Hector Manuel Quezada v. The State of Texas--Appeal from Co Crim Ct at Law No 11 of Harris County

Affirmed and Memorandum Opinion filed December 13, 2007

Affirmed and Memorandum Opinion filed December 13, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-06-01028-CR

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HECTOR MANUEL QUEZADA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court at Law No. 11

Harris County, Texas

Trial Court Cause No. 1366389

M E M O R A N D U M O P I N I O N

Appellant Hector Manuel Quezada pleaded guilty to the misdemeanor offense of possession of a dangerous drug, namely amoxicillin, on or about March 27, 2006. Consistent with appellant=s plea bargain, the trial court sentenced appellant to three days= confinement in the Harris County Jail and an $800 fine. On appeal, appellant contends that the trial court erred in denying his motion to suppress evidence. We affirm.

Factual Background

At the hearing on the motion to suppress, the only evidence presented was testimony from City of Humble police officers Scott Martin and Daniel Skambary. They testified as follows.

On March 27, 2006, at around 4:30 p.m., Officer Martin received a dispatch directing him to go to the parking lot of the Casa de Pueblo Meat Market in Humble to investigate an anonymous phone call in which the caller stated that a Hispanic male was selling drugs out of a silver Ford van there.[1] Officer Skambary and another officer, who did not testify, arrived shortly after Officer Martin. Martin and Skambary saw appellant standing by a silver Ford Windstar mini-van. The vehicle was backed into a public parking space in the parking lot, and its doors, including a sliding door on the side and a rear door, were open.[2] No one else was standing near the van.

As Martin and Skambary approached the van, they observed a large quantity of items in plain view inside the van, including shampoo, chewing gum, over-the-counter drugs such as Tylenol and Sudafed, and boxes labeled AAmoxil@ in Spanish. Martin testified that, from the way the van was positioned in the parking lot, Ayou could tell that [appellant] was selling everything from inside his vehicle.@ He described the vehicle as Aa mobile store.@

Martin asked appellant for his identification and asked him what he was doing in the parking lot with all of the van=s doors open. Appellant gave Martin his Texas driver=s license and stated that he owned the van. Appellant also told Martin that he got the drugs in Mexico, and that he had a business in which he travels around and sells those items.[3] Martin detained appellant, contacted poison control, and learned that AAmoxil@ was Spanish for Amoxicillin, an antibiotic prescription drug. Martin asked appellant if he was a pharmacist and if he had a prescription for the Amoxicillin, and appellant answered Ano@ to both questions. Martin then placed appellant under arrest for violating a City of Humble ordinance that prohibits soliciting without a permit and authorizes a violator=s arrest. Martin had appellant=s van towed to the Humble Police Department, and he inventoried its contents. Martin found sixty-one units or packages of amoxicillin in the vehicle, which he bagged as evidence.

On cross-examination, Martin admitted that he was given no other information about the anonymous call, such as where the call originated or whether the caller was reliable. Martin admitted that the caller did not name the person who was allegedly selling drugs at that location, or give any additional descriptive information such as the person=s approximate age, height, or weight. He also admitted that the caller did not provide any more specific information to describe the van or where it was parked, and he admitted that he did not see appellant commit a crime when he first approached him.

The trial court denied appellant=s motion to suppress. No findings of fact and conclusions of law were filed. This appeal followed.

 Appellant=s Briefing of the Broad Issue is Inadequate

Appellant=s sole issue on appeal is that the trial court erred by failing to grant his motion to suppress. Specifically, his issue states that Athe arrest of appellant and subsequent search of his vehicle was unlawful because police did not see appellant commit a crime.@

The issue as written appears to claim that the officersCliterallyCdid not see him commit a crime because they did not see him sell anything. But, in his argument under the issueChis very brief argumentChe appears to implicate, without explanation or elucidation, broader search and seizure issues such as whether probable cause existed to arrest appellant, whether the search of his vehicle was lawful, and whether the officers could detain appellant based on the anonymous tip. We say he appears to implicate these issues because his argument is so brief, and so lacking in citation to authority that we can only guess as to his precise complaints. We set out his entire argument below to illustrate the point.

In the case at bar, the officers testified that they never saw appellant commit any crime and never saw appellant soliciting. Furthermore, the offense which appellant was charged with was not a felony or an offense against the public peace. At the time appellant was arrested the officers did not know what was inside the boxes labeled Aamoxil@. Therefore, the arrest of appellant and subsequent search of his vehicle was unlawful and pursuant to section 38.23 of the Code of Criminal Procedure the evidence obtained by the officers should have been suppressed.

The State initially contends that the issues discussed in the argument section of appellant=s brief are forfeited or waived for insufficient briefing. We must agree with the State.

Appellant cites no federal or state case law to support or explain his argument, nor does he cite to the Fourth Amendment of the United States Constitution or to any other federal or state constitutional provision. Instead, he merely quotes Article 14.01 of the Code of Criminal Procedure,[4] which addresses when the police or other persons may arrest an offender without a warrant, and in a cursory manner he claims the evidence should have been suppressed Apursuant to section 38.23 of the Code of Criminal Procedure.@[5] As is evident from his argument set forth above, appellant did not discuss in what way the officers violated either of these statutes, or even inform us what part of the statutes he claims apply to this case.

Texas Rule of Appellate Procedure 38.1(h) requires that the appellant=s brief contain a Aclear and concise argument for the contentions made, with appropriate citations to authorities and to the record.@ See Tex. R. App. P. 38.1(h); see also Ladd v. State, 3 S.W.3d 547, 575 (Tex. Crim. App. 1999) (requiring appellants to abide by published briefing rules and to make reasonable arguments on their own behalf does not offend due process or traditional notions of fair play and substantial justice); McDuff v. State, 939 S.W.2d 607, 613 (Tex. Crim. App. 1997) (general claim of factual insufficiency held inadequately briefed); James v. State, 48 S.W.3d 482, 487 (Tex. App.CHouston [14th Dist.] 2001, no pet.) (holding briefing inadequate as to factual insufficiency claim when defendant failed to specifically argue how evidence was insufficient under any standard of reviewing factual sufficiency).

Appellant=s brief contains no argument for the contentions made, and, if he does intend to address the broader search and seizure issues we mentioned, we would have to fashion the argument ourselves because he has given us none. We cannot become an advocate for appellant. Thus, because appellant=s brief provides no authority on the broader search and seizure issues, we overrule those issues for not being adequately briefed. See Tex. R. App. P. 38.1(h); Cardenas v. State, 30 S.W.3d 384, 393 (Tex. Crim. App. 2000) (overruling points of error as inadequately briefed when appellant neglected to present argument and authorities as required by Texas Rule of Appellate Procedure 38.1(h)).

Moreover, if appellant is relying on a more straightforward argument, that the officers simply did not see appellant commit a crime, that argument fails. Article 14.01(b) provides that a police officer may arrest a person without a warrant for any offense committed in his presence or within his view. Tex. Code Crim. Proc. art. 14.01(b). Although appellant complains that the evidence against him should be suppressed because the officers did not see him commit a crime when he was taken into custody, the facts show otherwise.

The evidence showed that the police officers responded to an anonymous caller who said that a Hispanic male was selling drugs out of a Ford van at the Casa de Pueblo Meat Market. The officers approached the only man standing near the van described by the anonymous caller. The van=s doors were open, and boxes of products, including amoxicillin, were in plain view inside the van. Appellant identified himself and stated that the van and the items in the van, including the drugs, were his. And, appellant also stated that he was selling all of the items. At this point, Martin knew that appellant had violated the City of Humble ordinance for soliciting without a permit. After Martin confirmed that AAmoxil@ was Spanish for amoxicillin, a prescription antibiotic, Martin was arrested.

Thus, appellant was not arrested until after Martin found him in violation of at least the city ordinance, if not other offenses. In addition, the anonymous caller=s information was corroborated. Martin testified that, when he placed appellant in custody, he was not sure what the offense would be, but he at least knew that appellant had violated the City of Humble ordinance for soliciting without a permit. On these facts, we cannot say that the trial court abused its discretion in denying appellant=s motion to suppress. See Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002) (discussing standard of review applied to trial court=s ruling on motion to suppress); Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996) (appellate court must sustain the trial court=s ruling on motion to suppress if it is reasonably supported by the record and is correct on any theory of law applicable to the case).

Therefore, we hold that appellant has forfeited part of his issue on appeal for inadequate briefing and we overrule the remainder of his issue. We affirm the trial court=s judgment.

/s/ Wanda McKee Fowler

Justice

Judgment rendered and Memorandum Opinion filed December 13, 2007.

Panel consists of Justices Yates, Fowler, and Guzman.

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

[1] Martin=s testimony concerning whether he was given the color of the Ford van is inconsistent. He initially testified he was told the color of the van and that it was a silver Ford van, but on cross-examination, he testified that he was told only that it was a Ford van.

[2] Officer Skambary could not recall if all of the van=s doors were open, but he did recall that the van=s sliding doors and rear hatch were open.

[3] It is unclear from the record whether appellant gave these responses to Martin=s questions before or after his arrest, but appellant=s counsel did not object to Martin=s testimony concerning appellant=s statements made to him at the time.

[4] Article 14.01 provides in its entirety as follows:

(a) A peace officer or any other person, may, without a warrant, arrest an offender when the offense is committed in his presence or within his view, if the offense is one classed as a felony or as an offense against the public peace.

(b) A peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view.

Tex. Code Crim. Proc. art. 14.01.

[5] Article 38.23, entitled AEvidence not to be used,@ provides as follows:

(a) No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.

In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.

(b) It is an exception to the provisions of Subsection (a) of this Article that the evidence was obtained by a law enforcement officer acting in objective good faith reliance upon a warrant issued by a neutral magistrate based on probable cause.

Tex. Code Crim. Proc. art. 38.23.