Opinion issued August 2, 2012
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-11-00141-CR ——————————— JOHN QUANG TRAN, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 248th District Court Harris County, Texas Trial Court Case No. 1193692
MEMORANDUM OPINION
Appellant John Quang Tran pleaded guilty to possession of one gram or
more but less than four grams of cocaine. See TEX. HEALTH & SAFETY CODE ANN.
§§ 481.102(3)(D), 481.115(c) (West 2010). In accordance with a plea agreement, the trial court sentenced him to imprisonment for three years. On appeal, he
challenges the trial court’s denial of his motion to suppress evidence. We modify
the judgment to correct the trial court’s special finding or order concerning Tran’s
right of appeal, and we affirm the judgment as modified.
Background
Houston Police Department Officers M. Schwartzengraber and T. Riley
were on patrol during the night shift when they responded to an alarm at Tran’s
three-story townhouse. Upon arriving, the officers checked the exterior and saw
no signs of forced entry. However, all the lights were turned on inside the
townhouse, and one of the exterior doors was open. Officer Schwartzengraber
called a supervisor to request a canine unit to assist in searching the interior for a
possible burglar. Officer W. Bearden arrived with a dog trained to detect humans.
The dog was not trained to detect narcotics. Officer Bearden, exercising his
discretion, declined to use the dog to search the townhouse.
After obtaining authorization from a supervisor, all three of the officers
conducted a floor-by-floor, room-by-room search of the townhouse proceeding
from the first floor to the third floor. They found no one else in the townhouse.
The accounts of Officer Riley, who later testified at the hearing on Tran’s motion
to suppress evidence, and Officer Schwartzengraber, whose affidavit was admitted
at the hearing, differ with respect to some details. Officer Riley testified that when
2 he and the other officers first arrived in the second-floor kitchen, they saw a white
powdery substance covering some items laying on the countertop. However, they
did not stop at that point to investigate because they were still looking for possible
intruders. Officer Schwartzengraber’s affidavit stated that the officers first noticed
the powder-covered items in the kitchen after they had completed the search and
were leaving the townhouse.
Aside from the discrepancy concerning when the officers first saw the items
on the kitchen counter, both accounts substantially coincided with respect to what
they saw: a red plastic plate, a metal kitchen strainer, a cut-off plastic straw, a
rolled-up piece of paper, a metal bottle stopper, a plastic bag, and a business card.
Officer Riley testified that based upon his training and experience he suspected
that the items were narcotics paraphernalia that could be used to prepare or ingest
cocaine. He testified that the stopper could be used to crush cocaine, the strainer
could be used to sift and cook cocaine, and that the straw and rolled-up paper could
be used to snort cocaine. Both officers saw a white powdery substance on the
items. Moreover, there was no indication that the powder might be flour used for
baking. As Officer Riley explained, “There was no . . . cooling rack, the oven
wasn’t on, there was no presence of any . . . baking soda, baking powder, anything
like that.”
3 Officer Riley testified that he and the other officers collectively believed the
substance was more likely than not cocaine, but they were not certain. Officer
Schwartzengraber’s affidavit stated that it was not immediately apparent to them
that the residue was cocaine or another narcotic and that the residue could have
been anything, including flour.
One of the officers retrieved a narcotics kit from the patrol car to test the
powdery substance. Tran and two other men arrived either as the kit was being
retrieved or immediately after the field test yielded a result. Tran identified
himself as the homeowner, said that his security company had contacted him about
the alarm, and produced a driver’s license. The officers allowed the other two men
to leave once they determined that the men did not live there.
The officers took Tran upstairs to show him what they had found in the
kitchen, and they asked him what the residue was. He replied that he did not know
what the items were or how they got there. He stated that he had a roommate, but
he did not provide a name or other information about his purported roommate.
Tran said that the items must have belonged to his roommate or someone else who
had been inside the townhouse. According to Officer Schwartzengraber’s
affidavit, it appeared from his initial search of the townhouse that someone was
living in the bedroom on the first floor and that someone was living in one of two
4 bedrooms on the third floor. Officer Riley “couldn’t say either way” whether Tran
had a roommate.
The field test of the powdery substance yielded a positive result for cocaine.
Tran was arrested for possession of cocaine, and he was searched incident to the
arrest. The officers found in his front pant pockets two plastic bags containing
approximately five grams of cocaine. They also found pills that resembled Xanax.
Tran was indicted for possession of cocaine weighing four grams or more
but less than 200 grams, a second-degree felony. See TEX. HEALTH & SAFETY
CODE ANN. § 481.115(d). He filed motions to suppress all the seized items and
related testimony. The only evidence presented at the suppression hearing was
Officer Schwartzengraber’s affidavit and Officer Riley’s testimony. At the
hearing, Tran did not dispute that the officers initially had probable cause to enter
the townhouse to search for a possible intruder. However, he argued that the
seizure of the cocaine residue for field testing was unconstitutional because by the
time of the seizure the officers had finished searching the townhouse for a burglar
and were required to leave. But instead of leaving as they were required to do,
they undertook a new investigation for a different purpose. Moreover, according
to Tran, the plain-view doctrine did not apply in this case because the officers had
only a suspicion that the white substance was narcotics, but it just as easily could
have been a legal substance such as sugar, flour, or baking soda. Tran also argued
5 that even if the seizure of the residue was lawful, his warrantless arrest was not.
He contended that the officers did not have probable cause to believe that Tran
possessed the items in the kitchen simply because he lived there.
At the close of the hearing, the trial court stated that Officer Riley’s “live
testimony just seems to hold more credibility than the affidavit does.” It then
orally pronounced multiple findings of fact. The trial court found that Officer
Riley saw what he believed to be a controlled substance on the plate when he and
the other officers first entered the kitchen. It found that although Officer Riley did
not know that the substance was cocaine, he acted as a “reasonable law officer”
with his training and experience in believing that the substance was cocaine and in
seizing it. It further found that the warrantless arrest was “based on their belief and
[Tran] saying he owned the home, [and] on the cocaine that was sitting out on the
plate on the counter of the kitchen.” The trial court then denied the motion to
suppress “based on those specific findings of fact.”
Tran pleaded guilty to possession of cocaine weighing one gram or more but
less than four grams, a third-degree felony. See TEX. HEALTH & SAFETY CODE
ANN. § 481.115(c). The plea agreement reflects an agreed punishment of three
years in prison. The trial court signed a judgment reflecting Tran’s guilty plea and
agreed sentence of three years. Tran filed a notice of appeal the same day.
6 Analysis
Tran contends that the trial court erred in denying his motion to suppress
evidence, and he raises two issues. In his first issue, he argues that the seizure of
the cocaine in the kitchen was unlawful because it was not immediately apparent to
the officers that the residue was an illegal substance, and because by that point the
officers were no longer lawfully present on the premises. In his second issue, Tran
argues that the warrantless arrest was unlawful because the officers did not have
probable cause to believe that he, as opposed to somebody else, possessed the
cocaine residue, nor were there exigent circumstances to justify the arrest.
The State argues that because it was immediately apparent to Officer Riley
that the residue found in plain view was likely cocaine, the officers were permitted
to seize it for field testing. The State further argues the arrest was lawful because
Tran’s statement that he owned the townhouse and lived there, coupled with
Officer Riley’s inability to determine whether Tran had a roommate, allowed the
police to reasonably believe that Tran possessed the cocaine residue.
The Code of Criminal Procedure prohibits admission of unlawfully obtained
evidence. See TEX. CODE CRIM. PROC. ANN. art. 38.23(a) (West 2005); Wilson v.
State, 311 S.W.3d 452, 458–59 (Tex. Crim. App. 2010). In reviewing the trial
court’s ruling on a motion to suppress evidence, we apply a bifurcated standard of
review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). We
7 give almost total deference to the trial court’s determination of historical facts that
depend on credibility, while we conduct a de novo review of the trial court’s
application of the law to those facts. Id. In a hearing on a motion to suppress, the
trial court is the sole trier of fact and judge of the credibility of the witnesses and
the weight to be given their testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex
Crim. App. 2000). “This is so because it is the trial court that observes first hand
the demeanor and appearance of a witness, as opposed to an appellate court which
can only read an impersonal record.” Id. Thus, with regard to those facts that the
trial court explicitly found, we defer to those explicit findings so long as they are
supported by the record. State v. Gray, 158 S.W.3d 465, 467 (Tex. Crim. App.
2005). With regard to remaining facts not explicitly found by the trial court, we
view the evidence in the light most favorable to the trial court’s ruling and assume
that the trial court made implicit findings of fact supporting its ruling so long as
those findings are supported by the record. Ross, 32 S.W.3d 855. We must sustain
the trial court’s ruling if it is correct under any theory of law applicable to the case.
Id. at 855–56.
I. Seizure
The Fourth Amendment guarantees the right of individuals to be “secure in
their persons, houses, papers and effects against unreasonable searches and
seizures.” U.S. CONST. amend. IV. A warrantless police search of a residence is
8 presumptively unreasonable. Guiterrez v. State, 221 S.W.3d 680, 685 (Tex. Crim.
App. 2007) (citing Payton v. New York, 445 U.S. 573, 586, 100 S. Ct. 1371, 1380
(1980)). However, when officers are lawfully on the premises and come upon
evidence of a crime discovered in plain view, “it would often be a needless
inconvenience, and sometimes dangerous—to the evidence or to the police
themselves—to require them to ignore it until they have obtained a warrant
particularly describing it.” Williams v. State, 668 S.W.2d 692, 700 (Tex. Crim.
App. 1983) (quoting Coolidge v. New Hampshire, 403 U.S. 443, 467–68, 91 S. Ct.
2022, 2039 (1971)). The plain-view doctrine authorizes warrantless seizure of
evidence found in plain view when (1) law enforcement officers are lawfully
present in the location where the evidence is found and (2) it is immediately
apparent that the seized item constitutes evidence, that is, there is probable cause to
associate the item with criminal activity. See Walter v. State, 28 S.W.3d 538, 541
(Tex. Crim. App. 2000). “Significantly, a police officer’s subjective motive will
never invalidate objectively justifiable behavior under the Fourth Amendment.”
Id. at 542 (citing Whren v. United States, 517 U.S. 806, 812, 116 S. Ct. 1769, 1774
(1996)).
A. Lawful presence
Tran does not dispute that the police had lawfully entered the residence
when they were initially looking for an intruder. He argues, however, that that
9 their lawful presence “was limited to the exigency for which they entered—to
search for a burglar” and that “when they decided to conduct further investigation
to determine what the residue was, they no longer had a legitimate reason to be in
the townhome.” He points out that one officer actually left the townhouse to
retrieve the testing kit. He asserts that the reentry was justified only if the officers
had probable cause to believe that the substance was an illegal narcotic, but the
officers evidently did not have such a probable cause because they needed the field
test to determine whether it was cocaine.
When police officers are lawfully on private premises pursuant to a
legitimate exception to the Fourth Amendment requirement of a warrant, they may
seize anything they discover in plain view on those premises if it is immediately
apparent to them that it constitutes contraband, without the necessity of obtaining a
warrant to justify the seizure. State v. Dobbs, 323 S.W.3d 184, 187 (Tex. Crim.
App. 2010) (citing Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S. Ct. 2130,
2136–37 (1993)). The rationale for this rule is that “if contraband is left in open
view and is observed by a police officer from a lawful vantage point, there has
been no invasion of a legitimate expectation of privacy and thus no ‘search’ within
the meaning of the Fourth Amendment—or at least no search independent of the
initial intrusion that gave the officers their vantage point.” Dickerson, 508 U.S. at
375, 113 S. Ct. at 2136–37. Thus, “[a]n investigation that does not impinge upon a
10 defendant’s legitimate privacy or possessory interest does not implicate Fourth
Amendment protections.” Dobbs, 323 S.W.3d at 188 n.11 (citing Illinois v.
Caballes, 543, U.S. 405, 125 S. Ct. 834 (2005)).
The trial court credited Officer Riley’s testimony that he saw the suspicious
items in the kitchen during the initial search of the townhouse, which means he
first saw those items during a time frame in which Tran does not dispute the
officers’ lawful presence. Moreover, Officer Riley testified that even before
testing the substance on the items, he believed that it was narcotics. Thus, there is
evidence in the record to support the trial court’s implied finding that the officers
developed probable cause to seize the substance while they were lawfully on the
premises and that their further investigation “did not entail any greater intrusion on
the premises . . . than the intrusion already legitimately underway.” Dobbs, 323
S.W.3d at 188. Tran’s possessory interest in the trace amount of suspected cocaine
that was seized for testing was compromised, but legitimately so because the
officers had already developed probable cause to believe that it was contraband.
See id. Therefore, based upon the trial court’s express findings and implied
findings reasonably supported by the evidence, see Gray, 158 S.W.3d at 467, Ross,
32 S.W.3d 855, the further investigation undertaken by the officers in this case did
not involve an unjustifiedly incremental search or seizure.
11 Moreover, contrary to part of Tran’s argument, the fact that one of the
officers left the townhouse to retrieve a testing kit before reentering is not
dispositive of whether the police required additional probable cause to reenter the
premises. See Johnson v. State, 226 S.W.3d 439, 446 (Tex. Crim. App. 2007)
(rejecting argument that officers make distinct “visits” each time that they step
over residential threshold during an initial investigation).
We hold that there was sufficient evidence presented at the hearing to
support the trial court’s implied finding that the officers were lawfully present in
the location where the evidence was found.
B. Immediately apparent
According to Tran, it was not immediately apparent to the officers that the
residue in the kitchen was an illegal substance when they seized it for field testing.
He argues that the fact that the powdery substance was found in the kitchen meant
that it was no more likely cocaine than a similar-looking legal substance, like flour,
baking soda, or sugar. Thus, Tran reasons, the officers had only a mere suspicion
or hunch about the nature of the substance, and they therefore lacked probable
cause to seize the residue for field testing.
The requirement of the plain-view doctrine that it be “immediately apparent”
to an officer that a substance is contraband does not imply “an unduly high degree
of certainty.” Williams, 668 S.W.2d at 700 n.12 (quoting Texas v. Brown, 460 U.S.
12 730, 741, 103 S. Ct. 1535, 1543 (1983) (plurality op.)); see also Joseph v. State,
807 S.W.2d 303, 308 (Tex. Crim. App. 1991) (noting that “plain view analysis
does not require actual knowledge of incriminating evidence”). Rather,
[i]t merely requires that the facts available to the officer would “warrant a man of reasonable caution in the belief,” Carroll v. United States, 267 U.S. 132, 162, 45 S. Ct. 280, 288, 69 L. Ed. 543 (1925), that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false. A “practical, nontechnical” probability that incriminating evidence is involved is all that is required. Brinegar v. United States, 338 U.S. 160, 176, 69 S. Ct. 1302, 1311, 93 L. Ed. 1879 (1949).
Miller v. State, 667 S.W.2d 773, 777 (Tex. Crim. App. 1984) (quoting Brown, 460
U.S. at 742, 103 S. Ct. 1543 (plurality op.)). “An officer may rely on his training
and experience to draw inferences and make deductions that might well elude an
untrained person.” Nichols v. State, 886 S.W.2d 324, 326 (Tex. App.—Houston
[1st Dist.] 1994, pet. ref’d) (citing Brown, 460 U.S. at 746, 103 S. Ct. at 1545
(plurality op.)).
Officer Riley testified that he “didn’t know for a hundred percent” that the
substance was illegal but that he and the other officers collectively believed prior
to testing that it was cocaine. He stated that the assorted items could be used to
prepare and ingest cocaine and that there were no “typical baking things” nearby
like a cooling rack or baking soda.
13 Officer Riley was permitted to rely on his experience and training—which
taught him that the particular assortment of objects found in the kitchen is
commonly used to prepare and ingest narcotics—to determine the probable nature
of the powdery substance. See Nichols, 886 S.W.2d at 326. His objectively
reasonable belief that the substance more likely than not was cocaine established
probable cause for the seizure. See Miller, 667 S.W.2d at 777 (holding that officer
had probable cause to seize from suspect’s pocket a bag visibly containing white
powder that officer suspected was some type of narcotic even though he did not
know exactly what it was and officer testified that it could have been powdered
sugar). Moreover, the field test, which involved collecting a trace amount of
residue found in plain view, did not infringe any legitimate interest in privacy or
property that was not already compromised by the officers’ initial search of the
townhouse, the lawfulness of which Tran does not challenge. See United States v.
Jacobsen, 466 U.S. 109, 123–25, 104 S. Ct. 1652, 1661–63 (1984) (holding that a
“chemical test that merely discloses whether or not a particular substance is
cocaine does not compromise any legitimate interest in privacy” and that “the
‘seizure’ could, at most, have only a de minimis impact on any protected property
interest”). We hold that there was sufficient evidence presented at the hearing to
support the trial court’s implied finding that it was immediately apparent to the
officers that the substance was an illegal narcotic.
14 We hold that the trial court did not err in denying Tran’s motion to suppress
evidence with respect to the seizure of the residue found on the kitchen items. We
accordingly overrule Tran’s first issue.
II. Arrest
In his second issue, Tran argues that his warrantless arrest was unlawful. He
argues that the police did not have probable cause to believe that he—as opposed
to somebody else who lived at or had been present in the townhouse—possessed
the cocaine found in the kitchen. Tran emphasizes that he was not present when
the cocaine residue was found, he told the officers that he had a roommate, and he
never admitted to possessing the cocaine. He asserts that the police found
evidence indicating that more than one person lived at the townhouse. Tran also
relies on Article 14.05 of the Code of Criminal Procedure, which provides that an
officer may not enter a residence to make a warrantless arrest unless the resident
consents to the entry or exigent circumstances require the entry. TEX. CODE CRIM.
PROC. ANN. art. 14.05 (West 2005).
The State argues that the officers had probable cause to arrest Tran based on
their knowledge that cocaine was in the house and Tran’s statement that he owned
the residence. The State also argues that the arrest was authorized under
Article 14.01 of the Code of Criminal Procedure, which authorizes an officer to
make a warrantless arrest of someone who has committed an offense “in his
15 presence or within his view.” TEX. CODE CRIM. PROC. ANN. art. 14.01 (West
2005).
“Generally, a warrantless arrest is, pursuant to the Fourth Amendment,
unreasonable per se unless the arrest fits into one of a ‘few specifically defined and
well delineated exceptions.’” Torres v. State, 182 S.W.3d 899, 901 (Tex. Crim.
App. 2005) (quoting Dickerson, 508 U.S. at 372, 113 S. Ct. at 2135). In Texas, a
police officer may arrest an individual without a warrant only if there is probable
cause with respect to that individual and the circumstances of the arrest coincide
with an exception specified in Articles 14.01 through 14.04 of the Code of
Criminal Procedure. State v. Steelman, 93 S.W.3d 102, 107 (Tex. Crim. App.
2002); Lunde v. State, 736 S.W.2d 665, 666 (Tex. Crim. App. 1987). The burden
is on the State to prove the existence of probable cause to justify a warrantless
arrest. Amores v. State, 816 S.W.2d 407, 413 (Tex. Crim. App. 1991). Probable
cause exists when the totality of facts and circumstances within the officer’s
knowledge and of which he has reasonably trustworthy information is sufficient to
warrant a man of reasonable caution in the belief that a particular person has
committed or is committing an offense. Id.
The State contends that Article 14.01 of the Code of Criminal Procedure
authorized the warrantless arrest in this case. However, our review of the
lawfulness of Tran’s arrest is not limited to that provision since we must affirm the
16 trial court’s ruling if it is correct under any theory of law applicable to the case.
See Ross, 32 S.W.3d at 855–56. Article 14.03(a)(1) of the Code of Criminal
Procedure authorizes a warrantless arrest of “persons found in suspicious places
and under circumstances which reasonably show that such persons have been
guilty of some felony.” TEX. CODE CRIM. PROC. art. 14.03(a)(1) (West 2005).
This provision “require[s] the legal equivalent of constitutional probable cause.”
Amores, 816 S.W.2d at 413. “[F]ew, if any, places are suspicious in and of
themselves. Rather, additional facts available to an officer plus reasonable
inferences from those facts in relation to a particular place may arouse justifiable
suspicion.” Johnson v. State, 722 S.W.2d 417, 421 (Tex. Crim. App. 1986),
overruled on other grounds, McKenna v. State, 789 S.W.2d 797, 800 (Tex. Crim.
App. 1989). Thus, “[t]he determination of whether a place is a ‘suspicious place’
is a highly fact-specific analysis.” Dyar v. State, 125 S.W.3d 460, 468 (Tex. Crim.
App. 2003). “A place can be suspicious because: (1) an eyewitness or police
officer connected the place to the crime; (2) a crime occurred there or the police
reasonably believed a crime occurred there; (3) specific evidence directly
connected the defendant or the place with the crime; or (4) appellant’s behavior
was a factor in determining whether a place was suspicious.” Goldberg v. State, 95
S.W.3d 345, 363 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d). For example,
this court held that an SUV that had been spotted earlier at a crime scene rendered
17 the residence at which it was parked a suspicious place. Id. Another court of
appeals similarly held that the presence of a shot, bleeding body on a front yard
rendered the adjoining residence a suspicious place. Douglas v. State, 679 S.W.2d
790, 791 (Tex. App.—Fort Worth 1984, no pet.).
In this case, the officers discovered a residue in Tran’s kitchen that tested
positive for cocaine. The presence of cocaine, being evidence of a crime, rendered
the townhouse a suspicious place. See Goldberg, 95 S.W.3d at 363; Douglas, 679
S.W.2d at 791. Upon arriving at the townhouse, Tran identified himself as the
homeowner and stated that he lived there. His presence and statements were
circumstances that directly connected him with the suspicious place. See TEX.
CODE CRIM. PROC. ANN. art. 14.03(a)(1); Goldberg, 95 S.W.3d at 363. Although
Tran told officers that he had a roommate, he gave no name or other information
about the purported roommate. Under these circumstances, the police could have
reasonably believed that Tran probably possessed the cocaine. Although the State
would have the burden at trial to prove beyond a reasonable doubt an affirmative
link between Tran and the cocaine, see, e.g., Gilbert v. State, 874 S.W.2d 290, 298
(Tex. App.—Houston [1st Dist.] 1994, pet. ref’d), the police did not need to have
this high degree of belief to make the arrest. See Delgado v. State, 718 S.W.2d
718, 720–21 (Tex. Crim. App. 1986) (“The standard for the legality of a
warrantless arrest is not equal to the sufficiency of evidence for a conviction.”).
18 Accordingly, we hold that the State met its burden to show that the police had both
probable cause and statutory authorization under Article 14.03(a)(1) to arrest Tran.
In an effort to undermine the reasonableness of the officers’ belief that Tran
possessed the cocaine, Tran emphasizes that he told the officers that he had a
roommate, and he asserts that the officers saw indications that more than one
person lived there. He relies on State v. Steelman, 93 S.W.3d 102, 107–09 (Tex.
Crim. App. 2002), and Mitchell v. State, 756 S.W.2d 71, 73–75 (Tex. App.—
Texarkana 1988, no pet.) (per curiam), for the proposition that the officers did not
have probable cause to believe that he, as opposed to his purported roommate or
someone else, committed the offense.
Contrary to Tran’s assertion, the record does not definitively reflect that the
police found evidence indicating that more than one person lived at the townhouse.
Although it is undisputed that Tran told the police that he had a roommate, Officer
Schwartzengraber’s and Officer Riley’s accounts differed with respect to whether
their search of the townhouse verified that more than one person lived there. The
trial court made no specific finding on this question. Viewing the evidence in the
light most favorable to the trial court’s ruling, see Ross, 32 S.W.3d at 855, we
accept for the purposes of our review Officer Riley’s testimony that it was
indeterminable whether Tran had a roommate.
19 We furthermore conclude that Steelman and Mitchell are distinguishable and
do not support Tran’s position. In Steelman, police received an anonymous tip that
drugs were being dealt at Steelman’s residence. Steelman, 93 S.W.3d at 104. The
police knocked at the front door. Id. When Steelman emerged, the officers
smelled burnt marijuana. Id. They rushed in to arrest him and three other men
inside. Id. The Court of Criminal Appeals held that the officers lacked probable
cause to arrest Steelman because, having only smelled marijuana, they “had no
idea who was smoking or possessing marijuana, and they certainly had no
particular reason to believe that [Steelman] was smoking or possessing marijuana.”
Id. at 109. In this case, the only person who arrived at the residence and identified
himself as living there was Tran. This is not a case where the officers “had no
idea” who possessed the contraband because they made an arrest before having
sufficient reliable information to connect the arrestee with the suspected criminal
activity. See id. Rather, Tran’s admission that he lived at the townhouse, his
failure to provide identifying information about a purported roommate, and the fact
that the cocaine residue was found in a common area accessible to any resident of
the townhouse were circumstances that reasonably showed that Tran was guilty of
felony possession of a controlled substance. See TEX. CODE CRIM. PROC. ANN.
art. 14.03(a)(1).
20 In Mitchell, police officers went to Mitchell’s house where a stolen truck
was reportedly parked. Mitchell, 756 S.W.2d at 72. Finding the truck in the front
yard, the police used a loudspeaker to command the occupants to come out. Id.
Mitchell and two others emerged. Id. at 72–73. One of the officers spoke briefly
to Mitchell and then arrested him, but the other men were not arrested. Id. at 73.
The court of appeals concluded that the presence of a stolen vehicle in the front
yard “can reasonably be considered to qualify the yard and house as a ‘suspicious
place.’” Id. at 74.
[H]owever, there is no evidence in the record indicating that, of the three people in the house, Mitchell was the person the officers had probable cause to believe had stolen the vehicle. The record shows only that, after Mitchell and the two others exited the house, Sergeant Bless spoke with Mitchell briefly in Deputy Kuhn’s presence and then arrested him. Bless did not testify at the suppression hearing, and there is nothing to show what, if anything, Mitchell said to him or what else may have supported Bless’ decision to arrest Mitchell rather than one or both of the other occupants of the house.
Id. The court held that the State failed to show that the warrantless arrest was
authorized under Article 14.03(a)(1). Id.
In this case, Officer Riley testified at the suppression hearing that Tran
stated that he lived with a roommate but he failed to provide identifying
information about the purported roommate. Officer Riley also testified that he and
the other officers allowed the two other men who had arrived with Tran to leave
after they determined that the men did not live there. Thus, unlike Mitchell, the
21 State in this case presented specific evidence at the suppression hearing to
demonstrate the reasonableness of the officers’ belief that Tran committed the
offense.
With regard to Tran’s contention that his arrest ran afoul of Article 14.05 of
the Code of Criminal Procedure, the appellate record does not reflect that he
advanced this argument in the trial court. No reference to Article 14.05 appears in
his original or amended motions to suppress evidence, his memorandum of law in
support of the motions, or in the reporter’s record of the suppression hearing.
Rather, his written motions reflected that he moved to suppress evidence only
“pursuant to the Fourth Amendment to the United States Constitution; article I,
section 9 of the Texas Constitution; and article 38.23 of the Code of Criminal
Procedure.” When a defendant’s argument to suppress evidence is based on an
infringement of constitutional rights rather than a violation of Article 14.05, he
does not preserve the latter issue for appellate review. See Resendez v. State, 306
S.W.3d 308, 315 (Tex. Crim. App. 2009) (citing Bucchanan v. State, 207 S.W.3d
773, 777 (Tex. Crim. App. 2006)); TEX. R. APP. P. 33.1(a). Accordingly, we hold
that Tran has waived this issue and we do not address it.
We hold that the trial court did not err in denying Tran’s motion to suppress
evidence based on his warrantless arrest. Accordingly, we overrule Tran’s second
issue.
22 Modification of judgment
The written judgment of the trial court, under the heading of “special
findings or orders,” states, “APPEAL WAIVED. NO PERMISSION TO APPEAL
GRANTED.” However, the boilerplate plea agreement signed by Tran, his
counsel, the district attorney, and the presiding judge reflects a line crossing out
preprinted text stating that the defendant waives any right of appeal that he may
have. Moreover, the “Certification of Defendant’s Right of Appeal” form has a
checked box next to preprinted text stating that this “is a plea-bargain case, but
matters were raised by written motion filed and ruled upon before trial, and not
withdrawn or waived, and the defendant has the right of appeal.” See TEX. R. APP.
P. 25.2(d) (requiring trial court to certify defendant’s right of appeal).
The Code of Criminal Procedure and Rules of Appellate Procedure permit a
plea-bargaining defendant to appeal matters raised by written motion filed and
ruled upon before trial. See Shankle v. State, 119 S.W.3d 808, 811–12 (Tex. Crim.
App. 2003) (analyzing TEX. CODE CRIM. PROC. art. 44.02 and TEX. R. APP. P.
25.2(b)). Moreover, the certification of Tran’s right of appeal presumptively
reflects whether he has this right, because the certification must reflect whether the
defendant has a right of appeal but the judgment need not reflect this finding. See
Grice v. State, 162 S.W.3d 641, 645 (Tex. App.—Houston [14th Dist.] 2005, pet.
ref’d) (comparing TEX. R. APP. P. 25.2(d) and TEX. CODE CRIM. PROC. art. 42.01,
23 § 1 and concluding that a stamped indication of waiver of appeal appearing in
judgment was “surplusage”). The State’s failure to argue in this court that Tran
waived his right of appeal further indicates that there was no understanding that
Tran would waive his right of appeal. See Menefee v. State, 287 S.W.3d 9, 12 n.12
(Tex. Crim. App. 2009) (relying on trial court’s certification of defendant’s right of
appeal, despite signed waiver of appeal, when State failed to raise issue of waiver);
Willis v. State, 121 S.W.3d 400, 403 (Tex. Crim. App. 2003) (concluding that
record demonstrated appellant’s intention to appeal, despite boilerplate waiver in
plea agreement, when State failed to assert waiver in court of appeals).
The parties have not addressed the validity of the judgment’s special finding
or order regarding Tran’s right of appeal. Nevertheless, based on our review, we
conclude that this portion of the trial court’s judgment does not accurately comport
with the record. “[A]n appellate court has authority to reform a judgment to
include an affirmative finding to make the record speak the truth when the matter
has been called to its attention by any source.” French v. State, 830 S.W.2d 607,
609 (Tex. Crim. App. 1992); see also TEX. R. APP. P. 43.2(b). Because the Code
of Criminal Procedure and Rules of Appellate Procedure permit plea-bargaining
defendants to appeal rulings on pre-trial motions, the plea agreement reflects that a
boilerplate waiver of appeal was crossed through, the trial court certified Tran’s
right of appeal, and the State does not argue that Tran waived his right of appeal,
24 the record in this case supports modification of the judgment. Accordingly, we
modify the trial court’s judgment to strike the special finding or order of “APPEAL
WAIVED. NO PERMISSION TO APPEAL GRANTED.”
Conclusion
We modify the judgment of the trial court to strike the special finding or
order of “APPEAL WAIVED. NO PERMISSION TO APPEAL GRANTED.”
We affirm the judgment as modified.
Michael Massengale Justice
Panel consists of Justices Jennings, Massengale, and Huddle.
Do not publish. TEX. R. APP. P. 47.2(b).