NUMBER 13-12-00696-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
JUAN FRANCISCO MALDONADO, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 197th District Court of Willacy County, Texas.
MEMORANDUM OPINION Before Chief Justice Valdez, and Justices Perkes and Longoria Memorandum Opinion by Justice Perkes Appellant Juan Francisco Maldonado appeals his conviction for possession of a
controlled substance with intent to deliver 400 grams or more of cocaine. See TEX.
HEALTH & SAFETY CODE ANN. § 481.112(f) (West, Westlaw through 2013 3d C.S.).
Appellant pleaded guilty, and the trial court sentenced him to fifteen years in the Texas
Department of Criminal Justice, Institutional Division. By three issues, appellant argues: (1) his motion to suppress was improperly denied; (2) his motion to dismiss for failure to
afford a speedy trial was improperly denied; and (3) his motion to dismiss for failure to
comply with Article 32.01 was improperly denied. See TEX. CODE CRIM. PROC. ANN. §
32.01 (West, Westlaw through 2013 3d C.S.). We affirm.
I. BACKGROUND
On September 21, 2009 DPS Narcotics Sergeant Jorge Lopez was working
narcotics interdiction in Hidalgo County, Texas. At around 5:30 p.m., he was driving an
unmarked vehicle on his way home when he noticed a clean, shiny, green tractor trailer,
with Illinois license plates, having its signage changed on the cab’s driver and passenger
doors.
Sergeant Lopez testified that based upon his training and experience, he found it
unusual the tractor trailer was based out of Illinois but having the signage changed in
Texas. After further investigation, Sergeant Lopez discovered the company that owned
the truck was a brand new company, and that it only owned one truck. According to
Sergeant Lopez, this business arrangement is consistent with using tractor trailers to
transport narcotics. Sergeant Lopez continued surveillance of the truck as it was loaded
and noticed that appellant was the driver of the truck. Sergeant Lopez further noted that
appellant was using his phone and pacing back and forth in front of the truck as it was
being loaded.
After the truck was loaded, Sergeant Lopez and other agents followed the truck as
it began to travel eastbound on highway 83 towards highway 281. Sergeant Lopez,
believing that it was going to travel northbound on highway 281, called to prepare highway
2 patrol units to stop the truck. The truck, however, continued eastbound when it reached
highway 281. Sergeant Lopez, with fellow agents, continued to follow the truck until it
reached Harlingen, at which point the truck turned northbound onto highway 77.
DPS Trooper Eugenio Garcia was patrolling highway 77 in Willacy County, Texas,
when he received a phone call from Sergeant Lopez. Sergeant Lopez advised Trooper
Garcia that he was conducting an ongoing investigation on a green tractor trailer with
Illinois plates, and asked Trooper Garcia to assist. Trooper Garcia observed a tractor
trailer traveling northbound on highway 77 that matched the description given to him by
Sergeant Lopez. Trooper Garcia pulled over the tractor trailer between 11:00 and 11:30
p.m. for a defective license plate lamp. Appellant was the truck’s sole occupant.
While appellant was stopped, Sergeant Lopez arrived at the scene. Sergeant
Lopez noticed that appellant appeared nervous. When Sergeant Lopez asked appellant
about the changed signs on the truck, appellant answered that he paid cash for the job
out of his own money, which Sergeant Lopez considered unusual. Based on appellants
answer and nervous behavior, Sergeant Lopez decided to detain appellant for further
questioning after Trooper Garcia issued a warning to appellant for the traffic violation.
Sergeant Lopez continued to speak with appellant, asking him questions related
to his activities in Hidalgo County. Appellant told him that he was hired by a Chicago
trucking company. Appellant first stated that he left the truck at the Flying J truck stop
upon arriving in Hidalgo County, but later stated that he left the truck at a T/A truck stop.
Appellant informed Sergeant Lopez that he had stayed the night with a girl named Jessica
who he met on the internet, but that he did not have a phone number for her and did not
3 remember her address.
Appellant told Sergeant Lopez that this trip was his first for this company and that
he personally paid for the flight from Orlando to Chicago to begin work. Sergeant Lopez
questioned appellant about using his own money to pay for the flight and for the signs on
the truck. Sergeant Lopez testified that appellant’s story did not make sense. Sergeant
Lopez then requested written consent to search the tractor-trailer. Appellant consented
orally and signed a written consent form at 11:46 p.m. Sergeant Lopez searched the
truck but did not find anything.
Sergeant Lopez asked appellant to follow him to a border patrol checkpoint in
Falfurrias. Appellant agreed. After they arrived at the checkpoint, a drug-sniffing canine
alerted positive for contraband. A border patrol agent then asked appellant for consent
to have the tractor trailer x-rayed. Appellant consented. The x-ray revealed a hidden
compartment in the wind jam of the cab that contained a hundred kilograms of cocaine.
On September 22, 2009, appellant was placed under arrest based upon the discovery of
narcotics in the truck.
On August 18, 2011, approximately 23 months after his arrest, a grand jury indicted
appellant for the offense of possession with intent to deliver a controlled substance,
namely, cocaine, in an amount of 400 grams or more. On September 27, 2011, appellant
failed to appear at his arraignment. On August 28, 2012, appellant failed to appear at
his status hearing, and the trial court scheduled a second arraignment. On September
6, 2012, the trial court held a second arraignment, but appellant again failed to appear.
On September 25, 2012, appellant appeared before the trial court and pleaded not guilty.
4 On October 4, 2012, appellant filed a motion to suppress, motion for speedy trial, and
motion to dismiss for failure to comply with Article 32.01. See TEX. CODE CRIM. PROC.
ANN. art. 32.01 (West, Westlaw through 2013 3d C.S.). On October 29, 2012, the trial
court denied all three motions. That same day, appellant pleaded guilty and was
sentenced to fifteen years in prison.
II. MOTION TO SUPPRESS
By his first issue, appellant argues the trial court improperly denied his motion to
suppress. Appellant asserts that the seventeen minute1 extension of his detention after
the purpose of the initial traffic stop was completed resulted in an illegally extended
detention. Appellant concludes that any search conducted after the initial traffic stop was
concluded was illegal and that any evidence discovered during the search should be
suppressed.
A. Standard of Review
We review a trial court's ruling on a motion to suppress for an abuse of discretion.
Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010). In reviewing a trial court's
ruling on a motion to suppress evidence for an abuse of discretion, we use a bifurcated
standard. State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000) (en banc) (citing
Guzman v. State, 955 S.W.2d 85, 88 (Tex. Crim. App. 1997) (en banc)). We give almost
total deference to the trial court's findings of historical fact that are supported by the record
and to mixed questions of law and fact that turn on an evaluation of credibility and
1 Appellant states in his brief that seventeen minutes elapsed between the time Trooper Garcia
issued the warning and the time Sergeant Lopez obtained appellant’s consent to search the truck.
5 demeanor. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007) (citing
Guzman, 995 S.W.2d at 89). We “review de novo ‘mixed questions of law and fact’ that
do not depend upon credibility and demeanor.” Id. (quoting Montanez v. State, 195
S.W.3d 101, 107 (Tex. Crim. App. 2006)); Guzman, 995 S.W.2d at 89. In our review, we
must view the evidence in the light most favorable to the trial court's ruling. State v. Kelly,
204 S.W.3d 808, 818 (Tex. Crim. App. 2006). When the trial court has not made a finding
on a relevant fact, we imply the finding that supports the trial court's ruling if it is supported
by the record. Id.
To suppress evidence on an alleged Fourth Amendment violation, the defendant
bears the initial burden of producing evidence that rebuts the presumption of proper police
conduct. Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). A defendant
satisfies this burden by establishing that a search or seizure occurred without a warrant.
Id. Once the defendant has made this showing, the burden of proof shifts to the State
where it is required to establish that the search or seizure was conducted pursuant to a
warrant or was reasonable. Id.; see Bishop v. State, 85 S.W.3d 819, 822 (Tex. Crim.
App. 2002) (en banc).
B. Applicable Law
We analyze the legality of traffic stops for Fourth Amendment purposes under the
standard articulated by the United States Supreme Court in Terry v. Ohio. United States
v. Brigham, 382 F.3d 500, 507–08 (5th Cir. 2004) (en banc); see Terry v. Ohio, 392 U.S.
1, 21–22 (1968); United States v. Pack, 612 F.3d 341, 349–350 (5th Cir. 2010); Kothe v.
State, 152 S.W.3d 54, 63 (Tex. Crim. App. 2004). Under this standard, we make a two-
6 part inquiry. Brigham, 382 F.3d at 506. First, we examine whether or not the officer's
decision to stop the vehicle was justified at its inception. Id. Second, we determine
whether or not the officer's subsequent actions were reasonably related in scope to the
circumstances that caused him to stop the vehicle in the first place. Id. An officer's
subsequent actions are not reasonably related in scope to the circumstances that caused
him to stop the vehicle if he detains its occupants beyond the time needed to investigate
the circumstances that caused the stop, unless the officer develops a reasonable
suspicion of additional criminal activity in the meantime. Id. at 507. The United States
Supreme Court has expressly rejected placing any rigid time limitations on Terry stops;
instead, the issue is “whether the police diligently pursued a means of investigation that
was likely to confirm or dispel their suspicions quickly, during which time it was necessary
to detain the defendant.” Kothe v. State, 152 S.W.3d at 64 (quoting United States v.
Sharpe, 470 U.S. 675, 685–86 (1985) (declining to “establish a per se rule that a 20–
minute detention is too long” under Terry).
Reasonable suspicion exists if the officer has specific, articulable facts that, when
combined with rational inferences from those facts, would lead the officer to reasonably
conclude that a particular person actually is, has been, or soon will be engaged in criminal
activity. Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001); see Ford, 158
S.W.3d at 492. Courts should not engage in a “divide and conquer” analysis of the facts,
but should instead look at the totality of the circumstances to see if an officer had
developed reasonable suspicion. Sims v. State, 98 S.W.3d 292, 296 (Tex. App.—
7 Houston [1st Dist.] 2003, pet. ref’d); see United States v. Arvizu, 534 U.S. 266, 273
(2002).
C. Analysis
The parties stipulated that the search of appellant’s vehicle was conducted without
a search warrant. Thus, the burden shifted to the State to establish that the search was
reasonable. See Ford, 158 S.W.3d at 492.
With respect to the first part of the Terry inquiry, we must determine whether the
police had a reasonable suspicion to stop the vehicle and detain appellant. See
Brigham, 382 F.3d at 506. Trooper Garcia pulled over appellant’s tractor trailer for a
defective license plate lamp and issued a warning to appellant for the traffic violation.
Appellant does not challenge the initial stop on appeal. As such, we conclude that the
officer's decision to stop the vehicle was justified at its inception.
The second part of the Terry inquiry requires us to determine whether or not the
officer's subsequent actions were reasonably related in scope to the circumstances that
caused him to stop the vehicle in the first place. Appellant argues that Sergeant Lopez’s
decision to detain him beyond the time it took to investigate the initial traffic stop violated
Terry. In support, he argues that the facts that emerged during Sergeant Lopez’s
investigation could not create a reasonable suspicion that appellant was engaged in drug
trafficking. Therefore, we must determine whether the facts show the development of a
“reasonable suspicion of additional criminal activity” during the investigation of the initial
traffic offense.
8 Sergeant Lopez relied on six facts that he claimed provided him with reasonable
suspicion that appellant was involved in drug activity: (1) the brand-new Illinois company
only owned one truck and only had one registered driver; (2) appellant was on his phone
constantly while the truck was being loaded; (3) appellant drove a route that is unusual
for a truck traveling from Hidalgo County to Illinois; (4) appellant appeared nervous when
speaking with Sergeant Lopez; (4) appellant used his own cash to pay for the sign change
on the truck and his flight from Orlando to Chicago; (5) appellant gave inconsistent
accounts regarding the truck stop where he parked the truck for the weekend; and (6)
appellant did not have an address or phone number for “Jessica.”
Appellant contends that each fact by itself is not a criminal act. While certainly
true that each fact may not by itself constitute a crime, such facts, when combined with
permissible deductions, can form a legitimate basis for suspicion. See Ford, 158 S.W.3d
at 494 (quoting United States v. Cortez, 449 U.S. 411, 419 (1981)). The facts observed
prior to the stop—the changed markings, the ownership of the truck, the unusual phone
usage during loading, and the route taken by the truck—are articulable and specific and
justify the initial detention under the first part of Terry. The second set of facts justified
appellants continued detention. The second set of facts include appellant’s
nervousness, appellant spending his own money for expenses, and the inconsistent
stories pertaining to appellant’s travel as well as “Jessica.” With each additional fact that
Sergeant Lopez observed at the scene, the suspicious nature of appellant’s activity grew
stronger. At the same time, Sergeant Lopez reasonably and gradually escalated the
9 nature of the intrusion in proportionate response to the level of the suspicious activity.
See United States v. Kye Soo Lee, 898 F.2d 1034, 1040 (5th Cir. 1990).
The above described circumstances constitute specific and articulable facts which,
taken together with rational inferences drawn therefrom are sufficient under Terry to justify
a reasonable suspicion on the part of the officers that criminal activity was afoot. See id.
Accordingly, Sergeant Lopez was justified in his initial and continued detention of
appellant. See id.; Terry, 392 U.S. at 20. We overrule appellant’s first issue.
III. SPEEDY TRIAL
Appellant argues he was deprived of his right to a speedy trial as guaranteed by
the United States and Texas Constitutions because the State allowed twenty–three
months to pass between the day of his arrest and the day of his indictment. We disagree.
A. Standard of Review
In reviewing the trial court's ruling on appellant's federal constitutional speedy trial
claim, we apply a bifurcated standard of review: an abuse of discretion standard for the
factual components and a de novo standard for the legal components. Zamorano v.
State, 84 S.W.3d 643, 648 (Tex. Crim. App. 2002). We must presume the trial court
resolved any disputed fact issues in the State's favor, and we must defer to the implied
findings of fact that the record supports. Id.
B. Applicable Law
The Sixth Amendment to the United States Constitution guarantees the accused's
right to a speedy trial. See U.S. CONST. AMEND. VI. The United States Supreme Court
has stated that, “On its face, the Speedy Trial Clause is written with such breadth that,
10 taken literally, it would forbid the government to delay the trial of an ‘accused’ for any
reason at all.” Doggett v. United States, 505 U.S. 647, 651 (1992). Thus, in Barker v.
Wingo, the Court “qualified the literal sweep of the provision” by analyzing the
constitutional question in terms of four specific factors: (1) whether delay before trial was
uncommonly long; (2) whether the government or criminal defendant is more to blame for
that delay; (3) whether, in due course, the defendant asserted his right to a speedy trial;
and (4) whether the defendant suffered prejudice as the delay's result. Barker v. Wingo,
407 U.S. 514, 530–32, (1972).
Under Barker, courts must analyze federal constitutional speedy trial claims by first
weighing the strength of each of the above factors and then balancing their relative
weights in light of “the conduct of both the prosecution and the defendant.” Zamorano,
84 S.W.3d at 648. None of the four factors is “either a necessary or sufficient condition
to the finding of a deprivation of the right of speedy trial.” Id. Instead, they are related
factors, which must be considered together along with any other relevant circumstances.
Id. No one factor possesses “talismanic qualities,” thus courts must “engage in a difficult
and sensitive balancing process” in each individual case. Id.
C. Analysis
1. Length of Delay
The length of delay is a “triggering mechanism” for analysis of the other Barker
factors. See Barker, 407 U.S. at 530. In general, courts deem delay approaching one
year to be “unreasonable enough to trigger the Barker enquiry.” Doggett, 505 U.S. at
652. Here, appellant was arrested on September 22, 2009, and the hearing on his
11 speedy trial motion was held on October 29, 2012, approximately thirty–eight months
later. This delay was sufficient to trigger the Barker enquiry. Further, the delay
stretched far beyond the minimum needed to trigger the enquiry. See id.
Consequently, this factor weighs in favor of finding a violation of the speedy trial right.
See Zamorano, 84 S.W.3d at 649 (“Because the length of the delay stretched well beyond
the bare minimum needed to trigger judicial examination of the [speedy trial] claim, this
factor—in and of itself—weighs heavily against the State.”); see also Dragoo v. State, 96
S.W.3d 308, 314 (Tex. Crim. App. 2003).
2. Reason for Delay
While the record is not clear on the exact reasons for the delay, the State alleges
that most of the delay is attributable to appellant’s actions. The State explained that prior
to his indictment, appellant met with police under the guise of becoming an informant.
Sometime thereafter, appellant fled and the police were unable to locate him. According
to the State, their inability to locate appellant ultimately lead to appellant being indicted.
The State further contended that after appellant was indicted, he contested his extradition.
It is unclear how much delay was spent on extradition proceedings, but it is undisputed
that appellant: (1) failed to appear in court on September 27, 2011; (2) failed to attend
subsequent court appearances on August 28, 2012 and September 6, 2012; and (3) did
not appear until he pleaded not guilty on September 25, 2012. Based on the reasons
given by the State, it was reasonable for the trial court to presume a valid justification for
the delay. See id. This factor weights against a speedy–trial violation.
3. Assertion of Right
12 A defendant’s lack of a timely demand for a speedy trial indicates strongly that he
did not really want a speedy trial. See Harris v. State, 827 S.W.2d 949, 957 (Tex. Crim.
App. 1992) (en banc). Appellant failed to assert his right to a speedy trial for a period of
thirty-eight months, and only did so immediately before trial. Appellant was represented
by counsel at all relevant times and has raised no question regarding the competency of
counsel. Further, appellant failed to give any reason for his delay in asserting his right.
In view of the delay, in which appellant quietly acquiesced, this factor weighs against
finding a violation of the speedy trial right. See Dragoo, 96 S.W.3d at 314–15.
4. Prejudice to Defendant
The most important consideration in assessing the last Barker factor is whether
appellant’s defense was impaired by the delay. See id. at 315. We recognize that a
thirty-eight month delay may be excessive and presumptively prejudicial to the defense.
See id.; Zamorano, 84 S.W.3d at 654 (four year delay between defendant's arrest and
trial was presumptively prejudicial to defense). However, we further recognize that such
prejudice is offset by appellant's longtime acquiescence in the delay. See Dragoo, 96
S.W.3d at 315. Additionally, appellant failed to assert or otherwise provide any specific
evidence that his defense was impaired in any way by the delay. Therefore, we hold that
appellant was not prejudiced.
5. Conclusion
In balancing the Barker factors, the fact that the delay may have been excessive
weighs in favor of finding a violation of appellant's right to a speedy trial. However,
weighing against appellant’s challenge are the reasons offered by the State for the delay,
13 appellant’s quiet acquiescence to the delay, and his failure to demonstrate prejudice by
the delay. Such factors indicate he may not have really wanted a speedy trial.
We hold that the weight of the four factors, balanced together, is against finding a
violation of appellant's right to a speedy trial. See Barker, 407 U.S. at 534 (defendant's
right to speedy trial was not violated; defendant was not seriously prejudiced by five-year
delay between arrest and trial); Phipps v. State, 630 S.W.2d 942, 946 (Tex. Crim. App.
[Panel Op.] 1982) (defendant's right to speedy trial was not violated; defendant
demonstrated no prejudice by four-year delay between arrest and trial, and waited until
one month before trial to assert his right to a speedy trial). We overrule appellant’s
second issue.
IV. ARTICLE 32.01
By his third issue, appellant argues the trial court erred by denying his motion to
dismiss for failure to comply with Article 32.01 of the Texas Code of Criminal Procedure.
See TEX. CODE CRIM. PROC. ANN. art. 32.01 (West, Westlaw through 2013 3d C.S.).
Specifically, appellant appears to be asserting that his indictment was defective because
it was not presented on or before the 180th day after his date of commitment. Appellant
contends that since he was arrested on September 29, 2009, but not indicted until August
18, 2011, the trial court had no option but to dismiss the indictment. We disagree.
A. Applicable Law
When analyzing a decision that is based on a trial court's interpretation of a statute,
we first construe the statute according to its plain language. Tapps v. State, 294 S.W.3d
175, 177 (Tex. Crim. App. 2009); Williams v. State, 253 S.W.3d 673, 677 (Tex. Crim. App.
14 2008). Statutory construction is a question of law; thus, this Court conducts a de novo
review. Tapps, 294 S.W.3d at 177. Article 32.01 provides as follows:
When a defendant has been detained in custody or held to bail for his appearance to answer any criminal accusation, the prosecution, unless otherwise ordered by the court, for good cause shown, supported by affidavit, shall be dismissed and the bail discharged, if indictment or information be not presented against such defendant on or before the last day of the next term of the court which is held after his commitment or admission to bail or on or before the 180th day after the date of commitment or admission to bail, whichever date is later.
TEX. CODE CRIM. PROC. ANN. art. 32.01.
“By operation, article 32.01 prevents citizens from being left in jail or on bail for
long periods of time without being indicted.” Ex parte Martin, 6 S.W.3d 524, 529 (Tex.
Crim. App. 1999). “The statute gives a person held in custody without indictment a
means to obtain his release, because the statute requires the State to ‘indict within the
period set by article 32.01, show good cause for the delay, or suffer the dismissal of the
charges.’” Schroeder v. State, 307 S.W.3d 578, 579 (Tex. App.—Beaumont 2010, pet.
ref’d) (citing Ex Parte Martin, 6 S.W.3d at 529).
“Article 32.01 does not create a substantive right that frees a person from
prosecution for the commission of an offense.” Id. (citing Ex parte Seidel, 39 S.W.3d
221, 224 (Tex. Crim. App. 2001)). Rather, “article 32.01 creates a procedural right to be
dismissed from custody under certain circumstances until the grand jury has been
presented with an indictment. After the presentment to the grand jury of an indictment
on the offense at issue, article 32.01 is no longer applicable.” Id. (citing Brooks v. State,
990 S.W.2d 278, 285 (Tex. Crim. App. 1999); Schroeder, 307 S.W.3d at, 580).
15 B. Analysis
On September 22, 2009, appellant was arrested for possession of a controlled
substance, after narcotics were discovered in his truck.2 On August 18, 2011, a grand
jury indicted appellant for the offense. On October 4, 2012, appellant filed a motion to
dismiss for failure to comply with Article 32.01.
We hold the trial court did not abuse its discretion in denying appellant’s motion to
dismiss. The record shows that appellant did not obtain a ruling on his motion to dismiss
before the grand jury returned its indictment. Because appellant had already been
indicted by the grand jury when the trial court denied his motion to dismiss the indictment,
a dismissal of his indictment was no longer required. See Brooks, 990 S.W.2d at 285;
Schroeder, 307 S.W.3d at 580. We overrule appellant’s third issue.
V. CONCLUSION
We affirm the judgment of the trial court.
GREGORY T. PERKES Justice
Do not publish. TEX. R. APP. P. 47.2(b).
Delivered and filed the 9th day of October, 2014.
2 On September 22, 2009, appellant was apparently released on a personal recognizance bond, the day following his arrest. 16