Shaun Hernandez v. State ( 2011 )

Opinion issued June 23, 2011

In The

Court of Appeals

For The

First District of Texas

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NO. 01-08-00766-CR

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Shaun Hernandez, Appellant

V.

The State of Texas, Appellee

On Appeal from the 230th District Court

Harris County, Texas

Trial Court Case No. 1156617

MEMORANDUM OPINION

          After the trial court denied his motion to suppress evidence, appellant, Shaun Hernandez, with an agreed punishment recommendation from the State, pleaded guilty to the offense of possession of a controlled substance weighing more than four grams and less than four hundred grams.[1]  In accordance with the plea agreement, the trial court sentenced appellant to confinement for three years.  In his sole issue, appellant contends that the trial court erred in denying his motion to suppress evidence on the ground that the arresting officers did not have reasonable suspicion to detain him.[2] 

          We affirm.

Background

At the hearing on appellant’s motion to suppress evidence, Houston Police Department (“HPD”) Officer R. Tagle testified that on March 4, 2008, while on patrol, he and HPD Officer D. Morelli saw appellant “walking in the middle of the roadway impeding traffic flow” on Davis Street.  He explained that from his experience he knew “that this specific area is heav[ily] impacted by gang-type and drug-type issues and members.”  After watching appellant walking in the middle of the street for approximately one to two minutes, the officers approached him because he had committed a “law violation,” i.e., “walking in the middle of the roadway impeding traffic flow.”  The officers “initiated a conversation” with appellant, and Tagle asked him for photographic identification, which appellant then provided. After the officers asked appellant if he had anything illegal in his possession that they needed to know about, appellant responded, “Oh, fuck. I have X.”  The officers then asked appellant for his consent to search his person, and appellant agreed.  The officers had appellant place his hands on the hood of their patrol car, and they found twenty ecstasy pills in appellant’s front pocket and arrested him.

Officer Morelli testified that on March 4, 2008, while on patrol with Officer Tagle, he saw appellant commit a “law violation” by walking in the middle of the roadway.  Morelli noted that the street did not have sidewalks, but there was “open space” off the roadway to walk.  After the officers pulled up next to appellant and asked for his identification, appellant “was kind of evasive on answering the questions” and “stuttering.”  Morelli noted that there was “something wrong with [appellant], something [was] not right,” and he seemed “nervous.”  After the officers asked appellant whether he had any narcotics in his possession, appellant stated that he had ecstasy.  Morelli asked appellant for his consent to a search, and appellant agreed.  Morelli then recovered the ecstasy pills from appellant.  Morelli noted that the traffic on Davis Street was a “little heavy” and cars had to go “around” appellant in the street because he was “blocking traffic pretty much.”

Appellant testified that on March 4, 2008, he was walking down Davis Street at approximately 10:00 p.m. when a police car pulled up next to him and the officers turned a spotlight on him.  Appellant explained that he was walking on the left side of the road, which was approximately twelve to fifteen feet wide.  Appellant was facing on-coming traffic, and there was a car parked on the right side of the road that occupied “nearly the entire lane of traffic.”  The officers asked for appellant’s identification and whether he had been previously arrested.  Appellant provided the officers with his identification and, in response to the officers questioning, told them that he had been previously arressted for possession of a controlled substance.  The officers then exited their car, asked appellant to put his hands on the hood of the car, and proceeded to search him.  Appellant explained that he did not make any comments to the officers, did not admit to having anything on his person, and did not consent to the officers’ search.  Appellant noted that he did not recall any cars passing him as he was walking down the street. 

Standard of Review

In reviewing a trial court’s ruling on a motion to suppress evidence, we apply a bifurcated standard of review.  Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000).  We give almost total deference to the trial court’s determinations on all fact questions and on application-of-law-to-fact questions[3] that turn on an evaluation of credibility and demeanor.  Johnson v. State, 68 S.W.3d 644, 652 (Tex. Crim. App. 2002).  We view the record and all reasonable inferences from the record in the light most favorable to the trial court’s ruling and sustain the ruling if it is reasonably supported by the record and is correct under any theory of law applicable to the case.  Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996).  However, the trial court is the sole and exclusive trier of fact and judge of the witnesses’ credibility.  Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002).  Accordingly, the trial court may choose to believe or to disbelieve all or any part of the witnesses’ testimony.  State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).  When, as here, the parties do not request, and the trial court does not make, findings of fact and conclusions of law, we view the evidence in the light most favorable to the trial court’s ruling and assume that the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record.  Id.  

Warrantless Search

In his sole issue, appellant argues that the trial court erred in denying his motion to suppress evidence because the officers did not have reasonable suspicion that he had “committed or was about to commit an offense before stopping him” and then proceeded to perform a warrantless search and “an unlawful, warrantless arrest.”  See Tex. Const. art. I, § 9; Tex. Code Crim. Proc. Ann. arts. 1.06, 38.23 (Vernon Supp. 2010).

Article I, section 9 of the Texas Constitution protects against unreasonable searches and seizures. Atkins v. State, 882 S.W.2d 910, 912 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d).  However, not every encounter between police officers and citizens implicates constitutional protections.  Hunter v. State, 955 S.W.2d 102, 104 (Tex. Crim. App. 1997) (citing Florida v. Bostick, 501 U.S. 429, 434, 111 S. Ct. 2382, 2386 (1991)).  There are three distinct categories of interactions between police officers and citizens: encounters, investigative detentions, and arrests.  Crain v. State, 315 S.W.3d 43, 49 (Tex. Crim. App. 2010); State v. Perez, 85 S.W.3d 817, 819 (Tex. Crim. App. 2002). In determining which category an interaction falls into, courts look at the totality of the circumstances.  Crain, 315 S.W.3d at 49. 

Investigative Detention

The State asserts that the officers engaged appellant in a consensual encounter when they approached him, requested his identification, and asked whether he had anything illegal in his possession.  Appellant asserts that the encounter was not consensual, but an investigative detention. 

An encounter is a consensual question-and-answer interaction between a citizen and a police officer in a public place that does not require reasonable suspicion and does not implicate constitutional rights.  See Florida v. Royer, 460 U.S. 491, 497–98, 103 S. Ct. 1319, 1323–24 (1983); Perez, 85 S.W.3d at 819.  An encounter is usually a friendly exchange of pleasantries or mutually useful information.  Gaines v. State, 99 S.W.3d 660, 666 (Tex. App.—Houston [14th Dist.] 2003, no pet.).  The encounter should be considered consensual as “long as a reasonable person would feel free ‘to disregard the police and go about his business.’”  Hunter, 955 S.W.2d at 104 (quoting Bostick, 501 U.S. at 434, 111 S. Ct. at 2386).  In Hunter, the Texas Court of Criminal Appeals explained that “[a] police officer’s asking questions and requesting consent to search do not alone render an encounter a detention.”  955 S.W.2d at 106.  Only when an officer conveys a message that compliance is required does a consensual encounter become a detention.  Id.

An investigative detention occurs when an individual is encountered by a police officer, yields to the officer’s display of authority, and is temporarily detained for purposes of an investigation.  Johnson v. State, 912 S.W.2d 227, 235 (Tex. Crim. App. 1995).  A person “yields to an officer’s display of authority” when a reasonable person would not feel free to continue walking or otherwise terminate the encounter.  Bostick, 501 U.S. at 436, 111 S. Ct. at 2387; State v. Velasquez, 994 S.W.2d 676, 679 (Tex. Crim. App. 1999); Johnson, 912 S.W.2d at 234–35.  An investigative detention is constitutionally permissible if, under the totality of the circumstances, an officer has reasonable suspicion supported by articulable facts that the person detained is, has been, or soon will be engaged in criminal activity.[4]  Terry v. Ohio, 392 U.S. 1, 21–22, 88 S. Ct. 1868, 1880 (1968); Ford v. State, 158 S.W.3d 488, 492–93 (Tex. Crim. App. 2005).  

Here, after observing appellant walking in the middle of the roadway, the officers pulled up next to appellant and activated their patrol car’s overhead light.  The officers explained that they had stopped appellant because he was committing a “law violation.”  The officers then asked appellant for his identification and took possession of his identification card.  This caused appellant to yield to the officers’ show of authority.  See Velasquez, 994 S.W.2d at 679.  Both officers were in uniform and a marked patrol car.  They pulled up beside appellant after seeing him commit a “law violation,” identified themselves as police officers, began asking appellant questions, and then exited their patrol car and continued questioning appellant. Under these circumstances a reasonable person would not believe that he was free to leave or decline the officers’ requests.  Accordingly, we conclude that the initial contact between appellant and the officers was not an encounter, but an investigative detention requiring reasonable suspicion.  See Johnson, 912 S.W.2d at 235.

Appellant asserts that the officers stopped him without a reasonable suspicion that he had committed or was about to commit a law violation and an unlawful, warrantless arrest occurred “at the point he was made to place his hands on the patrol car by the officer.”  He notes that the only evidence the officers had, “which could have constituted probable cause to arrest” him, “was the allegation that [he] was impeding traffic.” He asserts, however, that this contention is not supported by the evidence presented at the suppression hearing.

In order to stop or briefly detain an individual, an officer must be able to articulate something more than an “inchoate and unparticularized suspicion or ‘hunch.’”  Terry, 392 U.S. at 27, 88 S. Ct. at 1883; Guevara v. State, 6 S.W.3d 759, 763 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d).  Reasonable suspicion exists when the officer has some minimal level of objective justification for making the stop, i.e., when the officer can “point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion.”  Terry, 392 U.S. at 21, 88 S. Ct. at 1880; Woods v. State, 956 S.W.2d 33, 38 (Tex. Crim. App. 1997); see also Alabama v. White, 496 U.S. 325, 329–30, 110 S. Ct. 2412, 2416 (1990).  Whether reasonable suspicion exists is determined by considering the facts known to the officer at the moment of detention.  Davis v. State, 947 S.W.2d 240, 243 (Tex. Crim. App. 1997).  We disregard the subjective belief of the officer in our reasonable suspicion analysis and consider the totality of the circumstances objectively.  Ford, 158 S.W.3d at 492–93. 

Investigative detentions become unreasonable when they are not reasonably related in scope to the circumstances that justified the interference in the first place.  Davis, 947 S.W.2d at 244.  Thus, an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop and, once the reason for the detention has been satisfied, the detention may not be used as a “fishing expedition for unrelated criminal activity.”  Id. at 243. 

Here, the officers stopped appellant after they saw him “walking in the middle of the roadway”[5] and “impeding traffic.”  Officer Tagle specifically stated that he saw appellant, for one or two minutes, “walking in the middle of the roadway impeding traffic flow.”  Officer Morelli further testified that he saw several cars go around appellant before the officers approached him.  Although appellant testified that he was actually walking on the left side of the roadway, facing oncoming traffic, the officers testified that appellant was walking in the “middle” of the roadway.  The trial court was the sole judge of credibility and could have believed the officers’ version of the facts and disbelieved appellant’s version.  Stephenson v. State, 494 S.W.2d 900, 904 (Tex. Crim. App. 1973); Lopez v. State, 663 S.W.2d 587, 591 (Tex. App.—Houston [1st Dist.] 1983, pet. ref’d); Burton v. State, No. 01-93-00208-CR, 1994 WL 45950, at *2 (Tex. App.—Houston [1st Dist.] Feb. 17, 1994, no pet.) (not designated for publication) (concluding that it was trial court’s prerogative to believe officer’s testimony that appellant was in middle of street and walking with traffic rather than appellant’s testimony that he was walking facing traffic).  Thus, the trial court could have reasonably concluded that the officers’ observations of appellant walking in the “middle” of the roadway and impeding traffic was sufficient to justify their stop of appellant based on their reasonable suspicion that he had committed a violation of the law. 

Probable Cause

Appellant asserts that the officers did not have sufficient probable cause to search him and place him under arrest and an unlawful, warrantless arrest occurred “at the point he was made to place his hands on the patrol car by the officer.”  He further asserts that the only evidence the officers had “which could have constituted probable cause to arrest [him] . . . was the allegation that [he] was impeding traffic.” 

An officer may search an individual when he has probable cause to believe that the individual possesses contraband on his person.  Nuttall v. State, 87 S.W.3d 219, 223 (Tex. App.—Amarillo 2002, no pet.); see, e.g., Evans v. State, 799 S.W.2d 412, 414–15 (Tex. App.—Corpus Christi 1990, no pet.).  Here, after stopping appellant for walking in the middle of the roadway, Officer Morelli asked appellant if he had anything dangerous on him that the officers needed to know about.  Appellant then said, “Oh, fuck.  I have X.” At the point that appellant admitted to being in possession of narcotics, the officers had probable cause to search him.  Id.  The search of appellant was not a pat-down search made pursuant to the officers’ investigative detention; rather it was made based upon probable cause that appellant was in possession of narcotics.  Simply put, during the initial investigative detention, appellant’s admission that he had narcotics in his possession gave the officers probable cause to search and then arrest appellant.  See Houston v. State, No. 03-99-00588-CR, 2000 WL 962828, at *2 (Tex. App.—Austin July 13, 2000, no pet.) (not designated for publication).

Appellant asserts that he did not make a statement to the officers concerning his possession of narcotics.  However, the two police officers testified that appellant admitted that he was in possession of ecstasy and consented to the search.  See Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043–44 (1973) (“[O]ne of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent.”); Carmouche, 10 S.W.3d at 331 (“Consent to search is one of the well-established exceptions to the constitutional requirements of both a warrant and probable cause.”).  Again, we note that the trial court is the sole and exclusive trier of fact and the sole judge of the credibility of witnesses, including the weight to be given to their testimony.  See Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990).  Given the conflicting evidence, it was up to the trial court to weigh the credibility of the witnesses.  Accordingly, the trial court was free to believe the officers’ rendition of the facts and disbelieve appellant’s.  We hold that the trial court did not abuse its discretion in denying appellant’s motion to suppress evidence. 

We overrule appellant’s sole issue. 

Conclusion

We affirm the judgment of the trial court. 

                                                                   Terry Jennings

                                                                   Justice

Panel consists of Justices Jennings, Bland, and Massengale.

Do not publish.  Tex. R. App. P. 47.2(b).

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[1]           See Tex. Health & Safety Code Ann. § 481.101 (Vernon 2010). 

[2]           See U.S. Const. amend. IV; see also Tex. Const. art. I, § 9.

[3]           These are also referred to as “mixed questions of law and fact.”  Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

[4]           Texas courts follow the federal Terry standard with respect to temporary investigative detentions, and the Texas Court of Criminal Appeals has found no reason to employ a more stringent standard under the Texas Constitution with respect to such detentions.  Davis v. State, 829 S.W.2d 218, 219 (Tex. Crim. App. 1992). 

[5]           Neither party presented testimony regarding the specific statute that appellant is alleged to have initially violated.  The officers testified only that appellant committed a “law violation” by “walking in the middle of the roadway” and “impeding traffic.” However, the Texas Transportation Code provides, “If a sidewalk is not provided, a pedestrian walking along and on a highway shall if possible walk on: (1) the left side of the roadway; or (2) the shoulder of the highway facing oncoming traffic.”  Tex. Transp. Code Ann. § 552.006(b) (Vernon 2011).  A peace officer may arrest without a warrant a person found committing a violation of the transportation code.  Id. § 543.001 (Vernon 2011).