Escamilla v. State, No. 01-06-00299-CR (Tex. App. 5/17/2007)

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Unpublished Opinion

ERNESTO ESCAMILLA, Appellant, v. THE STATE OF TEXAS, Appellee.

No. 01-06-00299-CR.

Court of Appeals of Texas, First District, Houston.

Opinion issued May 17, 2007.

Do Not Publish. Tex. R. App. P. 47.2(b).

On Appeal from the 338th District Court, Harris County, Texas, Trial Court Cause No. 1033977.

Panel consists of Justices NUCHIA, KEYES, and HIGLEY.

MEMORANDUM OPINION

LAURA CARTER HIGLEY, Justice.

After the trial court denied his motion to suppress, appellant pleaded guilty to second-degree felony possession of cocaine.¹ Pursuant to the plea agreement, the trial court sentenced appellant to eight years in prison.

In one issue, appellant challenges the trial court's denial of his motion to suppress. To resolve this issue, we determine whether the trial court abused its discretion by refusing to suppress evidence obtained as a result of an out-of-jurisdiction stop conducted in the City of Houston by City of Pasadena police officers.

We affirm.

Background

At the motion to suppress hearing, the State called three City of Pasadena police officers: Detective R. Anderson, Detective M. Biggs, and Officer R. Garvey. From the testimony of these officers, the trial court heard the following description of the events surrounding the stop of appellant's vehicle.

Officer Garvey, who worked for the City of Pasadena police department's Gang Task Force and investigated narcotics activities, received an anonymous tip that someone named "Ernesto," whom the tipster described as "a small time drug dealer," kept cocaine in a black box in Ernesto's black Lexus. The tipster told Officer Garvey that Ernesto could be found at a residence located at 910 Aarons in the City of Houston. The tipster also stated that Ernesto was known to carry a gun and would soon be leaving the residence.

Officer Garvey relayed the information to City of Pasadena undercover officers Detectives Anderson and Biggs. The two detectives, each in his own vehicle, left Pasadena and headed to the address given by the tipster to set up surveillance. The dectectives saw that a black Lexus, as identified by the anonymous tipster, was parked in the driveway at 910 Aarons. Shortly after they set up surveillance, the officers observed appellant and another Hispanic male get into the black Lexus. For approximately 15 minutes, Detectives Anderson and Biggs each followed the Lexus in his own unmarked vehicle as appellant drove around the neighborhood. During this time, the detectives observed the Lexus make a couple of stops in the neighborhood and saw, at one point, "a couple of subjects" approach the Lexus.

The detectives then followed the Lexus back to 910 Aarons. Appellant parked the Lexus in the driveway of the residence for only 30 or 45 seconds and pulled away again. Appellant then pulled the Lexus behind Detective Biggs and shone the Lexus's high beam headlights into Detective Biggs's vehicle. Appellant then pulled the Lexus up to Detective Anderson's vehicle and shone his high beams into that vehicle. At that point, appellant sped off at a high rate of speed through the neighborhood. Officer Biggs estimated that the Lexus was traveling in excess of 50 or 60 miles an hour. The officers decided to pursue the Lexus because they believed that the occupants of the vehicle knew that they had been under surveillance and because the activity that they had earlier witnessed—the Lexus driving around the neighborhood and making contact with pedestrians—was consistent with narcotics trafficking. The detectives were not able to keep up with the Lexus as it sped through the neighborhood.

Officer Garvey had been parked 10 or 12 blocks away monitoring the activities on his radio in a marked patrol car. Detective Anderson contacted Officer Garvey to assist in stopping the Lexus. Officer Garvey pursued the Lexus with his emergency lights and siren activated. The Lexus, which he estimated was traveling between 75 and 80 miles an hour on a road with a 40 miles-per-hour speed limit, pulled over after a brief pursuit.

Officer Garvey approached the vehicle and asked appellant, who was driving, for identification. When appellant opened the center console to retrieve his identification, Officer Garvey saw a gun in plain view. Appellant told the officer that the gun belonged to him and that he did not have a permit for it. Appellant stated that the Lexus belonged to him and consented to a search of the vehicle. The officers searched the Lexus, recovering 0.2 grams of cocaine from the center console and an additional 17.5 grams of cocaine from a locked black box in the trunk. The officers also recovered a roll of approximately $1,300 in cash. Appellant was charged with possession of cocaine with the intent to deliver.

Appellant filed a motion seeking to suppress the evidence recovered as a result of the traffic stop. Appellant contended that Officer Garvey was without legal authority to stop him for a traffic offense in the City of Houston. Appellant also asserted that the stop was unlawful because the evidence presented at the suppression hearing did not establish that the officers had a reasonable suspicion that appellant was engaged in illegal drug activities.

The parties entered into a plea agreement in which the State agreed to reduce the charged offense to second-degree felony possession of cocaine, and appellant agreed to plead guilty. Based on the State's punishment recommendation, the trial court sentenced appellant to eight years in prison.

On appeal, appellant brings one issue challenging the trial court's denial of his motion to suppress.

Motion to Suppress

A. Standard and Scope of review

We review a trial court's ruling on a motion to suppress for an abuse of discretion. Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002). Thus, we may reverse the trial court's denial of a motion to suppress only if the lower court abused its discretion in denying the motion. Taylor v. State, 152 S.W.3d. 749, 751 (Tex. App.—Houston [1st Dist.] 2004, pet. ref'd).

At a suppression hearing, the trial court is the sole fact-finder and may choose to believe or disbelieve any or all of the witnesses' testimony.State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). On appeal, we give almost total deference to the trial court's determination of historical facts when supported by the record, particularly if the findings turn on witness credibility and demeanor. Id. at 856; Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). We give the same deference to determinations of mixed questions of law and fact if their resolution depends upon witness credibility and demeanor. Ross, 32 S.W.3d at 856. In contrast, we review issues that present purely legal questions pursuant to a de novo standard. Id. We must view the record and all reasonable inferences therefrom in the light most favorable to the ruling on the suppression motion, and sustain the ruling if it is reasonably supported by the record and is correct under any theory of law applicable to the case. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996); Taylor, 152 S.W.3d. at 752.

B. Statutory Authority of Pasadena Officer to Make Stop

It is undisputed that all of the events leading up to the stop of appellant's vehicle and the stop itself occurred within the City of Houston. It is also undisputed that Officer Garvey, Detective Anderson, and Detective Biggs are City of Pasadena police officers. Appellant contends that the trial court should have granted his motion to suppress because Officer Garvey did not have statutory authority to stop him.

Two subdivisions of Code of Criminal Procedure article 14.03 potentially govern. Subdivision (d) provides, inter alia, that a peace officer who is outside his jurisdiction may arrest, without warrant, a person who commits a felony within the officer's presence or view.²

Tex. Code Crim. Proc. Ann. art. 14.03(d) (Vernon Supp. 2006). Subdivision (g), as it existed at the time of the stop in July 2005, provided, inter alia, that "[a] peace officer . . . outside of the officer's jurisdiction may arrest without a warrant a person who commits any offense within the officer's presence or view, except that an officer outside the officer's jurisdiction may arrest a person for a violation of [the Transportation Code] only if [he is a Ranger or a DPS officer]." Act of May 28, 1995, 74th Leg., R.S., ch. 829, § 1, 1995 Tex. Gen. Laws 4213, 4213-14 (amended 2005) (emphasis added) (current version at Tex. Code Crim. Proc. Ann. art. 14.03(g) (Vernon Supp. 2006)). Thus, at the time of appellant's stop, city police officers, such as Officer Garvey, were not allowed to stop and arrest persons for traffic violations committed outside the officer's geographical jurisdiction. See id.; State v. Kurtz, 152 S.W.3d 72, 77 (Tex. Crim. App. 2004). However, under either subsection (d) or (g), a police officer outside his jurisdiction was allowed to stop a person whom the officer believed to be in possession of a illegal narcotic, such as cocaine.³

Here, appellant contends that Officer Garvey did not have authority to stop him because the stop was predicated on the traffic offense of speeding. Contrary to appellant's contention, the record, when viewed in the light most favorable to the ruling on the suppression motion, supports an implicit finding by the trial court that Officer Garvey stopped appellant because he suspected appellant was engaged in illegal narcotics activities.

Although Officer Garvey testified on cross-examination that he stopped appellant because appellant was speeding, it is clear from the entirety of Officer Garvey's testimony and from the context in which the officer's testimony was given, that he did not stop appellant because he believed that appellant had committed the traffic offense of speeding. Rather, appellant's speeding was but an indicator leading Officer Garvey to suspect appellant was engaged in illegal drug activities....