Howe v. State

• Decision Date: 13 April 1994
• Docket Number: No. 3-92-647-CR,3-92-647-CR
• Citation: 874 S.W.2d 895
• Parties: Mark Allen HOWE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 895

874 S.W.2d 895

Mark Allen HOWE, Appellant, v. The STATE of Texas, Appellee.

No. 3-92-647-CR.

Court of Appeals of Texas Austin.

April 13, 1994.

Christopher M. Gunter, Austin, for appellant.

John Wied, Dist. Atty., Kevin M. Raymond, Asst. Dist. Atty., La Grange, for appellee.

Before KIDD, B.A. SMITH and ONION, ^* JJ.

ONION, Justice (Retired).

This appeal is taken from an order deferring adjudication of guilt. See Dillehey v. State, 815 S.W.2d 623 (Tex.Crim.App.1991). Appellant waived trial by jury and entered a plea of guilty to the offense of possession of a controlled substance, namely, lysergic acid diethylamide (LSD). ¹ The trial court, after hearing evidence, deferred the adjudication of guilt and placed appellant on "probation" for five years subject to certain conditions. Appellant gave notice of appeal in a manner to ensure appellate review of the trial court's pretrial ruling on the motion to suppress evidence. See Tex.R.App.P. 40(b)(1).

Appellant advances two points of error. He contends in separate points that the trial court erred in denying his pretrial motion to suppress evidence "for the reason that the search of the automobile appellant was in was illegal" under (1) the Fourth Amendment to the United States Constitution and (2) article one, section nine of the Texas Constitution.

The search involved was a warrantless search. The State contends that it was a valid consensual search. Appellant contends that there was no consent to search, but if there was, the consent was not freely and voluntarily given and, moreover, was tainted by an illegal detention or stop.

The evidence concerning the search was developed at a hearing on the motion to suppress evidence. The evidence might have developed in a different manner had the parties followed the guidelines as to the burden of production and the burden of persuasion. See Russell v. State, 717 S.W.2d 7, 9-10 (Tex.Crim.App.1986). Once appellant had shown that the search was a warrantless one, the burden of proof should have shifted to the State to demonstrate a warrant, or to demonstrate the validity of the warrantless search by consent or otherwise. Instead, appellant assumed the burden of production and burden of proof. All witnesses (including the officer) were called and examined by appellant. The State, without objection, was content to cross-examine some of the witnesses despite the burden of persuasion cast upon it by law.

In a suppression hearing, the trial court is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990). The trial court may accept or reject any or all of a witness's testimony. Taylor v. State, 604 S.W.2d 175, 177 (Tex.Crim.App.1980). In reviewing the trial court's decision, an appellate court does not engage in its own factual review; it determines only whether the record supports the trial court's fact findings. Romero, 800 S.W.2d at 543. If the trial court's fact findings are supported by the record, an appellate court is not at liberty to disturb the findings, absent an abuse of discretion. Id.; see also Cantu v. State, 817 S.W.2d 74, 77 (Tex.Crim.App.1991); Dancy v. State, 728 S.W.2d 772, 777 (Tex.Crim.App.), cert. denied, 484 U.S. 975, 108 S.Ct. 485, 98 L.Ed.2d 484 (1987). On appellate review, the court normally will address only the question of whether the trial court improperly applied the law to the facts. Romero, 800 S.W.2d at 543; Self v. State, 709 S.W.2d 662 (Tex.Crim.App.1986); Vargas v. State, 852 S.W.2d 43, 44 (Tex.App.--El Paso 1993, no pet.).

The suppression hearing revealed that on May 4, 1992, during the daylight hours, Department of Public Safety Trooper Scott Bayless stopped a Nissan automobile on State Highway 71 in Fayette County. The vehicle bore an expired inspection sticker. Trooper Bayless observed no other traffic violations. The driver and owner of the car, Lionel Lanau, presented an expired driver's license to Trooper Bayless, who also determined that the sticker on the license plate was invalid. Appellant, a passenger in the Nissan, presented a valid driver's license as identification. A warrant check was run and it was determined by Bayless that Lanau had outstanding traffic warrants out of Bryan, Texas. There were no warrants for appellant's arrest.

Trooper Bayless instructed Lanau to drive his car and follow him to the Fayette County sheriff's office to confirm the existence of the outstanding warrants. Once at the sheriff's office, Lanau was taken inside. Appellant remained outside with his dog. The outstanding traffic warrants were confirmed. Lanau was taken before a justice of the peace to have bonds set. Trooper Bayless filed traffic offenses against Lanau. Lanau entered guilty pleas and was assessed $604.00 in fines and court costs. Lanau was unable to pay this amount. He was ordered confined. A jailer then took Lanau outside so that he could give his car keys to appellant and request that appellant go get the money to pay the fines and court costs.

Thereafter, Trooper Bayless went outside and told appellant to "wait a minute" and started asking questions. The officer admitted that appellant had done nothing wrong up to that point. He stated that appellant was outside the car, but later conceded appellant may have been in the driver's seat of the Lanau vehicle. Bayless acknowledged that his purpose in detaining appellant was to see if appellant would verify what Lanau had told him "out on the road" about their destination "what they were doing" and "that sort of thing." When asked what that had to do with violating traffic laws, Trooper Bayless replied:

A: There is [sic] other things beside traffic laws.

Q: Truth is you were interested in maybe catching him in a story, maybe getting into that car and looking for drugs, weren't you?

A: That is possible.

Q: That is what happened, isn't it?

A: That is what happened.

Trooper Bayless stated that in his interrogation of appellant he developed a single inconsistency in what appellant told him and what Lanau had earlier stated. Lanau had reported that he was employed and appellant stated that Lanau was unemployed. Bayless related that appellant became nervous as he continued to talk to him, and appellant's neck began to throb. Bayless then asked appellant about guns and narcotics in the car. Appellant denied their existence. Bayless acknowledged that he had no evidence, except for appellant's nervousness, of any contraband being in the car. He then asked appellant for consent to search the car and stated that appellant said "Okay." The written D.P.S. consent form was not used. Bayless did not request Lanau's consent.

Bayless's search of the car, aided by La Grange City Police Officer Charles David Gilbreath, revealed two small packets of cocaine and L.S.D. along with some paraphernalia. Gilbreath testified the search was under way when he arrived on the scene. He did not personally know if appellant had consented to the search.

Appellant testified that he waited outside the building after Lanau was taken inside; that Lanau later appeared, gave him the car keys, and asked him to go home and get money to pay Lanau's fines. As appellant was about to start the car, Trooper Bayless told him to wait because Bayless had to search the car for guns and narcotics. Appellant got out of the car and in response to Bayless's instructions, gave the car keys to the officer. Appellant stated that he did not give the officer consent or permission to search the car and that he was never asked. Trooper Bayless opened the hatchback and began to search the car while asking appellant questions. Officer Gilbreath then arrived and assisted in the search. Rain began to fall. Appellant was instructed to drive the car into a sally port. The search continued.

Lanau testified that after his fines were assessed, Trooper Bayless told him that he could get permission to turn his car keys over to appellant. A jailer took him outside to see appellant. Trooper Bayless remained inside. Lanau asked appellant to obtain money to pay his fines, and gave appellant the car keys. Lanau stated that Trooper Bayless never asked him for consent to search his car.

Not all encounters between police and citizens invoke the protection of the Fourth Amendment. Florida v. Royer, 460 U.S. 491, 497-98, 103 S.Ct. 1319, 1323-24, 75 L.Ed.2d 229 (1983); Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1879 n. 16, 20 L.Ed.2d 889 (1968); Mitchell v. State, 831 S.W.2d 829, 832 (Tex.App.--Houston [1st Dist.] 1992, pet. ref'd). Police officers are allowed just as much freedom as anyone to ask questions of fellow citizens. Daniels v. State, 718 S.W.2d 702, 704 (Tex.Crim.App.1986), overruled on other grounds, Juarez v. State, 758 S.W.2d 772, 780 n. 3 (Tex.Crim.App.1988); White v. State, 846 S.W.2d 427, 430 (Tex.App.--Houston [14th Dist.] 1992, no pet.). Law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or other public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions. Royer, 460 U.S. at 497, 103 S.Ct. at 1323. A seizure does not occur simply because a police officer approaches an individual and asks a few questions. So long as a reasonable person would feel free "to disregard the police and go about his business," California v. Hodari, 499 U.S. 621, 628, 111 S.Ct. 1547, 1552, 113 L.Ed.2d 690 (1991), the encounter is consensual and no reasonable suspicion is required. Florida v. Bostick, 501 U.S. 429, ----, 111 S.Ct. 2382, 2386, 115 L.Ed.2d 389 (1991). It is only when the police questioning of a citizen becomes a detention that it must be supported by reasonable suspicion. Terry, 392 U.S. at 19 n. 16, 88 S.Ct. at 1879 n. 16; Mitchell...