CARLOS DE LA GARZA v. THE STATE OF TEXAS--Appeal from 24th District Court of Victoria County

NUMBER 13-04-438-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

___________________________________________________________________

 CARLOS DE LA GARZA, Appellant,

v.

 THE STATE OF TEXAS, Appellee.

___________________________________________________________________

On appeal from the 24th District Court

of Victoria County, Texas.

___________________________________________________ _______________

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

Memorandum Opinion by Justice Rodriguez

Appellant, Carlos De La Garza, was indicted on one count of delivery of a controlled substance. See Tex. Health & Safety Code Ann. ' 481.112 (Vernon 2003). Appellant filed a motion to suppress evidence which the trial court denied. Subsequently, appellant pleaded guilty to the lesser included offense of possession of a controlled substance. By three issues, appellant contends the trial court erred in denying his motion to suppress because he (1) was stopped without probable cause, (2) was illegally and unlawfully detained during the search of his vehicle, and (3) did not intelligently and voluntarily consent to the search of his vehicle. We affirm.

The trial court has certified that this "is a plea-bargain case, but matters were raised by written motion filed and ruled on before trial and not withdrawn or waived, and the defendant has the right of appeal." See Tex. R. App. P. 25.2(a)(2).

I. BACKGROUND

As this is a memorandum opinion and because all issues of law presented by this case are well settled and the parties are familiar with the facts, we will not recite the law and the facts except as necessary to advise the parties of the Court's decision and the basic reasons for it. See Tex. R. App. P. 47.4.

II. STANDARD OF REVIEW

The appropriate standard for reviewing a trial court=s ruling on a motion to suppress is a bifurcated standard of review, giving almost total deference to a trial court=s determination of historical facts and reviewing de novo the court=s application of the law. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). The trial court is the sole fact finder at a hearing on a motion to suppress evidence and may choose to believe or disbelieve any or all of the witnesses' testimony. Johnson v. State, 803 S.W.2d 272, 287 (Tex. Crim. App. 1990). Because the trial court did not make explicit findings of fact, we will review 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. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).

III. PROBABLE CAUSE

By his first issue, appellant contends the trial court erred in denying his motion to suppress evidence because the state trooper stopped him without probable cause.

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 officer observes an actual violation of law, probable cause exists for the traffic stop. McVickers v. State, 874 S.W.2d 662, 664 (Tex. Crim. App. 1993). Law enforcement officials are free to enforce the laws and detain a person for that violation. Id.

At the hearing, Texas State Trooper Rick Magana testified that he stopped appellant=s truck after observing two traffic violations: (1) failure to travel in one lane of traffic; and (2) failure to signal a lane change due to a malfunctioning signal light on the trailer. However, the trial court stated during the hearing that it believed failure to stay in one lane of traffic alone was not enough to constitute probable cause. The stop would have to be based on the defective signal light.

Through the testimony of Trooper Magana and Michael Cano, a licensed electrician, appellant attempted to prove that the signal lights on the trailer did work at the time of the stop and thus the trooper had no legal basis to stop appellant. Trooper Magana testified that the hazard lights of the trailer were properly working at the time of the traffic stop. Cano testified that if the hazard lights were working on the trailer, then the signal lights on both sides of the trailer should have also been working. On cross-examination, however, Cano admitted he never tested the lights on the trailer and could not say for certain whether the signal light actually worked.

Giving almost total deference to a trial court=s determination of historical facts, Maxwell, 73 S.W.3d at 281, and because it may choose to believe or disbelieve any or all of the witness's testimony, Johnson, 803 S.W.2d at 287, we conclude the trial court did not err in finding Trooper Magana had probable cause to stop appellant. Appellant's first issue is overruled.

IV. ILLEGAL AND UNLAWFUL DETENTION

By his second issue, appellant argues the trial court erred in denying his motion to suppress evidence because he was illegally and unlawfully detained during a routine traffic stop.

An investigative detention may last no longer than is necessary to effectuate the purpose of the stop. Florida v. Royer, 460 U.S. 491, 500 (1983); Davis v. State, 947 S.W.2d 240, 243 (Tex. Crim. App. 1997). Once the purpose of the stop has been satisfied, the stop may not be used for an unrelated "fishing" expedition. Davis, 947 S.W.2d at 243. The propriety of the stop's duration is judged by assessing whether the police diligently pursued a means of investigation that was likely to dispel or confirm their suspicions quickly. Id. at 245.

The reasonableness of a temporary detention must be examined in terms of the totality of the circumstances and will be justified when the detaining officer has specific articulable facts, which taken together with rational inferences from those facts, lead to the conclusion that the person detained is, has been, or soon will be engaged in criminal activity. Woods v. State, 956 S.W.2d 33, 35 (Tex. Crim. App. 1997); Hernandez, 983 S.W.2d at 869.

Trooper Magana testified that when examining appellant's vehicle he noticed the vehicle identification number looked as if it had been painted over. At this time Trooper Magana began to investigate whether the truck was stolen. After calling in the vehicle identification number to the department of public safety and receiving a response that the number did not conform to the make and model of appellant=s truck, Trooper Magana asked appellant to follow him to the highway department so that he could continue his investigation. Before leaving, Trooper Magana received appellant's consent to search the vehicle for weapons. During the search, he discovered the bag of cocaine.

Based on the totality of the circumstances, we conclude that Trooper Magana offered specific articulable facts, which, taken together with rational inferences from those facts, lead to the conclusion that appellant was, had been, or soon would be engaged in criminal activity. See Woods, 956 S.W.2d at 35. Thus, appellant=s detention was justified. Appellant's second issue is overruled.

V. CONSENT TO SEARCH

By his third issue, appellant argues that the trial court erred in denying his motion to suppress evidence because he did not intelligently and voluntarily consent to a search of his vehicle.

Consent to search is one of the well-established exceptions to the constitutional requirements of both probable cause and a warrant. Maxwell, 73 S.W.3d at 281 (citing Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973); Carmouche v. State, 10 S.W.3d 323, 331 (Tex. Crim. App. 2000)). In order for this exception to validate a warrantless search, the State must show by clear and convincing evidence that consent was freely and voluntarily given. See State v. Ibarra, 953 S.W.2d 242, 245 (Tex. Crim. App. 1997). In determining whether an accused's consent to search is voluntary, appellate courts must look to the totality of the circumstances. Johnson v. State, 68 S.W.3d 644, 653 (Tex. Crim. App. 2002).

Factors to be examined in determining whether an accused freely and voluntarily consented include, but are not limited to the following: (1) whether, and to what extent, officers exhibited a show of force, including a display of weapons or other intimidating tactics; (2) whether the arresting officers engaged in flagrant misconduct; (3) whether the police threatened to obtain a search warrant, or whether the police claimed a right to search; (4) whether the police administered Miranda warnings; (5) whether the arrest was made in order to obtain consent; (6) whether the accused knew that he could refuse to allow a search; (7) whether consent was first offered by the accused or was in response to a police request; and (8) the accused's age, education, intelligence, and physical condition. See Frierson v. State, 839 S.W.2d 841, 851 (Tex. App.BDallas 1992, pet. ref'd); see also State v. $217,590.00 in U.S. Currency, 18 S.W.3d 631, 634 (Tex. 2000) (compiling list of factors from various cases).

With these factors in mind, we review the totality of the circumstances to determine whether the State met its burden by presenting clear and convincing evidence that appellant's consent was freely and voluntarily given. Based on our review of the evidence presented at the suppression hearing, we find there was no evidence that Trooper Magana exhibited a show of force or that he displayed any weapons. There was no indication that appellant was physically abused or threatened into giving his consent or evidence of violence or physical coercion of any type. See Lackey v. State, 638 S.W.2d 439, 451 (Tex. Crim. App. 1982) (stating that absence of violence and physical coercion is indicative that consent was given voluntarily). Additionally, there was no evidence of flagrant misconduct by Trooper Magana.[1] There was neither testimony that Trooper Magana threatened to obtain a search warrant if appellant did not acquiesce nor that the trooper claimed a right to search. In appellant=s favor, there was also no evidence that he was given his Miranda rights, however, this alone is not dispositive. See Meeks v. State, 692 S.W.2d 504, 510 (Tex. Crim. App. 1985) (stating that lack of warnings, including Miranda warnings, is probative on the issue of consent, but warnings are not required).

Viewing the evidence in the light most favorable to the trial court's decision to suppress and assuming that the trial court made implicit findings of fact that support its ruling, see Ross, 32 S.W.3d at 855, we find from a totality of the circumstances that the State has shown by clear and convincing evidence that appellant's consent was freely and voluntarily given.[2] See Ibarra, 953 S.W.2d at 245; Johnson, 68 S.W.3d a t 653. Appellant's third issue is overruled.

VI. CONCLUSION

Accordingly we affirm the decision of the trial court.

NELDA V. RODRIGUEZ

Justice

Do not publish.

Tex. R. App. P.47.2(b).

Memorandum Opinion delivered and

filed this 26th day of August, 2005.

[1] Appellant argues that Trooper Magana committed misconduct by initially entering appellant=s vehicle without his consent. However, the trooper testified that he entered the vehicle only to examine the vehicle identification number. Because we review the evidence in the light most favorable to the trial court's ruling, see State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000), and the trial court may choose to believe any or all of the witnesses= testimony, see Johnson v. State, 803 S.W.2d 272, 287 (Tex. Crim. App. 1990), we find the trooper did not engage in flagrant misconduct.

[2] We note that appellant argues his consent was a result of an illegal detention. However, we need not address this argument due to our disposition of appellant=s second issue.