Mario Perez v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-98-00465-CR Mario Perez, Appellant v. The State of Texas, Appellee FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 119TH JUDICIAL DISTRICT NO. B-97-0769-S, HONORABLE BARBARA WALTHER, JUDGE PRESIDING Appellant Mario Perez was convicted of possession of fifty-four grams of cocaine with the intent to deliver, a first degree felony. See Tex. Health & Safety Code Ann. § 481.112(d) (West Supp. 1999). The trial court assessed punishment at twenty-one years' imprisonment. In his only point of error, appellant challenges the legality of the search of his automobile, contending that the trial court erroneously admitted evidence seized from an invalid search. We will affirm the judgment of conviction. FACTUAL AND PROCEDURAL BACKGROUND The facts are undisputed. San Angelo Police Officer John Ford testified at trial that he observed appellant commit a traffic violation on August 16, 1997 at 4:00 a.m. and subsequently signaled him to stop. Appellant pulled into a nearby residential driveway and, when Officer Ford approached him, began walking away from Ford toward the residence. Ford saw appellant keeping his right hand cupped to his right leg as he walked, as if concealing some object. Ford ordered appellant to stop, but he continued walking away until Ford caught up with him and reached for his left shoulder. Fearing that appellant was concealing a weapon, Ford guided him back to the parked car, where a passenger remained seated in the front passenger seat. At this time, Ford was able to ascertain that the concealed material included a plastic bag containing a "white, powdery substance." Appellant did not respond to any of Officer Ford's questions, including the inquiry as to what was in his hand. Before Ford was able to handcuff him, appellant managed to throw the objects he had been holding, which Ford retrieved after restraining and handcuffing appellant. Ford found on the ground one plastic bag of a substance he determined to be marijuana and one plastic bag of white powder, which he suspected to be cocaine. After Ford deposited these substances in his patrol car, Officer Bowden arrived, and Ford placed appellant in the back seat of Bowden's patrol car. Ford then handcuffed the passenger of appellant's automobile and began a search of the vehicle incident to appellant's arrest. When he opened the driver's door, Ford found another bag of white powder, identical to the first, in between the door and driver's seat. Both of these bags subsequently tested positive for cocaine. Appellant was indicted on two counts: (1) possession of cocaine, over four but less than 200 grams; and (2) possession with intent to deliver cocaine, over four but less than 200 grams. Appellant filed a motion to suppress the evidence, but on the day the motion was scheduled for hearing, appellant withdrew this motion. Appellant subsequently waived a jury trial. At a trial before the court, appellant pleaded not guilty to both counts and objected to the introduction of evidence obtained from the search of his automobile, contending the search was conducted without a warrant in violation of the Fourth Amendment of the United States Constitution, which prohibits unreasonable searches and seizures. The trial court overruled the objection, admitted the evidence, found appellant guilty of Count Two of the indictment, and sentenced him to twenty-one years' imprisonment. Appellant perfected this appeal. DISCUSSION Standard of Review In reviewing a trial court's evidentiary rulings, we generally apply an abuse of discretion standard. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997); Maddox v. State, 682 S.W.2d 563, 564 (Tex. Crim. App. 1985). However, mixed questions of law and fact that do not turn on the credibility of witnesses call for a de novo review. Guzman, 955 S.W.2d at 89. Since this appeal presents a question of law based on undisputed historical facts, we review the issue of whether Officer Ford's warrantless search of appellant's automobile was constitutionally valid under a de novo standard. See Loesch v. State, 958 S.W.2d 830, 831-32 (Tex. Crim. App. 1997). Search as Incident of Arrest A search and seizure effectuated without a warrant is "per se unreasonable under the Fourth Amendment--subject only to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357 (1967); see also Reyes v. State, 741 S.W.2d 414, 430 (Tex. Crim. App. 1987). One of the established exceptions to the general rule that no search shall be conducted without a warrant is a search that is incident to an arrest. See New York v. Belton, 453 U.S. 454, 457 (1981); United States v. Robinson, 414 U.S. 218, 235 (1973); Chimel v. California, 395 U.S. 752, 763 (1969); Carrasco v. State, 712 S.W.2d 120, 122 (Tex. Crim. App. 1986); Gauldin v. State, 683 S.W.2d 411, 414 (Tex. Crim. App. 1984); Herrera v. State, 745 S.W.2d 527, 529 (Tex. App.--Corpus Christi 1988, pet. ref'd). Although there has been some confusion in the courts regarding the scope of such a search, the United States Supreme Court in Belton specifically held that when an officer has lawfully arrested an occupant of an automobile, the officer may, "as a contemporaneous incident of that arrest," search the vehicle. 453 U.S. at 460. The facts of the present case are similar to those of Belton, where an officer stopped a vehicle for a traffic violation, suspected the possession of a controlled substance after making contact with the occupants, arrested the occupants, and proceeded to search the vehicle, finding cocaine in the automobile. Id. at 455-56. The search in Belton was held to be constitutional, even though the officer did not actually see direct evidence of a controlled substance until after the arrest and as a product of the search itself and where the cocaine was found in a jacket in the back seat. In contrast, Officer Ford arrested appellant after finding him in possession of what Ford believed to be marijuana and cocaine, and the scope of his search was limited to opening the driver's side door where the second package of suspected cocaine was in plain view. Lawful Arrest In appellant's brief, counsel urges that such an exception cannot be invoked in the present case because appellant was not lawfully arrested. The facts here do not support such a contention. At trial, appellant argued first that there was no probable cause for the initial stop. The initial stop of appellant's automobile was valid since it was premised on the failure to signal a turn, in violation of a highway law. See Tex. Transp. Code Ann. § 545.104 (West 1999); see also Garcia v. State, 827 S.W.2d 937, 944 (Tex. Crim. App. 1992). In addition, such a violation can lead to a valid detention and warrantless arrest. See Tex. Transp. Code Ann. § 543.001 (West 1999) ("Any peace officer may arrest without warrant a person found committing a violation of this subtitle."). Second, appellant argues that the arrest was not lawful because the officer did not inform appellant he was under arrest, nor read him his Miranda rights. Such actions are not necessary to constitute an arrest. See Torres v. State, 868 S.W.2d 798, 801 (Tex. Crim. App. 1993) (defendant was arrested when removed from car and placed face down on ground); Brewster v. State, 606 S.W.2d 325, 327 (Tex. Crim. App. 1980) (arrest is complete when person's liberty of movement is restricted or restrained); Texas Dep't of Pub. Safety v. Latimer, 939 S.W.2d 240, 244 (Tex. App.--Austin 1997, no writ) (same). A person is arrested when he has actually been placed under restraint or taken into custody. See Tex. Code Crim. Proc. Ann. art. 15.22 (West 1977). Officer Ford had already handcuffed appellant and placed him in the patrol car when he conducted the search of appellant's car. Third, appellant argues that since no warrant was obtained for his arrest, the arrest was invalid. However, an officer can arrest without a warrant in certain limited circumstances. One of these exceptions arises under the auspices of article 14.01 of the Code of Criminal Procedure, which provides in pertinent part that a police officer "may arrest an offender without a warrant for any offense committed in his presence or within his view." Tex. Code Crim. Proc. Ann. art. 14.01 (West 1977). The uncontroverted testimony of Officer Ford establishes that he witnessed appellant carrying a bag of a white powdery substance, which he believed to be cocaine, and that he could verify (based upon appearance and odor) that the second bag that appellant had been carrying contained marijuana. Since the officer had probable cause to make a valid custodial arrest, and the search of appellant's automobile occurred immediately after the lawful arrest, the search was justified as incident to arrest under the Belton standard. See 453 U.S. at 460. CONCLUSION We hold that the search of the automobile in the present case was valid and that the evidence seized from that search was therefore admissible. Appellant's point of error is overruled, and the judgment of conviction is affirmed. J. Woodfin Jones, Justice Before Justices Jones, B. A. Smith, and Yeakel Affirmed Filed: July 29, 1999 Do Not Publish 45 S.W.2d 527, 529 (Tex. App.--Corpus Christi 1988, pet. ref'd). Although there has been some confusion in the courts regarding the scope of such a search, the United States Supreme Court in Belton specifically held that when an officer has lawfully arrested an occupant of an automobile, the officer may, "as a contemporaneous incident of that arrest," search the vehicle. 453 U.S. at 460. The facts of the present case are similar to those of Belton, where an officer stopped a vehicle for a traffic violation, suspected the possession of a controlled substance after making contact with the occupants, arrested the occupants, and proceeded to search the vehicle, finding cocaine in the automobile. Id. at 455-56. The search in Belton was held to be constitutional, even though the officer did not actually see direct evidence of a controlled substance until after the arrest and as a product of the search itself and where the cocaine was found in a jacket in the back seat. In contrast, Officer Ford arrested appellant after finding him in possession of what Ford believed to be marijuana and cocaine, and the scope of his search was limited to opening the driver's side door where the second package of suspected cocaine was in plain view. Lawful Arrest In appellant's brief, counsel urges that such an exception cannot be invoked in the present case because appellant was not lawfully arrested. The facts here do not support such a contention. At trial, appellant argued first that there was no probable cause for the initial stop. The initial stop of appellant's automobile was valid since it was premised on the failure to signal a turn, in violation of a highway law. See Tex. Transp. Code Ann. § 545.104 (West 1999); see also Garcia v. State, 827 S.W.2d 937, 944 (Tex. Crim. App. 1992). In addition, such a violation can lead to a valid detention and warrantless arrest. See Tex. Transp. Code Ann. § 543.001 (West 1999) ("Any peace officer may arrest without warrant a person found committing a violation of this subtitle."). Second, appellant argues that the arrest was not lawful because the officer did not inform appellant he was under arrest, nor read him his Miranda rights. Such actions are not necessary to constitute an arrest. See Torres v. State, 868 S.W.2d 798, 801 (Tex. Crim. App. 1993) (defendant was arrested when removed from car and placed face down on ground); Brewster v. State, 606 S.W.2d 325, 327 (Tex. Crim. App. 1980) (arrest is complete when person's liberty of movement is restricted or restrained); Texas Dep't of Pub. Safety v. Latimer, 939 S.W.2d 240, 244 (Tex. App.--Austin 1997, no writ) (same). A person is arrested when he has actually been placed under restraint or taken into custody. See Tex. Code Crim. Proc. Ann. art. 15.22 (West 1977). Officer Ford had already handcuffed appellant and placed him in the patrol car when he conducted the search of appellant's car. Third, appellant argues that since no warrant was obtained for his arrest, the arrest was invalid. However, an officer can arrest without a warrant in certain limited c