Garza v. State

• Decision Date: 31 August 1984
• Docket Number: No. 04-81-00162-CR,04-81-00162-CR
• Citation: Garza v. State, 678 S.W.2d 183 (Tex. App. 1984)
• Parties: Albert GARZA, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 183

678 S.W.2d 183

Albert GARZA, Jr., Appellant, v.The STATE of Texas, Appellee.

No. 04-81-00162-CR.

Court of Appeals of Texas San Antonio.

Aug. 31, 1984.

Rehearing Denied Sept. 28, 1984.

Richard C. Mosty, Pollard, Pollard & Mosty, Kerrville, for appellant.

Scott Stehling, Asst. Dist. Atty., Kerrville, for appellee.

Before CADENA, C.J., and CANTU and REEVES, JJ.

OPINION

CADENA, Chief Justice.

A jury found appellant guilty of burglary of a habitation and sentenced him to 75 years' imprisonment.

Appellant argues that the trial court should have excluded the testimony of Daniel Valadez and Raymundo Rodriguez because the identity of these two witnesses and the nature of their testimony became known to the police solely as the result of the illegal stop of his vehicle and his arrest by William Ragsdale, a deputy sheriff of Kendall County.

Appellant was stopped, questioned and arrested by Ragsdale in the City of Boerne, in Kendall County.At the time of the stop, Valadez was a passenger in appellant's car.

Prior to the date of the stop and arrest, there had been several burglaries in a subdivision lying partly in Kendall County and partly in Bexar County.Ragsdale had been told by a Bexar County deputy sheriff that Bexar County officials believed that a person named Albert Garza, Jr., was "good for" such burglaries.Ragsdale had seen a mug shot of Garza and had received a description, including the license plate number, of Garza's automobile.Ragsdale had been told by a Boerne merchant that he had seen two "Mexican-American males" parked near the merchant's storage building some days previously, and that the two men had acted in a "peculiar" manner, which caused the merchant to suspect that they were planning a burglary of the storage building.At the time of the stop and arrest of appellant several days later, no such burglary had occurred.According to Ragsdale, appellant matched the description which the merchant had given of the driver of the car.

Several days later Ragsdale, while on patrol, saw a car leaving Interstate Highway 10 at the Boerne exit.The vehicle matched the description of Garza's car and bore the license number of Garza's car.There were two men in the car and Ragsdale, although he was unable to form a definite opinion, thought that the driver resembled the man pictured on the mug shot of Albert Garza.

Ragsdale followed the vehicle and informed other officers, by radio, that he was about to stop a man he believed to be Albert Garza.Ragsdale turned on the flashing lights of his vehicle, and when appellant came to a stop, Ragsdale parked his vehicle next to the driver's side of appellant's car.By the time Ragsdale left his car and approached appellant, four other officers had arrived to "back up" Ragsdale.At the time that Ragsdale began to question appellant, one or more of the other officers removed the passenger, Valadez, from appellant's vehicle and engaged him in conversation a short distance away.

In answer to Ragsdale's first question, appellant identified himself as Alberto Garza, Jr.Although this confirmed Ragsdale's belief that appellant was Albert Garza, Ragsdale was not satisfied.When the officer demanded further proof, appellant produced birth and baptismal certificates reflecting that he was Albert Garza.Ragsdale remained dubious because the documents did not bear Garza's picture, bore marks of "obliteration," and he"knew" that such documents were easily falsified.When, at Ragsdale's demand, appellant was unable to produce a driver's license, Ragsdale arrested him for driving without a license.The charge filed against appellant for not having a valid license gave his name as Albert Garza.

Appellant and Valadez were taken to the sheriff's office in separate vehicles.A search of the trunk of appellant's car revealed a number of items taken in recent burglaries.Appellant and Valadez never saw each other again until Valadez testified at appellant's trial.

Valadez told Kendall County officials that six days before the arrest, he had been with appellant when appellant entered a mobile home, while Valadez waited in appellant's car, and the appellant had emerged carrying a television set and some guns.According to Valadez, he and appellant then drove to San Antonio, where appellant stopped at a tire shop and sold the television set and guns to Raymundo Rodriguez, the owner of the tire shop.Valadez later accompanied officers to the Rodriguez tire shop in San Antonio where the officers recovered the guns and television set which were identified by Charles Decherd, the complaining witness in this case, as items which had been taken from his mobile home during the burglary in question.

At appellant's trial, Valadez and Rodriguez testified to facts as related to the officers by Valadez.

Appellant contends that but for the unlawful action of Ragsdale in stopping, detaining and arresting appellant in violation of the federal and state constitutions, the State would not have gained access to the testimony of Valadez and Rodriguez and that, therefore, the testimony of these two witnesses should have been excluded.

The State does not contend that, at the time he stopped appellant, Ragsdale had probable cause to arrest appellant for any offense.The State's argument is that Ragsdale had an "articulable suspicion" justifying a brief detention for the purpose of determining appellant's identity.

A police officer who detains a person for further investigation must justify his action by pointing "to specific and articulable facts which, taken together with rational inferences from such facts, reasonably warrant that intrusion" upon the constitutional rights of the person so detained.Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889(1968).A detention is permissible if the officer reasonably suspects that some activity out of the ordinary is occurring or has occurred, that some suggestion exists to connect the person detained with such activity, and that there is indication that the activity is related to crime.Terry, supra.

Prior to the time he stopped appellant, Ragsdale had observed no violation of any law; he observed nothing which might be classified as evidence that an offense was being committed or had been committed; and he saw nothing which suggested that any illegal activity was about to take place.As the Court said in Armstrong v. State, 550 S.W.2d 25(Tex.Crim.App.1976)(opinion on State's motion for rehearing1977), the actions of the officer can accurately be described as "just the sort of fishing expedition the Fourth AmendmentandArticle I, Sec. 9 of the State constitution were designed to prohibit."

In Leonard v. State, 496 S.W.2d 576(Tex.Crim.App.1973), it was said that the stop of a vehicle to permit an officer to determine whether the driver has a valid operator's license does not violate the rights of the driver.But the evidence in this case conclusively establishes that Ragsdale did not stop appellant to determine if he had a driver's license.In any event, the Leonard holding is incorrect.Stopping a vehicle and detaining the driver in order to check his driver's license and the registration of vehicle is "unreasonable" under the Fourth Amendment"except in those situations in which there is at least articulable suspicion that a motorist is unlicensed or that the automobile is unregistered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law...."Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 1401, 59 L.Ed.2d 660(1979).

The fact that appellant was, in fact, unlicensed, is irrelevant.The unconstitutional intrusion cannot be justified retroactively by the evidence uncovered as a result of the intrusion on constitutional rights.Brown v. State, 481 S.W.2d 106, 112(Tex.Crim.App.1972).

The State seeks to justify Ragsdale's actions because he was acting on information he had received through police channels.The first thing to be noted in discussing this claim is that Ragsdale's action was not in response to a bulletin calling for appellant's arrest.Where a police bulletin calls for the arrest of certain person, it can persuasively be argued that the stop of a person resembling the person to be arrested for the purpose of determining whether he is actually the wanted person is reasonable.United States ex rel. Kirby v. Sturges, 510 F.2d 397, 400(7th Cir.1975).

The information which Ragsdale had received through police channels was as follows:

1.A Bexar County deputy sheriff thought appellant"might be good for" some burglaries.

2.Appellant had been seen in the area where some burglaries had occurred, and Bexar County officers "felt"he might have been checking to determine whether the occupants of residences might be away from home.

3.A Bexar County deputy had stopped appellant and had found that appellant was in possession of heroin.

4.A computer print-out showed that appellant was a dope addict.

To Ragsdale, the important information was that contained in the print-out from some unidentified computer reflecting that appellant was a dope addict.He testified: "Almost every burglar is a dope addict.That's a fact that goes without saying because of the extreme high price of the habit."

The record does not support the conclusion that the Bexar County deputy sheriff who was Ragsdale's informant had in his possession articulable facts "which, taken together with reasonable inferences drawn from such facts," would "reasonably warrant" stopping appellant.There is nothing to indicate that appellant, when seen in the area of some burglaries, had been acting suspiciously.Perhaps this explains why there is no evidence that Bexar County officers had stopped appellant to investigate his presence in the area.There is no evidence tending to show the temporal relation between the observation of appellant in the area of the burglaries and the actual occurrence...