De La Paz v. State, 08-92-00444-CR

• Decision Date: 13 April 1995
• Docket Number: No. 08-92-00444-CR,08-92-00444-CR
• Citation: 901 S.W.2d 571
• Parties: Ricardo DE LA PAZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 571

901 S.W.2d 571

Ricardo DE LA PAZ, Appellant, v. The STATE of Texas, Appellee.

No. 08-92-00444-CR.

Court of Appeals of Texas,

El Paso.

April 13, 1995.

Discretionary Review Refused Sept. 13, 1995.

M. Clara Hernandez, El Paso County Defender, El Paso, for De La Paz, appellant.

Jaime E. Esparza, Dist. Atty., El Paso, for State/appellee.

Before BARAJAS, C.J., and LARSEN and McCOLLUM, JJ.

OPINION

BARAJAS, Chief Justice.

This is an appeal from a conviction for the offense of possession of heroin, enhanced by the allegation of two prior felony convictions. The jury, upon finding Appellant guilty, assessed punishment at 60 years' confinement in the Institutional Division of the Texas Department of Criminal Justice. We affirm in part, reverse in part, and remand this cause to the trial court for new sentencing proceedings.

I. SUMMARY OF THE EVIDENCE

The record in the instant case reveals that on Sunday, June 4, 1989, at approximately 9:00 a.m., Joseph Anthony Barragan, an officer with the El Paso Police Department, observed a parked vehicle in the 4500 block of Rosa Street in El Paso, Texas. The area, primarily a business district, is known for its heavy traffic in narcotics. In the vehicle were two male occupants, both of whom had passed out. At the time of the observation, all businesses in the area were closed. Officer Barragan approached the vehicle to ensure that everything was all right.

Officer Barragan noticed that Appellant, who was located in the driver's seat of the vehicle, had blood coming from his arm from fresh "track marks". ¹ The passenger likewise exhibited fresh "track marks" and was holding both a syringe that Officer Barragan believed to contain heroin and tissue with blood on it. Officer Barragan additionally observed a "cooker", ² with residue inside it located on the console immediately between Appellant and the passenger.

Officer Barragan called for backup. When the backup arrived, Appellant and the passenger were removed from the car and placed under arrest. At the time of their arrest, both Appellant and his passenger appeared incoherent and their pupils were dilated. Both officers then returned to the vehicle and found what appeared to be additional heroin on the floorboard.

II. DISCUSSION

In Point of Error No. One, Appellant complains that the trial court erred in denying his Motion to Suppress the heroin which was discovered in his vehicle as a result of the inventory search. The trial judge is the sole and exclusive trier of facts at a hearing on a motion to suppress. Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990); Cannon v. State, 691 S.W.2d 664, 673 (Tex.Crim.App.1985), cert. denied, 474 U.S. 1110, 106 S.Ct. 897, 88 L.Ed.2d 931 (1986); Hawkins v. State, 628 S.W.2d 71, 75 (Tex.Crim.App.1982); Green v. State, 615 S.W.2d 700, 707 (Tex.Crim.App.1980), cert. denied, 454 U.S. 952, 102 S.Ct. 490, 70 L.Ed.2d 258 (1981). On appeal, this Court will not engage in its own factual review but rather, will decide whether the record supports the trial judge's findings. The totality of the circumstances are considered in determining whether the trial court's findings are supported by the record, and the findings will not be disturbed absent a clear abuse of discretion. Dancy v. State, 728 S.W.2d 772, 777 (Tex.Crim.App.1987), cert. denied, 484 U.S. 975, 108 S.Ct. 485, 98 L.Ed.2d 484 (1987).

When a defendant seeks to suppress evidence on the basis of a Fourth Amendment violation, the burden of proof is initially on the defendant. Russell v. State, 717 S.W.2d 7, 9 (Tex.Crim.App.1986); Mattei v. State, 455 S.W.2d 761, 765-66 (Tex.Crim.App.1970); see also State v. Wood, 828 S.W.2d 471, 474 (Tex.App.--El Paso 1992, no pet.). The defendant must defeat the presumption of proper police conduct and shift the burden of proof to the State. Russell, 717 S.W.2d at 9. A defendant meets this burden by establishing that a search or seizure occurred without a warrant. Id.

A peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view. TEX.CODE CRIM.PROC.ANN. art. 14.01 (Vernon 1987). Furthermore, any peace officer may arrest, without a warrant, persons found in suspicious places and under circumstances which reasonably show that such persons have been guilty of some felony or breach of the peace. TEX.CODE CRIM.PROC.ANN. art. 14.03 (Vernon 1987). An arrest, whether made with or without a warrant must nonetheless be based upon probable cause. Campbell v. State, 644 S.W.2d 154, 158 (Tex.App.--Austin 1982), aff'd, 647 S.W.2d 660 (Tex.Crim.App.1983). In that regard, the State has the burden to prove the existence of probable cause to justify a warrantless arrest or search. Torres v. State, 868 S.W.2d 798, 801 (Tex.Crim.App.1993). In Texas, the courts look at the "totality of the circumstances" for determining probable cause for a warrantless search and seizure. Torres v. State, 868 S.W.2d at 798, 801; Eisenhauer v. State, 754 S.W.2d 159, 164 (Tex.Crim.App.1988), cert. denied, 488 U.S. 848, 109 S.Ct. 127, 102 L.Ed.2d 101 (1988). Probable cause exists where the facts and circumstances within the officer's knowledge and of which he has reasonably trustworthy information are sufficient in themselves to warrant a person of reasonable caution in the belief that a particular person has committed or is committing an offense. Torres, 868 S.W.2d at 801; Amores v. State, 816 S.W.2d 407, 413 (Tex.Crim.App.1991); Woodward v. State, 668 S.W.2d 337, 344 (Tex.Crim.App.1982) (opinion on rehearing), cert. denied, 469 U.S. 1181, 105 S.Ct. 939, 83 L.Ed.2d 952 (1985). In reviewing a warrantless arrest to determine the existence of probable cause, we look to the facts known to the officers at the time of the arrest. Torres, 868 S.W.2d at 801.

As noted earlier, Officer Barragan is a narcotics officer with the El Paso police department who then held the rank of Detective. The facts known to Officer Barragan at the time of Appellant's arrest were as follows: (1) Appellant and his passenger were "passed out" in a car on Sunday morning in a business district when all the businesses were closed; (2) fresh "track marks" were observed on both Appellant's and his passenger's arms; (3) the passenger held a partially "shot" syringe containing what Officer Barragan believed to be heroin; (4) a cap with cotton, known to Officer Barragan from his experience to be a "cooker", was on the console immediately between Appellant and his passenger; and (5) upon removal from the car, Appellant and the passenger were difficult to rouse, incoherent and their pupils were dilated. Given the above, we find the facts sufficient to provide Officer Barragan with probable cause to arrest Appellant. See Pringle v. State, 732 S.W.2d 363, 367 (Tex.App.--Dallas 1987, pet. ref'd). Because the arrest was justified under both Articles 14.01 and 14.03, we find that the search of the vehicle incident to that arrest was proper. ³ Lunde v. State, 736 S.W.2d 665, 667-668 (Tex.Crim.App.1987). Consequently, we find that the trial court did not abuse its discretion in denying Appellant's motion to suppress. Appellant's Point of Error No. One is overruled.

In Point of Error No. Two, Appellant complains that the trial court erred in failing to grant a jury instruction pursuant to Article 38.23 of the Texas Code of Criminal Procedure on the legality of his arrest. Article 38.23 provides that:

(a) No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.

In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained. TEX.CODE CRIM.PROC.ANN. art. 38.23 (Vernon Supp.1995).

A trial court is required to give an Article 38.23 instruction only if there is a factual dispute as to how evidence was obtained. Thomas v. State, 723 S.W.2d 696, 707 (Tex.Crim.App.1986). Absent any such factual dispute, a trial court may properly refuse such a charge. Murphy v. State, 640 S.W.2d 297, 299 (Tex.Crim.App.1982).

In the instant case, Appellant argues that the testimony of Blas M. Zarate, the police officer providing backup to Officer Barragan, controverts the testimony of Officer Barragan and thus creates a fact issue as to the lawfulness of Appellant's arrest. We disagree. As noted in the discussion regarding Point of Error No. One, Officer Barragan testified that he observed from outside the vehicle, prior to Officer Zarate's arrival, those facts which supported the basis for Appellant's arrest, i.e., that Appellant was "passed out", that he had a "track mark" on his arm, etc.

Officer Zarate, on the other hand, testified that "the track marks were seen after Appellant was pulled from the car" and that before Appellant and the passenger were pulled out of the car, he "really couldn't see the track marks". He further testified that he was not the initial officer on the scene but was merely called in as backup to assist in the arrest. Insofar as Officer Barragan, prior to Officer Zarate's arrival, had already determined that probable cause existed for the Appellant's arrest, proper evaluation of the legality of Appellant's arrest must be based upon the testimony of Officer Barragan and facts known to him at the time the decision to arrest was made.

We note that the record fails to show that Officer Zarate did not state that the arresting officer did not, or could not have seen the track marks prior to pulling Appellant and his passenger out of the vehicle. The fact that Officer Zarate did not see the track marks at the same time that the arresting officer did does not...