Garza v. State

• Decision Date: 17 May 1989
• Docket Number: No. 1085-84,1085-84
• Parties: Albert GARZA, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 549

771 S.W.2d 549

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

No. 1085-84.

Court of Criminal Appeals of Texas,

En Banc.

May 17, 1989.

Richard C. Mosty (court appointed on appeal), Kerrville, for appellant.

Joe Mike Egan, Jr., Former Dist. Atty., E. Bruce Curry, Dist. Atty., Kerrville, Tx. Robert Huttash, State's Atty. & Alfred Walker, First Asst. State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

MILLER, Judge.

Appellant was convicted by a jury for the offense of burglary of a habitation. See V.T.C.A. Penal Code, § 30.02. The jury assessed punishment at 75 years confinement in the Texas Department of Corrections. The case was appealed to the Court of Appeals; the judgment of the trial court was reversed and the case was remanded. Garza v. State, 678 S.W.2d 183 (Tex.App.--San Antonio 1984). We granted the State's petition for discretionary review to examine the Court of Appeals' holding. ¹ We affirm the decision of the Court of Appeals.

We borrow the Court of Appeals' description of the events that led to appellant's arrest:

"Appellant was stopped, questioned and arrested by [Officer] 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." Id. at 185-186.

The Court of Appeals concluded, as we ultimately do, that the police activity here was illegal. ² In its first ground for review, the State argues that there was no stop of appellant's vehicle nor stop or seizure of appellant which resulted in the initial contact with the witness Valadez. This contention is based on the testimony, elicited from Valadez, that appellant stopped his car pursuant to a predetermined plan to go to the Western Auto Parts Store, and not in response to the patrol car's flashing lights.

This Court has held that a "stop" in the law of search and seizure means something other than a "halt." Ebarb v. State, 598 S.W.2d 842, 849-850 (Tex.Cr.App.1979) (opinion on state's motion for rehearing). In Ebarb, supra, the police followed the defendant's car on the basis of a tip that the defendant was carrying illegal pills and a handgun. When the defendant's car pulled into the driveway of her son's house, the police approached and asked if they could search. Appellant gave her consent to the subsequent search and exited the car. At that time, the dome light in the car illuminated a pistol lying on the seat in plain view. This Court held the fruits of this detention inadmissible, under the authority of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), saying:

"It matters not whether the person was moving or standing still when the police officer accosted him; what matters is that the person was then restrained in his freedom to move. Thus, when a person is sitting in a parked car and a police officer orders him to roll down the window or open the door, there is at that point a temporary seizure for investigative detention--a 'stop.' "

Ebarb, supra at 850. See also Johnson v. State, 658 S.W.2d 623, 626 (Tex.Cr.App.1983) (although truck was parked when police first approached, stop "unquestionably" occurred when the defendant was ordered out of his truck and his license demanded); Beasley v. State, 674 S.W.2d 762, 766-767 (Tex.Cr.App.1982) (fact that disabled truck was already stopped when police arrived held to have no probative force, citing Ebarb, supra).

The State argues that this issue is controlled by Meredith v. State, 603 S.W.2d 872 (Tex.Cr.App.1980), Stewart v. State, 603 S.W.2d 861 (Tex.Cr.App.1980), and United States v. Pajari, 715 F.2d 1378 (8th Cir.1983), all of which concluded that there was no "stop" where previously parked cars were approached by the police. We find each distinguishable on its facts from the case before us. In both Meredith and Stewart, supra, the police approached cars that were already stopped when first observed, and immediate probable cause in the form of marihuana smoke billowed out of the cars as the window was rolled down (Stewart ) or the defendant got out of the car (Meredith ). The detention in both cases occurred at that moment, when the marihuana was discovered. As this Court noted in Stewart, supra at 862, "the police exercised no authority until after they had smelled the odor of burning marihuana." Also in Isam v. State, 582 S.W.2d 441 (Tex.Cr.App.1979), no stop was found where off-duty police officers witnessed the defendants smoking a marihuana cigarette, pulled up behind the defendants at a red light, approached on foot, and had their suspicions confirmed by the smell of burning marihuana. We noted that the defendants' vehicle "was not stopped by any overt action on the part of the police officers. Only after they stopped at the traffic light was the officer able to approach the vehicle and he noticed the odor of marihuana." Id. at 444.

Similarly in Pajari, supra at 1381, the court found that no coercive action was taken by the officers until they ordered the defendant out of his car. There the police followed the defendant in his car, parked behind him after he stopped of his own accord in a parking lot, and approached him on foot to inform him of their outstanding warrant to search his house. When they saw the defendant reach under his seat as they approached, they ordered him out with his hands up. Only at this point did the court find that there was any demonstration of force or authority, creating a reasonable apprehension on the defendant's part that his freedom of movement was restricted.

The State also relies upon the similarity of factual circumstances in United States v. Weir, 748 F.2d 459 (8th Cir.1984). In Weir, an officer, based on information received, followed defendant until the defendant pulled into a convenience store of his own accord. The officer notified his dispatcher that he was "stopping" the vehicle as he pulled in behind it. The defendant got out of his car and walked up to the patrol car, where the officer obtained defendant's consent to search. The court found that there was no detention or interception by the officer because the defendant "initiated the contact...