Monjaras v. State

• Decision Date: 27 July 2021
• Docket Number: NO. 01-19-00608-CR,01-19-00608-CR
• Parties: Tairon Jose MONJARAS, Appellant v. STATE of Texas, Appellee
• Court: Texas Court of Appeals

631 S.W.3d 794

Tairon Jose MONJARAS, Appellant

v.STATE of Texas, Appellee

NO. 01-19-00608-CR

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued July 27, 2021

Alexander Bunin, Chief Public Defender, Harris County, Texas, Jani Maselli Wood, Assistant Public Defender, 1201 Franklin Street, 13^th Floor, Houston, Texas 77002, for Appellant.

Kim Ogg, Distrct Attorney, Harris County, Texas, John David Crump, Assistant district Attorney, Harris County, Texas, 600 Jefferson St., 6^th Floor, Houston, Texas 77002, for Appellee.

Panel consists of Justices Kelly, Goodman, and Countiss.

Julie Countiss, Justice After the trial court denied his motion to suppress evidence, appellant, Tairon Jose Monjaras, with an agreed punishment recommendation from the State, pleaded guilty to the felony offense of possession of a firearm by a felon.¹ In accordance with the plea agreement, the trial court assessed his punishment at confinement for five years. In his sole issue, appellant contends that the trial court erred in denying his motion to suppress evidence.

We modify the trial court's judgment and affirm as modified.

Background

At the hearing on appellant's motion to suppress, Houston Police Department ("HPD") Officer J. Sallee testified that he was on duty, with his partner, on December 12, 2018. While on patrol around noon in a "high crime area," Sallee drove his patrol car into the La Plaza apartment complex on Glenmont Drive. The patrol car's emergency overhead lights and siren were not activated. The weather was warm, in the "[m]id sixties" and "[s]eventies." As Sallee drove slowly toward the back of the apartment complex, he saw appellant walking. Appellant had a backpack with him. Appellant did not make eye contact with Sallee as the patrol car drove by; instead, appellant "immediately looked down as ... a child would ... if [he was] doing something wrong." Appellant was "over dressed for th[e] temperature" outside. After the patrol car passed appellant, Sallee's partner saw appellant "immediately look[ ] up."

Because Officer Sallee wanted "to see where [appellant] was going or what was going on," he made a U-turn in the patrol car. Sallee still did not activate his patrol car's emergency overhead lights or siren. After the patrol car turned around, Sallee expected to see appellant walking, but appellant was not in sight. Sallee believed that appellant had either "ducked off into an apartment" or run off.

While patrolling the other side of the apartment complex, Officer Sallee saw appellant again. Sallee did not activate his patrol car's emergency overhead lights or siren. Sallee stopped the patrol car, exited, and approached appellant to engage in a consensual encounter with him. Sallee requested information from appellant but did not demand information from appellant. Sallee did not exhibit his firearm, and appellant freely spoke to Sallee. Appellant understood what Sallee said to him. Appellant was "free to go," and if appellant "had just taken off running," Sallee would not have done anything.

Officer Sallee also testified that later, when he searched appellant, he found five .22 caliber bullets in appellant's backpack. And Sallee "felt [a] gun" in appellant's waistband when he searched appellant's person. Appellant immediately started fighting with Sallee after Sallee "felt the gun." Sallee believed that appellant was trying to get his firearm when he struggled with Sallee. Following the struggle, Sallee and his partner recovered a firearm from appellant that was "fully loaded."

HPD Officer C. Starks testified that while on duty on December 12, 2018, he rode, along with his partner, Officer Sallee, in a patrol car. While on patrol, Sallee and Starks went to the La Plaza apartment complex on Glenmont Drive. As they drove around the apartment complex, Starks saw appellant walking. When appellant saw the law enforcement officers, he "lowered his head" and did not look at them, which was not a normal reaction. According to Starks, appellant was "not dressed appropriately." Although it was a "warm day," appellant was wearing a jacket and a hat; he was also carrying a backpack. After Sallee and Starks passed by appellant in the patrol car, appellant "raised his head." When the officers turned the patrol car around to drive back toward appellant, he was gone. Starks believed that appellant had "taken off running into the courtyard." Neither Sallee nor Starks activated the patrol car's emergency overhead lights and siren.

When they saw appellant again, Officer Sallee and Officer Starks made a stop to have a consensual encounter with appellant. The manner in which Sallee parked the patrol car gave appellant a clear path, and Starks testified that appellant was "free to leave." Starks did not exhibit his firearm; he "never grabbed it," "never removed it," and "never took it out of the holster." Starks stayed "back" as Sallee spoke to appellant. If appellant had "taken off run[ning]," Starks would have "watch[ed] him take off running." Starks noted that while Sallee spoke to appellant, another person flagged Starks down to report another incident unrelated to any interaction the officers were having with appellant.

According to Officer Starks, during the officers' interaction with appellant, Officer Sallee asked appellant if he could search him. And later, after appellant's struggle with Sallee, Sallee removed a firearm from appellant's person.

The trial court admitted into evidence, State's Exhibit 1, a copy of the HPD offense report.² A portion of the offense report, titled "Case Summary," states:

Officer ... Starks and Officer ... Sallee were patrolling at La Plaza Apartments located at 5909 Glenmont on 12-12-18 in response to an increase in violent crime in the area. The officers noticed [appellant] walking inside of the complex. [Appellant] was heav[ily] dressed with a [b]ack[pack] and put his head down as the officers drove by. [Appellant] quickly walked into the courtyard and ran eastbound through the complex. The officers noticed [appellant] exited a breezeway and decided to question him regarding his suspicious activity. ... Sallee asked [appellant] for his permission to search his person, including his pockets and [appellant] freely agreed to allow ... Sallee to search him. ... Sallee found several bullets in [appellant's] backpack during [the] search. ... Sallee then searched [appellant's] body and touched a .22 caliber handgun concealed inside of [appellant's] pants. [Appellant] grabbed this gun and began to wrestle with [the] officers. [Appellant] grabbed this gun in an attempt to murder ... Sallee and ... Starks. The officers wrestled with [appellant] for approximately a minute until ... Starks tasered him and he began to comply. ... Sallee recovered a fully loaded.... 22 caliber revolver from [appellant].

This [was] a firearm that [appellant] unlawfully possessed because of his felony conviction. ... Sallee received abrasions to his forehead

and hand during th[e] struggle.

Another portion of the offense report written by Officer Sallee states:

I have made a prior arrest in this same area of Houston for violent gang related crimes while I was assigned to [the] gang division as a crime reduction unit. Officer Starks and I were in a fully marked police Tahoe and were wearing [our HPD] issued uniforms with [body-worn cameras] activated. We entered the La Plaza apartment complex located at 5909 Glenmont Drive.

While [we] were patrolling through the parking lot[,] we passed by [appellant] who was walking east bound, down the southside of the apartment complex. Both Officer Starks and I noticed that [appellant] appeared to be nervous and stared at the ground and only looked up once we passed him. I continued driving a short distance and turned our patrol vehicle around.

We did not see [appellant] once we turned around for a short time and observed him walking down one of the breeze[ways]. Both Officer Starks and I activated our body[-]worn cameras ... and I made first contact with [appellant].

I introduced myself and shook [appellant's] hand and began speaking with him. After a short conversation[,] I learned that [appellant] did not have any identification on his person. I have seen this many times with fugitives so they can lie about their identity. [Appellant] verbally consented for me to search him. The consent to search can be clearly heard and [seen] on my [body-worn camera]. [Appellant] continued not to make eye contact with me and had trembling hands.

I searched [appellant] once and then moved to his [backpack] where I located approx[imately] 5 unfired .22 caliber bullets. I recognized the bullets to be [for] a .22 caliber pistol [which] is a smaller firearm. I informed Officer Starks that I had found several bullets and told him it would be a smaller pistol that I could have missed. I began searching [appellant] again and felt a gun near his right[-]side groin area. Once [appellant] knew I had found the gun[,] he reached for it and began fighting [with the] officers. I maintained my right hand on the gun and wrapped my left arm around [appellant's] waist. ... Starks, [appellant,] and I went to the ground after a short struggle on our feet. The entire time [appellant] was attempting to retrieve the gun. Some[how] [appellant] regained his feet and I followed with him by having my arms still wrapped around his waist. We took several steps and I took [appellant] back to the ground. I struck [appellant] several times with my left hand while I maintained my right hand on the gun. ... Starks regained his feet and was able to deploy his [conducted energy device] striking [appellant] in his upper left shoulder. All while [Starks and I] gave verbal commands to [appellant]. [Appellant] still had his right hand under his body with his hand on the gun. I yelled at [appellant] and ... Starks recharged the [conducted energy device]. This time [appellant] finally gave up and placed his hands behind his back. ... I placed [appellant]

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