Monjaras v. State

679 S.W.3d 834

Tairon Jose MONJARAS, Appellant

v.STATE of Texas, Appellee

NO. 01-19·00608-CR

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued August 17, 2023

On Appeal from the 232nd District Court, Harris County, Texas, Trial Court Case No, 1614762

John David Crump, Kim K. Ogg, Houston, for Appellee.

Jani J. Maselli Wood, for Appellant.

Panel consists of Justices Kelly, Goodman, and Countiss.

OPINION ON REMAND

Julie Countiss, Justice

After the trial court denied his motion to suppress evidence, appellant, Tairon Jose Monjaras, with an agreed punishment recommendation from the State, pleaded guilty to the felony offense of possession of a firearm by a felon.¹ In accordance with the plea agreement, the trial court assessed his punishment at confinement for five years. On original submission, in his sole issue, appellant contended that the trial court erred in denying his motion to suppress evidence.

The Court previously held that the trial court did not err in denying appellant’s motion to suppress evidence because the Court concluded that appellant’s interaction with law enforcement officers constituted a consensual encounter. See Monjaras v. State, 631 S.W.3d 794, 810 (Tex. App.—Houston [1st Dist.] 2021) (Monjaras I), rev’d, 664 S.W.3d 921 (Tex. Crim. App. 2022) (Monjaras II); but see Monjaras I, 631 S.W.3d at 810-26 (Goodman, J., dissenting) (concluding interaction between appellant and law enforcement officers ceased being consensual after certain point). Having so held, the Court affirmed the trial court’s judgment. See Monjaras I, 631 S.W.3d at 810 (modifying trial court’s judgment to comport with record and affirming as modified). On original submission, the Court did not address appellant’s argument that law enforcement officers lacked reasonable suspicion to detain him. See id. at 810 n.4; but see id. at 810-26 (Goodman, J., dissenting) (concluding law enforcement officers did not have reasonable suspicion when they detained appellant).

Appellant then filed a petition for review with the Texas Court of Criminal Appeals, which the court granted. See Monjaras II, 664 S.W.3d at 926 (granting petition for review "to determine whether the court of appeals erred in finding that [a]ppellant’s interaction with the officers was a consensual encounter"). In its decision, the Texas Court of Criminal Appeals concluded that although appellant’s interaction with law enforcement officers was initially consensual, it "became an investigative detention." Id. at 924-32. It thus reversed this Court’s judgment and remanded the case to the Court to determine whether law enforcement officers "had reasonable suspicion to detain [a]ppellant and whether that detention was valid." Id. at 924, 932.

We reverse and remand.

Background

At the hearing on appellant’s motion to suppress, Houston Police Department ("HPD") Officer J. Sallee testified that he was on duty, with his partner, on December 12, 2018. While on patrol around noon in a "high crime area," Sallee drove his patrol car into the La Plaza apartment complex on Glenmont Drive. The patrol car’s emergency overhead lights and siren were not activated. The weather was warm, in the "[m]id sixties" and "[s]eventies"² and Sallee was "looking for obscene crime." As Sallee drove slowly toward the back of the apartment complex, he saw appellant walking. Appellant had a backpack with him. Appellant did not make eye contact with Sallee as the patrol car drove by; instead, appellant "immediately looked down as … a child would … if [he was] doing something wrong." Appellant was "over dressed for th[e] temperature" outside. After the patrol car passed appellant, Sallee’s partner saw appellant "immediately look[ ] up." According to Sallee, this was "not really normal human behavior," but Sallee did not believe that appellant had committed a criminal offense. Sallee also noted that he had never seen appellant before in the area and he had never arrested appellant before that day.

Because Officer Sallee wanted "to see where [appellant] was going or what was going on," he made a U-turn in the patrol car. Sallee still did not activate his patrol car’s emergency overhead lights or siren. After the patrol car turned around, Sallee expected to see appellant walking, but appellant was not in sight. Sallee believed that appellant had either "ducked off into an apartment" or run off, but he acknowledged that a number of "different things" could have happened.

While patrolling the other side of the apartment complex, Officer Sallee saw appellant again. Sallee did not activate his patrol car’s emergency overhead lights or siren. Sallee stopped the patrol car, exited, and approached appellant to engage in a "consensual encounter" with him. At the time Sallee approached appellant, he did not "suspect him of anything." Sallee requested information from appellant but did not demand information from appellant. Sallee did not exhibit his firearm, and appellant freely spoke to Sallee. Appellant understood what Sallee said to him. Appellant was "free to go," and if appellant "had just taken off running," Sallee would not have done anything.

Officer Sallee also testified that when he eventually searched appellant, he found five .22 caliber bullets in appellant’s backpack. According to Sallee, "[t]he only reason[ ] you have the bullets is [be]cause you have a gun." Sallee then "felt [a] gun" in appellant’s waistband when he searched appellant’s person. Appellant immediately started fighting with Sallee after Sallee "felt the gun." Sallee believed that appellant was trying to get his firearm when he struggled with Sallee. Following the struggle, Sallee and his partner recovered a firearm from appellant that was "fully loaded."

HPD Officer C. Starks testified that while on duty on December 12, 2018, he rode, along with his partner, Officer Sallee, in a patrol car. While on patrol, Sallee and Starks went to the La Plaza apartment complex on Glenmont Drive. As they drove around the apartment complex, Starks saw appellant walking. When appellant saw the law enforcement officers, he "lowered his head" and did not look at them, which caught Starks’s attention because it was not a normal reaction. According to Starks, "[m]ost people look at the marked [patrol car] when [it] drive[s]-by." Starks also stated that appellant was "not dressed appropriately" because it was a "warm day" and appellant was wearing a jacket and a hat. Appellant was carrying a backpack.

After Officers Sallee and Starks passed by appellant in the patrol car, appellant "raised his head." When Sallee turned the patrol car around to drive back toward appellant, he was gone. Starks believed that appellant had "taken off running into the courtyard." Neither Sallee nor Starks activated the patrol car’s emergency overhead lights and siren. Starks noted that appellant had not committed a criminal offense at that time, and Starks did not believe that he had ever seen appellant before that day.

When they saw appellant again, Officers Sallee and Starks made a stop to have a consensual encounter with appellant. The manner in which Sallee parked the patrol car gave appellant a "clear path," and Starks testified that appellant was "free to leave." Starks did not exhibit his firearm; he "never grabbed it," "never removed it," and "never took it out of the holster." Starks stayed "back" as Sallee spoke to appellant, and at one point, he walked away to "get a portable fingerprint device." Starks denied "cornering" appellant. If appellant had "taken off running," Starks would have "watch[ed] him take off run[ning]." Starks noted that while Sallee spoke to appellant, another person flagged Starks down to report an incident unrelated to any interaction the officers were having with appellant.

According to Officer Starks, during the officers’ interaction with appellant, Officer Sallee asked appellant if he could search him. And later, after appellant’s struggle with Sallee, Sallee removed a firearm from appellant’s person.

The trial court admitted into evidence, State’s Exhibit 1, a copy of the HPD offense report.³ A portion of the offense report, titled "Case Summary," states:

Officer … Starks and Officer … Sallee were patrolling at La Plaza Apartments located at 5909 Glenmont on 12-12-18 in response to an increase in violent crime in the area. The officers noticed [appellant] walking inside of the complex. [Appellant] was heav[ily] dressed with a [backpack] and put his head down as the officers drove by. [Appellant] quickly walked into the courtyard and ran eastbound through the complex. The officers noticed [appellant] exited a breezeway and decided to question him regarding his suspicious activity. … Sallee asked [appellant] for his permission to search his person, including his pockets and [appellant] freely agreed to allow … Sallee to search him. … Sallee found several bullets in [appellant's] backpack during [the] search. … Sallee then searched [appellant’s] body and touched a .22 caliber handgun concealed inside of [appellant’s] pants. [Appellant] grabbed this gun and began to wrestle with [the] officers. [Appellant] grabbed this gun in an attempt to murder … Sallee and … Starks. The officers wrestled with [appellant] for approximately a minute until … Starks tasered him and he began to comply. … Sallee recovered a fully loaded … .22 caliber revolver from [appellant]. This [was] a firearm that [appellant] unlawfully possessed because of his felony conviction. … Sallee received abrasions to his forehead and hand during th[e] struggle.

Another portion of the offense report written by Officer Sallee states:

I have made a prior arrest in this same area of Houston for violent gang relatedcrimes while I was assigned to [the] gang division as a crime reduction unit. Officer Starks and I were in a fully marked police Tahoe and were wearing [our HPD] issued uniforms with [body-worn cameras] activated. We entered the La Plaza apartment complex located at

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