in Re Theron Belton

Opinion

IN THE

TENTH COURT OF APPEALS

 

No. 10-05-00285-CV

In re Theron Belton

Original Proceeding

ORDER

          In our September 21, 2005 opinion in this original proceeding, we directed the trial court to determine if a hearing is necessary and proceed to rule on Conagra’s and TDCJ’s objections and privilege assertions to Belton’s requests for production within thirty days of our ruling.  To date there has been no hearing or ruling by Respondent.

          Relator Belton has filed a motion requesting us to order the Respondent to hold a hearing and to rule on the objections and privilege assertions.  Respondent has sent us a document requesting “an extension of time for hearing Plaintiff Theron Belton’s request for production and Defendant TDCJ-ID’s objections and privilege assertions.”[1]  The trial court has set a hearing on the matter for November 30, 2005.

          Accordingly, we extend the time for the trial court to rule on Conagra’s and TDCJ’s objections and privilege assertions to Belton’s requests for production until December 2, 2005.

Belton’s motion for an order compelling the Respondent to hold a hearing and to rule is dismissed as moot.

                                                                   PER CURIAM

Before Chief Justice Gray,

          Justice Vance, and

          Justice Reyna

Time extended

Motion dismissed as moot

Order issued and filed November 9, 2005

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    [1]       We note that our opinion actually requires the Respondent to rule on both Conagra’s and TDCJ’s objections and privilege assertions to Belton’s requests for production.

driguez were assigned to secure anyone in the yard or the perimeter of the house. Officer Chaline also was in charge of Ringo, a dog trained to sniff out narcotics.

      When the raid team arrived at the residence, Officers Chaline and Rodriguez immediately noticed two people sitting in a blue Cadillac which was parked in front of the house. The vehicle's lights were off and the engine was not running. The officers approached the car to secure the area for the safety of the raid team, and also to determine the identities of the occupants and their purpose at the crack house.

      Officer Chaline shined his flashlight into the Cadillac and asked the occupants to keep their hands visible. Appellant was sitting in the front driver's seat, and a woman was sitting on the passenger's side. The officers asked for some identification, and Appellant handed over his driver's license. The woman did not have any proof of identification but told the officers her name. Officer Chaline entered this information into his patrol-car computer and determined that they had no outstanding warrants.

      Officer Rodriguez told Appellant and his female companion that they were free to leave. Then, as Appellant was getting back into the Cadillac, Officer Chaline asked Appellant, "You mind if we look in your car?" Appellant said, "Sure, go ahead." The officers thus asked Appellant and the woman to step out of the vehicle, and Officer Chaline allowed Ringo to sniff the inside of the car. Ringo began scratching and biting the area between the front seats, indicating to Officer Chaline that the dog had found narcotics. Officer Chaline removed Ringo from the car and asked Officer Rodriguez to check between the front seats. Officer Rodriguez lifted the armrest and found a plastic baggie containing fifty-three rocks of crack cocaine.

      All three of Appellant's points of error are based upon the trial court's overruling Appellant's motion to suppress as follows:

      •    the first point because the evidence was seized as a result of an illegal detention.

      •    the second point because Appellant did not voluntarily consent to the search of the car.

      •    the third point because Appellant's consent was the product of an unattenuated illegal detention, search, and seizure.

      By his first point of error Appellant asserts that he was detained without reasonable suspicion of criminal activity. He contends that his act of parking in front of the crack house is as consistent with innocent activity as with criminal activity. He thus contends the trial court erred by denying his motion to suppress evidence seized as a result of the detention.

      At a hearing on a motion to suppress, the trial judge is the sole factfinder and he may believe or disbelieve all or any part of any witness's testimony. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1980). Romero further holds that on appeal the appellate court does not engage in its own factual review, but decides whether the trial court's factfindings are supported by the record. If the trial court's findings of fact are supported by the record, an appellate court is not at liberty to disturb them and, on appellate review, we address only the question of whether the trial court improperly applied the law to the facts. Moreover, the trial court's ruling on a motion to suppress evidence should not be set aside absent a showing of abuse of discretion. Maddox v. State, 682 S.W.2d 563, 564 (Tex. Crim. App. 1985). To determine whether the trial court abused its discretion, the evidence adduced at the suppression hearing is viewed in the light most favorable to the ruling. Walker v. State, 588 S.W.2d 920, 924 (Tex. Crim. App. 1979).

      A police officer may temporarily detain a person for purposes of investigating possible criminal behavior even though there is no probable cause for arrest. Terry v. Ohio, 392 U.S. 1, 22 (1972). Occupants of automobiles are as subject to a brief detention as are pedestrians. Gearing v. State, 685 S.W.2d 326, 328 (Tex. Crim. App. 1985).

      In Gearing at 327, our Court of Criminal Appeals has this to say:

"A police officer may briefly stop a suspicious individual in order to determine his identity, or to maintain his status quo momentarily while obtaining more information. An occupant of an automobile is just as subject to a brief detention as is a pedestrian. (Citation). Circumstances short of probable cause for an arrest may justify temporary detention for the purpose of investigation since an investigation is considered to be a lesser intrusion upon the personal security of the individual. (Citation). The totality of the circumstances surrounding the incident are looked to in determining whether the police conduct may be reasonable. . . .

                  "In order to justify the intrusion, the law enforcement officer must have specific articulable facts which, in the light of his experience and personal knowledge, together with other inferences from those facts, would reasonably warrant the intrusion on the freedom of the citizen detained for further investigation. Detention based on a hunch is illegal. (Citation). There must be a reasonable suspicion by the officer that some activity out of the ordinary is occurring, or had occurred, some suggestion to connect the detained person with the unusual activity related to a crime. Where the events are as consistent with innocent activity as with criminal activity, a detention based on those events is unlawful. (Citation)."

      In the case at bar, based upon the totality of the circumstances, we are of the opinion and hold that the evidence in this case was seized as a result of a legal detention. Officers Chaline and Rodriguez detained Appellant for two reasons: (1) to protect the officers executing the warrant; and (2) to determine Appellant's identity and his purpose for being parked in front of the crack house. At the time the officers approached Appellant, they did not know his identity and realized there was a possibility that he was an occupant of the residence. Moreover, Officer Chaline testified that in his professional experience, a person sitting in a car parked in front of a crack house is in a suspicious place under suspicious circumstances. Therefore, in the light of the officers' experience and personal knowledge, Appellant's act of parking in front of a crack house at night constitutes reasonable suspicion warranting a temporary detention.

      To execute a warrant, in the case at bar, the raid team was confronted with a highly dangerous situation entering a suspected crack house which was possibly filled with buyers and sellers of cocaine. Therefore, Appellant's location and circumstances gave the officers reasonable suspicion to detain him for purposes of determining his identity, and protecting themselves and the other officers. We overrule Appellant's first point.

      By his second point, Appellant contends that he did not voluntarily consent to the search of his vehicle. He contends that the consent, which followed a fifteen-minute detention by uniformed officers and a police dog, was given only in submission to lawful authority. We do not agree.

      The trial court is the sole factfinder at a hearing on a motion to suppress evidence and may choose to believe or disbelieve any or all of the witnesses' testimony. Taylor v. State, 604 S.W.2d 175, 177 (Tex. Crim. App. 1980); Clark v. State, 548 S.W.2d 888 (Tex. Crim. App. 1977). Since the trial court is the sole factfinder at a suppression hearing, this court is not at liberty to disturb any finding which is supported by the record. Green v. State, 454 U.S. 952, 615 S.W.2d 700, 707, (Tex. Crim. App. 1980), cert. denied. Thus, where the record supports a finding that consent to search was freely and voluntarily given, this court will not disturb that finding. Johnson v. State, 803 S.W.2d 272, 286 (Tex. Crim. App. 1990).

      Officers Chaline and Rodriguez testified that Appellant was free to leave after the computer search revealed that he had no outstanding warrants. Then, as an afterthought, Office Chaline asked Appellant if he could search the car and Appellant voluntarily agreed. The officers did not threaten or coerce Appellant in any manner to obtain his consent. The mere fact that the two officers detained Appellant for investigation prior to receiving his consent to search does not render the consent involuntary. See Morrow v. State, 757 S.W.2d 484, 491

(Tex. App.—Houston [1st Dist.] 1988, pet. ref'd).

      The record supports the trial court's finding that Appellant's consent to search the car was given voluntarily. Appellant's second point of error is overruled.

      In his third and final point of error, Appellant claims the trial court erred by overruling his motion to suppress because his consent to search was the product of an illegal detention. We have already held in disposition of Appellant's first point of error that the detention was not illegal. Therefore, the detention could not possibly have tainted the voluntariness of Appellant's consent. Appellant's third point is overruled.

      However, assuming for the sake of argument that the detention was illegal, intervening circumstances attenuate the connection between the allegedly illegal detention and the discovery of the contraband. The attenuation doctrine provides that evidence may be admitted if the connection between the initial illegality and the means through which the evidence was secured is so attenuated as to dissipate the taint. Wicker v. State, 667 S.W.2d 137, 141 (Tex. Crim. App. 1984), cert. denied. Therefore, even if the detention were illegal, (which we have held it is not), the evidence would still be admissible under this doctrine.

      The judgment of the trial court is affirmed.

                                                                               JOHN A. JAMES, JR.

                                                                               Justice (Retired)

Before Chief Justice Thomas,

      Justice Cummings, and

      Justice James (Retired)

Affirmed

Opinion delivered and filed December 14, 1994

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