Bukowski v. State

• Decision Date: 09 January 2014
• Docket Number: No. 10-13-00095-CR,10-13-00095-CR
• Court: Texas Court of Appeals
• Parties: JEREMY CHAD BUKOWSKI, Appellant v. THE STATE OF TEXAS, Appellee

JEREMY CHAD BUKOWSKI, Appellant v. THE STATE OF TEXAS, Appellee

No. 10-13-00095-CR

STATE OF TEXAS IN THE TENTH COURT OF APPEALS

Opinion delivered and filed January 9, 2014

From the 18th District Court

Johnson County, Texas

Trial Court No. F45969

MEMORANDUM OPINION

In four issues, appellant, Jeremy Chad Bukowski, challenges his conviction for capital murder. See TEX. PENAL CODE ANN. § 19.03(a)(2) (West Supp. 2013). Specifically, appellant contends that: (1) police did not have reasonable suspicion to stop him; (2) the trial court erred by failing to include an instruction in the jury charge requiring unanimity with respect to the alleged felonies underlying the capital-murder offense;(3) his confession violated the "Texas Confession Statute"; and (4) the trial court erroneously admitted hearsay evidence during a suppression hearing. We affirm.¹

I. APPELLANT'S MOTION TO SUPPRESS

In his first issue, appellant contends that he was arrested pursuant to an illegal stop. Specifically, appellant argues that law enforcement did not have reasonable suspicion to pull him over. As such, appellant asserts that the trial court abused its discretion in denying his first amended motion to suppress.

A. Standard of Review

We review the trial court's ruling on a motion to suppress evidence for an abuse of discretion, using a bifurcated standard. See Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010); Guzman v. State, 955 S.W.2d 85, 88-89 (Tex. Crim. App. 1997). We give "almost total deference" to the trial court's findings of historical fact that are supported by the record and to mixed questions of law and fact that turn on an evaluation of credibility and demeanor. Guzman, 955 S.W.2d at 89. We review de novo the trial court's determination of the law and its application of law to facts that do not turn upon an evaluation of credibility and demeanor. Id. When the trial court has not made a finding on a relevant fact, we imply the finding that supports the trial court's ruling, so long as it finds some support in the record. State v. Kelly, 204 S.W.3d 808, 81819 (Tex. Crim. App. 2006); see Moran v. State, 213 S.W.3d 917, 922 (Tex. Crim. App. 2007). We will uphold the trial court's ruling if it is reasonably supported by the record and iscorrect under any theory of law applicable to the case. State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006).

When ruling on a motion to suppress, the trial judge is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. Wiede v. State, 214 S.W.3d 17, 24-25 (Tex. Crim. App. 2007). When reviewing a trial court's ruling on a motion to suppress, we view all of the evidence in the light most favorable to the ruling. Garcia-Cantu v. State, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008).

When a trial judge makes explicit fact findings regarding a motion to suppress, an "appellate court [must first] determine whether the evidence (viewed in the light most favorable to the trial court's ruling) supports these fact findings." Kelly, 204 S.W.3d at 818. "The appellate court then reviews the trial court's legal ruling[s] de novo unless the trial court's supported-by-the-record explicit fact findings are also dispositive of the legal ruling." Id.

The Fourth Amendment of the United States Constitution protects against unreasonable searches and seizures by government officials. U.S. CONST. amend. IV; see Wiede, 214 S.W.3d at 24. To suppress evidence because of an alleged Fourth Amendment violation, the defendant bears the initial burden of producing evidence that rebuts the presumption of proper police conduct. Amador v. State, 221 S.W.3d 666, 672 (Tex. Crim. App. 2007); see Young v. State, 283 S.W.3d 854, 872 (Tex. Crim. App. 2009) . A defendant satisfies this burden by establishing that a search or seizure occurred without a warrant. Amador, 221 S.W.3d at 672. Once the defendant has madethis showing, the burden of proof shifts to the State, which is then required to establish that the search or seizure was conducted pursuant to a warrant or was reasonable. Id. at 672-73; Torres v. State, 182 S.W.3d 899, 902 (Tex. Crim. App. 2005).

Whether a search is reasonable is a question of law that we review de novo. Kothe v. State, 152 S.W.3d 54, 62 (Tex. Crim. App. 2004). Reasonableness is measured by examining the totality of the circumstances. Id. at 63. It requires a balancing of the public interest and the individual's right to be free from arbitrary detentions and intrusions. Id. A search conducted without a warrant is per se unreasonable unless it falls within one of the "specifically defined and well-established" exceptions to the warrant requirement. McGee v. State, 105 S.W.3d 609, 615 (Tex. Crim. App. 2003).

B. Reasonable Suspicion

The Texas Court of Criminal Appeals has recognized three distinct categories of interactions between police officers and citizens: (1) encounters; (2) investigative detentions; and (3) arrests. State v. Perez, 85 S.W.3d 817, 819 (Tex. Crim. App. 2002). Courts look to the totality of the circumstances to determine into which category an interaction falls. Crain, 315 S.W.3d at 49.

An investigatory detention occurs when a person yields to an officer's show of authority under a reasonable belief he is not free to leave. Id. The inquiry is whether a reasonable person in the citizen's position would have felt free to decline the officer's requests or otherwise terminate the encounter. Id. "[A] police officer can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity 'may be afoot,' even if theofficer lacks probable cause." Woods v. State, 956 S.W.2d 33, 35 (Tex. Crim. App. 1997) (quoting Terry v. Ohio, 392 U.S. 1, 29, 88 S. Ct. 1868, 1884, 20 L. Ed. 2d 889 (1968)). This is an objective standard that disregards any subjective intent of the detaining officer and looks solely to whether an objective basis for the detention exists. Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). When an officer subjects a defendant to an investigatory detention, it is the State's burden to prove the reasonableness of the warrantless detention. Id.

Reasonable suspicion exists if the officer has specific, articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably conclude a particular person actually is, has been, or soon will be engaged in criminal activity. Castro v. State, 227 S.W.3d 737, 741 (Tex. Crim. App. 2007). Whether reasonable suspicion exists depends on the content of the information known to the officer as well as its degree of reliability. Martinez v. State, 348 S.W.3d 919, 923 (Tex. Crim. App. 2011). The State need not, however, establish that a crime actually occurred prior to the investigatory detention, and a detention or search is unlawful at its inception may not be validated by what it turns up. State v. Griffey, 241 S.W.3d 700, 704 (Tex. App.—Austin 2007, pet. ref'd); see Florida v. J.L., 529 U.S. 266, 271, 120 S. Ct. 1375, 1379, 146 L. Ed. 2d 254 (2000) ("The reasonableness of official suspicion must be measured by what the officers knew before they conducted their search."). The reasonableness of a temporary detention is examined in terms of the "totality of the circumstances" at its inception. See Woods, 956 S.W.2d at 38. Individual circumstances must not be considered in isolation, and the facts known to the officer must amount tosomething more than an inchoate and unparticularized suspicion or hunch. Id. at 35. Moreover, the Woods Court recognized that "there may be instances when a person's conduct viewed in a vacuum, appears purely innocent, yet when viewed in light of the totality of the circumstances, those actions give rise to reasonable suspicion." Id. at 38.

There is no requirement that the "facts adduced to give rise to a reasonable suspicion must show that the detainee has committed, is committing, or is about the commit, a particular and distinctively identifiable penal offense." Derichsweiler v. State, 348 S.W.3d 906, 916 (Tex. Crim. App. 2011). The Derichsweiler Court explained that:

Moreover, the detaining officer need not be personally aware of every fact that objectively supports a reasonable suspicion to detain; rather, the cumulative information known to the cooperating officers at the time of the stop is to be considered in determining whether reasonable suspicion exists.

. . . .

Unlike the case with probable cause to justify an arrest, it is not a sine qua non of reasonable suspicion that a detaining officer be able to pinpoint a particular penal infraction. The reason is simple but fundamental. A brief investigative detention constitutes a significantly lesser intrusion upon the privacy and integrity of the person than a full-blown custodial arrest. For this reason, a warrantless investigative detention may be deemed "reasonable for Fourth Amendment purposes on the basis of a lesser quantum or quality of information—reasonable suspicion rather than probable cause. Likewise, because a detention is less intrusive than an arrest, the specificity with which the articulable information known to the police must demonstrate a particular penal offense has occurred, is occurring, or soon will occur, is concomitantly less. It is, after all, only an "investigative" detention. So long as the intrusion does not exceed the legitimate scope of such a detention and evolve into a greater intrusiveness inherent in an arrest-sans-probable-cause, the Fourth Amendment will tolerate a certain degree of police proaction.

Id. at 915-17 (internal footnotes & quotations omitted) (emphasis in original); see Woodward v. State, 668 S.W.2d 337, 344 (Tex. Crim. App. 1987) (op. on reh'g) (noting that probable cause is to be evaluated by the court on the basis of the collective information of the police rather than that of only the officer who conducts the search or performs the...