary human experience to
    govern.” 
    Id. Officer Barrow
    stated that after identifying Castro at the restaurant, he walked Castro
    outside and another officer placed Castro in handcuffs. Officer Barrow testified the handcuffs
    were necessary for the safety of both Castro and himself.           Officers are permitted, for
    investigative purposes or personal safety, to use reasonable force to effectuate the goal of the
    stop. See Balentine v. State, 
    71 S.W.3d 763
    , 771 (Tex. Crim. App. 2002).
    An individual may be placed in handcuffs, especially for safety purposes, to further the
    purpose of the investigatory stop. Mays v. State, 
    726 S.W.2d 937
    , 942–44 (Tex. Crim. App.
    1986); see 
    Rhodes, 945 S.W.2d at 117
    –18. In Mays, the court found an investigative detention
    occurred where a single officer detained and subsequently handcuffed two individuals for his
    own 
    protection. 726 S.W.2d at 943
    . Considering Officer Barrow was presented with a similar
    -7-
    04-11-00312-CR
    situation as the officer in Mays, it cannot be said the trial court erred in concluding Officer
    Barrow’s actions were reasonably necessary to guarantee his safety while further investigating
    Castro’s involvement in the Travis Park fight. See 
    id. at 942–44;
    cf. 
    Balentine, 71 S.W.3d at 771
    (investigative detention occurred where individual was escorted to patrol car and handcuffed). In
    contrast, a situation where an officer “blocked the appellant’s car in the parking lot, drew his
    service revolver, ordered the appellant from his car at gunpoint, ordered him to lie face-down on
    the pavement with his hands behind his back, and told him he would be shot if he did not obey
    these orders,” an arrest occurred. 
    Amores, 816 S.W.2d at 411
    –12. Considering Officer Barrow
    only maintained access to a bike as opposed to a patrol vehicle, as well as the other
    circumstances, we cannot say the use of handcuffs in this instance was unreasonable. See
    
    Rhodes, 945 S.W.2d at 117
    –18.
    We turn now to the length of Castro’s detention.             A detention’s duration must
    demonstrate the officers efficiently pursued an investigation to confirm or dispel their suspicions.
    E.g., Davis v. State, 
    947 S.W.2d 240
    , 245 (Tex. Crim. App. 1997); Renteria v. State, 
    989 S.W.2d 114
    , 119 (Tex. App.—San Antonio 1999, pet ref’d). In the present case, Officer Barrow’s
    testimony showed Castro’s detention lasted approximately twenty-five to forty-five minutes,
    although an exact time frame was uncertain. This was not an unreasonable amount of time under
    the circumstances, i.e., the officer had to go inside the restaurant to find and detain the second
    suspect, and then transport both suspects to the park for the on-site identification. See 
    Balentine, 71 S.W.3d at 770
    n.7 (concluding detention lasting less than one hour reasonable). We agree
    with the trial court’s findings that Castro’s detention permitted the complainant to arrive on the
    scene, the CID detective to be contacted, and allowed a line-up to be conducted.             When
    reviewing the totality of the circumstances, Officer Barrow briefly detained Castro, “a person
    -8-
    04-11-00312-CR
    reasonably suspected of criminal activity,” for a period merely long enough to engage in an
    investigatory procedure. See 
    id. (concluding investigative
    detention occurred where suspect was
    “sitting in the back of a patrol car,” for a period of time after “being handcuffed and then
    frisked”); see also Paulea v. State, Nos. 04-09-00293-CR, 04-09-00294-CR, 04-09-00295-CR,
    
    2010 WL 1068176
    , at *7 (Tex. App.—San Antonio Mar. 24, 2010, pet. ref’d) (mem. op., not
    designated for publication) (handcuffing suspect allowed officers to efficiently inspect scene in
    order to conduct a thorough investigation).
    With regard to transportation, the record indicates Castro was taken from the restaurant to
    the other suspects’ location to allow Zamarippa and Martinez the opportunity to identify the four
    suspects together. Moving a suspect a short distance to further an investigation is consistent with
    an investigatory detention’s purpose. Compare Francis v. State, 
    922 S.W.2d 176
    , 180 (Tex.
    Crim. App. 1996) (Baird, J., concurring and dissenting) (moving individual short distance to
    scene of crime furthered investigation), with Delk v. State, 
    855 S.W.2d 700
    , 712 (Tex. Crim.
    App. 1993) (determining arrest occurred where suspects were “handcuffed, read their Miranda
    rights, and taken to police station”). Because Officer Barrow transported the individuals around
    the block for identification purposes, the move from the original location reasonably furthered
    the investigation while still providing for officer safety.
    Finally, we must examine the officer’s intent with regard to the detention in question.
    See 
    Sheppard, 271 S.W.3d at 291
    . Officer Barrow testified he detained Castro in handcuffs so
    he could find out “exactly what was going on.” When prompted, Officer Barrow indicated that
    although he informed Castro he was “under arrest,” Officer Barrow would not walk around
    saying “you’re under detention” to suspects in detention. See id.; see also Smith v. State, 
    219 S.W.2d 454
    , 456 (Tex. Crim. App. 1949) (“The mere fact that an officer makes the statement to
    -9-
    04-11-00312-CR
    an accused that he is under arrest does not complete the arrest.”); Burkhalter v. State, 
    642 S.W.2d 231
    , 232 (Tex. App.—Houston [14th Dist.] 1982, no pet.) (holding arrest did not occur
    where appellant was handcuffed and told he was under arrest). Officer Barrow’s testimony
    establishes the detention was an effort to further investigate the situation, despite his statement to
    Castro. See Burkes v. State, 
    830 S.W.2d 922
    , 925 (Tex. Crim. App. 1991) (indicating officer’s
    opinion “must certainly be considered persuasive”).
    After reviewing the evidence under the appropriate guidelines and standard of review, we
    cannot say the trial court erred in concluding Officer Barrow engaged in an investigative
    detention rather than an arrest. The evidence in the record shows the amount of force used by
    Officer Barrow was reasonable, considering his status as a bike patrolman, the potential to be
    outnumbered by suspects at a ratio of two to one, and the receipt of information from two
    informants as to the possible violent nature of the suspects. Castro’s detention, which lasted
    under one hour, falls within the zone of reasonableness contemplated by the court of criminal
    appeals. And, although officers transported Castro to another location, the distance was minimal
    and furthered the investigatory purpose of the stop. Finally, Officer Barrow’s testimony that it
    was an investigatory detention, despite his statement to Castro, provides additional support for
    the trial court’s conclusion that an investigatory detention, rather than an arrest, occurred. The
    officer explained his use of the word “arrest” when speaking to Castro, stating he would not
    inform an individual that he was “under detention.”
    Because Castro was merely detained for investigatory purposes and was not actually
    arrested until after he was identified by Martinez, Officer Barrow needed only reasonable
    suspicion, not probable cause, to detain Castro. See State v. Elias, 
    339 S.W.3d 667
    , 674 (Tex.
    - 10 -
    04-11-00312-CR
    Crim. App. 2011) (citing United States v. Sokolow, 
    490 U.S. 1
    , 7 (1989)). We now determine if
    Officer Barrow had reasonable suspicion to detain Castro.
    Reasonable suspicion exists when an officer has “specific, articulable facts that,
    combined with rational inferences from those facts, would lead him reasonably to conclude that
    the person detained is, has been, or soon will be engaged in criminal activity.” 
    Id. The trial
    court’s relevant factual findings, to which we must defer, state Officer Barrow received
    information from two informants as to a possible criminal incident occurring in Travis Park. See
    
    Amador, 221 S.W.3d at 673
    .         We hold the informants’ descriptions of the four suspects,
    accompanied by Officer Barrow’s own observations of men matching the given descriptions,
    provided ample information and warranted further investigation in the alleged crime area. See
    Foster v. State, 
    326 S.W.3d 609
    , 613 (Tex. Crim. App. 2010) (“The police officer must have
    some minimal level of objective justification for making the stop.” (citing Terry v. Ohio, 
    392 U.S. 1
    , 21 (1968)). Officer Barrow relayed to the trial court his observation of the suspects’
    perspiration consistent with physical activity such as a fight, the proximity of the suspects to the
    crime scene, and Castro’s association with an individual attempting to hide in the bathroom to
    distort his appearance. In addition, the trial court found Officer Barrow’s identification of Castro
    occurred mere minutes after the informant provided Castro’s description, and merely a block
    away from the crime scene. Based on these circumstances, it was not unreasonable for the trial
    court to conclude Officer Barrow possessed the requisite amount of information to lawfully
    detain Castro. Accordingly, we hold the trial court did not err in refusing to exclude the
    evidence obtained from the stop.
    Castro contends the officer’s investigative techniques failed to amount to an investigatory
    detention due to the absence of explicit questioning. However, “facts and circumstances . . . can
    - 11 -
    04-11-00312-CR
    establish a detention as investigatory without such questioning.” 
    Rhodes, 945 S.W.2d at 119
    n.4.
    Making “reasonable inquiries of a truly investigatory nature” such as collaborating with
    additional officers, contacting the Criminal Investigation Division, and providing for an
    identification line-up demonstrate reasonable investigation by the officers. See 
    Amores, 816 S.W.2d at 412
    . Therefore, the lack of express questioning by the officers does not transform an
    otherwise investigatory detention into an arrest. See, e.g., Morris v. State, 
    50 S.W.3d 89
    , 98
    (Tex. App.—Fort Worth 2001, no pet.) (“No verbal questions were necessary to effectuate the
    purpose of [the] temporary detention.”); Zayas v. State, 
    972 S.W.2d 779
    , 790 (Tex. App.—
    Corpus Christi 1998, pet ref’d) (“An investigating officer does not necessarily need to ask
    questions of a suspect before restraining him, so long as some investigation coincides with the
    restraint.”).
    CONCLUSION
    After reviewing the record under the proper standard of review, we find the trial court did
    not err in denying Castro’s motion to suppress.         The evidence supports the trial court’s
    conclusion that Officer Barrow conducted an investigatory detention, not an arrest. Further, the
    evidence supports the trial court’s conclusion that Officer Barrow had reasonable suspicion to
    detain Castro. Accordingly, we overrule Castro’s point of error and affirm the trial court’s
    judgment.
    Marialyn Barnard, Justice
    Publish
    - 12 -