Roger Magdany Reyes v. State

Affirmed and Memorandum Opinion filed August 24, 2006

Affirmed and Memorandum Opinion filed August 24, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-05-00637-CR

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ROGER MAGDANY REYES, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 230th District Court

Harris County, Texas

Trial Court Cause No. 1004701

M E M O R A N D U M   O P I N I O N

Appellant Roger Magdany Reyes was charged with possession with intent to deliver a controlled substance, namely cocaine.  After the denial of appellant=s motion to suppress, he entered a plea of guilty.  Following a presentence investigation, the trial court assessed punishment at twenty-five years= incarceration in the Texas Department of Criminal JusticeCInstitutional Division.  In five issues, appellant contends the warrantless search of the vehicle he was driving was improper, and he was improperly induced into making an incriminating statement.  We affirm.

I.  Factual and Procedural Background

On October 21, 2004, Officer Floyd Winkler of the Houston Police Department, was conducting a narcotics investigation, which led him to a parking lot on Highway 6 at Interstate 10.  Winkler testified he had information that a large narcotics transaction would take place in the parking lot.  His information included the fact that a Ford Explorer would be involved in the transaction.  At approximately 1:00 in the afternoon, a Ford Explorer entered the parking lot.  Fifteen minutes later, a Volkswagen driven by appellant and his co-defendant, Israel Herrera, entered the parking lot and drove up to the Ford.  A woman exited the Ford and gave appellant and Herrera an empty suitcase.  Appellant placed the open suitcase in the trunk of the Volkswagen and began to place Abrick-like@ objects in the suitcase.  After the suitcase was filled, both cars left the parking lot.

Before the transaction, Winkler had requested that a Department of Public Safety Trooper be available to make a traffic stop. Winkler followed the Volkswagen in his unmarked vehicle until he observed the driver of the vehicle change lanes in advance of a hard left turn without signaling that he would be changing lanes.  According to Winkler, the lane change almost caused an accident.  Winkler then radioed the trooper to make a traffic stop.  Trooper C. Franden stopped the vehicle, asked appellant and Herrera several questions, and obtained consent to search the vehicle.  Trooper Franden found a suitcase full of cocaine in the trunk of the vehicle.  After the cocaine was discovered, Winkler arrived on the scene, arrested appellant and Herrera, and advised them of their rights.  Appellant waived his rights and made a statement to Winkler.

II.  Issues presented

In his first three issues, appellant argues the trial court abused its discretion in denying his motion to suppress because the warrantless search was invalid.  He argues there was no evidence he violated traffic laws, the detention exceeded the scope of the investigation, and the consent to search was not valid.  In his fourth and fifth issues, appellant argues the trial court erred in denying his motion to suppress his statement because he was improperly induced into making an incriminating statement.

III.  Analysis

A.  Standard of Review

In a motion to suppress hearing, the trial court is the sole trier of fact and the sole judge of the credibility of the witnesses and the weight to be given their testimony.  State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000) (en banc). The court is free to believe or disbelieve all or any part of a witness=s testimony, even if the testimony is uncontroverted.  Id.  Thus, a trial court=s ruling on a motion to suppress is reviewed under a bifurcated standard of review, giving almost total deference to the trial court=s determination of historical facts that the record supports and reviewing de novo the court=s application of search and seizure law to those facts.  Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002).  We afford almost total deference to the trial court=s rulings on mixed questions of law and fact when resolution of those questions turns on an evaluation of credibility and demeanor.  Ross, 32 S.W.3d at 856.  When, as in this case, the trial court fails to file findings of fact, we view the evidence in the light most favorable to the trial court=s ruling and assume that the trial court implicitly made findings of fact that support its ruling, if those implied findings of fact are supported by the record.  See id. at 855.  Because the trial judge was free to believe any or all evidence presented and to make a determination of historical facts supported by the record after evaluating the credibility and demeanor of the witnesses at the hearing, we give the trial court=s decision deference.  See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997) (en banc).

B.  Traffic Stop

A traffic stop is a Fourth Amendment seizure resembling an investigative detention.  See State v. Daly, 35 S.W.3d 237, 241 (Tex. App.CAustin 2000, no pet.).  An officer may stop and briefly detain someone for investigative purposes if the officer has a reasonable suspicion that the individual may be involved in criminal activity, even if the officer lacks evidence rising to the level of probable cause.  James v. State, 102 S.W.3d 162, 170 (Tex. App.CFort Worth 2003, pet. ref=d).  Reasonable suspicion exists if the officer has specific articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably suspect that an individual has engaged in, or is, or soon will be engaged in illegal conduct.  Id.  The reasonableness of the investigative detention must be evaluated in objective terms by examining the totality of the circumstances.  Kothe v. State, 152 S.W.3d 54, 63 (Tex. Crim. App. 2004).

1. Legality of the Traffic Stop

In his first issue, appellant contends Officer Winkler did not provide articulable facts sufficient to justify the traffic stop.  An officer is permitted to make a lawful temporary investigative detention of an individual if the officer has (1)  reasonable suspicion to believe that an individual is violating the law; (2) some suggestion to connect the detainee with the unusual activity; and (3) some indication that the activity is related to a crime.  Davis v. State, 947 S.W.2d 240, 244 (Tex. Crim. App. 1997) (en banc).  If an officer has a reasonable basis for suspecting that a traffic violation was in progress or has occurred, the officer may legally initiate a traffic stop.  Powell v. State, 5 S.W.3d 369, 376 (Tex. App.CTexarkana 1999, pet. ref=d).  Where there has been some cooperation between police officers, the cumulative information known to the cooperating officers at the time of the stop is to be considered in determining whether reasonable suspicion exists.  Hoag v. State, 728 S.W.2d 375, 380 (Tex. Crim. App. 1987) (en banc).

Here, the cumulative information known to the officers at the time of the traffic stop was that appellant and Herrera drove into a parking lot, where it was reported a drug transaction would take place. Appellant placed Abrick-like@ objects into a suitcase in the trunk of the vehicle.  After following the vehicle, Winkler observed the vehicle change lanes in advance of a hard left turn without signaling that he would be changing lanes.  According to Winkler, the lane change almost caused an accident.  Appellant argues that articulable facts did not show he committed a traffic violation and points to the videotape from Trooper Franden=s vehicle, which shows appellant using a turn signal as he prepared to make a left turn.  Franden does not dispute that he did not observe a traffic violation.  In fact, he was acting on information given to him by Winkler, who observed the traffic violation.  But, the record shows that the traffic violation Winkler observed was the failure to signal a lane change, not the failure to signal in advance of  a left turn.  Further, Winkler had reasonable suspicion that criminal activity was afoot because he observed the narcotics transaction in the parking lot. Considering the totality of the circumstances, the trial court had sufficient evidence to support its implied finding that the traffic stop was valid.  Appellant=s first issue is overruled.

2. Scope of the Detention

In his second issue, appellant contends Trooper Franden exceeded the scope of the initial traffic stop because he did not investigate the traffic violation, but used the stop as a pretext to obtain consent to search.  Initially, we address the State=s contention that appellant waived error with regard to the scope of the detention.  Citing Porath v. State, 148 S.W.3d 402 (Tex. App.CHouston [14th Dist.] 2004, no pet.), the State argues that by failing to raise the issue of the scope of the detention at the hearing, appellant waived this issue.  See 148 S.W.3d at 414.  In Porath, this court held that Porath waived an issue on his motion to suppress that was not raised in his written motion, but only addressed at a hearing on the motion to suppress.  Id.  In this case, the State concedes that appellant raised the issue of the scope of the detention in his written motion, but claims he failed to raise it at the hearing.  We disagree.  At the hearing on the motion to suppress,  the issue of the scope of detention was heard, in that during Trooper Franden=s cross-examination, he was questioned about the continued detention of appellant and Herrera.  Therefore, appellant preserved error for review.

To be reasonable, a traffic stop must be temporary and last no longer than is necessary to effectuate the purpose of the stop.  Davis, 947 S.W.2d at 245.  Once the reason for the stop has been satisfied, the stop may not be used as a Afishing expedition for unrelated criminal activity.@  Id. at 243 (quoting Ohio v. Robinette, 519 U.S. 33, 42 (1996) (Ginsburg, J., concurring)).  The propriety of the length of the detention is judged by assessing whether the police diligently pursued a means of investigation that was likely to quickly dispel or confirm their suspicions.  United States v. Sharpe, 470 U.S. 675, 686, 105 S. Ct. 1568, 1575, 84 L. Ed. 2d 605 (1985).  Any continued detention must be based on articulable facts which, when taken together with rational inferences from those facts, would warrant a person of reasonable caution in the belief that a continued detention was justified, i.e., the detainee was or would soon be engaged in criminal activity.  See Davis, 947 S.W.2d at 244B45.  Appellant argues it was unreasonable for Franden to continue to detain him without investigating the original traffic stop.

Here, Trooper Franden=s further detention of appellant was reasonable under the circumstances.  Franden testified that he asked appellant and Herrera about the purpose of their trip, who the car belonged to, and their destination.  Franden testified that appellant appeared Anervous@ and his Ahands were shaking.@  Franden also testified that appellant and Herrera told different stories about their destination and purpose of their trip.  In support of his argument that the continued detention was unreasonable, appellant relies on Herrera v. State, 80 S.W.3d 283 (Tex. App.CTexarkana 2002, pet. ref=d).  Appellant argues that here, just as in Herrera, the stop was based on a pretext of a traffic violation that was not investigated and for which he was not cited.  See Herrera, 80 S.W.3d at 287.  Herrera, however, is factually distinguishable from this case.  Herrera was stopped for a traffic violation and the detention was lengthened while officers waited for a Spanish-speaking officer to arrive.  Id.  When the Spanish-speaking officer appeared, he did not question Herrera about the traffic violation, but immediately sought his consent to search the vehicle.  Id.  The Texarkana Court of Appeals found the officer did not diligently pursue a means of investigation that was likely to quickly dispel or confirm their suspicions.  Id. at 288.  The court, therefore, held the trial court erred in failing to suppress the evidence.  Id. at 289.

In contrast, here, Trooper Franden properly investigated the traffic stop, asking routine questions about the car appellant was driving, and the purpose of his trip.  The videotape reveals that Franden encountered difficulty in obtaining answers to these routine questions.  Franden asked appellant several times where he was going, but appellant did not directly answer the question.  When Franden asked for  Herrera=s driver=s license, Herrera said it had been suspended.  Trooper Franden=s line of questioning was related to matters within the scope of the traffic stop. Further, Franden had reasonable suspicion to believe appellant was engaged in criminal activity because of the suspected narcotics transaction that had taken place.  Therefore, the continued detention was reasonable.  Appellant=s second issue is overruled.

C.  Consent to Search

In his third issue, appellant contends his consent to search was not voluntary.  Under the Fourth and Fourteenth Amendments, a search conducted without a warrant issued upon probable cause is per se unreasonable subject only to a few specifically established and well‑delineated exceptions.  Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043, 36 L. Ed. 2d 854 (1973).  One of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent, if the consent is voluntary.  Id. at 219‑23.  The continued detention and request to search a detainee=s car following a traffic stop is reasonable when consent is given.  See Ohio v. Robinette, 519 U.S. 33, 38-40, 117 S. Ct. 417, 420B21, 136 L. Ed. 2d 347 (1996); Simpson v. State, 29 S.W.3d 324, 328 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d).

The validity of a consent to search is a question of fact to be determined from the surrounding circumstances.  Robinette, 519 U.S. at 40, 117 S. Ct. at 421; Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002) (en banc).  The consent must not be coerced by explicit or implicit means, by implied threat, or covert force.  Schneckloth, 412 U.S. at 228, 93 S. Ct. 2048; see also Allridge v. State, 850 S.W.2d 471, 493 (Tex. Crim. App. 1991) (en banc).  In Texas, the State is required to prove the voluntariness of consent by clear and convincing evidence based on the totality of the circumstances.  See Reasor v. State, 12 S.W.3d 813, 818 (Tex. Crim. App. 2000).

Appellant argues his consent was involuntarily for two reasons.  First, appellant argues he did not give consent because he told the trooper the car did not belong to him.  As the driver of the car, appellant had authority to consent to a search of the vehicle.  See United States v. Matlock, 415 U.S. 164, 171, 94 S. Ct. 988, 993, 39 L. Ed. 2d 242 (1974); Maxwell, 73 S.W.3d at 281.  A third-party=s consent to a search derives from the common authority over the property or other sufficient relationship.  Matlock, 415 U.S. at 171, 94 S. Ct. at 993.  It is this mutual use that leads to a finding that a third party has the right to permit the search of the relevant property.  Maxwell, 73 S.W.3d at 281B82. 

When Trooper Franden questioned appellant, appellant had been driving the car.  Appellant told Franden that Herrera owned the car, but could not drive it because his license had been suspended.  As the driver, appellant had immediate possession and control of the vehicle and could consent to a search.  See id.  Although appellant denied ownership of the vehicle, such denial did not reflect appellant=s intent not to give consent.

Appellant next argues that he did not give consent, but merely acquiesed to the trooper=s authority.  For consent to be valid, the State must show by clear and convincing evidence that the consent was not Acoerced, by explicit or implicit means, by implied threat or covert force.@  Carmouche, 10 S.W.3d at 331 (quoting Schneckloth, 412 U.S. at 228).  Consent is not established by Ashowing no more than acquiescence to a claim of lawful authority.@  Id. (quoting Bumper v. North Carolina, 391 U.S. 543, 548 (1968)).  In determining whether consent was voluntary, courts consider various factors, including whether the consenting person was in custody, whether he or she was arrested at gunpoint, whether he or she had the option of refusing consent, the constitutional advice given to the accused, the length of detention, the repetitiveness of the questioning, and the use of physical punishment.  See Flores v. State, 172 S.W.3d 742, 749 (Tex. App.CHouston [14th Dist.] 2005, no pet.).  The validity of a consent to search is a question of fact to be determined from all the circumstances.  Robinette, 519 U.S. at 40, 117 S. Ct. at 421. 

In this case, appellant was not in custody, and was not arrested at gunpoint.  The videotape of the traffic stop reveals the detention was not unnecessarily lengthy, nor was physical punishment used.  As to repetitiveness of the questioning, the videotape shows the following colloquy between appellant and Trooper Franden:

Q.:  You have a problem if I search your car?

A.:  I don=t care.

Q.:  You don=t care if I search it?

A.:  Right, I meanB

Q.:  Can I search your car?

A.:  Yeah, if you want to.

Trooper Franden then asked appellant for the keys, which Franden used to open the trunk of the car.  There is no evidence that Trooper Franden claimed or asserted any authority to search the vehicle.  Instead, the evidence shows that Trooper Franden asked appellant if he could search the car, and appellant replied that he could.  Therefore, we find no basis to support appellant=s contention that he merely acquiesced to the officer=s claim of authority.  The exchange between appellant and Trooper Franden could reasonably be understood to authorize the officer to search the vehicle.  Appellant=s third issue is overruled.

D.  Confession

In his fourth and fifth issues, appellant contends the trial court erred in denying his motion to suppress his custodial statement because it was involuntary.  Specifically, appellant argues the officer induced him to make the statement by telling appellant if he told the Atruth,@ Officer Winkler would Ahelp@ appellant by talking to the district attorney.  Appellant argues this promise induced his involuntary confession.

Article 38.21 requires a statement to have been Afreely and voluntarily made without compulsion or persuasion.@  Tex.Code Crim. Proc. Ann. art. 38.21 (Vernon 2005).  In determining the question of voluntariness, a court should consider the totality of circumstances under which the statement was obtained. Creager v. State, 952 S.W.2d 852, 855 (Tex. Crim. App. 1997) (en banc). Involuntary confessions offend due process only when they flow from the improper conduct of law enforcement officials.  Colorado v. Connelly, 479 U.S. 157, 167, 107 S. Ct. 515, 93 L. Ed. 2d 473 (1986).  To determine whether the circumstances render an accused=s statement involuntary, we ultimately must determine whether his will was Aoverborne@ by police coercion.  Creager, 952 S.W.2d at 856.  We make this determination based on the totality of the circumstances.  Gomes v. State, 9 S.W.3d 373, 377 (Tex. App.CHouston [14th Dist.] 1999, pet. ref=d).

Before a promise will render a confession inadmissible, the promise must be shown to have induced the confession.  Muniz v. State, 851 S.W.2d 238, 254 (Tex. Crim. App. 1993) (en banc).  In order to induce a confession, the promise must be (1) of some benefit to the defendant, (2) positive, (3) made or sanctioned by someone in authority, and (4) of such an influential nature that it would likely influence a defendant to speak untruthfully.  Creager, 952 S.W.2d at 856.  An improper inducement must be of an exceptional character before it will invalidate an otherwise voluntary confession.  Espinosa v. State, 899 S.W.2d 359, 364 (Tex. App.CHouston [14th Dist] 1995, pet. ref=d).  General, non‑specific offers to help a defendant are unlikely to elicit a false statement by a suspect, and will not render a confession invalid.  Id.  Furthermore, general statements about how a confession might result in more lenient treatment will not invalidate the confession.  Id.

After Officer Winkler placed appellant and Herrera under arrest, he questioned both men and recorded their statements.  When Officer Winkler questioned appellant, he made the following statement:

If you want me to help you or if you want help, you=ve got to be honest with me because I can=t tell a district attorney that you=re honest with me, that you need help, you want help, when I know you=re lying to me because if you lie to me now, I can=t trust it.  If you=re helping yourself out, you=re not going to lie about something else.

Appellant later admitted he knew there was cocaine in the suitcase, but that the cocaine belonged to Herrera.

Officer Winkler=s promises of Ahelp,@ or the promise that he would tell the district attorney that appellant was honest, were not of such an influential nature that they would have caused appellant to speak untruthfully.  In Masterson v. State, 155 S.W.3d 167 (Tex. Crim. App. 2005), the Court of Criminal Appeals addressed a similar situation.  In that case, the officer told Masterson that if drugs belonged to him and he would admit that, the admission would be Apassed along.@  Id. at 170.  The Court of Criminal Appeals held that the officer=s statements did not reflect a promise sufficient to cause Masterson to speak untruthfully.  Id. Similarly, in this case, Officer Winkler=s vague statements support the implied finding that no positive promise was made to induce appellant to speak untruthfully.  Appellant=s fourth and fifth issues are overruled.

IV.  Conclusion

We hold the trial court did not abuse its discretion in overruling appellant=s motion to suppress and affirm the trial court=s judgment.

/s/        Eva M. Guzman

Justice

Judgment rendered and Opinion filed August 24, 2006.

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

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