Ordaz v. State, No. 03-07-00039-CR (Tex. App. 10/10/2007)
| Decision Date | 10 October 2007 |
| Docket Number | No. 03-07-00039-CR.,03-07-00039-CR. |
| Parties | JESUS ORDAZ, Appellant v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
Appeal from the District Court of Williamson County, 26th Judicial District, No. 06-220-K26, Honorable Billy Ray Stubblefield, Judge Presiding.
Affirmed.
Before Justices PATTERSON, PURYEAR and PEMBERTON.
Jesus Ordaz appeals from his conviction by a jury of the second degree felony offense of money laundering. See Tex. Penal Code Ann. § 34.02 (West Supp. 2006). After appellant pleaded true to an enhancement penalty, the jury assessed punishment at 40 years in prison and a $10,000 fine, and the trial court sentenced him accordingly. In four issues, appellant contends that the trial court erred in its jury charge and in denying his motion to suppress, and that the evidence was legally and factually insufficient to support his conviction. Because the trial court did not err in its charge or in denying the motion to suppress, and the evidence was sufficient to support appellant's conviction, we affirm the judgment.
The evidence at trial showed that on the afternoon of January 26, 2006, Officer Eric Mount, an officer assigned to the traffic division of the Round Rock Police Department with extensive training and experience in the field of narcotics interdiction, observed appellant traveling southbound in a Dodge Durango on Interstate 35. Because appellant was traveling at 70 miles per hour, which was in excess of the posted limit of 65 miles per hour, Mount pulled alongside the vehicle and motioned to appellant, the driver, to slow down. When Mount could not get appellant's attention and appellant continued to focus straight ahead, Mount activated his overhead lights and attempted to execute a stop. Although there was room for appellant to pull over on the side of the highway, he continued down the highway for approximately a quarter of a mile. Appellant then pulled into a restaurant parking lot and stopped. Appellant's delay in stopping gave Mount concern that appellant was either trying to conceal something or was attempting to retrieve a weapon before stopping.
As Mount approached the vehicle, he observed appellant in the driver's seat and a female in the passenger seat. A license check showed that the vehicle was registered to a female with a home address in San Antonio. Appellant identified himself and showed a driver's license listing his home address in Eagle Pass. Patricia Morales, the passenger, identified herself as the owner of the car, but she did not have insurance. As Mount explained to appellant that Mount stopped him because he was speeding, Mount noticed the smell of air freshener or deodorizer coming from the vehicle. He observed boxes of ziplock plastic bags, a container of air freshener, and baby wet wipes in the back seat. Mount also observed a "big computer looking thing" on the dashboard that he identified as a GPS, a global positioning system.
Mount testified at some length that the items he observed were consistent with narcotics trafficking and an attempt to conceal contraband. Because he makes from 8 to 20 vehicle stops a day on Interstate 35 and, based on his training, Mount testified that Interstate 35 is a major drug artery and Eagle Pass, a common destination for narcotics trafficking. He testified that tracking devices such as the one on the dashboard are commonly used by narcotics traffickers to track the transport vehicle. Based on his cumulative observations and his growing suspicions, Mount separated appellant and Morales and questioned them about their trip.
Appellant told Mount that he and Morales, who he identified as his wife, had been to Dallas to visit Morales's cousin. Mount testified that, while speaking with appellant, appellant displayed nervous behavior. Appellant began to shake, his eye twitched, his lower lip quivered, and his mouth appeared dry and he was licking his lips. Although appellant had appeared to understand English early in their conversation, he later indicated he did not understand Mount.1 Morales told Mount that she and appellant had driven to Dallas from Eagle Pass to visit friends and "buy some wigs."
Mount testified that, because of his suspicions of criminal activity, he asked Morales for consent to search the vehicle. She agreed. Another officer, Martin Flores, who spoke Spanish, had arrived at the scene and asked appellant in Spanish for his consent to search the vehicle. Flores testified that appellant gave his verbal consent.
Mount and Flores conducted a search of the vehicle. Mount testified that a screw was missing in the center console in the interior of the vehicle and that three other screws appeared to be "scratched up and obvious that they had been removed for some reason." The officers testified that they found plastic ziplock bags containing a large quantity of currency beneath the center console. After discovering the currency, the officers arrested appellant and Morales and transported the vehicle to a city maintenance facility where they continued the search. During the course of the search, the officers recovered a total of $116,133 in United States currency, including bundles of currency in plastic bags near the engine where the air filter should have been and in plastic bags located in a hidden compartment underneath the plastic molding on the underside of the vehicle. The currency consisted of various denominations, including large quantities of small denominations. Both officers testified that the currency had a strong smell of "foo foo" or air freshener. A dog specially trained to detect the scent of narcotics alerted to the rear cargo area of the vehicle where the officers observed small amounts of "marijuana debris."
In an interview following his arrest, appellant stated that he and Morales traveled from Eagle Pass to Dallas, that a man whose name he did not know paid him $1500 to transport the currency from Dallas to Eagle Pass, that he concealed the currency inside the vehicle and then drove the vehicle from Dallas until he was stopped in Round Rock, and that, once he arrived in Eagle Pass, he was supposed to be contacted by a man named "Jose" who would provide further instructions on where to take the money. A fingerprint examiner testified at trial that appellant's right thumb print matched a latent fingerprint lifted from one of the boxes containing ziplock bags recovered from the vehicle. Officer Flores testified that no one ever claimed the money seized from the vehicle.
Based upon their observations and their training and experience, the officers testified that the amount of currency recovered from the vehicle and the manner in which it was stored and transported was consistent with the sale and distribution of narcotics. Prior to trial, appellant filed a motion to suppress the physical evidence seized from the vehicle on the grounds that it was seized in violation of the Fourth Amendment of the United States Constitution and Article I, Section 9 of the Texas Constitution because appellant was subjected to an illegal detention. Appellant did not challenge the legality of the initial stop of the vehicle. No hearing was held prior to trial. Appellant presented his motion during trial at the time the State offered a redacted video and audio recording of the traffic stop. The trial court denied the motion.
To suppress evidence on an alleged violation of Fourth Amendment rights, the defendant bears the initial burden of producing evidence that rebuts the presumption of proper police conduct. Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). A defendant satisfies this burden by establishing that a search or seizure occurs without a warrant. Id. Once the defendant makes this showing, the burden shifts to the State, which must then establish that the search or seizure was conducted pursuant to a warrant or was reasonable. Id.
We review a trial court's ruling on a motion to suppress under a bifurcated standard of review, giving almost total deference to a trial court's determination of historical facts and reviewing de novo the court's application of the law. See Wiede v. State, 214 S.W.3d 17, 24-25 (Tex. Crim. App. 2007); Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002); Guzman v. State, 955 S.W.2d 85, 87-90 (Tex. Crim. App. 1997). When findings of fact are not requested by the parties and not filed by the trial court as here, we view the evidence in the light most favorable to the trial court's ruling and assume that the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record. See State v. Cullen, 195 S.W.3d 696, 698 (Tex. Crim. App. 2006); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).
Although appellant concedes that the initial stop of his vehicle was lawful, in his first issue he contends that, instead of issuing a traffic citation for speeding to appellant or for the insurance infraction to Morales, the officers detained him without reasonable suspicion to investigate the possibility that he was transporting drugs. Citing Kothe v. State, 152 S.W.3d 54 (Tex. Crim. App. 2004), appellant urges that the officers detained appellant beyond the initial purpose of the stop without the requisite reasonable suspicion that criminal activity was afoot. As in Kothe, here, neither the initial stop nor its duration violated the Fourth Amendment, and the consents to search were not thereby tainted. See id. at 67.
A law enforcement officer may lawfully stop a motorist who commits a traffic violation. State v. Gray, 158 S.W.3d 465, 469 (Tex. Crim. App. 2005); Garcia v. State, 827 S.W.2d 937, 944 (Tex. Crim. App. 1992). In general, the decision to stop an automobile is reasonable when an officer has...
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