David Edward Myers v. State

• Court: Court of Appeals of Texas
• Decided: July 13, 2006
• Docket: 11-05-00022-CR
• Status: Published

Opinion

Opinion filed July 13, 2006

The Court on this day, September 7, 2006, has withdrawn this opinion and judgment dated July 13, 2006, and substituted the opinion and judgment dated September 7, 2006.

Opinion filed July 13, 2006

                           In The

    Eleventh Court of Appeals

                                                                 ____________

                                                          No. 11-05-00022-CR

                                                     __________

                                 DAVID EDWARD MYERS, Appellant

                                                             V.

                                        STATE OF TEXAS, Appellee

                                         On Appeal from the 230th District Court

                                                          Harris County, Texas

                                                   Trial Court Cause No. 986060

                                                                   O P I N I O N

David Edward Myers entered a plea of guilty to the felony offense of possession of cocaine weighing more than four grams but less than two hundred grams.  The trial court placed appellant on deferred adjudication for six years.  In two points of error, appellant argues that the trial court erred in denying his motion to suppress because the State failed to demonstrate that probable cause existed for his warrantless arrest based either on his expired inspection sticker or on a confidential informant=s tip.  We affirm.

Background Facts

At the hearing on appellant=s motion to suppress, Officer R.R. Romano testified that he had been with the narcotics division of the Houston Police Department for 20 years.  A confidential informant called Officer Romano and told him that appellant was trafficking in narcotics; appellant had called the informant about some cocaine.  Officer Romano had successfully used information from the informant ten to fifteen times in the past and considered the informant to be both credible and reliable.

Officer Romano asked the informant to set up a meeting with appellant to have appellant  deliver six ounces of cocaine to the informant.  They agreed on the location for the delivery and that the delivery would be early in the afternoon of April 28, 2004.  The informant described appellant as a forty-year-old white male, weighing two hundred pounds, six feet tall, with thin hair, and said that appellant would be driving a four-door green Acura Legend.  The informant told Officer Romano that appellant would be leaving from his residence at the Saint Germaine Apartments on

Main Street

in downtown Houston.

Based on the information about the proposed deal with appellant, Officer Romano set up a team of officers for the afternoon of April 28.  Officer T.D. Galligan, who subsequently made the traffic stop of appellant, was given a description of appellant=s car; Officer Galligan was stationed in a church parking lot near the corner of Houston Avenue and Washington Street.  Officer Romano wanted to corroborate the informant=s information, and he began his surveillance at the Saint Germaine Apartments.  At approximately the time that appellant was supposed to leave to meet the informant, Officer Romano saw appellant leaving the apartment complex in a four-door green Acura Legend.  Although appellant  was seated in the car, he appeared to match the physical description that the informant had given Officer Romano.  Officer Romano followed appellant and told Officer Galligan to stop appellant=s car.

Officer Galligan testified that he made a traffic stop of appellant because he saw that appellant had an expired inspection sticker.  He said that he had been told to stop the green Acura Legend because there was a possible narcotics suspect in it.  After the stop, Officer Galligan verified that the inspection sticker was expired.  Officer Galligan took appellant=s driver=s license back to his patrol car to verify it; Officer Romano had arrived by then and met Officer Galligan at the patrol car.  Officer Romano estimated that he arrived about three minutes after Officer Galligan made the stop.

Officer Galligan said that he placed appellant in the back of his patrol car after Officer Romano arrived.^[1]  Officer Galligan said that appellant was in and out of the patrol car several times.  Officer Romano first testified that appellant was outside of his vehicle when Officer Romano first spoke with appellant but then said that appellant may have been in the back of Officer Galligan=s patrol car when he arrived.

When appellant learned that he was being detained as part of a narcotics investigation, he insisted on speaking to Officer Romano alone.  Officer Romano and appellant visited away from the others, and appellant voluntarily signed a form consenting to a search of his vehicle.  When Officer Romano asked appellant if he had any large amounts of cash on him, appellant said that he had about $3,500 in his pocket.  Officer Romano placed appellant back in Officer Galligan=s patrol car for safety purposes while Officer Romano searched appellant=s car.  Although appellant said he did not have any contraband in his car, Officer Romano found six ounces of cocaine inside appellant=s gym bag.  Officer Romano then advised appellant that he was under arrest for possession of cocaine.

Officer Romano asked appellant if he had any more narcotics at his home, and appellant said that he did.  Appellant signed a consent to search his residence at the Saint Germaine Apartments. The officers discovered an additional thirteen grams of cocaine and some marihuana in one of appellant=s apartments.

It is obvious from the record that appellant agreed to cooperate with Officer Romano.  Appellant gave Officer Romano credible information that led to the arrest of another person for drugs within forty-five minutes after Officer Romano arrested appellant.

After the hearing on appellant=s motion to suppress, the trial court denied the motion without making any written findings.

Standard of Review

A trial court=s ruling on a motion to suppress is reviewed for an abuse of discretion.  Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002).  In reviewing a trial court=s ruling on a motion to suppress, appellate courts must give great deference to the trial court=s findings of historical facts as long as the record supports the findings.  Guzman v. State, 955 S.W.2d 85, 87 (Tex. Crim. App. 1997).  Because the trial court is the exclusive fact-finder, the appellate court reviews evidence adduced at the suppression hearing in the light most favorable to the trial court=s ruling.  Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000).  We also give deference to the trial court=s rulings on mixed questions of law and fact when those rulings turn on an evaluation of credibility and demeanor.  Guzman, 955 S.W.2d at 89.  Where such rulings do not turn on an evaluation of credibility and demeanor, we review the trial court=s actions de novo.  Id.; Davila v. State, 4 S.W.3d 844 (Tex. App.CEastland 1999, no pet.).  Although the legal issue of probable cause to arrest is reviewed de novo in this case, the determination of that issue turns on mixed questions of law and fact.

When the trial court does not make explicit findings of fact, we review the evidence in the light most favorable to the court=s ruling and assume the court made findings that are supported by the record and buttress its conclusion.  See Carmouche, 10 S.W.3d at 327-28.  We are obligated to uphold the trial court=s ruling on appellant=s motion to suppress if that ruling was supported by the record and was correct under any theory of law applicable to the case.  State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000).

Warrantless Arrest for Expired Inspection Sticker

In appellant=s first issue, he argues that Officer Galligan did not have probable cause to arrest appellant because Officer Galligan was not in a position to observe the inspection sticker and that the inspection sticker had not in fact expired.  Appellant asserts that A[i]t is undisputed that [a]ppellant was immediately arrested by Galligan for having an expired inspection sticker, placed in the latter=s patrol unit, and was not free to leave.@  Based on this premise, appellant argues that it was an immediate warrantless arrest by Officer Galligan, not an investigative detention, and that the immediate warrantless arrest tainted everything that followed.  We disagree.

In Texas, a police officer may arrest an individual without a warrant only if (1) there is probable cause with respect to that individual and (2) the arrest falls within one of the exceptions specified in Tex. Code Crim. Proc. Ann. arts. 14.01-.04 (Vernon 2005 & Supp. 2005).  McGee v. State, 105 S.W.3d 609, 613-14 (Tex. Crim. App. 2003); Stull v. State, 772 S.W.2d 449, 451 (Tex. Crim. App. 1989).  Article 14.01(b) provides:  AA peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view.@

A police officer has the authority to stop and temporarily detain a driver who has violated a traffic law.  Armitage v. State, 637 S.W.2d 936, 939 (Tex. Crim. App. 1982).  Any peace officer may arrest, without a warrant, a person found committing a violation of the Texas traffic laws because a violation of the traffic laws constitutes probable cause to arrest the violator.  Tex. Transp. Code Ann. ' 543.001 (Vernon 1999); State v. Gray, 158 S.W.3d 465, 469 (Tex. Crim. App. 2005);  Snyder v. State, 629 S.W.2d 930, 934 (Tex. Crim. App. 1982).

Appellant=s arguments concerning whether Officer Galligan was in a position to observe the inspection sticker as appellant drove past and whether the inspection sticker had expired turn on the credibility and statements of the witnesses.  The trial court, as the trier of fact, was the exclusive judge of the credibility of the witnesses and the weight to be given to their testimony.  State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999); Joseph v. State, 897 S.W.2d 374, 376 (Tex. Crim. App. 1995).  Officer Galligan testified that appellant was not traveling fast because there was a stoplight and that he saw that the inspection sticker had expired.  After the traffic stop, Officer Galligan verified that the inspection sticker had expired and then asked for appellant=s license.

Appellant called Greg Morrison, a worker at an Express Lube, as a witness.  Morrison testified that a vehicle inspection report was issued to a 1995 Acura Legend with appellant=s license number and that the inspection would have been valid on April 28, 2004.  However, Morrison stated that he did not know if the inspection sticker was actually placed on appellant=s vehicle.  Tex. Transp. Code Ann. ' 548.602 (Vernon Supp. 2005) states that a person may not operate a motor vehicle unless a current and appropriate inspection sticker is displayed on the vehicle.  In its brief, the State observes that appellant introduced a photograph of his car into evidence but did not introduce a picture of his allegedly valid inspection sticker.

Based on Officer Galligan=s testimony, the trial court may have decided that appellant was driving with an expired inspection sticker despite Morrison=s testimony and that the warrantless arrest was based on that traffic violation.  Appellant=s first point of error is overruled.

Warrantless Arrest After Valid Detention

In his second issue, appellant argues that the State failed to demonstrate that probable cause existed for his warrantless arrest based on a confidential informant=s tip.  The initial stop of appellant by Officer Galligan, however, was justified either on the expired inspection sticker or on the reasonable suspicion supplied by the credible and reliable informant. 

Circumstances short of probable cause may justify a temporary detention for the purpose of investigation.  Garza v. State, 771 S.W.2d 549, 558 (Tex. Crim. App. 1989).  A temporary detention is justified when the detaining officer has specific articulable facts which, taken together with rational inferences from those facts, lead him to conclude that the person detained is, has been, or soon will be engaged in criminal activity.  Woods v. State, 956 S.W.2d 33, 38 (Tex. Crim. App.  1997).  A law enforcement officer may rely on information given to him by another officer. Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003).

Officer Romano had worked with the confidential informant on ten to fifteen previous occasions, and the informant had given him credible and reliable information leading to the seizure of narcotics.  Officer Romano asked the informant to set up a meeting with appellant for appellant to deliver six ounces of cocaine to the informant.  The confidential informant agreed to set up the meeting and described appellant, his car, when he would be departing the Saint Germaine Apartments, and where the meeting would be held.  Officer Romano confirmed all of the information, except for the six ounces of cocaine, before he radioed Officer Galligan to stop appellant=s car.  There was reasonable suspicion for the officers to engage in an investigative detention of appellant.

            Based on the evidence, the trial court did not abuse its discretion in implicitly finding that there was probable cause or reasonable suspicion to stop appellant=s vehicle.  Even ignoring appellant=s written consent B which apparently was freely and voluntarily given B it appears that the officers had probable cause to search appellant=s car under these facts.  Probable cause to search exists when the totality of the circumstances allows a conclusion that there is a fair probability of finding contraband or evidence at a particular location.  Dixon v. State, No. PD-1592-05, 2006 WL 1408451 (Tex. Crim. App. 2006).  As stated, Officer Romano verified the informant=s information before detaining appellant and searching his car.  See, e.g., Draper v. United States, 358 U.S. 307, 309-13 (1959); Dixon, 2006 WL 1408451.

Officer Romano also obtained appellant=s written consent to search his car and his residence.  That consent was freely given.  Although appellant argues that he had already been the subject of a warrantless arrest by Officer Galligan when he gave his consent, the testimony is contradictory and confusing on when Officer Galligan placed appellant under arrest.  Although Officer Galligan did say that appellant was under arrest when Officer Romano first spoke to appellant, other testimony (including various statements by Officer Galligan) indicates that appellant may have been under investigative detention when he gave his consent to search.  An investigative detention is a seizure under which the citizen is not free to leave, but it must be reasonable under the Constitutions of the United States and Texas.  Francis v. State, 922 S.W.2d 176, 178 (Tex. Crim. App. 1996).  The detention here was reasonable.  See State v. Gray, 158 S.W.3d 465 (Tex. Crim. App. 2005).

The trial court could reasonably have viewed the stop of appellant as an investigative detention, his consent to search as having been freely given, and the warrantless arrest having been based on the cocaine found during the search.

We note that the totality of the circumstances in this case are even more favorable to the State than those in Dixon.  Here, Officer Romano had set up a purchase of cocaine from appellant with the confidential informant to be the buyer.  After the stop, Officer Romano obtained appellant=s written consent to search his car and his residence.  That consent was freely given.  The six ounces of cocaine was found in appellant=s car just as the confidential informant had stated it would be.

Viewing the evidence in its totality, the trial court could have reasonably concluded that the warrantless arrest of appellant was justified.  Appellant=s second point of error is overruled.

This Court=s Ruling

The judgment of the trial court is affirmed.

TERRY McCALL

July 13, 2006                                                                           JUSTICE

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

Panel consists of:  Wright, C.J., and

McCall, J., and Strange, J.

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^[1]Later, Officer Galligan said he placed appellant under arrest and put him in the patrol car because Ahe was being detained by the Narcotics Division.@  Officer Galligan also said that he placed appellant in the backseat of his patrol car and that appellant was under arrest for the expired inspection sticker.