THE STATE OF TEXAS v. ROBERTO CARLOS VEGA--Appeal from County Court at Law No 3 of Cameron County

NUMBER 13-00-676-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

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  THE STATE OF TEXAS,  Appellant,

v.

  ROBERTO CARLOS VEGA, Appellee.

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On appeal from the County Court at Law No. 3

of Cameron County, Texas.

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O P I N I O N

Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

Opinion by Justice Rodriguez

Appellee, Roberto Carlos Vega, was charged with the misdemeanor offense of unlawfully carrying a weapon. Vega claimed the police unlawfully detained him without reasonable suspicion. The trial court granted his motion to suppress evidence seized from his vehicle.[1] The State appealed. By one point of error, the State contends the trial court erred in granting Vega=s motion to suppress. We affirm.

I. FACTS

On the evening of October 6, 1997, Vega picked up two people and drove to a shopping center parking lot. Detective Lorenzo Hernandez observed Vega driving through the aisles of the parking lot and then parking. Detective Hernandez called in Officer Gerardo Leal, who subsequently parked behind Vega=s van, blocking its exit. Detective Hernandez observed a passenger exit the van and throw an ink pen cap on the ground, which later turned out to contain a bag of cocaine. Detective Hernandez also found a weapon on the passenger, which prompted Officer Leal to ask Vega to step out of the van. Vega was handcuffed and placed in the police vehicle. Officer Leal testified that while Vega was stepping out of the van he noticed a nine millimeter pistol underneath the driver=s seat in plain view. Vega was then arrested and charged with unlawfully carrying a weapon.

II. STANDARD OF REVIEW

A trial court=s ruling on a motion to suppress is generally reviewed for abuse of discretion. See Ford v. State, 26 S.W.2d 669, 672 (Tex. App.BCorpus Christi, pet ref=d) (citing Oles v. State, 26 S.W.2d 103, 106 (Tex. Crim. App. 1999)). In a suppression hearing, the trial judge is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given to their testimony. State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999). We afford almost total deference to a trial court=s findings of facts that the record supports, especially when the findings are based on an evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997); Martinez v. State, 29 S.W.3d 609, 611 (Tex. App.BHouston [1st Dist.] 2000, pet. ref=d). We review de novo mixed questions of law and fact not falling within this category. Guzman, 955 S.W.2d at 89; Martinez, 29 S.W.3d at 611. Because the issue in this case does not involve a disagreement about the facts or credibility of the witness, but rather whether the officer had either probable cause or a reasonable suspicion to stop and detain Vega, we review the trial court=s ruling de novo. State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000); Guzman, 955 S.W.2d at 89.

III. ANALYSIS

By its sole point of error, the State contends the trial court erred in granting Vega=s motion to suppress because the evidence was obtained by a lawful, warrantless protective search incident to a lawful arrest. Relying on the standard set forth in Terry v. Ohio, 392 U.S. 1 (1968), the State asserts it was justified in conducting a protective search on Vega to ensure the police officers= protection after a weapon was found on one of the passengers. See id. at 24-27; see also Davis v. State, 947 S.W.2d 240, 242 (Tex. Crim. App. 1997). However, for a protective search to be considered reasonable the initial stop or detainment must also be lawful. Viveros v. State, 828 S.W.2d 2, 4 (Tex. Crim. App. 1992); Espericueta v. State, 838 S.W.2d 880, 882 (Tex. App.BCorpus Christi 1992, no writ). Therefore, we must determine whether Detective Hernandez=s initial detainment of Vega was justified before a decision can be reached regarding the reasonableness of Officer Leal=s subsequent protective search of Vega. See Viveros, 828 S.W.2d at 4.

When a police officer stops a defendant without a warrant and without the defendant=s consent, the State has the burden at a suppression hearing of proving the reasonableness of the stop. Russell v. State, 717 S.W.2d 7, 9-10 (Tex. Crim. App. 1986); Hernandez v. State, 983 S.W.2d 867, 869 (Tex. App.BAustin 1998, pet. ref=d). If an actual violation of law is observed, there is probable cause for the traffic stop, and law enforcement officials are free to enforce the laws and detain a person for that violation. McVickers v. State, 874 S.W.2d 662, 664 (Tex. Crim. App. 1993). Furthermore, a police officer may stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity may be afoot, even if the officer lacks evidence rising to the level of probable cause. Terry, 392 U.S. at 30; Davis, 947 S.W.2d at 242-43. The articulable facts must amount to more than a mere hunch or suspicion. Davis, 947 S.W.2d at 244 (citing Garza v. State, 771 S.W.2d 549, 558 (Tex. Crim. App. 1989)). There must be reasonable suspicion that something out of the ordinary is occurring and some indication that the activity is related to crime. Garza, 771 S.W.2d at 558; see Viveros, 828 S.W.2d at 4.

In the present case, the record does not show Vega, or any of his passengers, committed an actual violation of the law. Therefore, the State must show the initial detainment was made due to a reasonable suspicion of criminal activity. See Terry, 392 U.S. at 30. According to the record, Vega and his passengers were driving through the parking lot and subsequently parked the vehicle in order to talk to some people in another car. Detective Hernandez testified that he thought Vega was acting suspicious because he was driving through the aisles of the parking lot, and a passenger had what might have been a police scanner in his hands. However, the trial judge made no such findings of fact after the suppression hearing. See Guzman, 955 S.W.2d at 89. Further, there is nothing in the record showing the State attempted to introduce a confiscated scanner into evidence to show there was a reasonable suspicion Vega and his passengers were likely to attempt an auto theft in the parking lot. See Garza, 771 S.W.2d at 558. There was nothing in Vega=s actions which would raise a reasonable suspicion in an officer that Vega was a possible criminal instead of a law abiding citizen. See id.; see also Davis, 947 S.W.2d at 242-44.

The State failed to carry its burden, see Russell, 717 S.W.2d at 9-10, to show Vega=s actions were out of the ordinary and indicative of the possible occurrence of a crime. See Garza, 771 S.W.2d at 558. Furthermore, since the initial detainment of Vega and his passengers was unlawful, the State=s argument that the protective search performed on Vega was reasonable is incorrect. See Viveros, 828 S.W.2d at 4; Espericueta, 838 S.W.2d at 882. We therefore find the State had neither probable cause, see McVickers, 874 S.W.2d at 664, nor reasonable suspicion to stop and detain Vega. See Terry, 392 U.S. at 30. The court did not abuse its discretion in granting Vega=s motion to suppress. See Ford, 26 S.W.2d at 672. The State=s sole point of error is overruled.

Accordingly, we affirm the trial court=s order granting Vega=s motion to suppress.

NELDA V. RODRIGUEZ

Justice

Do not publish.

Tex. R. App. P. 47.3.

Opinion delivered and filed

this 27th day of June, 2002.

[1]Vega filed a motion to suppress evidence obtained after he was detained by police officers in a shopping center parking lot.