Salvador Lopez v. The State of Texas--Appeal from 243rd District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

SALVADOR LOPEZ,

Appellant,

v.

THE STATE OF TEXAS,

Appellee.

No. 08-03-00423-CR

Appeal from the

243rd District Court

of El Paso County, Texas

(TC# 20030D00703)

O P I N I O N

This is an appeal from a conviction for the offense of possession of cocaine in an amount less than one gram. Appellant pleaded guilty to the court and the court assessed punishment at three years deferred adjudication community supervision. We affirm the judgment of the trial court.

I. SUMMARY OF THE EVIDENCE

At the hearing on Appellant s motion to suppress the evidence, the State presented the testimony of Officer David Hernandez of the El Paso Police Department. On January 29, 2003, he was on patrol when he saw Appellant make an illegal right turn on Alameda Ave. from Harris Street in El Paso County, Texas. Appellant had made a right turn at a red stop light notwithstanding a sign that stated, No Turn On Red. When Officer Hernandez stopped Appellant, he observed that Appellant was alone in his pickup truck. He directed Appellant to step out of the truck and to place his hands on the hood of the patrol car. With Appellant s permission, he retrieved his wallet which was laying on the driver s seat. Officer Hernandez looked through the wallet and found some paper which was folded like a diamond-fold. The officer stated that a diamond-fold is often used to conceal narcotics. It did not contain any narcotic substance.

Officer Hernandez radioed to determine if Appellant had any outstanding warrants. When he received a response that Appellant had outstanding warrants, Appellant was placed under arrest and was placed in the back of the patrol car. The officer asked Appellant if there were any illegal drugs or weapons in the truck, and Appellant denied that drugs or weapons existed in the truck. Officer Hernandez then searched the truck and found a diamond-fold which contained cocaine in the driver s side door pocket. The witness could not recall if he issued a traffic ticket to Appellant and the officer denied that he ever stated he would obtain a dog to search the truck.

The Appellant testified at the hearing. He stated he never gave Officer Hernandez permission to retrieve the wallet or to search the truck. Appellant testified that the item in his wallet was just a folded dollar bill and was not a diamond-fold. He stated that he did not give permission to search his truck and that the officer threatened to obtain a search dog to search the truck. Appellant testified that the officer wrote him a ticket for the red-light violation before he searched the truck. He also stated that the radio call concerning the outstanding warrants was not made until after Officer Hernandez had searched the truck and had found the cocaine.

II. DISCUSSION

In Appellant s sole issue, he asserts that the court erred in failing to grant his motion to suppress the evidence. A trial court s ruling on a motion to suppress is generally reviewed for an abuse of discretion. Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App. 1996); Gordon v. State, 4 S.W.3d 32, 35 (Tex.App.--El Paso 1999, no pet.). In reviewing a motion to suppress, we must give almost total deference to the trial court s determination of historical facts and review de novo mixed questions of law and fact that do not turn on an evaluation of credibility and demeanor. State v. Ross, 32 S.W.3d 853, 856 (Tex.Crim.App. 2000); Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). As the trial court made no explicit findings of historical facts in this case, the evidence must be reviewed in a light most favorable to the trial court s ruling. Carmouche, 10 S.W.3d at 327-28. The trial court s ruling will be upheld if it is correct on any theory of law applicable to the case. Willover v. State, 70 S.W.3d 841, 845 (Tex.Crim.App. 2002); Ross, 32 S.W.3d at 855-56.

An exception to the Fourth Amendment prohibition against warrantless searches is a search incident to a lawful arrest. Thornton v. United States, 541 U.S. 615, 124 S. Ct. 2127, 2129, 158 L. Ed. 2d 905 (2004); New York v. Belton, 453 U.S. 454, 460, 101 S. Ct. 2860, 2864, 69 L. Ed. 2d 768 (1981); Satterwhite v. State, 726 S.W.2d 81, 87 (Tex.Crim.App. 1986), rev d on other grounds, 486 U.S. 249, 108 S. Ct. 1792, 100 L. Ed. 2d 284 (1988). Police may search the passenger compartment of a vehicle and containers within it when the search is a contemporaneous incident to a lawful arrest. Belton, 453 U.S. at 460, 101 S. Ct. at 2864; see also Ashton v. State, 931 S.W.2d 5, 8 (Tex.App.--Houston [1st Dist.] 1996, pet. ref d) (noting that, in applying Belton, federal courts have held police may search the passenger compartment of a vehicle even after the arrestee has been removed from the vehicle to be searched and either handcuffed or placed in a police car). The search incident to arrest can include a search of the vehicle s glove compartment. Satterwhite, 726 S.W.2d at 86.

Recently, in Thornton, the United States Supreme Court held that police may search the passenger compartment of a vehicle even after the arrestee has been removed from the vehicle and secured in the back of a police car. Thornton, 124 S. Ct. at 2132.

Appellant maintains that the search of his truck could not be justified under the Belton line of cases because he was secured in the back of the patrol car before the search; therefore, he posed no threat to the officer and he was unable to destroy any evidence in the truck. However, in Thornton, the Supreme Court stated:

The need for a clear rule, readily understood by police officers and not depending on differing estimates of what items were or were not within reach of an arrestee at any particular moment, justifies the sort of generalization which Belton enunciated.

Id.

Accordingly, we find that the court did not err in denying Appellant s motion to suppress the evidence. Issue No. One is overruled.

Having overruled Appellant s sole issue on review, we affirm the judgment of the trial court.

RICHARD BARAJAS, Chief Justice

June 9, 2005

Before Panel No. 2

Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)