Ruben Galindo Benavides, Jr. v. State of Texas--Appeal from 132nd District Court of Scurry County

Opinion filed June 21, 2007

In The

Eleventh Court of Appeals

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   No. 11-05-00332-CR

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RUBEN GALINDO BENAVIDES, JR., Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 132nd District Court

Scurry County, Texas

Trial Court Cause No. 8933

O P I N I O N

Ruben Galindo Benavides, Jr. pleaded guilty to the second degree felony of possession of cocaine in the amount of more than four grams but less than two hundred grams. He also pleaded true to five enhancement paragraphs classifying him as repeat and habitual offender. The jury assessed punishment at sixty years confinement and a $5,000 fine. We affirm.

Background Facts

Appellant was indicted for possession of cocaine in the amount of more than four grams but less than two hundred grams. The indictment also alleged five prior felony convictions. Appellant filed a motion to suppress the evidence seized at the traffic stop, asserting that his constitutional and statutory rights were violated under the Fourth, Fifth, Sixth, and Fourteenth Amendments of the United States Constitution; Article I, section 9 of the Texas Constitution; and Tex. Code Crim. Proc. Ann. art. 38.23 (Vernon 2005). At the hearing on the motion to suppress, Trooper Zachery Tobias Zalman testified that he observed appellant speeding and driving with window tint that was too dark. Trooper Zalman initiated a traffic stop. Trooper Zalman issued appellant a citation for the illegal window tint, a warning for speeding, and a warning for no valid insurance. Trooper Zalman testified that, after he issued the warnings and citation, he obtained appellant=s consent to search the vehicle. As he was searching the vehicle, Trooper Lynn Pierce came to the scene to provide backup. At Trooper Zalman=s request, Trooper Pierce conducted a pat-down search of appellant. Trooper Pierce asked appellant to remove his boots, and when appellant complied, he observed a baggie of cocaine in the heel of appellant=s boot. The trial court denied appellant=s motion to suppress.

Issue on Appeal

In a sole issue, appellant contends that the trial court erred in failing to suppress evidence seized as a result of a Terry[1] search in violation of his rights under the Fourth Amendment of the United States Constitution and Article I, section 9 of the Texas Constitution.

Standard of Review

A trial court=s ruling on a motion to suppress is reviewed for an abuse of discretion. Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002). The trial court did not make explicit findings of fact. Consequently, we review the evidence in a light most favorable to the trial court=s ruling and assume that the trial court made implicit findings of fact suggested in the record. Carmouche v. State, 10 S.W.3d 323, 327-28 (Tex. Crim. App. 2000). The trial court=s ruling must be sustained if it is reasonably correct on any theory of law applicable to the case. Id. at 327. We also give deference to the trial court=s rulings on mixed questions of law and fact when those rulings turn on an evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). Where such rulings do not turn on an evaluation of credibility and demeanor, we review the trial court=s actions de novo. Myers v. State, 203 S.W.3d 873, 879 (Tex. App.CEastland 2006, pet. ref=d). A question turns on an evaluation of credibility and demeanor when the testimony of one or more witnesses, if believed, is always enough to add up to what is needed to decide the substantive issue. Loserth v. State, 963 S.W.2d 770, 773 (Tex. Crim. App. 1998).

Pat-Down Search

Appellant characterizes the search as a Terry search and argues that the trial court erred in denying his motion to suppress because there was no evidence of specific articulable facts indicating that appellant was armed and dangerous. The State disputes this description, contending that the officer had probable cause to arrest appellant before the search and that the cocaine was found during a consensual search. We need not resolve the dispute because the trial court=s ruling is correct in either event.

An exception to the Fourth Amendment prohibition of unreasonable searches and seizures without a warrant occurs when an officer is justified in believing that a suspect is armed and dangerous. Minnesotav. Dickerson, 508 U.S. 366 (1993); O=Hara v. State, 27 S.W.3d 548, 550 (Tex. Crim. App. 2000). A police officer may conduct a protective search of the suspect=s outer clothing for weapons if the officer has a reasonable belief based on specific articulable facts that the person is armed and dangerous. O=Hara, 27 S.W.3d at 550; Sikes v. State, 981 S.W.2d 490 (Tex. App.CAustin 1998, no pet.). The officer need not be absolutely certain that the individual is armed but the specific facts must amount to more than a mere hunch or suspicion. Terry, 392 U.S. at 27; Sikes, 981 S.W.2d at 492. The purpose of a pat-down search is not to discover evidence of a crime but to allow police officers to pursue the investigation without fear of physical harm. Davisv. State, 829 S.W.2d 218, 220 (Tex. Crim. App. 1992). The determination of whether an officer can conduct a pat-down search is based on an objective assessment of the facts and circumstances confronting him at the time and not on the officers actual state of mind. O=Hara, 27 S.W.3d at 551. It does not matter whether the officer testified that he was afraid or not afraid. Id. The issue is whether a reasonably prudent person would justifiably believe that the action taken was appropriate. Id.

Appellant argues that Trooper Zalman could not articulate any specific facts that would justify a belief that appellant was armed and dangerous; he also argues that the pat-down search was conducted as a matter of routine. Roadside encounters with police and suspects are inherently dangerous. Carmouche, 10 S.W.3d at 330 (citing Michigan v. Long, 463 U.S. 1032, 1049 (1983)). When the objective facts exist for a pat-down search to be conducted, it does not matter who conducts the search or when the search is conducted. O=Hara, 27 S.W.3d at 554. Police regulations and routine are not sufficient to justify a pat-down search. Id. at 553; Sikes, 981 S.W.2d at 494. However, even if an officer conducts a pat-down as a matter of routine, the objective facts available to the officer may still justify a pat-down search. O=Hara, 27 S.W.3d at 554.

In this case, Trooper Zalman testified to several specific facts that would support a reasonable person=s belief that appellant was armed and dangerous. Trooper Zalman testified that he received a call from Trooper Pierce regarding an anonymous tip about a vehicle fitting the description of appellant=s vehicle transporting drugs from Odessa to Snyder. Courts have recognized that it is objectively reasonable to believe that a person involved in drug trafficking is armed and dangerous. See Griffin v. State, 215 S.W.3d 403, 409 (Tex. Crim. App. 2007); Carmouche, 10 S.W.3d at 330. Trooper Zalman further testified that appellant was nervous and never made eye contact with him when he was speaking to him. In fact, during the majority of the traffic stop, appellant never faced Trooper Zalman. Trooper Zalman also testified that appellant=s hands visibly shook during the traffic stop. When Trooper Zalman asked appellant why he was so nervous, appellant replied that he did not want to go to jail. See Spillman v. State, 824 S.W.2d 806, 808 (Tex. App.CAustin 1992, pet. ref=d) (officer=s suspicions were raised that appellant might be armed and dangerous because he visibly shook from nervousness and avoided eye contact during the traffic stop). Applying the applicable standard of review, these specific facts and circumstances were sufficient to justify a pat- down search of appellant.

Consent to Search

In addition to the pat-down search being justified, the State argues that appellant consented to the search of his boots where Trooper Pierce found the cocaine. Consent to search operates as an exception to the Fourth Amendment=s warrant requirement. State v. Ibarra, 953 S.W.2d 242, 243 (Tex. Crim. App. 1997); Myers, 203 S.W.3d at 886. Consent must be voluntarily given to be considered effective. Voluntariness is a question of fact to be determined from the totality of the circumstances. Carmouche, 10 S.W.3d at 331; Myers, 203 S.W.3d at 886. Voluntariness must be proven by clear and convincing evidence. Ibarra, 953 S.W.2d at 245.

Trooper Pierce testified that he approached appellant and asked him if he minded emptying his pockets. Appellant did not answer but voluntarily emptied the contents of his pockets. Trooper Pierce did not see anything illegal in appellant=s pockets and proceeded to pat him down for weapons. Trooper Pierce testified that he asked appellant if he minded removing his boots. Again, appellant did not respond but voluntarily removed his boots. Trooper Pierce testified that, because of the way one of the boots landed, he could see a baggie at the heel of the boot. He further testified that, based on his experience, he believed the baggie contained narcotics. Trooper Pierce testified that appellant told him the baggie contained cocaine. Trooper Pierce further testified that, at the time he asked appellant to empty his pockets and to remove his boots, he had not threatened appellant, had not removed his weapon from his holster, had not handcuffed appellant, and had not told him he was not free to leave. The evidence supports an implied finding by clear and convincing evidence that appellant=s consent to search his pockets and boots was voluntary.

Conclusion

There was sufficient specific articulable facts to justify the pat-down search of appellant. Furthermore, appellant consented to the search of his boots where the cocaine was found. The trial court did not err in denying appellant=s motion to suppress. We overrule appellant=s sole issue on appeal.

The trial court=s judgment is affirmed.

RICK STRANGE

JUSTICE

June 21, 2007

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.

[1]Terry v. Ohio, 392 U.S. 1 (1968).