ALBERT J. DUFFEY III, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED as modified; Opinion issued January 30, 2007
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-06-00813-CR
No. 05-06-00814-CR
............................
 
ALBERT J. DUFFEY III, Appellant
 
V.
 
THE STATE OF TEXAS, Appellee
 
.............................................................
On Appeal from the 283rd Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F05-54940-NT & F05-54941-LT
.............................................................
 
MEMORANDUM OPINION
 
Before Justices Whittington, Moseley, and O'Neill
Opinion By Justice Whittington
 
 
        Albert J. Duffey III appeals his convictions for possession of less than one gram of cocaine and assault on a public servant. See Tex. Health & Safety Code Ann. § 481.115(b) (Vernon 2003); Tex. Pen. Code Ann. § 22.01(a)(1), (b)(1) (Vernon Supp. 2006). After appellant entered nolo contendere pleas in both cases, the trial judge found appellant guilty of both offenses and assessed punishment (the assault on a public servant offense was enhanced by a prior felony conviction) at two years' confinement and a $1500 fine in each case. In five points of error, appellant contends the trial judge abused her discretion in denying his motion to suppress and that the judgments should be modified. We modify the judgments and, as modified, we affirm the trial court's judgments.         Appellant was stopped by Dallas Police Officer George Prock. After hearing appellant speak, the officer believed appellant had something in his mouth. Officer Prock ordered appellant to open his mouth and saw a small yellow baggie similar to those used by narcotics traffickers. When Officer Prock attempted to remove the baggie, appellant closed his mouth and bit the officer. Appellant was subsequently arrested and charged with possession of less than one gram of cocaine and assault on a public servant. After appellant's motion to suppress was denied, he was convicted of both offenses. These appeals ensued.
        In his first point of error, appellant contends the trial judge abused her discretion in denying his motion to suppress. Under this point, appellant claims Officer Prock conducted an unreasonable search because he did not have probable cause or reasonable suspicion to search appellant and appellant did not consent to the search. Appellant argues the unlawful search violated his rights under the Fourth and Fourteenth Amendments to the United States Constitution.   See Footnote 1  After reviewing the record, we cannot agree.
        In a motion to suppress hearing, the trial judge is the sole trier of fact and judge of witness credibility and may believe or disbelieve all or part of a witness's testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). We review a trial judge's ruling on a motion to suppress for abuse of discretion, giving almost total deference to the trial judge's determination of historical facts, but review search and seizure law de novo. Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002); Garcia v. State, 15 S.W.3d 533, 535 (Tex. Crim. App. 2000). If the issue involves the credibility of a witness, making the evaluation of that witness's demeanor important, we defer to the trial judge's application of law to the facts. Carmouche, 10 S.W.3d at 327; State v. Terrazas, 4 S.W.3d 720, 725 (Tex. Crim. App. 1999); see Guzman v. State, 955 S.W.2d 85, 87-89 (Tex. Crim. App. 1997). Absent an abuse of discretion, we may not disturb the trial judge's findings. See Guardiola v. State, 20 S.W.3d 216, 223 (Tex. App.-Houston [14th Dist.] 2000, pet. ref'd) (citing Penry v. State, 903 S.W.2d 715, 744 (Tex. Crim. App. 1995)). In reviewing a trial judge's ruling on a suppression motion, we must view the record and all reasonable inferences therefrom in the light most favorable to the ruling 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); Knisley v. State, 81 S.W.3d 478, 483 (Tex. App.-Dallas 2002, pet. ref'd).
        To justify a warrantless search, “the State must show the existence of probable cause at the time the search was made, and the existence of exigent circumstances which made the procuring of a warrant impracticable.” McNairy v. State, 835 S.W.2d 101, 106 (Tex. Crim. App. 1991). Probable cause to search exists when reasonably trustworthy facts and circumstances within the knowledge of the officer on the scene would lead a man of reasonable prudence to believe that evidence of a crime will be found. McNairy, 835 S.W.2d at 106 (citing Washington v. State, 660 S.W.2d 533, 535 (Tex. Crim. App. 1983)). Exigent circumstances are those “which justify an immediate need to [act] without first obtaining a search warrant.” Parker v. State, 206 S.W.3d 593, 597 (Tex. Crim. App. 2006). These circumstances usually include (i) a risk of danger to the police or the victim; (ii) an increased likelihood of apprehending a suspect; (iii) possible destruction of evidence or contraband; (iv) hot or continuous pursuit; and (v) rendering aid or assistance to persons who the officer reasonably believes are in need of assistance. Randolph v. State, 152 S.W.3d 764, 771 (Tex. App.-Dallas 2004, no pet.); Ramirez v. State, 105 S.W.3d 730, 743-44 (Tex. App.-Austin 2003, no pet.); see Hernandez v. State, 548 S.W.2d 904, 905 (Tex. Crim. App. 1977) (when officer has probable cause to believe offense is being committed in officer's presence, he may take reasonable measures to insure incriminating evidence is not destroyed and reasonable physical contact is one such measure).
        In the trial court, appellant conceded Officer Prock had probable cause to look in appellant's mouth and confirmed he was challenging only whether exigent circumstances existed that would allow Officer George Prock to search appellant's mouth without a warrant. During the hearing, Officer Prock testified he and his partner, Officer Dody, were working for “Operation Disruption” in a high-crime, high drug activity area when they stopped appellant for a traffic violation. When Officer Prock spoke to appellant, he noticed appellant's voice was “muffled like it was blocked with a type of object.” He asked appellant to open his mouth several times. When the officer looked inside, it appeared appellant “was trying to conceal something.” Officer Prock finally saw a small yellow baggie. The officer explained that the baggie in appellant's mouth was similar to those typically used by narcotics traffickers. Officer Prock testified he believed the baggie might contain “[e]vidence of felony narcotics” and that he was concerned about appellant choking on whatever was in his mouth. Officer Prock elaborated, testifying that it is “a common practice for people to [hide narcotics in their mouths] to try to conceal it.” Officer Prock testified he had two reasons for wanting to retrieve the baggie from appellant's mouth-one, “to not lose valuable evidence” and two, to prevent any type of injury from appellant gagging, choking, or ingesting the baggie and its contents. On cross-examination, Officer Prock admitted that at the time he decided to retrieve the baggie, appellant had not yet attempted to swallow it.
        In light of this evidence, we conclude exigent circumstances-preventing the destruction or loss of evidence and preventing harm to appellant by ingesting the baggie-existed at the time Officer Prock decided to retrieve the baggie from appellant's mouth. Although appellant had not yet attempted to swallow the baggie, Officer Prock had no assurance appellant would not try to swallow the evidence at any time. We cannot conclude the trial judge erred in denying appellant's motion to suppress. We overrule appellant's first point of error.
        In his remaining points of error, appellant contends, and the State concurs, that the trial court's judgment in each case does not properly reflect appellant's trial counsel, the assistant district attorney representing the State at trial, and the plea entered by appellant. We have the authority to modify a trial court's judgment when the necessary information is available to do so. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); In re C.S., 198 S.W.3d 855, 858 (Tex. App.-Dallas 2006, no pet.); Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.-Dallas 1991, pet. ref'd). The record reflects the information contained in the judgments is incorrect. We sustain appellant's second, third, fourth, and fifth points of error. We modify the trial court's judgment in each case to reflect:
        (1)
 
appellant's trial counsel was Steven LaFuente;
 
        (2)
 
the prosecutor was Assistant District Attorney Danielle Uher; and
 
        (3)
 
appellant pleaded nolo contendere to each charge.
 
As modified, we affirm the trial court's judgments.
 
 
                                                          
                                                          MARK WHITTINGTON
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
060813F.U05
 
Footnote 1 Appellant also claims the search violated his rights under the Fifth and Sixth Amendments to the United State Constitution as well as his rights under article I, section 9 of the Texas Constitution, and article 38.23 of the Texas Code of Criminal Procedure. We conclude we need not address these arguments. Appellant cites no authority and presents no argument with respect to the purported violation of his Fifth and Sixth Amendment rights. Because he does not explain how his rights were violated and does not provide legal authority for his claim, he has waived that portion of his argument on appeal. See Tex. R. App. P. 38.1(c), (g), (h). With respect to the remainder of his argument, appellant does not argue that “the Texas Constitution is more comprehensive than its federal counterpart.” See Camouch v. State, 10 S.W.3d 323, 333 (Tex. Crim. App. 2000) (citing Muniz v. State, 851 S.W.2d 238, 251 (Tex. Crim. App. 1993) and Heitman v. State, 815 S.W.2d 681, 690 n.20 (Tex. Crim. App. 1991)). Nor does he argue that article 38.23(a) provides him with additional protection. In fact, article 38.23(a) is a codification of what procedural results may follow once a party invokes either statutory or constitutional law. See Polk v. State, 738 S.W.2d 274, 276 (Tex. Crim. App. 1987) (“If the defendant invokes Texas law, either statutory or constitutional, as grounds for excluding evidence at trial, the provisions of Art. 38.23, supra, are automatically invoked.”). Because neither the Texas Constitution nor article 38.23 provides appellant with rights greater than those provided by the Fourth Amendment , we restrict our discussion to that portion of appellant's complaint raising the purported violation of his Fourth Amendment rights.