Gaines v. State

• Decision Date: 06 October 1994
• Docket Number: No. 08-93-00297-CR,08-93-00297-CR
• Citation: 888 S.W.2d 504
• Parties: Mack Henry GAINES, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 504

888 S.W.2d 504

Mack Henry GAINES, Appellant, v. The STATE of Texas, Appellee.

No. 08-93-00297-CR.

Court of Appeals of Texas El Paso.

Oct. 6, 1994.

Mark Ellis, Houston, for appellant.

John B. Holmes, Dist. Atty. of Harris County, Houston, for State.

Before KOEHLER, LARSON and McCOLLUM, JJ.

OPINION

KOEHLER, Justice.

Mack Henry Gaines, Appellant, brings this appeal from an order denying his motion to suppress, following which he waived his right to a jury trial and pled guilty to the offense of burglary in accordance with a plea bargain. Punishment was assessed at imprisonment for a term of 25 years.

In this appeal, Appellant contends that the trial court erred in denying his motion to suppress because the evidence failed to show that the officer arresting without a warrant had probable cause to believe that Appellant had committed a felony. Appellant, characterizing the initial stop and detention as an arrest, argues in three points of error that the arresting officer lacked probable cause for his arrest and therefore the out-of-court identification, his statement and other evidence supporting his conviction were fruits of an illegal search and seizure and should have been inadmissible. We affirm.

Following indictment and prior to the date set for trial, Appellant filed his motion to suppress all evidence obtained as a result of the "illegal and unconstitutional search and seizure" which occurred when the car in which he was a passenger was stopped and he and the driver "were illegally arrested without authority, without probable cause, and without an arrest warrant." After hearing the testimony from both state and defense witnesses, the court denied the motion.

Appellant, relying on Amores v. State, 816 S.W.2d 407 (Tex.Crim.App.1991) and Hoag v. State, 728 S.W.2d 375 (Tex.Crim.App.1987), contends that he "was ordered out of the car at gunpoint by a uniformed deputy sheriff, searched, handcuffed and placed in a patrol car" and that because he was not free to leave and his "liberty of movement was clearly restrained from the moment the car was stopped ... he was under arrest from the beginning." We disagree with his interpretation of the facts and his conclusion.

RELEVANT FACTS

On April 29, 1993 at around 7:15 a.m., Michelle Boudreaux arrived at her office building in Houston. Finding that the door to her office had been broken open, she looked through a window into her office and observed two black men, standing in a brightly lit storage room, stuffing items into a bag. Realizing that her office was being burglarized, she went downstairs to call the police. On her way to call the police, Boudreaux encountered James Scott, a person who worked on another floor, and told him that there was a burglary in progress in her office.

While Boudreaux was calling the police, Scott witnessed two black men walk out of the building carrying a canvas bag and drive off in a yellow Honda Civic automobile. In her 911 emergency call, Boudreaux informed the police of her name, the address of the office building, and that a burglary had occurred, involving two black men. She also relayed the information provided by Scott of what he had observed. As a result of a police radio call broadcasting the information given by Boudreaux and Scott, Deputy Sheriff Gwosdz, who was driving a patrol car in the northbound lanes of Bammel North Houston Road at approximately 7:30 that same morning, spotted an automobile and occupants matching the description headed southbound on the same road. Gwosdz immediately turned his vehicle around, pursued the Honda and pulled it over. Upon coming to a stop, Ronald Ray Busby ¹, the driver of the Honda, immediately stepped out of the vehicle. The passenger slumped down in his seat. Gwosdz told Busby to remain where he was and ordered the passenger, later identified as Appellant herein, out of the Honda. Before approaching the vehicle, Gwosdz was advised in a supplemental broadcast that the suspects would be in possession of a canvas bag containing the stolen items. Neither Busby nor Appellant was able to produce a driver's license or other identification in response to Gwosdz' request. Gwosdz proceeded to arrest Busby for driving without a license and Appellant as a suspect in a burglary until he could be identified. Before arresting the two men, Gwosdz drew his gun on them. After handcuffing both men and placing them in separate patrol cars, Gwosdz went to the Honda and observed a canvas bag in plain view on its backseat. Appellant and Busby were transported back to the burglarized building where, after they had been read their rights, Scott identified them as the men he had observed leaving the building with the canvas bag. From her office window, Boudreaux also tentatively identified the two men as the ones she had seen inside her office suite. Shortly thereafter, she made a positive identification from polaroid photos taken by an officer at that time. Later at a substation, Appellant, after again being read his rights, gave a written statement to Detective William Moore of the Sheriff's Department.

MOTION TO SUPPRESS

In a hearing on a motion to suppress, the trial judge is the sole and exclusive trier of fact and judge of credibility of witnesses including the weight to be given their testimony. Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990); Cannon v. State, 691 S.W.2d 664 (Tex.Crim.App.1985), cert. denied, 474 U.S. 1110, 106 S.Ct. 897, 88 L.Ed.2d 931 (1986); State v. Wood, 828 S.W.2d 471, 474 (Tex.App.--El Paso 1992, no pet.); Subia v. State, 836 S.W.2d 711 (Tex.App.--El Paso 1992, no pet.); Edwards v. State, 850 S.W.2d 731, 735 (Tex.App.--El Paso 1993, no pet.). In that regard, the trial court was free to believe or disbelieve the testimony of each of the State's witnesses and the Appellant. The appellate court does not engage in its own factual review but must decide whether or not the trial judge's findings of fact, express or implied, are supported by the record. If the findings are supported by the record, we are not at liberty to disturb them. Thus on review, this Court will only address the question of whether the trial court improperly applied the law to the facts. Romero, 800 S.W.2d at 543; Subia, 836 S.W.2d at 713; Edwards, 850 S.W.2d at 735. In the instant case, the trial court did not specify the theory on which he found the evidence to be admissible. Under this circumstance, if the trial judge's determination is correct on any theory of law applicable to the case, it will be sustained. Romero, 800 S.W.2d at 543; Edwards, 850 S.W.2d at 735. In a suppression hearing, the burden of proof is initially upon the defendant when he seeks to suppress evidence on the basis of a Fourth Amendment violation. Russell v. State, 717 S.W.2d 7 (Tex.Crim.App.1986); Mattei v. State, 455 S.W.2d 761, 765-66 (Tex.Crim.App.1970); see also State v. Wood, 828 S.W.2d at 474 and Edwards, 850 S.W.2d at 734. It is a well-recognized principle of criminal jurisprudence that there is a presumption of proper police conduct. In that regard, in order to defeat the presumption of the officer's proper conduct, the defendant must first produce evidence to establish (1) that a search or seizure occurred; (2) without a warrant; and (3) in violation of his own Fourth Amendment rights. See Simmons v. United States, 390 U.S. 377, 389-90, 88 S.Ct. 967, 973-74, 19 L.Ed.2d 1247 (1968); Jones v. United States, 362 U.S. 257, 261, 80 S.Ct. 725, 731, 4 L.Ed.2d 697 (1960). Once a defendant has met his burden of production which establishes the above, the burden then shifts to the State to prove the reasonableness of the search or seizure by a preponderance of the evidence. Edwards, 850 S.W.2d at 734. In this case, because the parties agree that the search and seizure occurred without a warrant, the questions are whether the initial stop and detention, the subsequent arrest and the search and seizure were reasonable under the circumstances existing at the time.

INVESTIGATIVE DETENTION v. ARREST

Facts known by the officer which fall short of probable cause for an arrest may still justify a temporary investigation or detention because such investigation or detention is a lesser intrusion on an individual's privacy than an arrest. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Livingston v. State, 739 S.W.2d 311, 327 (Tex.Crim.App.1987), cert. denied, 487 U.S. 1210, 108 S.Ct. 2858, 101 L.Ed.2d 895 (1988); Fatemi v. State, 558 S.W.2d 463, 465 (Tex.Crim.App.1977). In order to engage in a valid investigative detention the officer must have specific, articulable facts which, in light of his experience and personal knowledge, taken together with rational inferences from these facts, reasonably warrant intrusion into the privacy of the individual stopped for such investigation. Glass v. State, 681 S.W.2d 599, 601 (Tex.Crim.App.1984); Schwartz v. State, 635 S.W.2d 545, 547 (Tex.Crim.App.1982); McMillan v. State, 609 S.W.2d 784, 786 (Tex.Crim.App.1981). If an officer has a reasonable suspicion, based on specific, articulable facts, that persons he encounters are involved in criminal activity, he may investigate by stopping the individuals in order to determine their identity, posing questions to them or detaining them briefly while attempting to obtain further information. Delk v. State, 855 S.W.2d 700, 710 (Tex.Crim.App.1993), cert. denied, 510 U.S. 982, 114 S.Ct. 481, 126 L.Ed.2d 432 (1993); see Mays v. State, 726 S.W.2d 937, 944 (Tex.Crim.App.1986); Gearing v. State, 685 S.W.2d 326, 328 (Tex.Crim.App.1985); Johnson v. State, 658 S.W.2d 623, 626 (Tex.Crim.App.1983).

A person may be temporarily detained for investigative purposes where circumstances short of probable cause at the inception of the detention exist. Dickey v. State, 716 S.W.2d 499, 503 n. 4 (Tex.Crim.App.1986). A police broadcast if based on reliable information furnished by an otherwise credible, known private citizen whose only...