Murillo v. State

850 S.W.2d 198, 1993 Tex. App. LEXIS 85, 1993 WL 82981
CourtCourt of Appeals of Texas
DecidedJanuary 21, 1993
DocketNo. A14-92-00865-CR
StatusPublished
Cited by5 cases

This text of 850 S.W.2d 198 (Murillo v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Murillo v. State, 850 S.W.2d 198, 1993 Tex. App. LEXIS 85, 1993 WL 82981 (Tex. Ct. App. 1993).

Opinion

OPINION

ELLIS, Justice.

Appellant, Eliecer Lopez Murillo, appeals his judgment of conviction for the offense of possession with the intent to deliver over 400 grams of cocaine. Tex.Health & Safety Code Ann. § 481.102(2) and § 481.112(a), (d)(3) (Vernon 1992). Appellant waived his right to a jury trial and the Court found him guilty and assessed punishment at twenty (20) years confinement in the Institutional Division of the Texas Department of Criminal Justice and a $10,000 dollar fine. We affirm.

Appellant contends in his sole point of error that the trial court erred in overruling his motion to suppress. The facts as developed at the motion to suppress hear[199]*199ing are as follows: On November 6, 1991, Officer Rodriguez of the Houston Police Department Narcotics Interdiction Division was working at the Houston bus station. His duty that day was to look for narcotics trafficking at that location. At 8:30 p.m., Rodriguez observed appellant arriving in a taxi cab. Appellant immediately went to the passenger waiting area and was walking in a “very hurried fashion.” Rodriguez testified that narcotics couriers usually arrive at the last minute and already have a ticket in hand whereas regular passengers will typically enter the ticket line or check whether the bus is early or late.

Appellant sat at a pay-per-view T.V. and put his feet on the small duffle bag he was carrying. He turned on a Walkman radio then put a quarter into the T.V. Appellant did not focus on the T.V. but instead scanned the lobby as though to look for who might be watching him. Rodriguez testified that this too was common behavior for people carrying drugs. After five or ten minutes, Rodriguez approached appellant, identified himself as a police officer, and asked if he could talk to him. Appellant said yes. Officer Rodriguez was wearing jeans, a T-shirt and a baseball cap, and although he had a weapon, it was not visible.

Rodriguez asked if appellant was leaving on a bus or if he had just arrived. Appellant stated that he was going to Tampa, Florida. Rodriguez asked if appellant was from Houston or Tampa. Appellant replied that he lived in Tampa but was in Houston visiting his brother for a week. Rodriguez then asked if he could see appellant’s bus ticket, and appellant handed him a ticket which was purchased earlier that day with cash. The ticket showed Tampa as its final destination. Rodriguez testified that Tampa had recently become a major narcotics area and that narcotics couriers usually purchase their bus tickets in cash. Rodriguez asked appellant if he could see his identification. With his arm shaking, appellant showed the officer a Texas Driver’s License showing a Houston address. This of course conflicted with appellant’s story that he lived in Tampa and was just visiting Houston. Rodriguez never took possession of the license but just looked at it and thanked appellant.

Rodriguez asked if he could look in appellant’s bag but informed him that he did not have to let him. Appellant told Rodriguez to go ahead and look inside. Rodriguez opened the bag and noticed a strong odor of fabric softener which he had learned from past investigations is used to cover up the smell of narcotics. Rodriguez found a hard brick shaped object wrapped in black plastic at the bottom of the bag. Rodriguez asked appellant what it was and appellant told him it was marijuana. When Rodriguez unwrapped the object he discovered that the brick was actually two pounds of cocaine. At the conclusion of the hearing, the trial court overruled appellant’s motion to suppress.

The trial court is the sole and exclusive trier of fact and judge of the credibility of witnesses as well as weight to be given their testimony at a hearing on a motion to suppress. Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990). His findings concerning the admissibility of evidence should not be disturbed absent a clear abuse of discretion. Rivera v. State, 808 S.W.2d 80, 96 (Tex.Crim.App.1991). Upon review, the evidence adduced at a suppression hearing is viewed in the light most favorable to the trial court’s ruling in determining whether the trial court abused its discretion in denying the Motion to Suppress. Daniels v. State, 718 S.W.2d 702, 704 (Tex.Crim.App.1986). An appellate court is not at liberty to disturb any finding which is supported by the record. Johnson v. State, 803 S.W.2d 272, 287 (Tex.Crim.App.1990).

The Fourth Amendment to the United States Constitution provides that “the right of the people to be secure in their person, houses, paper, and effects, against unreasonable searches and seizures, shall not be violated.” Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). See also U.S. Const. amend. IV.

Art. I § 9 of the Texas Constitution, which bears a striking resemblance to its federal counterpart, provides:

[200]*200The people shall be secure in their person, houses, papers and possessions, from all unreasonable seizures or searches, and no warrant to search any place, or to seize any person or thing, shall issue without describing them as near as may be, not without probable cause, supported by oath or affirmation.

Tex. Const, art. I § 9.

This is not to say that the Constitution forbids all searches and seizures; it is only those intrusions which are deemed unreasonable that the Constitution proscribes. Terry, 392 U.S. at 9, 88 S.Ct. at 1873. Nor do the provisions thus cited extend their protection to all encounters between the police and citizens. Daniels v. State, 718 S.W.2d 702, 704 (Tex.Crim.App.1986), cert. denied, 479 U.S. 885, 107 S.Ct. 277, 93 L.Ed.2d 252 (1986). “Law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some question, [or] by putting questions to him if the person is willing to listen.” Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). See also United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). “The purpose of the ' Fourth Amendment is not to eliminate all contact between the police and the citizenry, but ‘to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals.’” Mendenhall, 446 U.S. at 553-54, 100 S.Ct. at 1877. An individual is seized, for Fourth Amendment purposes, when his freedom of movement is inhibited by means of physical force or a show of authority. Id. at 553, 100 S.Ct. at 1876. It is only when this type of restraint is imposed that the discussed Constitutional safeguards are invoked. Id.

The law is equally clear that not all seizures of a citizen must be justified by probable cause to arrest for the commission of a crime. Royer, 460 U.S. at 498, 103 S.Ct. at 1324; United States v. Place,

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850 S.W.2d 198, 1993 Tex. App. LEXIS 85, 1993 WL 82981, Counsel Stack Legal Research, https://law.counselstack.com/opinion/murillo-v-state-texapp-1993.