Figueroa v. State
| Decision Date | 17 January 2013 |
| Docket Number | NO. 01-11-01115-CR,01-11-01115-CR |
| Parties | JOEL HERNANDEZ FIGUEROA, Appellant v. THE STATE OF TEXAS, Appellee |
| Court | Texas Court of Appeals |
After the trial court denied his motion to suppress evidence, Joel Figueroa pleaded guilty to the offense of possession with intent to deliver a controlled substance, namely, cocaine, weighing at least 400 grams without an agreedrecommendation as to punishment.1 The trial court adjudged Figueroa guilty and assessed punishment at sixteen years' confinement. Figueroa appeals his conviction, contending in four issues that: (1) he was denied due process because the prosecution withheld material and exculpatory evidence from defense counsel in violation of the duty owed under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963), and (2) the trial court erred in not suppressing the cocaine found in his vehicle because the police did not have reasonable suspicion to stop his vehicle, the police did not have probable cause to arrest him before the cocaine was discovered, and he did not consent to a search of the vehicle. The State rejects Figueroa's contentions but presents a cross-point on appeal, complaining that Figueroa's sentence is void because the trial court assessed a term of incarceration without also assessing a mandatory fine and therefore a new punishment hearing is required. We affirm in part and reverse and remand in part.
Figueroa was arrested and charged with the felony offense of possession with intent to deliver a controlled substance weighing at least 400 grams when Officer C. Kowis, a deputy with the Houston Police Department's narcotics unit, discovered a brick of cocaine in Figueroa's vehicle. Figueroa moved to suppress the cocaine on the ground that his initial detention, his subsequent arrest, and thesearch of his vehicle were unlawful. Only two witnesses testified at the suppression hearing: Kowis and Figueroa. The two men gave considerably different accounts of the events preceding the charge against Figueroa.
Officer Kowis testified that, after receiving an anonymous tip that illicit drugs were being trafficked through a Houston-area home, members of the HPD narcotics unit set up surveillance. Kowis was standing-by in a marked patrol car a few blocks from the home when he was notified by surveillance officers that Figueroa had departed the home. When Figueroa drove by Kowis, Kowis could see through the open driver's side window that Figueroa was not wearing a seatbelt. Kowis followed Figueroa and observed him make an unsafe lane change without signaling, nearly striking another vehicle. Kowis then initiated a traffic stop based on the three traffic offenses he had observed: (1) failure to wear a seat belt, (2) making an unsafe lane change, and (3) failure to use a signal.
As he approached Figueroa's vehicle, Officer Kowis observed a rectangular object on the back passenger-side floorboard through an open rear window. Officer Kowis could not recall whether the rear window, which was heavily tinted, was open when he approached Figueroa's vehicle or whether he ordered Figueroa to roll it down for officer safety. Kowis described the rectangular object as being wrapped in plastic and duct tape, which packaging, based on Kowis's experience in the narcotics unit, was consistent with a kilogram of cocaine. Kowis instructedFigueroa to exit the vehicle but did not place him under arrest. Immediately upon exiting the vehicle and without any prompting from Kowis, Figueora stated, Kowis interpreted Figueroa's statement as consent to search of the vehicle. Kowis did not reduce Figueroa's consent to writing, and Kowis's patrol car did not have a camera or any other recording device that captured the exchange. Kowis instructed Figueroa to sit on the curb while Kowis retrieved the package from the car. Kowis field-tested the substance in the package and determined it was cocaine. Kowis testified that Figueroa was not handcuffed when he stepped out of the car or when he sat on the curb. It was not until after the package tested positive for cocaine that Figueroa was formally arrested. No traffic citation was issued.
On cross-examination, Figueroa's counsel cross-examined Officer Kowis about statements in his arrest report that were inconsistent with his suppression-hearing testimony. For instance, despite his testimony that he was parked near the surveillance location in a marked patrol car at the request of other narcotics officers, Kowis agreed that in his arrest report, he stated, The arrest report failed to mention either the anonymous tip or the surveillance of the home from which Figueroa was seen leaving.
Figueroa's counsel complained that Kowis's testimony at trial was the first the defense had heard of the anonymous tip and surveillance; until that point, the State had informed the defense that a random traffic stop contributed to Figueroa's arrest. Kowis explained: When asked whether he told any prosecutor about the anonymous tip, Kowis initially answered "no." The following exchange occurred, however, in response to further questioning:
Figueroa testified to an entirely different series of events. Through the presentation of his defense, Figueroa implied that Officer Kowis had baited the traffic stop. Specifically, Figueroa testified that, while driving, he saw lights flashing behind his vehicle. Believing the lights were an emergency vehicle needing to pass, Figueroa quickly changed lanes. He could not remember whether he signaled the lane change. He further testified that he wore his seatbelt at all times, including on the day he was stopped by Officer Kowis, and that his driver's side window was rolled up. Figueroa recalled that Kowis got out of the patrol car with his gun drawn and instructed Figueroa to show his hands and then to get out of the vehicle. Figueroa complied, first rolling down the driver's side window, extending his arms through the driver's side window to show his hands, and then exiting the vehicle. As soon as Figueroa was out of the vehicle, Kowis grabbed Figueroa by his belt from behind and pressed him against the vehicle. Alsoaccording to him, Kowis never instructed Figueroa to roll the rear window down; rather, another officer, who arrived on the scene after Kowis, got out of his vehicle, walked straight to Figueroa's car, and retrieved the package of cocaine. The second officer told Kowis, "[W]e got it." Kowis handcuffed Figueroa and asked whether Figuero had anything else. Figuero stated, "No, that is all I have."
After the close of evidence and arguments by the parties, the trial court denied Figueroa's motion to suppress, specifically finding that (1) Figueroa was not a credible witness but (2) Officer Kowis was credible; (3) Kowis witnessed Figueroa commit three traffic violations; (4) Kowis, while approaching Figueroa's vehicle, observed "in plain view a rectangular object in a size and packaging that would have been consistent with a kilo of cocaine"; (5) probable cause existed to seize the cocaine; (6) Figueroa was not in custody at the time he stated, ; and (8) Figueroa freely and voluntarily consented to the search of his vehicle.
Figueroa filed a timely motion for new trial, alleging the State violated Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963), by failing to disclose the existence of the anonymous tip and narcotics surveillance before the suppression hearing. The motion for new trial was overruled by operation of law, and Figueroa appealed.Untimely Disclosure of Brady Material
Figueroa did not request a continuance of the suppression hearing once it was discovered that the police had received an anonymous tip before his arrest. Instead, after the trial court rendered its judgment finding him guilty, he filed a motion for new trial on the ground that he was denied due process rights because the State or its agents withheld material and exculpatory evidence in violation of its duty under Brady2 Figueroa contends in his first issue on appeal that the trial court erred by denying his new trial motion. The State responds that Figueroa waived his Brady claim by not seeking a continuance of the suppression hearing.
A defendant in a criminal case has no general right to pretrial discovery of evidence in the State's possession. See ...
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