Dagim Getachew Bisrat v. State

• Court: Court of Appeals of Texas
• Decided: January 17, 2013
• Docket: 01-10-00382-CR
• Status: Published

Opinion

Opinion issued January 17, 2013.

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-10-00382-CR ——————————— DAGIM BISRAT, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 209th District Court Harris County, Texas Trial Court Cause No. 1056363

MEMORANDUM OPINION

A jury convicted Dagim Bisrat of the theft of property valued more than

$100,000 and less than $200,000. The trial court assessed his punishment at thirty-

five years’ confinement. Bisrat appeals, contending that the trial court erred in

denying his motion to suppress evidence seized pursuant to an unlawful arrest and warrantless search. He further contends that the trial court erred in denying his

motion to suppress, as impermissibly suggestive, the pretrial and in-court

identifications made by three witnesses. Finding no error, we affirm.

Background

The Schumacher Company repairs wind-turbine generator parts, known as

transitions, for Siemens, Inc. In August 2005, a load of boxes containing

transitions were awaiting shipment at the Schumacher loading dock. A man in blue

coveralls, posing as a delivery driver, told several Schumacher employees that he

had arrived to pick up the transitions. Employees helped him load the transitions

on his truck and directed him to the shipping office to sign papers. Shortly after the

fake driver left, the Siemens-authorized delivery driver arrived. The Schumacher

employees realized that the first delivery driver in the blue coveralls had stolen the

load of transitions.

David Mata, Jesse Castillo, and Robert Gonzalez, employees of Schumacher

working on the loading dock that day, had each spoken with the thief. The next

day, Paul Coselli, the president of Schumacher, met with Mata, Castillo, and

Gonzales. Each of the employees described the thief as a six-foot-tall, black male

wearing blue coveralls. They observed that the man spoke with an accent. Castillo

and Gonzales both noted that the man was driving a white, flatbed Ford F-450

truck with side rails.

2 About four months later, an employee for F.W. Gartner, a business in the

same industry as Schumacher, saw a white flatbed Ford F-450 with side rails at

F.W. Gartner’s shipping office. The employee recognized that the truck matched

the description of the truck that the Schumacher thief had used. He blocked in the

white Ford with two other trucks. In the shipping office, trying to pick up

equipment from F.W. Gartner, was a black man wearing blue coveralls, later

identified as Bisrat. When confronted, Bisrat announced that he was in the wrong

place, and he tried to leave. F.W. Gartner employees restrained him and summoned

a sheriff’s deputy.

While Bisrat was at F.W. Gartner, an employee there called Coselli at

Schumacher to tell him that F.W. Gartner had detained a man trying to steal

equipment. The man matched the description of the person who had stolen the

transitions from Schumacher. Coselli drove Mata and Gonzalez over to F.W.

Gartner. When they arrived, several F.W. Gartner employees—and possibly a

sheriff’s deputy—had Bisrat restrained against a car, with his hands behind his

back. Mata and Gonzalez saw Bisrat, and were immediately certain that he was the

person who had stolen the transitions from Schumacher in August. He was wearing

the same blue coveralls. Gonzalez also recognized Bisrat’s white flatbed Ford as

the same truck that the thief was driving when he stole the transitions from

Schumacher. Mata, Gonzalez, and Castillo identified Bisrat in court as the man

3 they had spoken with at Schumacher.

Between the events at Schumacher and F.W. Gartner, Deputy Constable R.

Avendano had been investigating three thefts from Houston businesses, including

from Schumacher, committed by a black, six-foot-tall male, wearing blue coveralls

and driving a white, flatbed Ford F-450 with side rails. His investigation had

revealed that the thief used multiple license plates on the same Ford truck.

Avendano had requested that law enforcement agencies in the area contact him if

any of them found a person matching this description. A Harris County Sheriff’s

employee called Avendano to tell him that a deputy had detained a man matching

this description trying to steal items from F.W. Gartner. Avendano sent Deputy

Constable A. Matamoros to arrest Bisrat. Matamoros knew that Bisrat was a

suspect in a theft case, but he was not aware of all details of the case.

When Matamoros arrived, he took custody of Bisrat from the sheriff’s

deputy and placed him in the backseat of Matamoros’s patrol car. Matamoros

called for a tow truck to take Bisrat’s vehicle to a secured lot. Matamoros

inventoried the truck before it was towed. In it, he found a set of license plates

behind the driver’s seat. Matamoros recognized the license plates as possible

evidence. He called Avendano and told him about the license plates. Avendano

checked the license plate numbers of both the license plates on the truck and the

license plates from behind the seat. He determined that neither set belonged to a

4 Ford pickup nor was registered to Bisrat.

Discussion

Standard of Review

We review a trial court’s ruling on a motion to suppress for abuse of

discretion. Shepherd v. State, 273 S.W.3d 681, 684 (Tex. Crim. App. 2008). We

view the evidence in the light most favorable to the trial court’s ruling. Wiede v.

State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007) (quoting State v. Kelly, 204

S.W.3d 808, 818 (Tex. Crim. App. 2006)). When ruling on a motion to suppress,

the trial judge is the exclusive trier of fact and judge of the credibility of the

witnesses, as well as the weight to be given their testimony. Green v. State, 934

S.W.2d 92, 98 (Tex. Crim. App. 1996). We defer to a trial court’s express or

implied determination of historical facts, as well as to its application of law to fact

questions, if those questions turn on the evaluation of a witnesses’ credibility and

demeanor. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We

review de novo the application of the law to facts as determined by the trial court.

See id.; Wiede, 214 S.W.3d at 25. We sustain the trial court’s ruling if it is

reasonably supported by the record and correct on any theory of law applicable to

the case. See Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996).

Warrantless Arrest

Bisrat first complains that the officers’ search of his truck was premised on a

5 warrantless arrest, made without probable cause that violated his rights under the

Fourth Amendment to the United States Constitution and under article I, section 9

of the Texas Constitution. See Amores v. State, 816 S.W.2d 407, 411 (Tex. Crim.

App. 1991).

To arrest a suspect, an officer must have probable cause to believe that the

person arrested has committed or is committing an offense. Id. at 412. The State

must prove the existence of probable cause. Id. at 413. Probable cause to arrest

exists when the facts and circumstances within the officer’s knowledge are

sufficient to warrant a reasonable person to believe that the offender has committed

or is committing an offense. Id.; see Beverly v. State, 792 S.W.2d 103, 104–05

(Tex. Crim. App. 1990). If the arresting officer acted upon a request for arrest from

a fellow officer, we inquire into the information known to the officer who

requested the arrest to determine if the police had probable cause to arrest the

defendant. Colston v. State, 511 S.W.2d 10, 12 (Tex. Crim. App. 1974). The

defendant’s description and the circumstances under which the police find the

defendant can support a probable cause decision if the description and surrounding

circumstances match a recent series of similar crimes. Carter v. State, 713 S.W.2d

442, 447 (Tex. App.—Fort Worth 1986, pet. ref’d). In Carter, the defendant and

his vehicle matched the description of the suspect and vehicle involved in a series

of rapes. Id. at 444. The series of rapes had occurred when lone woman sales

6 representatives showed the suspect a model home. Id. The defendant in Carter was

seeking a tour of a model home by a lone woman. Id. Those circumstances

amounted to probable cause to arrest that defendant. Id

Bisrat observes that Matamoros did not have probable cause to arrest Bisrat,

because Matamoros did not know why he was arresting Bisrat. However,

Matamoros arrested Bisrat at Avendano’s request. Therefore, the proper inquiry is

whether Avendano had probable cause to arrest Bisrat. See Colston, 511 S.W.2d at

12. Avendano was investigating three thefts from businesses in the area by

someone posing as a delivery driver. In each case, the suspect was a black, six-foot

tall man, wearing blue coveralls, who drove a white, flatbed Ford F-450 with side

rails. Someone at the Sheriff’s Department had informed Avendano that a deputy

had detained someone matching this description, driving the same type of truck,

and attempting to steal items from another business. As in Carter, Bisrat and his

vehicle matched the description of the suspect and vehicle involved in a series of

recent crimes. See Carter, 713 S.W.2d at 447. Also, the police found Bisrat under

circumstances suggesting he was attempting to commit a similar theft from F.W.

Gartner. See id. From this, Avendano reasonably could have believed that Bisrat

had committed the previous thefts and was attempting to steal equipment from

F.W. Gartner. See Amores, 816 S.W.2d at 411; Carter, 713 S.W.2d at 447.

Avendano thus had probable cause to arrest Bisrat.

7 Impoundment and Search

Bisrat’s challenge to the search of his truck is similarly without merit. A

search and inventory of the contents of an automobile pursuant to a lawful

impoundment is a recognized exception to the prohibitions against warrantless

searches in both the Fourth Amendment of the federal constitution and Article I,

section 9 of the state constitution. South Dakota v. Opperman, 428 U.S. 364, 375–

76, 96 S. Ct. 3092, 3100 (1976); Benavides v. State, 600 S.W.2d 809, 810 (Tex.

Crim. App. 1980); Lagaite v. State, 995 S.W.2d 860, 865 (Tex.App.—Houston [1st

Dist. 1999], pet. ref’d). An automobile may be impounded if the driver is arrested

and his property cannot be protected by means other than impoundment.

Benavides, 600 S.W.2d at 812. Inventories must be conducted in good faith

pursuant to reasonable standardized police procedures. Colorado v. Bertine, 479

U.S. 367, 374, 107 S. Ct. 738, 742 (1987). Because an inventory search does not

implicate the policies underlying the Fourth Amendment’s warrant requirement, an

inventory search of an automobile may include a search of closed containers in the

automobile. Id. at 370–72, 107 S. Ct. at 740–41; Moskey v. State, 333 S.W.3d 696,

701–02 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d).

Because the officers lawfully arrested Bisrat and impounded his truck, the

police were permitted to search his truck to inventory its contents. See Opperman,

428 U.S. at 375–76, 96 S. Ct. at 3100; Lagaite, 995 S.W.2d at 865. Although

8 Matamoros may have found the license plates inside a briefcase in the truck rather

than in plain view, an inventory search may include a search of containers inside

the automobile. See Bertine, 479 U.S. at 374, 107 S. Ct.at 742 (holding that an

inventory search was proper when it included the officer opening and searching a

closed backpack found behind the seat of a van); Moskey v. State, 333 S.W.3d at

701–02.

Accordingly, we hold that the trial court did not abuse its discretion in

denying Bisrat’s motion to suppress the evidence found in his truck.

Suppression of Pretrial and In-court Identifications

Finally, Bisrat challenges the trial court’s admission of the Schumacher

employees’ pretrial and in-court identifications of him, arguing that they are

tainted by an impermissibly suggestive identification procedure. Pretrial

identifications under conditions that are impermissibly suggestive such that they

create a substantial likelihood of irreparable misidentification violate the Due

Process Clause of the Fourteenth Amendment of the United States Constitution and

must be excluded. Barley v. State, 906 S.W.2d 27, 33–34 (Tex. Crim. App. 1995).

Single suspect show-up identifications can be impermissibly suggestive. See e.g.,

Stovall v. Denno, 388 U.S. 293, 302, 87 S. Ct. 1967, 1972 (1967). But the due

process right to exclusion of impermissibly suggestive eyewitness identification is

implicated only if the police arrange the identification procedure or the

9 identification is at the request of the police. Perry v. New Hampshire, 565 U.S.

___, 132 S. Ct. 716, 724 (2012) (holding that pretrial identification of suspect in

police custody outside an eyewitness’s window was not arranged by the police and

thus admissible). The purpose of excluding identification evidence obtained under

suggestive circumstances is to deter law enforcement use of improper lineups,

show-ups, and photo arrays. Perry, 565 U.S. at ___, 132 S. Ct. at 724. Such a

purpose is not furthered by excluding identification evidence not elicited by the

police. Id. In Perry, the Supreme Court noted that the traditional adversarial

methods of testing the reliability of relevant testimony are available to challenge

eyewitness identifications when no improper law enforcement occurred; it is thus

the jury’s province to weigh that sort of identification testimony. Id. at ___, 132

S. Ct. at 728–29.

Bisrat argues that Mata and Gonzalez’s pretrial identifications were tainted

by impermissibly suggestive identification procedures because they traveled to

F.W. Gartner in December to identify Bisrat.1 Although Bisrat may have been

taken into police custody when they arrived, Mata and Gonzalez did not identify

Bisrat at police request, much like the witness who peered through the window in

Perry, nor did the police arrange for their arrival at the scene. See Perry, 565 U.S.

1 Bisrat also complains that Castillo’s identifications were tainted by police suggestion at F.W. Gartner, but Castillo was not present at F.W. Gartner when police apprehended Bisrat.

10 at ___, 132 S. Ct. at 724. Rather, Mata and Gonzalez went to F.W. Gartner at the

request of their boss, Coselli, who had learned from an F.W. Gartner employee that

Bisrat was being detained. Bisrat thoroughly cross-examined each of the witnesses

who identified Bisrat to test the reliability of their identifications, asking about how

long they interacted with Bisrat, how long it had been since the theft, and how

certain they were that Bisrat was the man they saw at Schumacher. See id at ___,

132 S. Ct. at 728–29. The jury heard this evidence and weighed it accordingly.

For these reasons, we hold that the pretrial identifications were not tainted

by police suggestion. Because the pretrial identifications were not impermissibly

suggestive, the in-court identifications were also admissible. See Loserth v. State,

963 S.W.2d 770, 771–72 (Tex. Crim. App. 1998). Accordingly, the trial court did

not err in denying Bisrat’s motion to suppress the pretrial and in-court

identifications.

Conclusion

We hold that Avendano had probable cause to arrest Bisrat. We further hold

that the pretrial and in-court identifications were not tainted by police suggestion.

The trial court thus properly denied Bisrat’s motions to suppress the evidence

found in the truck and the pretrial and in-court eyewitness identifications. We

affirm the judgment of the trial court.

11 Jane Bland Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.

Do not publish. TEX. R. APP. P. 47.2(b).