Villarreal v. State

565 S.W.3d 919
Court of Appeals of Texas·Decided December 27, 2018·No. NUMBER 13-17-00323-CR·Published·Cited by 5 cases

Opinion

Opinion by Justice Rodriguez

By three issues, appellant Pablo Ernesto Villarreal Jr. appeals the denial of his motion to suppress. We affirm.

I. BACKGROUND

Villarreal was arrested and charged with manufacture or delivery of cocaine in an amount of 400 grams or more, a felony of the first degree with a minimum term of fifteen years. See TEX. HEALTH & SAFETY CODE ANN. § 481.112(f) (West, Westlaw through 2017 1st C.S.). The charge stemmed from a traffic stop that occurred on Saturday, April 13, 2013. Villarreal moved to suppress evidence obtained as a result of the stop.

At the suppression hearing, Officer Shannon Jones testified that on the date of the traffic stop, he received a report from U.S. Border Patrol that a possible narcotics courier was coming through the area. According to Jones, the truck had been flagged by a license plate reader at a border patrol checkpoint. Jones recalled that the report included "vehicle identification," its probable routes, and possibly some license plate information. He relayed this information to other officers including Trooper Wayne Cipriani.

According to Cipriani, the vehicle was described as a blue truck tractor with a "Freight Movers" company logo on the side, pulling a flatbed trailer. Cipriani saw a similar blue semi with a flatbed trailer at a gas station in Victoria, Texas. He and his partner decided to park a short distance away and wait for the truck to leave the gas station. When the truck left, Cipriani followed. Cipriani testified that as the truck approached a stop sign, it came to a halt five or six feet over the stop line, and he detained the driver for this traffic infraction. See TEX. TRANSP. CODE ANN. § 544.010(c) (West, Westlaw through 2017 1st C.S.). The driver of the truck was Villarreal.

At the suppression hearing, Villarreal challenged the validity of the initial stop. The State introduced photographs of the stop sign showing that, as of 2015, the stop line was barely visible on the pavement, with only a few traces of white paint remaining. However, Cipriani testified that on the day of the traffic stop in 2013, the stop line was clearly visible on the ground and that Villarreal's truck was stopped far beyond it. The State also called Michael Walsh, a traffic engineer for the Texas Department of Transportation, who explained that heavy traffic can wear away a stop line over time.

Cipriani testified that once he initiated the stop, he saw that the logo on the side of the truck matched the one described in the border patrol report. Cipriani asked Villarreal to step out of the vehicle and began questioning him about his trip and *924his truck. The patrol car's dashcam captured their conversation. Villarreal explained that he had come from Mission, Texas early that morning. In response to Cipriani's questions, Villarreal stated that he was leasing the trailer from a friend, but he was going to Houston to drop it off because he did not want to pay for it anymore, and that his wife had made arrangements to buy another trailer. When Cipriani asked why Villarreal was not hauling any cargo, Villarreal responded that he had not worked for the past five days because his hauling tarps had been stolen the week before and he could not find a load to carry.

Cipriani asked to see Villarreal's log book, and Villarreal obliged. The log book confirmed that Villarreal had not worked in five days. Cipriani asked Villarreal whether he had any guns, knives, or needles, which Villarreal denied. Cipriani frisked Villarreal and took his cell phone, which he placed in the cab of Villarreal's truck as he inspected the vehicle. Cipriani testified that, during the inspection, he noticed the smell of fresh paint emanating from the vehicle. When Cipriani questioned Villarreal about the smell of paint, Villarreal explained that he had the truck's frame and hitch painted when he purchased the vehicle months earlier. Still, Cipriani viewed the smell of fresh paint as suspicious; he associated the smell of fresh paint with hidden compartments which had been recently painted so "law enforcement can't see that there has been recent tooling or fabrication done to the vehicle or trailer."

Roughly ten minutes into the stop, Cipriani told Villarreal that he would issue him a warning for failure to stop at the stop sign. He then radioed dispatch to request a check on Villarreal's border crossings. While waiting for the results of the crossing check, Cipriani questioned Villarreal about his truck, his plans, his trucking business, and his arrest record. Cipriani's radio request soon came back negative for border crossings.

Cipriani testified that he found it suspicious that Villarreal was not carrying any cargo, because Villarreal would be losing money by taking the time and expense of driving to Houston and staying overnight without a load, and because the local economy was doing well at that time, so loads should have been available. Cipriani also felt it was irregular that Villarreal had not worked for the past five days, and he questioned Villarreal's account of how his tarps were stolen, saying that Villarreal's story did not add up:

As far as when he said he had got his tarps stolen, in his logbook it showed he had been off duty for the past five days. When he told me that he had got his tarps stolen, he had mentioned that it got stolen in Houston, which sort of contradicted what his logbook had said. His logbook showed that he was off-off duty that last week. It really didn't make sense to me. So I believed at that point that he was-he was lying about even having his tarps stolen from him.

Cipriani further explained that he found Villarreal to be unusually nervous. Cipriani described Villarreal as shaking and fidgety, and he could "actually see that carotid artery is pulsating." He explained that "you wouldn't typically see that in somebody who is not highly nervous." Cipriani also felt it was unusual that Villarreal's nervousness didn't subside once he was told he would be receiving a warning. Finally, Cipriani testified that he found it suspicious that Villarreal answered questions without hesitation and with ease, which he believed to be an indication of a "rehearsed story."

Roughly twenty minutes into the stop, Cipriani again asked whether Villarreal *925had any guns, knives, or needles. Villarreal responded that he did not. Cipriani asked whether he had any insulin, prescription medications, or "large amounts of drugs." Villarreal denied that he had anything of that sort in his vehicle. Cipriani then asked Villarreal whether he had "large amounts of heroin, cocaine, methamphetamine, nothing like that, nothing illegal with you? Never been in trouble for anything like that?" Villarreal denied this as well. Finally, Cipriani asked, "Do you give me and my partner consent to search and make sure there's nothing illegal on that trailer, nothing like that?" Villarreal responded, "Yes sir." Cipriani escorted Villarreal into a field on the side of the highway where Villarreal watched as Cipriani and his partner searched the vehicle.

Cipriani used a drill to disassemble the interior of the truck's cab. He testified that some of the interior had been freshly painted.

At some point during the search, Cipriani discovered two long, hidden metal boxes that had been riveted to the bottom of the truck, just below the cab's floor.

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Villarreal v. State, 565 S.W.3d 919 (Tex. Ct. App. 2018).

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