David Lee Trevino v. State

Opinion filed February 11, 2021
In The
Eleventh Court of Appeals
__________
No. 11-18-00360-CR
__________
DAVID LEE TREVINO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 104th District Court
Taylor County, Texas
Trial Court Cause No. 20882B
MEMORAND UM OPI NI ON
In a two-count indictment, the grand jury indicted Appellant, David Lee
Trevino, for the offense of possession with intent to deliver methamphetamine and
the lesser included offense of possession of methamphetamine. See TEX. HEALTH &
SAFETY CODE ANN. §§ 481.112(a), (d), .115(a), (d) (West 2017). After the trial court
denied his motion to suppress evidence of the discovered methamphetamine,
Appellant pleaded guilty to the offense of possession with intent to deliver
methamphetamine. The trial court accepted Appellant’s guilty plea, assessed his
punishment in accordance with the plea-bargain agreement, and sentenced him to
imprisonment for seven years. In his sole issue on appeal, Appellant challenges the
trial court’s denial of his motion to suppress. We affirm.
I. Factual Background
Appellant was initially detained when agents with the Abilene Police
Department Special Operations Division executed a search warrant for narcotics at
a known “dope house.” Appellant was not identified as a suspect in the search
warrant, but he was arrested at the location where the search warrant was executed
after a baggie containing methamphetamine was discovered in his pocket.
Agent Gary Castillo had obtained a no-knock warrant to search the “dope
house” and to apprehend an individual known to reside there. The warrant was
obtained based on information received from a reliable confidential informant.
Agent Castillo arranged for surveillance on the “dope house” before he and his team
executed the warrant. From his location south of the house, Agent Castillo observed
a silver-gray vehicle pull into the driveway of the house, park there for a few
minutes, back out of the driveway, and then immediately “reverse[] back into the
driveway” to park near the front door. Agent Castillo could not see whether anyone
got out of the vehicle, but it was still parked near the front door of the house when
the agents approached the house approximately fifteen minutes later. At the time,
Appellant was sitting in the passenger seat of the vehicle.
At the hearing on Appellant’s motion to suppress, Agent Derrick Franklin
testified that he approached the vehicle while Agent Castillo and the other agents
went inside the house. Agent Franklin told Appellant to get out of the vehicle, and
Appellant complied. He then handcuffed and detained Appellant for safety reasons.
According to Agent Franklin, he was the only officer present when he initially
contacted and detained Appellant in the driveway of the house. Agent Franklin said
that he did not frisk Appellant for weapons because Appellant was already
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handcuffed and because he wanted Agent Castillo, the case agent, to interact with
Appellant.
Agent Castillo walked out of the house a short time later, at which point he
told Appellant that he intended to conduct a weapons pat-down of Appellant for
officer safety. Agent Castillo testified that, as he frisked Appellant for weapons, he
noticed “the tip of a clear . . . Ziploc baggie protruding out of [Appellant’s] front
watch pocket.” According to Agent Castillo, he asked Appellant if he could retrieve
what had been detected in Appellant’s pocket, and Appellant responded, “I guess.”
Agent Castillo then removed the baggie from Appellant’s pocket and saw that the
baggie contained an off-white crystal substance that Agent Castillo believed to be
methamphetamine. Agent Castillo then searched Appellant’s other pockets and
found three more clear baggies that contained methamphetamine.
Appellant also testified at the hearing. According to Appellant, two officers
approached the parked vehicle while other officers went into the house.
Agent Franklin had his gun drawn and pointed toward Appellant as another officer
asked Appellant to get out of the vehicle. The other officer handcuffed Appellant
and then immediately asked for consent to search his person. Appellant testified
that, during the weapons pat-down, the other officer asked for Appellant’s consent
to search four or five more times. Although Appellant continuously refused to
consent, the other officer “just went ahead and did it.” Appellant also claimed that
the baggie found in his pocket was not visible before the officer removed it and that
Agent Franklin had his weapon drawn and pointed at Appellant throughout this
entire exchange.
Agent Franklin testified that he was not present when Agent Castillo asked
Appellant for consent to search, that he did not see the plastic baggie that
Agent Castillo retrieved from Appellant’s pocket, and that he did not hear any of the
dialogue between Appellant and Agent Castillo.
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After it heard the evidence, the trial court denied Appellant’s motion to
suppress. Subsequently, Appellant pleaded guilty to the offense of possession with
intent to deliver methamphetamine. On appeal, Appellant contends that the trial
court erred when it denied his motion to suppress because the search that led to the
discovery of the methamphetamine was unlawful. Appellant specifically asserts that
the officers had no probable cause to continue to detain him after the weapons pat-
down and that Appellant did not consent to the search of his person. We disagree.
II. Standard of Review
In reviewing a trial court’s ruling on a motion to suppress, we apply a
bifurcated standard of review. Brodnex v. State, 485 S.W.3d 432, 436 (Tex. Crim.
App. 2016); Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013);
Martinez v. State, 348 S.W.3d 919, 922–23 (Tex. Crim. App. 2011). We afford
almost total deference to the trial court’s determination of historical facts, especially
when a trial court’s fact findings are based on an evaluation of credibility and
demeanor. Brodnex, 485 S.W.3d at 436; Crain v. State, 315 S.W.3d 43, 48 (Tex.
Crim. App. 2010); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). The
same deference is afforded the trial court with respect to its rulings that concern the
application of the law to questions of fact and to mixed questions of law and fact if
the resolution of those questions turn on the weight or credibility of the evidence.
Brodnex, 485 S.W.3d at 436; see Lerma v. State, 543 S.W.3d 184, 190 (Tex. Crim.
App. 2018). We review de novo whether the presented facts are sufficient to give
rise to reasonable suspicion in a case. Lerma, 543 S.W.3d at 190.
When the record is silent as to the reasons for the trial court’s ruling, as in the
case before us, we review the evidence adduced at the suppression hearing in the
light most favorable to the trial court’s ruling, infer the necessary fact findings that
support the trial court’s ruling if the evidence supports those findings, and assume
that the trial court made implicit findings to support its ruling. State v. Garcia-Cantu,
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253 S.W.3d 236, 241 (Tex. Crim. App. 2008); see Wiede v. State, 214 S.W.3d 17, 25
(Tex. Crim. App. 2007); Carmouche v. State, 10 S.W.3d 323, 327–28 (Tex. Crim.
App. 2000).
At a hearing on a motion to suppress, the trial court is the exclusive trier of
fact and judge of the credibility of the witnesses. Maxwell v. State, 73 S.W.3d 278,
281 (Tex. Crim. App. 2002). As such, the trial court may choose to believe or to
disbelieve all or any part of a witness’s testimony. State v. Ross, 32 S.W.3d 853, 855
(Tex. Crim. App. 2000); Johnson v. State, 803 S.W.2d 272, 287 (Tex. Crim. App.
1990). We will sustain the trial court’s ruling on a motion to suppress if it is
supported by the record and if it is correct under any applicable theory of law.
Lerma, 543 S.W.3d at 190; Ross, 32 S.W.3d at 855–56.
III. Analysis
The Fourth Amendment to the United States Constitution guarantees
protection to persons from unreasonable searches and seizures by government
officials. U.S. CONST. amend. IV; see Hubert v. State, 312 S.W.3d 554, 560 (Tex.
Crim. App. 2010); Wiede, 214 S.W.3d at 24. There are three distinct types of police–
citizen interactions: “(1) consensual encounters that do not implicate the Fourth
Amendment; (2) investigative detentions that are Fourth Amendment seizures of
limited scope and duration that must be supported by a reasonable suspicion of
criminal activity; and (3) arrests, the most intrusive of Fourth Amendment seizures,
that are only reasonable if supported by probable cause.” Wade v. State, 422 S.W.3d
661, 667 (Tex. Crim. App. 2013); see State v. Woodard, 341 S.W.3d 404, 410–11
(Tex. Crim. App. 2011) (citing Florida v. Bostick, 501 U.S. 429, 434 (1991);
Gerstein v. Pugh, 420 U.S. 103, 111–12 (1975); Terry v. Ohio, 392 U.S. 1, 30–31
(1968)). Here, the officers’ encounter with Appellant escalated into an investigative
detention when Agent Franklin handcuffed Appellant. See State v. Castleberry, 332
S.W.3d 460, 466 (Tex. Crim. App. 2011).
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The temporary, warrantless detention of an individual by law enforcement
personnel constitutes a seizure within the meaning of the Fourth Amendment and
must be reasonable. Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App.
2011). To justify the detention, a law enforcement officer’s actions must be
supported by reasonable suspicion. Id. Reasonable suspicion for a detention exists
when a law enforcement officer has specific, articulable facts that, when combined
with rational inferences from those facts, would lead the officer to reasonably
suspect that the detained person has engaged in, is presently engaging in, or soon
will engage in criminal activity. Id.; see also Wade, 422 S.W.3d at 668; Garcia v.
State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001). This is an objective standard that
disregards the actual subjective intent of the officer and focuses, instead, on whether
there was an objectively justifiable basis for the detention. Derichsweiler, 348
S.W.3d at 914. The standard also looks to the totality of the circumstances. Id.Individual circumstances may appear to be innocent enough in isolation; however,
if the circumstances combine to reasonably suggest the imminence of criminal
conduct, an investigative detention by the officer is justified. Id. Whether the facts
known to the officer rise to the level of reasonable suspicion is a mixed question of
law and fact that we review de novo. State v. Mendoza, 365 S.W.3d 666, 669–70
(Tex. Crim. App. 2012).
A law enforcement officer who has temporarily and lawfully detained a person
may conduct a protective pat-down search of the person for the presence of weapons
if the officer reasonably suspects that the individual is armed and dangerous. Lerma,
543 S.W.3d at 191; Carmouche, 10 S.W.3d at 329. The officer need not be
“absolutely certain that the individual is armed.” Worthey v. State, 805 S.W.2d 435,
437 (Tex. Crim. App. 1991) (quoting Terry, 392 U.S. at 27). Rather, the officer must
be able to point to specific and articulable facts that reasonably lead to the conclusion
that the individual might possess a weapon. Lerma, 543 S.W.3d at 191; Carmouche,
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10 S.W.3d at 329. Nevertheless, the officer’s subjective level of fear is not
controlling. Lerma, 543 S.W.3d at 191. In this context, an objective assessment of
the officer’s actions based on the facts and circumstances surrounding the detention
forms the basis for reasonable suspicion and the justification for the pat-down
search. Id.; see also O’Hara v. State, 27 S.W.3d 548, 551 (Tex. Crim. App. 2000)
(“The issue is whether a reasonably prudent person would justifiably believe that his
safety or that of others was in danger.”); Griffin v. State, 215 S.W.3d 403, 409 (Tex.
Crim. App. 2006) (recognizing, generally, that it is objectively reasonable for a law
enforcement officer to believe that individuals involved in the “drug business” are
armed and dangerous).
The purpose of a pat-down search is not to discover evidence of a crime, but
to permit a law enforcement officer to pursue his investigation without fear of
violence. Carmouche, 10 S.W.3d at 329; see Terry, 392 U.S. at 29. “The sole
justification of the search . . . is the protection of the police officer and others nearby,
and it must therefore be confined in scope to an intrusion reasonably designed to
discover guns, knives, clubs, or other hidden instruments for the assault of the police
officer.” Terry, 392 U.S. at 29. Furthermore, an officer may place a suspect in
handcuffs for purposes of protecting and ensuring the officer’s safety before
performing a pat-down search of the suspect when reasonably necessary given the
circumstances of the investigative detention. See Rhodes v. State, 945 S.W.2d 115,
117–18 (Tex. Crim. App. 1997).
Here, the initial detention of Appellant was justified based on Appellant’s
presence on the premises where law enforcement officials were executing a search
warrant. See Bailey v. United States, 568 U.S. 186, 202 (2013) (holding that
detentions incident to the execution of a search warrant are reasonable under the
Fourth Amendment); Dixon v. State, 206 S.W.3d 613, 619 n.24 (Tex. Crim. App.
2006) (noting that “it is well-established that when officers have probable cause to
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search a person or location, they may temporarily detain those persons or others who
arrive during the search” (citing Muehler v. Mena, 544 U.S. 93, 98 (2005))). As we
have noted, when law enforcement officers initially encountered Appellant, he was
in the immediate vicinity of the house at which they were executing a no-knock
search warrant. Agent Franklin testified that Appellant’s presence as agents were
entering the house was a safety issue and that Appellant was handcuffed and detained
to prevent him from potentially alerting anyone who might be inside that law
enforcement intended to enter the house. We conclude that law enforcement’s
detention of Appellant was objectively reasonable under the circumstances.
The record before us further shows that the weapons frisk was justified.
See Lerma, 543 S.W.3d at 191. The no-knock search warrant was obtained by agents
with the Abilene Police Department’s Special Operations Division based on a
reliable confidential informant’s knowledge of the presence of narcotics at the house
to be searched. The agents obtained the warrant as a no-knock warrant because of
their belief that weapons could be present at the house and because of the
confidential informant’s warning that there was “a high possibility” that weapons
would be present. Before acting on the warrant, Agent Castillo observed a vehicle
enter, exit, and reenter the driveway of the house. He testified that, based on his
training and experience, the vehicle’s movements were suspicious and consistent
with a drug transaction because people who sell narcotics at “dope houses” tend to
maneuver and park their vehicles into positions that will facilitate an immediate
departure. Therefore, viewing the evidence in the light most favorable to the trial
court’s ruling, we hold that the articulated facts and circumstances offered by the
State concerning Appellant’s detention justified Agent Castillo’s suspicion of
Appellant’s involvement in criminal activity and the reasonable belief that the
possible existence of weapons on his person created a potential danger to the officers
and agents who were present.
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Appellant argues that the police did not have probable cause for a warrantless,
nonconsensual search because the initial detention “did not produce any verifiable
evidence of possession of a controlled substance” and the weapons frisk “was
fruitless for verifiable evidence.” Although additional justification is required to
lawfully prolong a valid detention, consent to search is a well-established exception
to the Fourth Amendment’s warrant and probable cause requirements. See
Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973); Carmouche, 10 S.W.3d at
331; State v. Ibarra, 953 S.W.2d 242, 243 (Tex. Crim. App. 1997); Myers v. State,
203 S.W.3d 873, 886 (Tex. App.—Eastland 2006, pet. ref’d). We note that, in his
brief, Appellant disputes the existence—not the voluntariness—of his consent.
However, his contention ignores the fact that the State maintains that, based on Agent
Castillo’s testimony, Appellant consented to the search of his person after his pat-
down search.
At a hearing on a motion to suppress, the trial judge is the sole trier of fact and
judge of the credibility of witnesses and the weight to be given to their testimony.
Lerma, 543 S.W.3d at 190; Maxwell, 73 S.W.3d at 281. Contrary to Agent Castillo’s
testimony, Appellant denies that he consented to the search and claims that he did
not respond “I guess” when consent to search was requested. He testified that, while
he might have said at one point, “You’re going to search me anyway,” he was asked
again for his consent and repeatedly said “no.” Although the record contains a police
body-cam video recording from the day of the search, no footage exists of the
exchange that occurred between Agent Castillo and Appellant prior to the discovery
of methamphetamine in Appellant’s pocket. As such, the propriety of the search
turned on a credibility determination to be resolved by the trial court.
As we have said, the trial court heard conflicting evidence and, as the
factfinder, was required to resolve those conflicts in the evidence. Because the trial
court was at liberty to believe or to disbelieve all or part of the witnesses’ testimony,
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we defer to its conclusions regarding the witnesses’ credibility. Ross, 32 S.W.3d at
855; Johnson, 803 S.W.2d at 287. In this instance, the trial court was free to believe,
and could have reasonably determined, that Appellant consented to the search of his
person. We have reviewed the evidence in the light most favorable to the trial court’s
ruling, and we infer that the trial court resolved the credibility determination in favor
of Agent Castillo and predicated its ruling on a finding that Appellant consented to
the search. We will not substitute our judgment for that of the factfinder and
therefore defer to the trial court’s implied finding of consent. Therefore, under the
totality of circumstances and the standards of review we have outlined, we cannot
say that the trial court abused its discretion when it denied Appellant’s motion to
suppress.
Because the detention and search of Appellant were lawful, the trial court did
not err when it denied Appellant’s motion to suppress. Accordingly, we overrule
Appellant’s sole issue on appeal.
IV. This Court’s Ruling
We affirm the judgment of the trial court.
W. STACY TROTTER
JUSTICE
February 11, 2021
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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