Jose Zuniga v. State of Texas

NO. 07-00-0461-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

FEBRUARY 7, 2002

______________________________



JOSE ZUNIGA, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE



_________________________________

FROM THE 106^TH DISTRICT COURT OF LYNN COUNTY;

NO. 98-2419; HONORABLE GENE DULANEY, JUDGE

_______________________________

Before QUINN and REAVIS and JOHNSON, JJ.

ORDER ON APPELLANT'S FIRST AMENDED MOTION FOR BAIL

By opinion dated November 19, 2001, this Court reversed appellant's conviction for manslaughter and remanded the cause to the trial court for new trial. Pending before this Court is appellant's first amended motion for bail filed pursuant to article 44.04(h) of the Texas Code of Criminal Procedure Annotated (Vernon Pamph. Supp. 2002), by which he requests that reasonable bail be set. For the reasons expressed herein, the motion is overruled without prejudice to the filing of a revised motion.

Article 44.04(h) does not provide any specific guidance as to the criteria or factors this Court should consider in making reasonable bond determinations following reversal of a conviction. However, in Aviles v. State, 23 S.W.3d 74, 80 (Tex.App.-Houston [14th Dist. 2000, pet. ref'd), the court suggested that the factors set forth in article 17.15 of the Texas Code of Criminal Procedure were relevant to setting bond under article 44.04(h). See also Ex parte Rubac, 611 S.W.2d 848, 849-50 (Tex.Cr.App. [Panel Op.] 1981). Accordingly, appellant's motion is overruled without prejudice to presentation of a revised motion detailing the necessary factors required to aid this Court in setting reasonable bond. Any revised motion must be filed no later than Friday, February 22, 2002.

It is so ordered.

Per Curiam

Do not publish.

Powell v. State,

5 S.W.3d at 377; Mohmed v. State, 977 S.W.2d 624, 628 (Tex. App.-Fort Worth 1998, pet. ref'd); Ortiz v. State, 930 S.W.2d 849, 856 (Tex. App.-Tyler 1996, no pet.). It is also reasonable to check for outstanding warrants. Powell v. State, 5 S.W.3d at 377; Smith v. State, 840 S.W.2d 689, 692 (Tex. App.-Fort Worth 1992, pet. ref'd); Petty v. State, 696 S.W.2d 635, 639 (Tex. App.-Dallas 1985, no pet.).

We believe that from the totality of the circumstances, the officer had a reasonable basis to detain appellant here. The only witness at the suppression hearing was Officer Steve Davis. He recited the reasons which caused him to suspect that contraband might be found in the vehicle. They included 1) appellant rapidly exiting the highway when Davis' vehicle approached appellant's, 2) appellant claiming he had done so because he needed to purchase gas though his gas tank was three-quarters full, 3) appellant being "unduly nervous," i.e. sweating even though it was approximately 7:00 a.m. on a cool March day, 4) appellant, 70 and retired, claiming to have left his home in Indiana on March 4 to see his daughter in a basketball game in Arizona on March 6^th, 5) appellant later claiming that he went to Arizona because his daughter was hurt in a basketball game, 6) evidence that the car purportedly used to travel to Arizona was actually rented on March 7^th or a day after the alleged game, 7) the absence of appellant's name on the car rental agreement as either the lessee or a designated driver, and 8) the generally confusing or "nonsensical" nature of appellant's answers to the officer's questions. From the totality of these circumstances, we believe the officer had a reasonable suspicion upon which to detain appellant for the additional eight minutes. See Estrada v. State, 30 S.W.3d 599, 603 (Tex. App.-Austin 2000, pet. ref'd) (holding that there was reasonable suspicion to detain when the officer observed the presence of carpet cleaner and air freshener which are used to hide the odor of drugs, the driver and passenger were nervous, and the statements of the driver as to where he had been and where he was going were confusing, contradictory, and inconsistent with those of the passenger); Powell v. State, 5 S.W.3d at 378-79 (holding that the officer had a reasonable suspicion of criminal activity based on the defendant's nervousness, the conflicting stories of the defendant and his passenger about the details of their trip, the defendant's statement that he had never been arrested when the officer found out by computer that he had, and the lack of registration of the car to either occupant).   

To the extent that appellant relies on McQuarters v. State, 58 S.W.3d 250 (Tex. App.-Fort Worth 2001, pet. ref'd) to contend otherwise, we find the case distinguishable. Unlike the circumstances here, those present in McQuarters did not include the officer catching the detainee in a lie; that missing indicia was of import to the McQuarters court. Id. at 257. And, it is present here. Nor is Wolf v. State, 137 S.W.3d 797 (Tex. App.-Waco 2004, no pet.), another case cited to us by appellant, controlling. There, the only indicia present were nervousness and extreme cooperation. Id. at 804. We have more here, such as deception by appellant and a vehicle rented by some third party without designating appellant as a driver. ⁽¹⁾

Accordingly, we overrule appellant's issue and affirm the judgment.

Brian Quinn

Chief Justice

Do not publish.

1. Evidence of deception and contradictory stories were also lacking in Davis v. State, 947 S.W.2d 247 (Tex. Crim. App. 1997) and Veal v. State, 28 S.W.3d 832 (Tex. App.-Beaumont 2000, pet. ref'd.), other of appellant's cases.