Danny R. Alejandro v. State

Affirmed and Opinion filed June 29, 2006 Affirmed and Opinion filed June 29, 2006. In The Fourteenth Court of Appeals ____________ NO. 14-05-00905 ____________ DANNY R. ALEJANDRO, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 339th Criminal District Court Harris County, Texas Trial Court Cause No. 1003546 O P I N I O N Appellant Danny R. Alejandro appeals after a jury convicted him of burglary of a habitation and the trial judge sentenced him to fifty years= incarceration.[1] In two points of error, appellant contends that the trial judge erred in denying his motion to suppress the gun, ammunition, and pills found in his truck. We affirm. Background In the early morning hours of October 11, 2004, deputies with the Harris County Sheriff=s Department investigated a weapons disturbance at the home of Nora Alejandro, appellant=s sister-in-law. Nora=s daughter, Juanita Harris, who was appellant=s girlfriend, also lived at the house. She had argued with appellant earlier that evening. At about 2:30 a.m., Juanita awakened Nora because she had heard banging and yelling. When Nora went outside to investigate, she encountered appellant in the backyard. Nora stated that appellant put a gun to her chest and demanded to know where Juanita was. Although Juanita was hiding in the bathroom, Nora denied that she was at home and turned to go back inside. She did not invite appellant to come inside. Still pointing the gun at her, appellant followed Nora into the house and repeatedly inquired as to Juanita=s whereabouts. When Nora insisted that she did not know where her daughter was, appellant threatened to kill both Nora and Juanita. He then asked: ADo you think I=m playing?@ and fired a bullet into the kitchen floor near Nora=s feet. Juanita testified that she heard appellant shouting at her mother and called 9-1-1. She called 9-1-1 again after hearing the gunshot. Deputy Leon W. Carroll, Sr. was one of the first deputies to arrive at the scene. Carroll testified that he saw a pick-up truck pulling out of the driveway; appellant was driving, and he had a passenger in the front seat. Carroll ordered the men to exit the truck at gunpoint because he had been advised that the suspect was armed. Carroll testified that once the men were handcuffed and seated in patrol cars, he entered the house. Carroll observed a Acrater-like impact site@ on the kitchen floor, indicating that a bullet had struck it. He also interviewed Nora and Juanita about the incident. At the suppression hearing, Carroll testified that speaking with Nora and Juanita had confirmed his suspicion that a weapon had been used in the offense. Carroll stated that after the interviews, he returned outside and peered through the window of appellant=s truck. In an open console in the front seat area, Carroll saw a pistol that matched Nora=s description of appellant=s gun. Although appellant did not give consent to search the truck, Carroll seized the weapon. Carroll stated that he did not know if other deputies had searched the truck while he had been inside the house, and he did not notice whether the console had been open before he entered the house. After appellant was arrested, deputies performed a full search of the car and discovered pills and a magazine containing live rounds. Appellant testified that he had neither stashed a gun inside his truck nor opened the console. He stated that several deputies had immediately Aswarmed@ the truck, searched it while Carroll was inside the house, and left the console open. The judge denied appellant=s motion to suppress, finding that Carroll=s testimony was credible. The judge also stated that notwithstanding the other deputies= actions, Carroll Ahad an independent legitimate basis for finding probable cause to arrest [appellant] . . . and, therefore, had the right to search the vehicle incident to arrest.@ The jury convicted appellant of burglary of a habitation, and the judge sentenced him to fifty years= incarceration. On appeal, appellant argues that the trial judge should have granted his motion to suppress because the deputies arrested him and searched his truck without probable cause in violation of his state and federal constitutional rights. Standards of Review In reviewing a trial court=s ruling on a motion to suppress, we apply a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). We give almost total deference to the trial court=s determination of historical facts that depend on credibility and demeanor, but conduct a de novo review of the trial court=s application of the law to facts if resolution of those ultimate questions does not turn on an evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We will sustain the trial court=s ruling admitting the evidence if the ruling is reasonably supported by the record and correct on any theory of law applicable to the case. Laney v. State, 117 S.W.3d 854, 857 (Tex. Crim. App. 2003). Analysis Appellant contends that the trial judge erred in denying his motion to suppress because the deputies lacked probable cause to arrest him and search his vehicle. Specifically, appellant argues that the judge erred because (1) there is no evidence that a crime had been committed in the presence of the arresting officer; (2) the deputies did not have a warrant to arrest appellant or search his car; and (3) the other deputies= illegal search created Carroll=s opportunity to see the gun in plain view. We disagree. Article 14.03(a)(1) of the Texas Code of Criminal Procedure authorizes the warrantless arrest of Apersons found in suspicious places and under circumstances which reasonably show that such persons have been guilty of some felony, . . . breach of the peace, . . . or are about to commit some offense against the laws.@ Tex. Code Crim. Proc. Ann. Art. 14.03(a)(1) (Vernon 2005). To justify an arrest under Article 14.03(a)(1), the State must prove not only the existence of probable cause, but also that the defendant was found in a suspicious place. Goldberg v. State, 95 S.W.3d 345, 363 (Tex. App.CHouston [1st Dist.] 2002, pet. ref=d). We turn first to the question of probable cause. Probable cause exists when Athe facts and circumstances within the officer=s knowledge and of which he has reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that a particular person has committed or is committing an offense.@ Amores v. State, 816 S.W.2d 407, 413 (Tex. Crim. App. 1991). We utilize a totality of the circumstances test in determining whether probable cause exists for a warrantless search and seizure. Id. Here, Carroll had probable cause to believe that appellant had committed the felony offense of burglary. A person commits burglary when, without the effective consent of the owner, the person Aenters a habitation, or a building . . . not then open to the public, with intent to commit a felony@ or Aenters a building or habitation and commits or attempts to commit a felony, theft, or an assault.@ Tex. Pen. Code Ann. ' 30.02(a)(1), (a)(3) (Vernon 2003). Carroll had been informed that appellant was armed and dangerous, and his interviews with Nora and Juanita revealed that appellant had followed Nora into her home uninvited, threatened to kill both her and Juanita, and fired a gun inside the house. Therefore, under the totality of the circumstances, Carroll had probable cause to arrest appellant without a warrant. See Barocio v. State, 158 S.W.3d 498, 498 (Tex. Crim. App. 2005) (noting that officers had probable cause to suspect burglary when a car with open doors and the keys in the ignition was parked illegally in front of the home, there were pry marks on the door lock, and officers heard noises inside the house); Casarez v. State, 504 S.W.2d 847, 849 (Tex. Crim. App. 1974) (stating that probable cause existed for warrantless arrest when victim identified defendant as the person who had been inside his home).[2] Having determined that Carroll had probable cause to arrest appellant, we now must determine whether appellant was in a suspicious place. AAny >place= may become suspicious when a person at that location and the accompanying circumstances raise a reasonable belief that the person has committed a crime and exigent circumstances call for immediate action or detention by police.@ Swain v. State, 181 S.W.3d 359, 366 (Tex. Crim. App. 2005). Determining whether a place is suspicious for purposes of Article 14.03(a)(1) is a highly fact specific inquiry. Brown v. State, 481 S.W.2d 106, 109 (Tex. Crim. App. 1972); State v. Parson, 988 S.W.2d 264, 268 (Tex. App.CSan Antonio 1998, no pet.). A place may become suspicious because of facts and circumstances known to the officer and any reasonable inferences which can be drawn from those facts. Cornejo v. State, 917 S.W.2d 480, 483 (Tex. App.CHouston [14th Dist.] 1996, pet. ref=d). Here, Nora=s residence was a suspicious place because the facts and circumstances known to Carroll indicated that appellant had committed a burglary there. The deputies responded to a 9-1-1 call reporting a burglary in progress at the residence. When the deputies arrived, appellant was pulling out of Nora=s driveway. Carroll=s interviews with Nora and Juanita revealed that appellant (1) had been banging on the door; (2) had held Nora at gunpoint and followed her into the house; (3) had threatened to kill Nora and Juanita; and (4) had fired a bullet into the kitchen floor. The mark on the floor corroborated Nora=s and Juanita=s accounts. Thus, Nora=s residence qualifies as a suspicious place under Article 14.03(a)(1). See Swain, 181 S.W.3d at 366 (finding that location was suspicious because officers had reasonable belief that a crime was committed there); see also Rance v. State, 789 S.W.2d 337, 339 (Tex. App.CHouston [14th Dist.] 1990) (stating that a place is suspicious when persons fitting the general description of suspects are at the location of an alleged drug crime seconds after it is reported), rev=d on other grounds, 815 S.W.2d 633 (Tex. Crim. App. 1991). Because appellant=s arrest was proper under Article 14.03(a)(1), the search of the truck was justified as a search incident to arrest. Failure to obtain a search warrant is excusable under both the United States and Texas Constitutions when the search is incident to a lawful arrest. Clark v. State, 548 S.W.2d 888, 889 (Tex. Crim. App. 1977). Officers are entitled to search the area within the arrestee=s immediate control for weapons or evidence. Chimel v. California, 395 U.S. 752, 763 (1969); Carrasco v. State, 712 S.W.2d 120, 123 (Tex. Crim. App. 1986). Because the truck was within appellant=s immediate control, the deputies were entitled to search it after appellant=s arrest. We find that appellant=s arrest and the search of his truck were proper; therefore, we hold that the trial judge did not abuse her discretion in denying appellant=s motion to suppress. We overrule appellant=s two points of error and affirm the judgment of the trial court. /s/ Adele Hedges Chief Justice Judgment rendered and Opinion filed June 29, 2006. Panel consists of Chief Justice Hedges and Justices Yates and Guzman. Do Not Publish C Tex. R. App. P. 47.2(b). [1] Appellant was charged with burglary of a habitation and possession of a firearm in two separate cause numbers. He pleaded Aguilty@ to possession of a firearm but pleaded Anot guilty@ to the burglary charge. Appellate counsel filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967) regarding the firearm charge, which we address in a separate opinion. [2] Appellant argues that based on his own testimony, the other deputies illegally searched the truck before Carroll interviewed Nora and Juanita and developed probable cause. There is no other evidence that the other deputies= search preceded the establishment of probable cause. The trial judge found Carroll, not appellant, to be the more credible witness, and we give almost total deference to this finding on appeal. See Guzman, 955 S.W.2d at 89.