Gurrola v. State

852 S.W.2d 651, 1993 Tex. App. LEXIS 813, 1993 WL 87247
Court of Appeals of Texas·Decided March 25, 1993·No. No. C14-92-00030-CR·Published·Cited by 5 cases

Opinions

OPINION

CANNON, Justice.

This is an appeal of a conviction for possession of cocaine. Appellant Gurrola made a pre-trial motion to suppress evidence arguing that a gun and cocaine were illegally seized from his person. After his motion was denied, Gurrola pled guilty. He now appeals the pre-trial ruling and subsequent conviction. We affirm.

Late one September afternoon, a middle-aged man, walking his dog, flagged down Deputy Ronald Butler and complained of a disturbance at an apartment complex. The man did not know the nature of the disturbance. Responding to the citizen complaint, Butler went to the parking lot of the complex. The complex was known for drug trafficking, weapons use, fights, and other disturbances. He saw three men and a woman aggressively gesturing at each other and apparently engaged in an argument. Anticipating a breach of the peace, Butler sought to find out what was going on.

As Butler and other deputies approached, the four persons walked away in separate directions. Butler told them to come back. All four were ordered to put their hands on a car. A pat-down search of Gurrola yielded a pistol. A more invasive search produced cocaine.

Jorge Rodriquez, one of the four detainees, testified that there was no altercation. The discussion among the four had been friendly and concerned a dance to be held later that evening.

In one point of error, Gurrola complains that the trial court erred in denying his motion to suppress the gun and cocaine that he claims were illegally seized from his person.

Gurrola argues that his initial detention was illegal. He asserts that it is not against the law to have a conversation, even an unfriendly one. Nor is it illegal to walk away from a police officer. The police had no reason to detain any of the four. Further, Gurrola complains that even if the stop was legal, police had no justification for the pat-down search. There was no evidence that police saw any bulges in Gur-rola’s clothing or anything else to suggest a weapon. Since the stop and search were illegal, the seized evidence must be suppressed. Tex.Code CrimlProc. Ann. art. 38.-23(a) (Vernon Supp.1993).

[653] In a motion to suppress hearing, the trial judge is the sole trier of fact, and he may choose to believe or disbelieve any or all of the witnesses’ testimony. Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990). We will not disturb the trial court’s findings of fact absent a clear abuse of discretion. Rivera v. State, 808 S.W.2d 80, 96 (Tex.Crim.App.1991), cert. denied,—U.S.-, 112 S.Ct. 279, 116 L.Ed.2d 231 (1991). However, whether a detention or search was reasonable under the Fourth Amendment is a question of law subject to de novo review. See Higbie v. State, 780 S.W.2d 228, 230 (Tex.Crim.App.1989), overruled on other grounds, 800 S.W.2d 528 (1990).

The police may briefly stop a suspicious individual to determine his identity or maintain the status quo while obtaining more information. Mays v. State, 726 S.W.2d 937, 944 (Tex.Crim.App.1986), cert. denied, 484 U.S. 1079, 108 S.Ct. 1059, 98 L.Ed.2d 1020 (1988). To support such an investigative stop, an officer must have specific articulable facts, which in light of his experience and general knowledge, taken together with rational inferences from those facts, would reasonably warrant the intrusion. Ramirez v. State, 672 S.W.2d 480, 482 (Tex.Crim.App.1984). The officer’s reasonable suspicion must be based on three criteria: (1) some activity out of the ordinary is occurring or has occurred, (2) the suspect is connected with that activity, and (3) the activity is related to crime. Hoag v. State, 728 S.W.2d 375, 380 (Tex.Crim.App.1987).

As here, where no findings of fact or conclusions of law are filed or requested, it is implied that the trial court made all findings necessary to support its ruling. State v. Knight, 813 S.W.2d 210, 211 (Tex.App.—Houston [14th Dist.] 1991, no pet.).

There was support in the record for the trial court to have made the following implied findings of fact: (1) the police were alerted by a citizen complaint to some activity out of the ordinary, i.e., a fight or argument in a public place, (2) arriving on the scene, the police witnessed four individuals conversing, pointing at each others’ faces, and exhibiting aggressive body gestures, (3) the activity plausibly threatened a breach of the peace and constituted disorderly conduct, (4) the disturbance was located in an area known for drug trafficking, weapons, fights, and other disturbances, (5) the suspects attempted to leave the scene in direct response to the arrival of the police. The trial court did not abuse its discretion in making these implied findings.

Applying the law to the facts, we hold that the stop and temporary detention of Gurrola was a reasonable investigative detention. See id. First, police witnessed an activity out of the ordinary — a public altercation. Second, police saw Gurrola participating in the disturbance. Third, the disturbance plausibly threatened a breach of the peace. See TexPenal Code Ann. § 42.01 (Vernon Supp.1993). The public altercation and the immediate dispersal of the participants when they sighted the police was not conduct as consistent with innocent activity as with illegal activity. Cf. Schwartz v. State, 635 S.W.2d 545, 547 (Tex.Crim.App.1982) (illegal stop when pickup in carwash parking lot and the driver and passenger leaned toward the center of the truck).

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Gurrola v. State, 852 S.W.2d 651, 1993 Tex. App. LEXIS 813, 1993 WL 87247 (Tex. Ct. App. 1993).

852 S.W.2d 651 (Gurrola v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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