Curry v. State

• Decision Date: 16 May 2007
• Docket Number: No. 10-06-00171-CR.,10-06-00171-CR.
• Citation: 228 S.W.3d 292
• Parties: Larrick Decarl CURRY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

228 S.W.3d 292

Larrick Decarl CURRY, Appellant, v. The STATE of Texas, Appellee.

No. 10-06-00171-CR.

Court of Appeals of Texas, Waco.

May 16, 2007.

Lane D. Thibodeaux, Law Office of Lane D. Thibodeaux, Bryan, for appellant.

Bill R. Turner, Brazos County Dist. Atty., Bryan, for appellee.

Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.

OPINION

BILL VANCE, Justice.

Appellant Larrick DeCarl Curry was indicted for Possession with Intent to Deliver a Controlled Substance. Prior to trial, the trial court denied Curry's Motion to Suppress, and Curry pled guilty. The trial court found the enhancement allegations in the indictment were true and sentenced Curry to 46 years in the Institutional Division of the Texas Department of Criminal Justice. Curry exercised his right to appeal the pretrial rulings and now brings three issues on appeal. We will affirm the judgment of the trial court.

Background

On February 19, 2006, the Brazos Valley Narcotics Task Force arrested an individual who identified himself as Eugene Ali. He agreed to cooperate with the Task Force to arrange the purchase of crack cocaine at a motel. Detective Chad Hanks and other law enforcement officers stationed themselves in the motel room next to Ali's and watched video surveillance of his room. Sergeant Darby was in a room across the parking lot from Ali's room so that he could observe vehicle traffic in the parking lot.

At approximately 7:35 p.m. Curry arrived at the motel in a green Chrysler. He exited the car but left the headlights on and the engine running. The officers in the next room observed him on the video enter Ali's room and walk toward the bathroom. Ali and Curry talked for a few minutes then they exchanged what appeared to be crack cocaine and money. Once the officers saw the exchange, they entered Ali's room and arrested Curry.

Following the arrest, Ali gave Hanks 1.11 grams of crack cocaine. Hanks testified that he searched Ali before Curry arrived and he did not have any drugs in his possession. A search of Curry produced two cell phones and approximately $1,600, including the money provided to Ali by the Task Force. Officers then searched the car and found six crack cocaine rocks in the right cup holder, one rock under the driver's seat, and four crack cocaine cookies in the console. The total weight of crack cocaine in the car was approximately 65 grams.

Standard of Review

We review a trial court's ruling on a motion to suppress 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). A trial court's denial of a motion to suppress is reviewed for abuse of discretion. Oles v. State, 993 S.W.2d 103, 106 (Tex.Crim.App.1999). The trial court's findings of fact are given "almost total deference," and in the absence of explicit findings, the appellate court assumes the trial court made whatever appropriate implicit findings that are supported by the record. Carmouche, 10 S.W.3d at 327-28; Guzman, 955 S.W.2d at 89-90. 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. Estrada v. State, 154 S.W.3d 604, 607 (Tex.Crim.App.2005). Therefore, although due weight should be given to the inferences drawn by trial judges and law enforcement officers, determinations of matters such as reasonable suspicion and probable cause are reviewed de novo on appeal. Guzman, 955 S.W.2d at 87 (citing Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)).

Warrantless Search

In his first issue, Curry complains of the trial court's failure to suppress evidence resulting from the search of his vehicle. He filed the motion on the grounds that the officers did not have a search warrant and did not have probable cause to search the vehicle. Curry argues that because he was arrested in the motel room and not near his vehicle, the officers did not have probable cause to believe the vehicle contained evidence of a crime.

The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures by government officials. U.S. CONST. amend. IV. Searches and seizures conducted without a warrant are unreasonable per se under the Fourth Amendment, with a few specifically defined and well-established exceptions. McGee v. State, 105 S.W.3d 609, 615 (Tex.Crim.App.2003).

Under both state and federal law, a police officer may conduct a warrantless search of an automobile if he or she has probable cause to believe a crime has been committed and there is contraband located somewhere inside the vehicle. Carroll v. United States, 267 U.S. 132, 158-59, 45 S.Ct. 280, 287, 69 L.Ed. 543 (1925); Wiede v. State, 214 S.W.3d 17, 24 (Tex.Crim.App.2007). The justifications for this automobile exception are that vehicles are inherently mobile and the expectation of privacy with respect to an automobile is relatively low. Id. Furthermore, the justification to conduct a warrantless search does not vanish once the vehicle is immobilized. See Michigan v. Thomas, 458 U.S. 259, 261, 102 S.Ct. 3079, 3081, 73 L.Ed.2d 750 (1982); State v. Guzman, 959 S.W.2d 631, 634 n. 3 (Tex.Crim.App.1998). Accordingly, a vehicle may be searched on the basis of probable cause to believe that it contains contraband although exigent circumstances do not exist to justify such a warrantless search. Id.; Dixon v. State, 206 S.W.3d 613, 619 n. 25 (Tex.Crim.App. 2006) ("A finding of probable cause `alone satisfies the automobile exception to the Fourth Amendment warrant requirement.'").

In determining probable cause, courts must consider the totality of the circumstances. Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983). Probable cause exists when the facts and circumstances within the officer's knowledge and about which he has reasonable trustworthy information are sufficient in themselves to warrant a person of reasonable caution to believe that a crime has been committed. Torres v. State, 182 S.W.3d 899, 901 (Tex.Crim.App. 2005). The sum of the information known to the cooperating officers at the time of a search is to be considered in determining whether there was sufficient probable cause. Woodward v. State, 668 S.W.2d 337, 344 (Tex.Crim.App.1982).

The basic facts are not in dispute. The officers knew that Curry had arrived at the motel in the green Chrysler and witnessed him, via video surveillance, sell crack cocaine to Ali. Hanks testified that he recognized Curry from previous drug investigations. He also testified that, based on his experience in investigating drug dealers, he knew they generally do not carry their entire "stash" with them but keep it nearby. Considering the totality of the circumstances, the trial court was justified in finding and we determine de novo that the officers had probable cause to believe that the car and its contents were associated with criminal activity. See Amos v. State, 819 S.W.2d 156, 161 (Tex.Crim.App.1991), cert. denied, 504 U.S. 917, 112 S.Ct. 1959, 118 L.Ed.2d 561 (1992).

Finding probable cause, we hold that the trial court did not err in failing to suppress the evidence obtained from the search of Curry's vehicle. We overrule his first issue.

Findings of Fact and Conclusions of Law

Curry next contends that reversal is mandated because the trial court failed to make findings of facts and conclusions of law. He relies on State v. Cullen for the proposition that, upon request of the losing party on a motion to suppress, the trial court shall state its essential findings. State v. Cullen, 195 S.W.3d 696 (Tex.Crim. App.2006).

The Court of Criminal Appeals expressly stated that this requirement became effective from the date of the Cullen opinion (i.e., June 28, 2006). Id. at 699. Curry's request for findings was made at the motion to suppress hearing held on May 16, 2006, before the Cullen requirement became effective. We find the prior law applicable to this case. Id.; State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000). Accordingly, when, as here, the trial court fails to file findings of fact, we view the evidence in the light most favorable to the trial court's ruling and assume that the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record. Ross, 32 S.W.3d at 859. Neither remand nor reversal is mandated by Ross. Id. We overrule Curry's second issue.

Confrontation Clause

Curry's third issue argues that the trial court erred in admitting testimonial statements contained in the video surveillance tape in violation of his Sixth Amendment right to confrontation. The State argues that the right to confrontation does not apply to pretrial suppression hearings or, in the alternative, that the statements on the video tape were not testimonial within the meaning of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

Application of the Confrontation Clause to Suppression Hearings

The Sixth Amendment's Confrontation Clause provides: "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him...." U.S. CONST. amend. VI. The Confrontation Clause provides criminal defendants with two protections: the right to physically face those who testify against them and the right to conduct cross-examination. Pennsylvania v. Ritchie, 480 U.S. 39, 51, 107 S.Ct. 989, 998, 94 L.Ed.2d 40 (1987). The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact. Maryland v. Craig, 497 U.S. 836, 845, 110 S.Ct. 3157, 3163, 111 L.Ed.2d 666 (1990).

In Crawford v. Washington, the Supreme Court of the United States essentially resuscitated the Confrontation Clause,...