Rudy Joe Castillo v. The State of Texas--Appeal from 379th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-06-00392-CR
Rudy Joe CASTILLO,
Appellant
v.
The STATE of Texas,
Appellee
From the 379th Judicial District Court, Bexar County, Texas
Trial Court No. 2005-CR-3325
Honorable Bert Richardson, Judge Presiding

Opinion by: Phylis J. Speedlin, Justice

 

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Phylis J. Speedlin, Justice

 

Delivered and Filed: June 20, 2007

 

AFFIRMED

 

Rudy Joe Castillo was convicted of possession with intent to deliver a controlled substance (heroin) in an amount of 1 gram or more but less than 4 grams as a repeat offender. Castillo pled nolo contendere to the underlying charge and true to the enhancement count, and was sentenced to a term of eight years in prison. Castillo appeals the trial court's denial of his motion to suppress. We affirm.

Factual Background

The record shows that just before noon on April 9, 2005, San Antonio Police Officer John Corona noticed a vehicle driven by Castillo traveling westbound on Brady Boulevard. Officer Corona recognized Castillo and ran his name through the patrol car computer to check for any warrants; the computer search revealed that Castillo's driver's license was expired. Officer Corona circled the block and saw that Castillo had pulled into the parking lot of a convenience store located at the intersection of Brady Boulevard and Zarzamora. Officer Corona watched for a period of time as Castillo and the vehicle remained stationary with no activity. Next, Castillo drove the vehicle around from the north side of the store to the south side. Officer Corona continued to observe the vehicle and then decided to approach Castillo. Officer Corona testified that because he knew Castillo based on a prior arrest and the area was considered a high crime area known for drugs, prostitution, and property crimes, he suspected that Castillo might have been using drugs inside the vehicle. Officer Corona pulled his patrol car directly behind Castillo's vehicle, "boxing him in" between the patrol car and the convenience store. Castillo exited his vehicle as Officer Corona was pulling in behind him and began walking toward the convenience store. When Castillo noticed Officer Corona, he ran back toward his vehicle. Officer Corona called out for Castillo to stop, but he continued toward his vehicle. Officer Corona testified that he pushed Castillo into the steering wheel as he attempted to gain control of Castillo. During the struggle a "ball of dope" fell from Castillo's body onto the driver's seat of the vehicle. Officer Corona saw the drugs on the seat and pulled Castillo out from the vehicle and secured him. The "ball of dope" that fell from Castillo tested positive for heroin.

 

Discussion

Castillo contends that the warrantless search and seizure of the balloon of heroin did not satisfy any of the exceptions to the requirement that a search warrant be obtained and thus violated the Fourth Amendment to the United States Constitution as well as Article I, Section 9, of the Texas Constitution. (1) Castillo asserts that the trial court therefore erred in denying his motion to suppress the evidence obtained by the search and his conviction should be reversed and the case remanded for a new trial.

We review a trial court's ruling on a motion to suppress under a bifurcated standard of review, affording almost total deference to the trial court's express or implied findings of fact that are supported by the record but reviewing de novo the application of law to the facts when it does not turn on credibility and demeanor. Montanez v. State, 195 S.W.3d 101, 108-09 (Tex. Crim. App. 2006); Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). When the trial court does not make explicit findings, its ruling will be upheld if it is correct on any theory of law applicable to the case. State v. Ross, 32 S.W.3d 853, 855-56 (Tex. Crim. App. 2000).

The Fourth Amendment permits the warrantless seizure of evidence that is in "plain view." Walter v. State, 28 S.W.3d 538, 541 (Tex. Crim. App. 2000) (noting that the "plain view" doctrine is not really an "exception" to the warrant requirement because it does not involve an invasion of privacy). The "plain view" doctrine requires that: "(1) law enforcement officials have a right to be where they are, and (2) it be immediately apparent that the item seized constitutes evidence, that is, there is probable cause to associate the item with criminal activity." Id. It is undisputed that it was immediately apparent that the item seized was contraband. Castillo asserts, however, that the first prong of the "plain view" doctrine was not met because (i) the lapse of time between the officer's initial discovery of the traffic violation and his stop of Castillo, and (ii) the officer's action in "shoving" Castillo into the car steering wheel were unreasonable, and therefore negated Officer Corona's right to be where he was when he observed the "ball of dope" fall onto the seat. Because no express findings of fact or conclusions of law were made by the trial court, we must "view the evidence in the light most favorable to the court's ruling and assume the court made implicit findings of fact in support of its ruling as long as those findings are supported by the record." Ross, 32 S.W.3d at 855.

Time Lapse

Castillo concedes Officer Corona had probable cause to stop him for operating a motor vehicle without a valid driver's license, but argues that the stop was unreasonable given the amount of time that elapsed between the officer's initial discovery of the traffic violation and the actual stop. First, we note that the record does not reflect how much time passed after Officer Corona initially observed Castillo driving without a valid license and before Corona approached Castillo, and we may not speculate. Further, as his sole authority, Castillo cites State v. Dixon, 151 S.W.3d 271, 274 (Tex. App.-- Texarkana 2004), aff'd, 206 S.W.3d 587 (Tex. Crim. App. 2006), but that case does not support his argument. The Texarkana court's opinion in Dixon held that the delay between the officer's observation of an illegal turn and the subsequent traffic stop was unreasonable where the trial court found the stop occurred 3.2 miles from the point of the illegal turn and nothing would have prevented an earlier stop. Id. at 275. However, in affirming and holding that the record supported the trial court's conclusion that the traffic stop was not valid, the Court of Criminal Appeals stated that the relevant issue was not whether the time lapse rendered the stop unreasonable. State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006) (noting that the trial court's findings indicate the stop was generally unreasonable for reasons other than the unnecessary delay, including that the turn was lawful). Rather, the Court stated that it was clear from the record that the trial judge simply did not believe the driver committed a traffic offense, and considered the officer's delay in stopping the driver as a factor diminishing the officer's credibility on the reason for the stop. Id. at 590-91. The Court held that the record supported the trial court's conclusion that the evidence was obtained as a result of an unlawful stop because no traffic violation had occurred. Id. at 591. Here, it is undisputed that Officer Corona observed Castillo operating a motor vehicle without a valid driver's license and was thus justified in stopping and arresting Castillo. See Tex. Code Crim. Proc. Ann. art. 14.01(b) (Vernon 2005) ("[a] peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view"). Further, given the silence of the record on the amount of time that elapsed, and the absence of authority in support of Castillo's contention, we conclude that Castillo's first argument is without merit.

Officer's Use of Force

Next, Castillo contends that Officer Corona "charged after him" and "shoved" him unnecessarily into his car, thereby causing the contraband to dislodge and fall into plain view. An officer may use such force as is reasonably necessary to effectuate the purpose of the stop, whether it is investigation, maintenance of the status quo or officer safety. See Tex. Code Crim. Proc. Ann. art. 15.24 (Vernon 2005); Rhodes v. State, 945 S.W.2d 115, 117 (Tex. Crim. App. 1997) (citing United States v. Sokolow, 490 U.S. 1 (1989)). Officer Corona testified that when Castillo first saw him, Castillo started to run back to his vehicle. Officer Corona charged after him, not knowing why Castillo was running toward his vehicle and fearing that Castillo was attempting to retrieve a weapon. As Castillo dove head first into the vehicle, Officer Corona pushed him into the steering wheel in order to secure him. The contraband fell from Castillo's person and into the plain view of Officer Castillo during this altercation. Officer Corona was the only witness to testify at the suppression hearing, and the trial court was the sole judge of the officer's credibility and the weight to be given his testimony. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996). We conclude that the record supports a finding that the degree of force used by Officer Corona was reasonably necessary to effectuate the stop and to ensure his own safety. See Rhodes, 945 S.W.2d at 117; see also Citizen v. State, 39 S.W.3d 367, 372 (Tex. App.--Houston [1st Dist.] 2001, no pet.) (finding no police misconduct where officers drew their guns out of fear for their safety when defendant reached into his pocket, and holding that cocaine was voluntarily abandoned when it fell or was dropped from defendant's pocket).

Conclusion

Because the record supports a finding that Officer Corona had a right to be where he was and the drugs clearly constituted contraband and were in "plain view" when they were seized, we conclude the trial court did not err in denying Castillo's motion to suppress. Accordingly, the judgment of the trial court is affirmed.

 

Phylis J. Speedlin, Justice

DO NOT PUBLISH

1. In his brief, Castillo concedes that the Texas Constitution offers no more protection than the Fourth Amendment and combines both legal arguments. Similarly, we will make no distinction between his federal and state claims.