Hurtado v. State

• Citation: 881 S.W.2d 738
• Decision Date: 12 May 1994
• Docket Number: No. 01-93-00101-CR,01-93-00101-CR
• Parties: Omar HURTADO, Appellant, v. The STATE of Texas, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 738

881 S.W.2d 738

Omar HURTADO, Appellant, v. The STATE of Texas, Appellee.

No. 01-93-00101-CR.

Court of Appeals of Texas,

Houston (1st Dist.).

May 12, 1994.

Frank Alvarez, Houston, for appellant.

John B. Hlmes, Jr./Alan Curry, Harris County, for appellee.

Before DUGGAN, HUTSON-DUNN and ANDELL, JJ.

OPINION

DUGGAN, Justice.

After his motion to suppress evidence was overruled, appellant, Omar Hurtado, waived his right to a jury trial. Upon his plea of not guilty, the trial court found him guilty of possession of more than 400 grams of cocaine and assessed his punishment at 15-years confinement and a $5,000 fine.

In his first two points of error, appellant alleges the trial court erred in overruling his motion to suppress because the evidence seized was the fruit of an illegal stop and an illegal search. In his third point of error, he argues that the evidence was insufficient to support the court's finding that he intentionally and knowingly possessed the contraband. We affirm.

Houston Police Officer Oscar G. Ortiz testified that while he was on patrol at about 5:30 p.m. on July 23, 1992, he saw an automobile being operated with a dealer's paper license tag. Ortiz checked the tag through his patrol car's computer and learned that several warrants were issued and outstanding under the tag. Ortiz stopped the vehicle, approached the driver's window, and asked appellant, the driver and sole occupant, for his operator's license. Appellant responded in Spanish that he had none and that he was from another country. Ortiz questioned appellant in Spanish and asked him for any kind of identification. Appellant said he had none, and told Ortiz that he had borrowed the vehicle from a friend. The name appellant gave Ortiz as his own was not on any of the warrants issued to drivers using the vehicle's paper dealer's tag.

During Ortiz's questioning, the 18 year-old appellant appeared very nervous and glanced six or seven times toward the passenger side of the vehicle by averting his eyes to the right without moving his head. He kept his hands on the steering wheel. Ortiz found appellant's behavior "unusual."

Concerned for his own safety, Ortiz instructed appellant not to move, walked around the vehicle, reached through the open passenger side window, and pushed the back of the seat forward several inches in order to check for a weapon. Ortiz then saw a clear white cellophane package sticking out from beneath the rear of the front passenger seat. Ortiz recognized the package as a typical brick of cocaine. He ordered appellant out of the vehicle, placed him under arrest, searched the vehicle, and recovered the package. It total weight was 995.2 grams, 622.9 grams of which was pure cocaine.

A trial court's ruling on a motion to suppress will not be set aside absent a showing of abuse of discretion. Maddox v. State, 682 S.W.2d 563, 564 (Tex.Crim.App.1985); Santos v. State, 822 S.W.2d 338, 339 (Tex.App.--Houston [1st Dist.] 1992, pet. ref'd). To determine whether the trial court abused its discretion, the evidence is viewed in the light most favorable to the ruling. Daniels v. State, 718 S.W.2d 702, 704 (Tex.Crim.App.1986). At the hearing on a motion to suppress, the trial judge is the sole fact finder and, as such, may believe or disbelieve all of or any part of any witness' testimony. Taylor v. State, 604 S.W.2d 175, 177 (Tex.Crim.App. [Panel Op.] 1980); Santos, 822 S.W.2d at 339. Any finding supported by the record will not be disturbed on appeal. Id.

The stop

In his first point of error, appellant contends the trial court erred in overruling his motion to suppress and admitting evidence at trial that was the fruit of an illegal stop.

Appellant urges that outstanding warrants issued to persons using the dealer's paper license tag were insufficient to provide reasonable suspicion that criminal activity was afoot, or that appellant was connected to the activity; therefore, he reasons, the stop was illegal. He first argues that because the State failed at the suppression hearing to present any of the warrants, or any information as to who issued the warrants, there was no evidence of reasonable suspicion of criminal activity to justify the investigative stop. Alternatively, he argues, there was no description of any person to be arrested under any of the warrants to justify the seizure of appellant.

An officer may briefly stop a suspicious individual in order to determine his identity or maintain the status quo momentarily while obtaining more information. Hoag v. State, 728 S.W.2d 375, 380 (Tex.Crim.App.1987). To justify such an initial detention, the officer must be able to point to specific and articulable facts which, in light of his experience or personal knowledge, together with inferences drawn from the facts, reasonably warrant the intrusion. Id. at 380. The "specific and articulable facts" must objectively support (1) a reasonable suspicion by the officer that some activity out of the ordinary is occurring or has occurred, (2) some suggestion to connect the person detained with the unusual activity, and (3) some indication that the activity is related to a crime. Id.

Here, Officer Ortiz initially stopped appellant's automobile because his license check through his patrol car computer showed there were outstanding warrants for several persons who had operated a motor vehicle using this particular dealer's tag. Ortiz's purpose in stopping appellant was to determine if he was a person named in any of the outstanding warrants. Ortiz's suspicion that appellant might be a person named on the warrants was reasonable. Ortiz's reasonable suspicion did not need to rise to the level of probable cause to believe appellant was the subject of one or more of the warrants in order to authorize him to stop appellant's car. See Stone v. State, 703 S.W.2d 652, 654 (Tex.Crim.App.1986).

Appellant does not dispute that Officer Ortiz received information through his computer, as Ortiz testified. "A reasonable suspicion [to justify an investigative stop] may be based on articulable facts, even if such facts are ultimately shown to be inaccurate or false." Kelly v. State, 721 S.W.2d 586, 587 (Tex.App.--Houston [1st Dist.] 1986, no pet.) (police officer had reasonable suspicion to stop based on erroneous information that vehicle was stolen). The fact that appellant was not named in one of the outstanding warrants did not retroactively diminish Officer Ortiz's ability to stop appellant's vehicle and determine his identity and whether he was the subject of one or more of the warrants. Here, no warrant was introduced because a warrant was not ultimately the basis for appellant's arrest. Having stopped appellant, Ortiz was entitled to, and did, request appellant to present his driver's license and identification. TEX.REV.CIV.STAT.ANN. arts. 6687b, § 13 & 6701h, § 1B(a) (Vernon Supp.1994). By doing so, Ortiz promptly learned that appellant had no driver's license, for which he could be ticketed or arrested. TEX.CODE CRIM.P.ANN. art. 14.01(b) (Vernon 1977). Thus, the initial temporary detention was legal. We overrule appellant's first point of error.

The search

Appellant asserts that the trial court erred by admitting evidence that was the fruit of an illegal search because Officer Ortiz's action in pushing the car's passenger seat forward exceeded the scope of a search incident to an investigative stop.

A police officer investigating a suspect after a roadside stop may conduct a protective search of the automobile's passenger compartment if he has a reasonable belief, based upon specific and articulable facts and the inferences rationally drawn from those facts, that the detainee may pose a threat to him. Michigan v. Long, 463 U.S. 1032, 1050-51, 103 S.Ct. 3469, 3481, 77 L.Ed.2d 1201 (1983); Goodwin v. State, 799 S.W.2d 719, 727-28 (Tex.Crim.App.1990). The search must be limited to those areas in which a weapon may be placed or hidden. Michigan, 463 U.S. at 1049, 103 S.Ct. at 3480. The police officer may conduct the protective search for weapons contemporaneously with a temporary detention when he observes conduct that leads him to reasonably conclude that a crime may be taking place and that the person with whom he is dealing may be armed and dangerous. Worthey v. State, 805 S.W.2d 435, 437 (Tex.Crim.App.1991).

Officer Ortiz stated he thought appellant's behavior in making repeated furtive glances by averting his eyes toward the passenger seat area while not turning his head, was "unusual." Appellant claimed not to speak English, told Ortiz he was an alien, and claimed to have borrowed the car from a friend. He had no operator's license or personal identification, and was operating a vehicle with a paper dealer tag that had several outstanding warrants against its operator(s). Ortiz testified he looked into the car and moved the seat because he was in fear of his personal safety and wanted to be certain that appellant did not have a weapon within his reach. The area he searched was within the passenger compartment and was both suitable and accessible as a place for a driver to conceal a weapon. The trial court was justified in concluding that Officer Ortiz articulated reasonable grounds to fear for his personal safety and to conduct a weapons search for his own protection. We hold that the search was legal, and we overrule appellant's second point of error.

Sufficiency of evidence

In his third point of error, appellant claims the evidence was insufficient to support the trial court's finding that he intentionally and knowingly possessed the cocaine found in the automobile.

In reviewing the sufficiency of the evidence, an appellate court must view the evidence in the light most favorable to the verdict to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). A...