Cortez v. State, C14-89-171-CR

• Decision Date: 15 March 1990
• Docket Number: No. C14-89-171-CR,C14-89-171-CR
• Citation: 788 S.W.2d 89
• Parties: Jesus Alfredo CORTEZ, Appellant, v. The STATE of Texas, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 89

788 S.W.2d 89

Jesus Alfredo CORTEZ, Appellant, v. The STATE of Texas, Appellee.

No. C14-89-171-CR.

Court of Appeals of Texas Houston (14th Dist.).

March 15, 1990.

Michael B. Charlton, Houston, for appellant.

Lester Blizzard, Houston, for appellee.

Before PAUL PRESSLER, CANNON and ELLIS, JJ.

OPINION

ELLIS, Justice.

Appellant, Jesus Alfredo Cortez, appeals his judgment of conviction for the offense of possession with intent to deliver a controlled substance, namely, cocaine, weighing at least 400 grams by aggregate weight, including any adulterants and dilutants. TEX.REV.CIV.STAT.ANN. art. 4476-15, § 4.03(a) (Vernon Supp.1989). The Court found appellant guilty and assessed punishment at confinement for life in the Texas Department of Corrections and a $250,000 fine. We reverse and remand.

Appellant brings two points of error on appeal. In his first point of error, appellant submits the trial court erred in failing to suppress contraband seized by virtue of an involuntary consent to search. In his second point of error, appellant contends the evidence was insufficient to sustain his conviction.

At the Motion to Suppress Hearing, Officer Robert Hundersmarck of the Houston Police Department testified that in October of 1988 a confidential informant gave him information concerning a townhouse located at 12666 Newbrook in Houston. Hundersmarck characterized the informant as a "first time" informant, that is, Hundersmarck had not worked with the informant prior to the investigation underlying the instant case.

The informant related to Hundersmarck that drug transactions were being conducted at the Newbrook townhouse. Specifically, the informant described the method of delivery as follows: a customer would drive a car into the garage of the townhouse; the garage door would close; shortly thereafter the customer would exit the garage. When the car was out of sight inside the garage the cocaine would be loaded into the customer's car. The informant stated that cocaine was being sold in "multi-kilo" quantity and there were large sums of money inside the townhouse. The informant also described the participants as being Colombians, one in his twenties, approximately 5'10"' and weighing 140 pounds with medium brown complexion; the other approximately 30 years old, 5' 8"'' and weighing 160 pounds with a light brown complexion. The informant did not provide Hundersmarck with the names of the participants, although he did indicate to Hundersmarck that they were in the country illegally. The informant did not describe the cars that drove into the garage of the Newbrook townhouse nor did he reveal the time of day when the transactions occurred. While the informant told Hundersmarck that someone stayed at the townhouse occasionally, he did not describe that individual. Hundersmarck, himself, subsequently discovered that the utilities at 12666 Newbrook were registered in the name of a Fernando Arias.

On October 27, 1988, Hundersmarck and Officer Howze began their surveillance of the Newbrook townhouse. Hundersmarck testified that he observed a black Mercury Cougar being driven by appellant who matched one of the descriptions provided by the informant. Appellant parked the Mercury Cougar in front of the townhouse, exited the car and entered the front door of the townhouse. Approximately one hour later, a second car, a black four-door passenger model with two occupants, drove up to the townhouse's garage where the car was admitted and the garage door was closed behind it. Ten minutes later, the same car emerged from the garage with its two occupants and drove off. Hundersmarck was unable to determine whether the black four-door passenger car contained any contraband.

Hundersmarck and Howze followed this car to its destination but they did not attempt to stop it because, as Hundersmarck testified "we were working up on the probable cause and we felt that we needed to continue our surveillance to verify a few more things ..." When they returned to the Newbrook townhouse, Hundersmarck and Howze noted that appellant's black Mercury Cougar was gone.

On October 28, 1988, Hundersmarck and Howze resumed their surveillance. Hundersmarck worked the back of the Newbrook townhouse where the garage was located; Howze worked the front where he could observe the front door of the townhouse. Howze and Hundersmarck communicated via radio. At approximately 4:00 p.m., Howze observed appellant drive up to the front of the Newbrook townhouse in the same black Mercury Cougar. On this occasion appellant was accompanied by a passenger, his co-defendant, Jorge Morales. Appellant and Morales entered through the front door of the townhouse. Hundersmarck then called for back-up assistance, namely, Sergeant McClellend and Patrol Officer Beedle. Shortly thereafter, appellant and Morales exited the townhouse. Howze radioed Hundersmarck that Morales was carrying a white Foot Locker bag which appeared to contain something. At that point, Hundersmarck testified they felt they had sufficient probable cause to make a stop. Hundersmarck had already decided that they were going to stop appellant's Mercury Cougar if the car left the Newbrook townhouse with any objects. In addition, Hundersmarck testified that they intended to stop the Mercury Cougar to ask appellant to sign a consent to search the Newbrook address.

Hundersmarck, Howze, McClellend, and Patrolman Beedle followed appellant in their respective cars. At approximately 5:20 p.m., all four policemen stopped the car in the parking lot of an apartment complex on Beechnut. The stop was effected by a siren and flashing red lights. All four officers approached appellant and Morales who both spontaneously put their hands up on the dashboard of the Mercury Cougar. Beedle, who apparently could speak a little Spanish, then asked and motioned to appellant and Morales to step away from the Mercury Cougar. Appellant and Morales did not speak English. Sergeant McClellend approached the Mercury Cougar on the passenger side where he observed a white Foot Locker bag. McClellend also noticed that the Foot Locker bag was partially open. Hundersmarck determined that the bag contained cocaine. Hundersmarck then called for a Spanish speaking officer.

Officer Rivera arrived on the scene within 15 to 20 minutes. During the interval, appellant and Morales were handcuffed and placed in separate cars. When the Spanish speaking Officer Rivera arrived, he testified that he read in Spanish the Miranda warnings and then explained the voluntary consent to search form to appellant. He stated that he told appellant he had a right not to consent to the search and could refuse. Rivera did not tell appellant the townhouse would be searched if appellant refused to give his consent to search. Rivera testified he told appellant the townhouse would be completely searched if appellant signed the consent form and that the police would be authorized to take anything they wanted from the townhouse. Rivera testified that no threats or promises were made nor was anything offered in exchange for appellant's consent. Rivera stated that the police released appellant from his handcuffs in order for him to sign the consent form. Appellant signed the consent form within fifteen to twenty minutes of the original stop.

The police obtained a set of keys from appellant and returned to the Newbrook townhouse to conduct their search which revealed the following: 18 kilos of cocaine found underneath the sink in the downstairs bathroom; an empty kilo wrapper with Morales' fingerprints found among the 18 kilos of cocaine; $2,400 dollars in cash found in a suitcase underneath the stairwell; $1,123 dollars in cash, as well as money ledgers used to record sales, photographs of appellant and his medical prescriptions, all found in the master bedroom.

The trial court granted appellant's Motion to Suppress as to the evidence found in the search of the Mercury Cougar, but denied his Motion to Suppress as to the evidence found in the search of the townhouse.

In his first point of error, appellant submits the trial court erred in failing to suppress contraband seized by virtue of an involuntary consent to search.

At the pre-trial hearing on the Motion to Suppress, the trial court found that appellant's and his co-defendant's arrest on October 28, 1988 was illegal. It is generally necessary that all evidence obtained "as a direct result" of the illegal detention and arrest be suppressed under the exclusionary rule of the Fourth Amendment. Wong Sun v. United States, 371 U.S. 471 at 485, 83 S.Ct. 407 at 416, 9 L.Ed.2d 441 (1963); Bell v. State, 724 S.W.2d 780 (Tex.Crim.App.1986). The issue now is: was the connection between appellant's illegal arrest and his consent to search the Newbrook townhouse sufficiently attenuated from the primary taint of his illegal arrest to permit the items seized from it to be used at trial to acquire a conviction? Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975).

In Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) the U.S. Supreme Court further held that a consent to search may be tainted by an illegal arrest even if voluntarily given and that the State must prove that the consent was independent of the illegal arrest. Id 103 S.Ct. at 1326. In Boyle v. State, No. 69,743, (Tex.Crim.App. October 4, 1989) the Court of Criminal Appeals considered the factors which that Court has tailored for evaluating situations involving a consensual search following an unconstitutional detention.

The first factor considered by the Boyle majority was whether the appellant was made fully aware of the fact that he could decline to consent to the search. When Spanish speaking Officer Rivera arrived on the scene he told appellant he had a right not to consent to the search of the townhouse and could refuse. Thus, this factor must be resolved in favor of the State.

The second factor examined in...