Anthony Tyrone Nickson v. State

Affirmed and Memorandum Opinion filed May 8, 2008 Affirmed and Memorandum Opinion filed May 8, 2008. In The Fourteenth Court of Appeals ____________ NO. 14-07-00337-CR NO. 14-07-00338-CR NO. 14-07-00339-CR ANTHONY TYRONE NICKSON, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 337th District Court Harris County, Texas Trial Court Cause Nos. 1072969, 1072971, and 1072970 M E M O R A N D U M   O P I N I O N Appellant, Anthony Tyrone Nickson, pleaded guilty to three felony charges of possession of a controlled substance with the intent to deliver. Pursuant to a plea agreement with the State, the trial court assessed punishment at twenty years in prison. We affirm. BACKGROUND On June 14, 2006, Officer Robert Alan Hundersmarck of the Houston Police Department Narcotics Division was investigating criminal drug activity at a pharmacy in southwest Houston. This particular pharmacy was known to be a place where fraudulent prescription operations took place.[1] Officer Hundersmarck observed several individuals give pharmacy bags to a woman, who then placed the bags in the trunk of her vehicle. Shortly after observing the woman gather the pharmacy bags, appellant arrived at the pharmacy and spoke with her. Appellant eventually left the pharmacy in a grey vehicle. Officer Hundersmarck observed the woman who continued to collect pharmacy bags from individuals entering and leaving the pharmacy. The woman then left the pharmacy, and Officer Hundersmarck followed her into a vacant parking lot where appellant was waiting. The woman opened the trunk of a her car and removed a large plastic bag from the same area in which she had previously placed the pharmacy bags. Appellant opened the trunk to his car, and the woman placed the bag into appellant=s trunk. Appellant left the parking lot, and Officer Hundersmarck followed him. Officer Hundersmarck then observed appellant commit two traffic violations.[2] Appellant drove back to the parking lot where he had previously met the woman, spoke with her again, and left the abandoned parking lot a second time. Officer Hundersmarck followed appellant and observed him commit an additional two traffic violations. Officer Hundersmarck then called for additional patrol officers to pull appellant over and to arrest him for traffic violations. Once additional officers arrived, they stopped appellant and requested that he and the other two occupants exit the vehicle. Appellant was handcuffed and arrested. After verifying the occupants= identifications, officers discovered that both occupants had parole violations and arrested them as well. Officer Hundersmarck then proceeded to impound appellant=s vehicle. He called a wrecker and began an inventory search of the vehicle. Upon the inventory search, Officer Hundersmarck discovered three bags in the trunk with prescription bottles containing Hydrocodone and Xanax prescribed to various individuals. Officer Hundersmarck also discovered crack cocaine, powder cocaine, ecstasy, and Hydrocodone tablets inside the vehicle.[3] Appellant was charged in three separate indictments for possession with the intent to deliver (1) at least 400 grams of Dihyrdrocodeinone, (2) cocaine weighing more than four grams and less than 200 grams, and (3) more than 28 grams and less than 200 grams of Alprazolam. Each indictment contained an enhancement paragraph alleging that appellant previously committed the offense of burglary of a motor vehicle. Appellant entered into an plea agreement with the State, purportedly contingent on the trial court=s ruling on his motion to suppress. Generally, in a plea agreement involving a motion to suppress, the defendant pleads guilty after his motion has been denied by the trial court. In this case, however, appellant pleaded guilty first and then proceeded to argue his motion to suppress evidence. Appellant pleaded guilty to the offenses as alleged in each indictment and pleaded true to the enhancement allegations. The trial court conducted a hearing on appellant=s motion to suppress the contraband found in his vehicle, which was denied. Pursuant to the plea agreement with the State, the trial court assessed punishment at twenty years in prison. On appeal, appellant raises the following two issues: (1) the trial court erred in denying his motion to suppress because the search was in violation of the United States and Texas constitutions; and (2) the trial court erred in failing to file findings of fact and conclusions of law. STANDARD OF REVIEW We review a trial court=s ruling on a motion to suppress evidence under a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). Therefore, we give almost total deference to the trial court=s ruling on (1) questions of historical fact, even if the trial court=s determination of those facts was not based on an evaluation of credibility and demeanor, and (2) application-of-law-to-fact questions that turn on an evaluation of credibility and demeanor. Johnson v. State, 68 S.W.3d 644, 652-53 (Tex. Crim. App. 2002). But when the trial court=s rulings do not turn on the credibility and demeanor of the witnesses, we review de novo a trial court=s rulings on mixed questions of law and fact. Id. When, as here, the trial court makes explicit findings of facts supported by the record, we will not disturb them and will only address the question whether the trial court improperly applied the law to the facts. Guzman, 955 S.W.2d at 85-89; State v. Ballman, 157 S.W.3d 65, 69 (Tex. App.CFort Worth 2004, pet. ref=d); Schafer v. State, 95 S.W.3d 452, 454 (Tex. App.CHouston [1st Dist.] 2002, pet. ref=d). If the trial court=s ruling is reasonably supported by the record and is correct on any theory of law applicable to the case, we will sustain it upon review. See Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996). INVENTORY SEARCH In his first issue, appellant argues that the trial court erred by overruling his motion to suppress the contraband found in the trunk of his vehicle. Specifically, appellant complains that the contraband was seized as the result of a warrantless, illegal inventory search. An inventory search is permissible under the United States and Texas constitutions if it is conducted pursuant to a lawful impoundment. South Dakota v. Opperman, 428 U.S. 364, 372-75 (1976); Benavides v. State, 600 S.W.2d 809, 810 (Tex. Crim. App. 1980); Josey v. State, 981 S.W.2d 831, 842 (Tex. App.CHouston [14th Dist.] 1998, pet. ref=d). The State bears the burden of proving that an impoundment is lawful and may satisfy its burden by showing that (1) the driver was arrested, (2) no alternatives other than impoundment were available to ensure the automobile=s protection, (3) the impounding agency had an inventory policy, and (4) that policy was followed. Garza v. State, 137 S.W.3d 878, 882 (Tex. App.CHouston [1st Dist.] 2004, pet. ref=d). We also consider the following factors to determine the reasonableness of impoundment: (1) whether someone was available at the scene of the arrest to whom the police could have given possession of the vehicle; (2) whether the vehicle was impeding the flow of traffic or was a danger to public safety; (3) whether the vehicle was locked; (4) whether the detention of the arrestee would likely be of such duration as to require police to take protective measures; (5) whether there was some reasonable connection between the arrest and the vehicle; and (6) whether the vehicle was used in the commission of another crime. Josey, 981 S.W.2d at 842. First, the officers lawfully arrested appellant after Officer Hundersmarck personally observed appellant commit a number of traffic violations. Whren v. U.S., 517 U.S. 806, 810 (1996) (stating that a police officer=s decision to stop a vehicle is reasonable if the officer has probable cause to believe that the driver has committed a traffic violation); State v. Gray, 158 S.W.3d 465, 469 (Tex. Crim. App. 2005) (stating that an officer has probable cause to stop and arrest a driver if he observes the driver commit a traffic offense); see also Woodward v. State, 668 S.W.2d 337, 344 (Tex. Crim. App. 1982) (stating that when several officers are cooperating, their cumulative information should be considered in determining whether probable cause exists). Secondly, no other reasonable alternative existed at the time of impoundment. There was no one available to whom the officers could have released the vehicle because appellant and the other occupants were arrested at the scene. Appellant was being transported to jail, requiring that he be detained for a sufficient amount of time. The officers properly initiated the protective measure of towing his vehicle. There is also a reasonable connection between appellant=s arrest and the impounded vehicle: appellant was stopped and arrested for committing numerous traffic violations in the vehicle. See Josey, 981 S.W.2d at 843. Because appellant was under arrest, and his detention would involve taking him to the police station for booking, leaving the vehicle without a driver, the officers appropriately took measures to protect the vehicle. Id. at 842-43. Thirdly, the inventory search did not deviate from police department policy. Officer Hundersmarck testified that appellant=s vehicle was impounded pursuant to HPD policy, which provided that when a motorist was taken into custody, the vehicle must be impounded and inventoried to protect the department from liability. Officer Hundersmarck testified that after appellant and the other occupants were arrested, he called for a wrecker to tow the vehicle and conducted an inventory pursuant to police department policy. Texas courts have long held that an officer=s testimony is sufficient to satisfy the State=s burden to show that an inventory search policy existed and that the policy was followed. Stephen v. State, 677 S.W.2d 42, 44 (Tex. Crim. App. 1984). We find that the inventory conducted was proper and pursuant to established police department policy. Because impoundment of appellant=s vehicle was both reasonable and done pursuant to police department policy, the inventory search that followed impoundment was lawful. Appellant also asserts that an inventory is reasonable and lawful under the Fourth Amendment only if conducted for the purposes of an inventory and that it may not be used by police officers as a ruse for general rummaging in order to discover incriminating evidence. Appellant argues that the inventory conducted here was not proper because the officers had improper motives in searching his vehicle. To support this argument, appellant relies on the State=s failure to produce the inventory list and Officer Hundersmarck=s omitting from his offense report that he was impounding the vehicle. The officers= testimony at the suppression hearing negates appellant=s contention that the inventory search was pretext to cover up the officers= alleged intent to search for contraband. Two officers, including Officer Hundersmarck, testified that appellant was arrested for traffic violations personally observed by Officer Hundersmarck. They testified that HPD policy required impoundment and inventory of appellant=s vehicle. See Stephen, 677 S.W.2d at 44 (stating that there was no need to introduce into evidence a written inventory where officers testified that an inventory policy existed and that policy was followed). Thus, the record supports that the inventory was not a ruse. We hold that the inventory was not a pretext for an investigative motive. We overrule appellant=s first issue. FINDINGS OF FACT In his second issue, appellant argues that the trial court erred in failing to file findings of fact and conclusions of law upon his request after his motion to suppress was denied. A trial court is required to prepare findings of fact and conclusions of law if timely requested by a non-prevailing party on a motion to suppress. State v. Cullen, 195 S.W.3d 696, 699 (Tex. Crim. App. 2006); State v. Oages, 210 S.W.3d 643, 644 (Tex. Crim. App. 2006). When the accused challenges the motion to suppress ruling and the trial court does not file findings of fact and conclusions of law, the appellate court should abate the appeal so as to allow the trial court to make the necessary findings. See Blocker v. State, 231 S.W.3d 595, 598 (Tex. App.CWaco, 2007, no pet.). This appeal was abated on January 24, 2008, and following the trial court=s filing of findings of fact and conclusions of law with this Court, reinstated on February 27, 2008. Therefore, appellant=s second issue is moot. We affirm the trial court=s judgment. /s/ Adele Hedges Chief Justice Judgment rendered and Memorandum Opinion filed May 8, 2008. Panel consists of Chief Justice Hedges and Justices Anderson and Boyce. Do Not Publish C Tex. R. App. P. 47.2(b). [1] Officer Hundersmarck testified that based on his training and experience, he was familiar with the inner workings of fraudulent prescription operations. He testified that one of the organizers of the scheme would transport a number of homeless or unemployed persons to a doctor. These persons would complain to the doctor of some illness requiring the prescription of a narcotic such as Hydrocodone or Xanax. Once the persons obtained the prescriptions, they were driven to a pharmacy and obtained the prescription drugs. They then gave the prescription drugs, in turn for a minimal cash payment, to one of the organizers of the fraudulent prescription operation. [2] Appellant denies that he committed any traffic violations on this day. [3] Prior to the inventory search, appellant refused to give police consent to search the vehicle.