Dominguez v. State

• Decision Date: 09 May 1996
• Docket Number: No. 08-94-00292-CR,08-94-00292-CR
• Citation: 924 S.W.2d 950
• Parties: Guadalupe R. DOMINGUEZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 950

924 S.W.2d 950

Guadalupe R. DOMINGUEZ, Appellant, v. The STATE of Texas, Appellee.

No. 08-94-00292-CR.

Court of Appeals of Texas El Paso.

May 9, 1996.

Opinion OverrulingRehearing July 3, 1996.

Robert V. Garcia, Jr., Odessa, for Appellant.

Dennis Cadra, County Attorney, Andrews, for State.

Before BARAJAS, C.J., and McCLURE and CHEW, JJ.

OPINION

McCLURE, Justice.

The opinion dated March 28, 1996 is withdrawn and the following opinion is substituted in its place.

Guadalupe R. Dominguez appeals his conviction for the lesser-included offense of possession of less than 28 grams of cocaine. ¹ Following the trial court's denial of a pretrial motion to suppress, Appellant entered a plea of guilty pursuant to a plea bargain. In accordance with the plea agreement, the trial court found Appellant guilty and assessed punishment at four years' confinement in the Texas Department of Criminal Justice, Institutional Division, probated for four years, and a $500 fine. We reverse and remand for a new trial.

FACTUAL SUMMARY

Barry Cooper is a certified peace officer and is employed as a criminal investigator of the District Attorney's Office of the 70th Judicial District, which is comprised solely of Ector County. ² Cooper testified that he is assigned exclusively to the Permian Basin Drug Task Force. While in that capacity, Cooper stopped a vehicle in Andrews County for speeding. The vehicle was occupied by the driver, Marcos Muniz, and Appellant. During the stop, Cooper noticed that Muniz and Appellant appeared unusually nervous under the circumstances, and were hesitant in answering or gave conflicting answers to routine questions. After advising Muniz that he would issue him only a warning, Cooper asked for and received consent to search the vehicle. Before searching the vehicle, Cooper conducted a pat-down weapons search of Muniz and discovered in his boot a four-inch cylindrical object wrapped in black electrical tape. Muniz told Cooper that the package contained an ounce of cocaine and Cooper immediately arrested him.

After calling for assistance, Cooper removed Appellant from the vehicle and conducted the search. Directly under the passenger seat where Appellant had been sitting, Cooper discovered a vitamin-type bottle containing two packages of cocaine. The packages were wrapped in black electrical tape like the package found in the driver's boot. Cooper arrested Appellant for possession of cocaine. Challenging Cooper's authority to make a traffic stop in Andrews County, Appellant sought to suppress the cocaine seized from the vehicle. The trial court found that Cooper acted with lawful authority in stopping the vehicle and denied the motion to suppress.

In his sole point of error, Appellant complains that the trial court erred in denying his motion to suppress. Appellant asserts that the initial stop of the vehicle in which he was riding was unlawful because Cooper was outside his geographic jurisdiction of Ector County. Acknowledging that Cooper is an agent of the Permian Basin Drug Task Force, he argues that prosecuting attorney's investigators are not "law enforcement officers" as defined by Chapter 362 of the Government Code nor under the terms of the agreement creating the Task Force. He reasons, therefore, that Cooper lacked the region-wide jurisdiction granted to such officers.

The State first argues that Appellant lacks standing as a mere passenger to challenge the search of the vehicle. It also contends that because Cooper is a peace officer assigned to the Task Force, his jurisdiction extends to Andrews County. Alternatively, it argues that even if the initial detention is unlawful, the driver's consent to search is sufficiently attenuated from the primary illegality so that the exclusionary rule does not require suppression of the evidence.

STANDARD OF REVIEW

The trial court is the sole and exclusive trier of facts at a hearing on a motion to suppress. Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990); Morris v. State, 897 S.W.2d 528, 530 (Tex.App.--El Paso 1995, no pet.h.). As a reviewing court, we do not perform our own factual review, but simply decide whether the trial court's findings are supported by the record; if so, we do not disturb the trial court's factual determinations, but we do address the question of whether the trial court improperly applied the law to the facts. Romero, 800 S.W.2d at 543; Morris, 897 S.W.2d at 530. If the trial court's decision is correct on any theory of law applicable to the case, we must sustain it. Romero, 800 S.W.2d at 543; Morris, 897 S.W.2d at 530. This principle holds true although the trial judge gives an erroneous reason for his decision. Cardwell v. State, 890 S.W.2d 563, 565 (Tex.App.--El Paso 1994, pet.ref'd).

STANDING

We must first address the State's contention that Appellant, as a mere passenger with no reasonable expectation of privacy in the vehicle, lacks standing to complain of the search of the vehicle. A mere passenger may challenge the search of a vehicle in which he was riding if the search resulted from an infringement of his own Fourth Amendment rights. See Metoyer v. State, 860 S.W.2d 673, 677 (Tex.App.--Fort Worth 1993, pet.ref'd). In Lewis v. State, 664 S.W.2d 345 (Tex.Crim.App.1984), the Court of Criminal Appeals determined that a defendant who challenges the validity of the initial stop of a vehicle in which he was a passenger questions infringement of his own Fourth Amendment rights, regardless of whether he has an expectation of privacy in the place to be searched. Id. at 348. Thus, Appellant has standing to question the admissibility of the fruits of the search if the initial stop were unlawful. See Metoyer, 860 S.W.2d at 677.

GENERAL GEOGRAPHIC JURISDICTION OF PROSECUTING ATTORNEY'S

INVESTIGATOR

An investigator of the office of a district attorney, criminal district attorney, or county attorney is a peace officer. TEX.CODE CRIM.PROC.ANN. art. 2.12(5)(Vernon Supp.1996). It is the duty of every peace officer to: (1) use all lawful means to preserve the peace within his jurisdiction; (2) prevent or suppress crime; (3) execute all lawful process issued to him by any magistrate or court; (4) give notice to some magistrate of all offenses committed within his jurisdiction, where he has good reason to believe there has been a violation of the penal law; and (5) arrest offenders without warrant in every case where he is authorized by law. TEX.CODE CRIM.PROC.ANN. art. 2.13 (Vernon 1977). Both common law and statutory law limit a peace officer's authority to his own geographic jurisdiction. See Thomas v. State, 864 S.W.2d 193, 195 (Tex.App.--Texarkana 1993, pet. ref'd). Generally, a peace officer is a peace officer only while in his jurisdiction and when the officer leaves that jurisdiction, he cannot perform the functions of his office. Id. at 196. ³ In order to determine the geographic jurisdiction of an investigator appointed by a prosecuting attorney, we must look to the power, rights, and authority of the prosecuting attorney. It is the principal duty of district and county attorneys to investigate and prosecute the violation of all criminal laws. See Shepperd v. Alaniz, 303 S.W.2d 846 (Tex.Civ.App.--San Antonio 1957, no writ); TEX. CONST. art. V, § 21. A prosecutor's geographic jurisdiction to carry out this duty is statutorily limited to the prosecutor's district or county. See generally TEX.CODE CRIM.PROC.ANN. art. 2.01 (district attorney shall represent the State in all criminal cases in the district courts of his district and in appeals therefrom); TEX.CODE CRIM.PROC.ANN. art. 2.02 (county attorney shall attend terms of court in his county below the grade of district court and shall represent the State in all criminal cases under examination or prosecution in said county). It follows that an investigator appointed by a district attorney has geographic jurisdiction co-extensive with that of the district attorney unless provided otherwise by law. In this case, the prosecuting attorney's district is composed solely of Ector County. Thus, Cooper's jurisdiction, in his capacity as an investigator of the District Attorney's Office, is limited to Ector County, unless provided otherwise by law.

AUTHORITY AND JURISDICTION OF PROSECUTING ATTORNEY'S

INVESTIGATOR TO MAKE WARRANTLESS ARRESTS

A peace officer is authorized to arrest without a warrant any person who commits an offense in his presence or within his view. TEX.CODE CRIM.PROC.ANN. art. 14.01 (Vernon 1977); see also TEX.TRANSP.CODE ANN. § 543.001 (Vernon Pamph.1996) (former TEX.REV.CIV.STAT.ANN. art. 6701d, § 153) (authorizes any peace officer to arrest without warrant any person found committing a violation of the traffic laws). While these provisions seem to grant peace officers unlimited geographic jurisdiction for making warrantless arrests committed in their presence or within their view, the Court of Criminal Appeals has determined that a peace officer can make a warrantless arrest only within his geographic or territorial jurisdiction. Angel v. State, 740 S.W.2d 727 (Tex.Crim.App.1987). If a statute granting authority to act does not define the geographic scope within which a peace officer may act, then that geographic scope must find its source in some other statute or be controlled by the common law. Angel, 740 S.W.2d at 732; see State v. Carroll, 855 S.W.2d 128, 129 (Tex.App.--Austin 1993, no pet.); Finley v. State, 809 S.W.2d 909, 913 (Tex.App.--Houston [14th Dist.] 1991, pet. ref'd); see also Perkins v. State, 812 S.W.2d 326 (Tex.Crim.App.1991); Reichaert v. State, 830 S.W.2d 348 (Tex.App.--San Antonio 1992, pet. ref'd).

Section 41.109(a) of the Government Code sets forth the authority of investigators appointed by a prosecuting attorney to make arrests and execute process:

An investigator appointed by a prosecuting attorney has the same authority as the sheriff of the county to make arrests anywhere in the county and to serve anywhere in ...