Opinion issued November 21, 2013
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-12-01101-CR ——————————— TROY ANDRE BIENVENUE, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 337th District Court Harris County, Texas Trial Court Case No. 1244282
MEMORANDUM OPINION
Appellant, Troy Andre Bienvenue, was placed on deferred adjudication
community supervision after being charged by indictment with possession of a
controlled substance with intent to deliver. About two years later, the State filed a
motion to adjudicate guilt. Appellant filed a motion to suppress. The trial court denied the motion to suppress, adjudicated appellant guilty of the charged offense,
and sentenced him to 45 years’ confinement. In one issue, appellant argues the
trial court abused its discretion by denying his motion to suppress.
We affirm.
Background
Appellant, Troy Andre Bienvenue, was charged by indictment on December
11, 2009 with possession of a controlled substance with intent to deliver. The
indictment included two enhancement paragraphs, alleging two prior felony drug
possession convictions. Appellant pleaded guilty to the charged offense without an
agreed recommendation on the sentence. The trial court found the enhancement
allegations true but deferred a finding of guilt, placing appellant on community
supervision.
Two years later, the State filed a motion to adjudicate guilt based, in part, on
appellant’s commission of a new offense on November 29, 2011. At the hearing,
appellant moved for the trial court to suppress the evidence obtained from his truck
on November 29 based on an allegation of a warrantless search.
At the hearing, the State presented the testimony of Officer M. Baccus, a
member of the Houston Police Department’s narcotics division. Officer Baccus
testified that, on November 29, he received a call from a confidential informant
about a “pill mill” running an operation at a pharmacy in Harris County. The
2 confidential informant told him that there were six or more people in an Isuzu
truck at the pharmacy.
In a “pill mill,” someone will hire homeless or unemployed people to go to
clinics making certain health complaints that will result in obtaining a desired drug
prescription. That person will then drive the individuals to a pharmacy to obtain
the prescribed drugs. Those drugs are then sold on the street.
Officer Baccus told the informant to call him back if he heard anything
more. Later that day, the informant called back and told Officer Baccus that the
Isuzu was going to a Bass Pro Shop. Officer Baccus and about nine other officers
went to the Bass Pro Shop. Officer Baccus drove around the lot and found a blue
Isuzu truck with seven people in it. He parked close to the truck.
A short time later, a Buick arrived and parked about 30 feet from the truck.
The driver of the Isuzu got out and carried a blue and white bag to the driver of the
Buick. The driver of the Isuzu walked back to his truck. After that, appellant
drove into the parking lot and parked in the space next to the Buick. Appellant’s
truck and the Buick were parked so that the passenger side of each car faced each
other. The driver of the Buick and appellant got out of their cars and met in the
space between them. The driver of the Buick gave appellant a Wal-Mart bag and
appellant gave the driver of the Buick cash. They both returned to their cars.
3 Officer Baccus testified that what he observed was similar to what he had
seen in other narcotics investigations. He signaled the other officers, and they all
approached. Appellant had opened the driver-side door and placed the Wal-Mart
bag behind the driver-side seat. Before getting into the car, he noticed the police
officers approaching. Officer Baccus testified that appellant made some attempt to
walk away from the scene, was told to stop, and complied.
Appellant was handcuffed relatively quickly and taken to the back of the
truck. Appellant’s driver-side door was still open. Officer Baccus looked in, saw
the Wal-Mart bag behind the seat, and saw a number of prescription pill bottles
inside the bag. Appellant was then formally arrested.
Appellant testified for the motion to suppress. He acknowledged he was
there to make a drug buy. But he testified that the driver of the Buick got into his
truck, and the exchange occurred there. He also testified that he put the bag of
drugs into a compartment between the seats so that they could not be seen without
opening the console. At this point, the officers approached his truck with guns
drawn, opened the car door, and pulled him out of the truck.
The trial court denied the motion to suppress.
Standard of Review
We review a trial court’s ruling on a motion to suppress under a bifurcated
standard of review. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App.
4 2010). We afford almost total deference to a trial court’s determination of
historical facts. Id. 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. Id. When a
trial court makes written findings of fact, as it did in the instant case, a reviewing
court must examine the record in the light most favorable to the ruling and uphold
those fact findings so long as they are supported by the record. See id. We then
proceed to a de novo determination of the legal significance of the facts as found
by the trial court. See Derichsweiler v. State, 348 S.W.3d 906, 913 (Tex. Crim.
App. 2011).
Motion to Suppress
Appellant and the State dispute whether appellant was under arrest or subject
to an investigative detention at the time that Officer Baccus discovered the drugs.
Appellant argues that the evidence of the drugs should have been suppressed
because he was under arrest, the arrest was illegal, and the officers accordingly
lacked authority to seize the drugs pursuant to a search incident to arrest. We hold
that, regardless of whether appellant was under arrest and regardless of whether
any such arrest was legal, the drugs were lawfully seized and, accordingly, the trial
court did not abuse its discretion by denying the motion to suppress.
The Fourth Amendment to the United States Constitution and Article I,
Section 9 of the Texas Constitution protect individuals against unreasonable
5 searches and seizures. U.S. CONST. amend. IV; TEX. CONST. art. I, § 9; State v.
Betts, 397 S.W.3d 198, 203 (Tex. Crim. App. 2013). Warrantless searches are per
se unreasonable unless the State can prove that the search was conducted pursuant
to a recognized exception to the warrant requirement. Arizona v. Gant, 556 U.S.
332, 338, 129 S. Ct. 1710, 1716 (2009) (citing Katz v. United States, 389 U.S. 347,
357, 88 S. Ct. 507, 514 (1967)). A search incident to a lawful arrest is one of the
recognized exceptions to the warrant requirement. Id.
All evidence obtained as a result of an unlawful arrest must be suppressed
under the “fruit of the poisonous tree” doctrine.
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Opinion issued November 21, 2013
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-12-01101-CR ——————————— TROY ANDRE BIENVENUE, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 337th District Court Harris County, Texas Trial Court Case No. 1244282
MEMORANDUM OPINION
Appellant, Troy Andre Bienvenue, was placed on deferred adjudication
community supervision after being charged by indictment with possession of a
controlled substance with intent to deliver. About two years later, the State filed a
motion to adjudicate guilt. Appellant filed a motion to suppress. The trial court denied the motion to suppress, adjudicated appellant guilty of the charged offense,
and sentenced him to 45 years’ confinement. In one issue, appellant argues the
trial court abused its discretion by denying his motion to suppress.
We affirm.
Background
Appellant, Troy Andre Bienvenue, was charged by indictment on December
11, 2009 with possession of a controlled substance with intent to deliver. The
indictment included two enhancement paragraphs, alleging two prior felony drug
possession convictions. Appellant pleaded guilty to the charged offense without an
agreed recommendation on the sentence. The trial court found the enhancement
allegations true but deferred a finding of guilt, placing appellant on community
supervision.
Two years later, the State filed a motion to adjudicate guilt based, in part, on
appellant’s commission of a new offense on November 29, 2011. At the hearing,
appellant moved for the trial court to suppress the evidence obtained from his truck
on November 29 based on an allegation of a warrantless search.
At the hearing, the State presented the testimony of Officer M. Baccus, a
member of the Houston Police Department’s narcotics division. Officer Baccus
testified that, on November 29, he received a call from a confidential informant
about a “pill mill” running an operation at a pharmacy in Harris County. The
2 confidential informant told him that there were six or more people in an Isuzu
truck at the pharmacy.
In a “pill mill,” someone will hire homeless or unemployed people to go to
clinics making certain health complaints that will result in obtaining a desired drug
prescription. That person will then drive the individuals to a pharmacy to obtain
the prescribed drugs. Those drugs are then sold on the street.
Officer Baccus told the informant to call him back if he heard anything
more. Later that day, the informant called back and told Officer Baccus that the
Isuzu was going to a Bass Pro Shop. Officer Baccus and about nine other officers
went to the Bass Pro Shop. Officer Baccus drove around the lot and found a blue
Isuzu truck with seven people in it. He parked close to the truck.
A short time later, a Buick arrived and parked about 30 feet from the truck.
The driver of the Isuzu got out and carried a blue and white bag to the driver of the
Buick. The driver of the Isuzu walked back to his truck. After that, appellant
drove into the parking lot and parked in the space next to the Buick. Appellant’s
truck and the Buick were parked so that the passenger side of each car faced each
other. The driver of the Buick and appellant got out of their cars and met in the
space between them. The driver of the Buick gave appellant a Wal-Mart bag and
appellant gave the driver of the Buick cash. They both returned to their cars.
3 Officer Baccus testified that what he observed was similar to what he had
seen in other narcotics investigations. He signaled the other officers, and they all
approached. Appellant had opened the driver-side door and placed the Wal-Mart
bag behind the driver-side seat. Before getting into the car, he noticed the police
officers approaching. Officer Baccus testified that appellant made some attempt to
walk away from the scene, was told to stop, and complied.
Appellant was handcuffed relatively quickly and taken to the back of the
truck. Appellant’s driver-side door was still open. Officer Baccus looked in, saw
the Wal-Mart bag behind the seat, and saw a number of prescription pill bottles
inside the bag. Appellant was then formally arrested.
Appellant testified for the motion to suppress. He acknowledged he was
there to make a drug buy. But he testified that the driver of the Buick got into his
truck, and the exchange occurred there. He also testified that he put the bag of
drugs into a compartment between the seats so that they could not be seen without
opening the console. At this point, the officers approached his truck with guns
drawn, opened the car door, and pulled him out of the truck.
The trial court denied the motion to suppress.
Standard of Review
We review a trial court’s ruling on a motion to suppress under a bifurcated
standard of review. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App.
4 2010). We afford almost total deference to a trial court’s determination of
historical facts. Id. 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. Id. When a
trial court makes written findings of fact, as it did in the instant case, a reviewing
court must examine the record in the light most favorable to the ruling and uphold
those fact findings so long as they are supported by the record. See id. We then
proceed to a de novo determination of the legal significance of the facts as found
by the trial court. See Derichsweiler v. State, 348 S.W.3d 906, 913 (Tex. Crim.
App. 2011).
Motion to Suppress
Appellant and the State dispute whether appellant was under arrest or subject
to an investigative detention at the time that Officer Baccus discovered the drugs.
Appellant argues that the evidence of the drugs should have been suppressed
because he was under arrest, the arrest was illegal, and the officers accordingly
lacked authority to seize the drugs pursuant to a search incident to arrest. We hold
that, regardless of whether appellant was under arrest and regardless of whether
any such arrest was legal, the drugs were lawfully seized and, accordingly, the trial
court did not abuse its discretion by denying the motion to suppress.
The Fourth Amendment to the United States Constitution and Article I,
Section 9 of the Texas Constitution protect individuals against unreasonable
5 searches and seizures. U.S. CONST. amend. IV; TEX. CONST. art. I, § 9; State v.
Betts, 397 S.W.3d 198, 203 (Tex. Crim. App. 2013). Warrantless searches are per
se unreasonable unless the State can prove that the search was conducted pursuant
to a recognized exception to the warrant requirement. Arizona v. Gant, 556 U.S.
332, 338, 129 S. Ct. 1710, 1716 (2009) (citing Katz v. United States, 389 U.S. 347,
357, 88 S. Ct. 507, 514 (1967)). A search incident to a lawful arrest is one of the
recognized exceptions to the warrant requirement. Id.
All evidence obtained as a result of an unlawful arrest must be suppressed
under the “fruit of the poisonous tree” doctrine. State v. Iduarte, 268 S.W.3d 544,
550 (Tex. Crim. App. 2008). But this does not function as a blanket suppression of
all evidence obtained from the point of the unlawful arrest onward. Instead, it
operates to exclude all evidence obtained “by exploitation of that illegality.” Id.
(citing Armstrong v. State, 550 S.W.2d 25, 31 (Tex. Crim. App. 1976)). Other
evidence obtained in a lawful manner is not suppressed. Id.
Additionally, we must affirm the trial court’s ruling if it is supported by any
valid legal theory of law, even if that theory was not argued to the trial court.
Miller v. State, 393 S.W.3d 255, 263 (Tex. Crim. App. 2012). We are not limited,
then, to only considering whether appellant was under arrest and whether that
arrest was lawful at the time the drugs were seized.
6 At trial, Officer Baccus testified that he saw the drugs in plain view. “The
‘plain view’ seizure doctrine is another exception to the warrant requirement.”
State v. Elrod, 395 S.W.3d 869, 879 (Tex. App.—Austin 2013, no pet.). Under
this doctrine, an officer may seize an item without a warrant if “(1) the officer sees
an item in plain view at a vantage point where he has the right to be, and (2) it is
immediately apparent that the item seized constitutes evidence—that is, there is
probable cause to associate the item with criminal activity.” Id. “The Supreme
Court has construed ‘immediately apparent’ to mean simply that the viewing
officers must have probable cause to believe an item in plain view is contraband
before seizing it.” State v. Dobbs, 323 S.W.3d 184, 189 (Tex. Crim. App. 2010).
“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 Texas v.
Brown, 460 U.S. 730, 746, 103 S. Ct. 1535, 1545 (1983)).
Officer Baccus testified that he was standing in the parking lot looking into
appellant’s truck. The door to the truck was open. He testified that he could see
the bag behind the driver’s side seat. The bag was open, and Officer Baccus
testified that he could see four prescription bottles from his vantage point. This
satisfies the first element for seizing an item under the plain view doctrine. See
Elrod, 395 S.W.3d at 879.
7 Concerning the second element, while the possession of prescription bottles
alone is not inherently suggestive of criminal activity, this is not the inquiry.
Otherwise ordinary objects can give rise to probable cause to associate the item
with criminal activity given the appropriate surrounding circumstances. See
Gonzales v. State, 648 S.W.2d 684, 686 (Tex. Crim. App. 1983) (holding objects
that are not inherently suspicious can become so under certain circumstances);
Dobbs, 323 S.W.3d at 185, 188 (holding golf clubs and shirts seen in plain view
could be lawfully seized upon learning that similar golf clubs had been reported
stolen).
Officer Baccus had received information from a confidential informant that
prescription drugs had been obtained in a “pill mill” operation. He was also told
by the informant that the exchange would be taking place at a Bass Pro Shop
parking lot. He found a truck matching the description given in the parking lot and
observed a transaction similar to what he had observed in other narcotics
investigations. The bag that appellant had received in exchange for cash contained
four prescription bottles. We hold this is sufficient to establish probable cause to
associate the prescription drugs with criminal activity. See Elrod, 395 S.W.3d at
879–80.
We overrule appellant’s sole issue.
8 Conclusion
We affirm the judgment of the trial court.
Laura Carter Higley Justice
Panel consists of Justices Keyes, Higley, and Massengale.
Do not publish. TEX. R. APP. P. 47.2(b).