Javier Valdez v. The State of Texas--Appeal from 226th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-06-00781-CR
Javier VALDEZ,
Appellant
v.
The STATE of Texas,
Appellee
From the 226th Judicial District Court, Bexar County, Texas
Trial Court No. 2006CR6175
Honorable Sid L. Harle, Judge Presiding

Opinion by: Alma L. L pez, Chief Justice

 

Sitting: Alma L. L pez, Chief Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

 

Delivered and Filed: September 12, 2007

 

AFFIRMED

Javier Valdez pled no contest to possession of a controlled substance after the trial court denied his motion to suppress. On appeal, Valdez contends the trial court erred in denying his motion to suppress because no reasonable suspicion supported his detention.

 
Background

Officer Raul Martinez was on patrol in an area well-known for drug activity and prostitution around 2:35 a.m. Officer Martinez observed Valdez and a female companion, Patricia Vega, walking on the sidewalk. Officer Martinez noticed the couple because as he was driving towards them, "they kind of stopped, hesitated, were going to go back in the opposite direction, and then turned back and walked in the direction they were heading initially." Officer Martinez drove through the area and passed by the couple a second time. When Officer Martinez saw the couple a third time, they were by a pay phone. Officer Martinez thought it was odd that the couple had been in the same area for such a long period of time. Officer Martinez pulled up next to the couple, rolled down the window, and asked them what they were doing in the area. The couple stated that they were waiting for a ride. As he was exiting his patrol car, Officer Martinez asked if he could see some type of identification, and Valdez and Vega voluntarily gave him their information. Officer Martinez stated that the couple was free to leave when he asked for identification. Officer Martinez believed that one of them gave him a driver's license but could not recall that both of them did. Officer Martinez returned to his patrol car and ran the names though the system. Both Valdez and Vega were shown to be active for warrants and were arrested. On cross-examination, Officer Martinez stated that a second officer was called and arrived after Valdez and Vega were placed under arrest. The second officer was not present while Officer Martinez was checking the identification. Officer Martinez stated that he might have called a third female officer after the arrest to search Vega, but he did not recall doing so.

Valdez testified that he was using the phone to get a ride to the house where he was staying. Valdez stated that Officer Martinez pulled up beside him and said, "Come here." Valdez walked towards Officer Martinez, who asked him for identification. Valdez stated that he was not free to disobey Officer Martinez's request or walk away. While Valdez was getting his identification from his wallet, another officer drove in and parked in front of Officer Martinez's car. The officer exited her car and walked over to stand beside Valdez and Vega. Shortly after the second officer arrived, a third officer arrived. After Valdez handed Officer Martinez his identification, Valdez testified that Officer Martinez told him to put his hands on the car. Valdez testified that he handed his identification to Officer Martinez because he was ordered to do so; however, Valdez stated that Officer Martinez did not force the identification from his wallet.

Discussion

We review a trial court's ruling on a motion to suppress evidence for an abuse of discretion. Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002). We afford almost total deference to the trial court's determination of historical facts supported by the record, especially when the fact findings are based on an evaluation of the witnesses' credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). "[W]hen the trial court fails to file findings of fact, we view the evidence in the light most favorable to the trial court's ruling and assume that the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record." State v. Cullen, 195 S.W.3d 696, 698 (Tex. Crim. App. 2006). We review de novo the court's application of the law to the facts. Guzman, 955 S.W.2d at 89.

Not every encounter between police and citizens implicates the Fourth Amendment. Hunter v. State, 955 S.W.2d 102, 104 (Tex. Crim. App. 1997). A police officer is just as free as any other citizen to stop and ask questions of a fellow citizen. Id. Such encounters are consensual so long as a reasonable person would feel free to disregard the police and go about his business. Id. As in all cases involving a determination of whether a "seizure" has occurred for Fourth Amendment purposes, the particular encounter is assessed by looking at the totality of the circumstances. Id. The test is whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter. State v. Velasquez, 994 S.W.2d 676, 679 (Tex. Crim. App. 1999)

Viewing the evidence in the light most favorable to the trial court's ruling, the trial court implicitly found that Officer Martinez approached Valdez, asked him a few questions, and Valdez voluntarily provided Officer Martinez with his identification. The trial court further implicitly found that Valdez was free to leave even after Officer Martinez requested his identification and was running his name through the computer system. Finally, the trial court implicitly found that a second and possibly third officer did not arrive on the scene until after Valdez was arrested. All of these implicit findings establish a consensual encounter between Officer Martinez and Valdez, not a seizure.

Valdez relies on a line of cases holding that an individual has been "seized" when his driver's license is retained during a consensual encounter because the individual would not reasonably feel free to terminate the encounter. See Hayes v. State, 132 S.W.3d 147, 153 (Tex. App.--Austin 2004, no pet.); United States v. Dortch, 199 F.3d 193, 198 (5th Cir. 1999); United States v. Lambert, 46 F.3d 1064, 1068-69 (10th Cir. 1995). Assuming this line of cases is correct, however, we must defer to the trial court's determination of historical facts. Guzman, 955 S.W.2d at 89. From the testimony, the trial court could have determined that Valdez had not given Officer Martinez his license or that Officer Martinez had not retained the license since he only stated that he ran their names through the computer system. Furthermore, unlike the facts in Hayes, where a second officer stood beside the appellant while the other officer was preoccupied with running a warrant check, 132 S.W.3d at 153, Officer Martinez testified that the second officer did not arrive until after Valdez had been arrested. Accordingly, the trial court did not abuse its discretion in denying the motion to suppress based on its implicit finding that the encounter was consensual and no seizure had occurred.

Conclusion

The trial court's judgment is affirmed.

 

Alma L. L pez, Chief Justice

DO NOT PUBLISH