Maria Regina Wagner v. The State of Texas--Appeal from County Court at Law No 9 of Bexar County

No. 04-99-00367-CR
Maria WAGNER,
Appellant
v.
The STATE of Texas,
Appellee
From the County Court at Law No. 9, Bexar County, Texas
Trial Court No. 715485
Honorable Wayne Christian, Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Tom Rickhoff, Justice

Alma L. L pez, Justice

Paul W. Green, Justice

Delivered and Filed: March 22, 2000

AFFIRMED

Appellant, Maria Wagner, was convicted of misdemeanor possession of marijuana following a plea of guilty. In one issue, Wagner complains the trial court erred when it denied her pretrial motion to suppress evidence.

Waiver

The State argues Wagner waived any error by failing to secure a ruling from the trial court on her motion to suppress. The order attached to the motion is unsigned, and the record of the hearing reflects that the judge intended to rule on the motion after doing research into the controlling law. However, the docket sheet contains an entry "denied", signed by Judge Christian, next to the entry for Wagner's motion. Such an entry is sufficient to preserve Wagner's complaint for appeal. Cf. Flores v. State, 888 S.W.2d 193, 195-96 (Tex. App.-Houston [1st Dist.] 1994, pet. ref'd), (holding docket entry signed by trial judge was intended to be order of the court.) Wagner's plea of guilty does not waive her right to complain of any error prior to the plea, if the trial court relied on that error in rendering its judgment. See Young v. State, 8 S.W.3d 656, 666-67 (Tex. Crim. App. 2000).

Facts

Wagner attempted to return a roll of window screen material to a Home Depot store, but she was refused a refund because she didn't have a receipt. According to the testimony at the suppression hearing, the store had been experiencing a problem with people returning stolen screens. Wagner had a long history of returns at the store. William Biesenbach, an off-duty San Antonio police officer dressed in plainclothes, was moonlighting as a security guard at the store and witnessed Wagner's attempted return. He followed her out of the store and onto a public street, where he witnessed her get into a car driven by Monty Durkin. According to Biesenbach, he was familiar with Durkin because, among other things, the store manager told him Durkin had pulled a knife on him at the store two months earlier. No charges were filed in connection with this earlier incident; however, Durkin was suspected by store personnel of being involved in other thefts at the store.

Biesenbach walked up to the vehicle and attempted to talk to Wagner and Durkin. Biesenbach displayed his badge and said "San Antonio police officer. Stop." However, after Biesenbach approached the car and asked Durkin to stop, Durkin drove away.

At this point, Biesenbach got in his own unmarked car and followed Durkin and Wagner. Biesenbach radioed for uniformed officers to assist him in making a stop of the vehicle. Before the marked patrol cars arrived, Wagner and Durkin switched places, and Wagner took over driving. When marked units flashed their lights behind the Wagner car, it stopped immediately. A license check revealed Durkin's license was suspended and he was arrested for driving while license suspended. During a search of the passenger compartment incident to the arrest, a small quantity of marijuana was found in Wagner's purse.

Standard of Review

We afford almost total deference to a trial court's determination of the historical facts that the record supports, especially when the trial court's fact findings are based on an evaluation of credibility and demeanor. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We afford the same amount of deference to the trial court's rulings on "application of law to fact questions," also known as "mixed questions of law and fact," if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor. See Guzman, 955 S.W.2d at 89. We review de novo the question of whether the facts give rise to reasonable suspicion or probable cause. See id.; See also Loesch v. State, 958 S.W.2d 830, 831 (Tex. 1997).

Discussion

Biesenbach's attempt to make a field detention based on reasonable suspicion was appropriate. He had information Durkin had possibly been involved in several criminal episodes at the store in the past, and he observed Durkin with Wagner, whose behavior, although not illegal in itself, was certainly suspicious given the context in which it occurred. See Loesch v. State, 958 S.W.2d 830, 831 (Tex. Crim. App. 1997) (error to review each factor relating to reasonable suspicion in isolation instead of in combination with each other).

Officer Biesenbach identified himself as a police officer, displayed his badge, and ordered Wagner and Durkin to stop. Instead they drove away. Biesenbach testified the suspects must have seen and heard him, and chose to flee, prompting his pursuit. The trial court was in a better position to determine whether Biesenbach's description of the situation was accurate. After he was in pursuit, it was appropriate for Biesenbach to radio uniformed officers for assistance. Once the suspects had been detained, and a license check revealed Durkin had been driving with a suspended license, a search incident to arrest was proper. When a policeman makes a lawful custodial arrest of an occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile. New York v. Belton, 453 U.S. 454, 460, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981). See also Osban v. State, 726 S.W.2d 107, 111 (Tex. Crim. App.1986), overruled on other

grounds by Heitman v. State, 815 S.W.2d 681, 690. We affirm the trial court's decision to deny Wagner's motion to suppress. The judgment of the trial court is affirmed.

PAUL W. GREEN,

JUSTICE

DO NOT PUBLISH