Rocha v. State

• Decision Date: 12 March 2015
• Docket Number: NO. 01–13–00897–CR,01–13–00897–CR
• Parties: Cesar Rocha, Appellant v. The State of Texas, Appellee
• Court: Texas Court of Appeals

464 S.W.3d 410

Cesar Rocha, Appellant

v.The State of Texas, Appellee

NO. 01–13–00897–CR

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

Opinion issued March 12, 2015

Discretionary Review Refused August 26, 2015

John M. Bray, Oosterhof & Bray, PLLC, Dallas, TX, for Appellant.

Devon Anderson, Alan Curry, Assistant District Attorney, Houston, TX, for Appellee.

Panel consists of Justices Higley and Bland.^* En banc court consists of Chief Justice Radack and Justices Jennings, Keyes, Higley, Bland, Massengale, Brown, Huddle, and Lloyd.

OPINION ON REHEARING

Jane Bland, Justice

A jury found Rocha guilty of possession of marijuana in a useable quantity of more than two ounces and less than four ounces and assessed his punishment at 270 days' confinement. On appeal, Rocha contends that the trial court erred in (1) denying his motion to dismiss, because the State's re-filing of the case violated his right to due process and articles 29.03 and 29.04 of the Texas Code of Criminal Procedure ; (2) denying his motion to suppress pursuant to the Fourth Amendment; and (3) denying his request for a jury instruction pursuant to article 38.23 of the Texas Code of Criminal Procedure. Rocha further contends that the trial court violated his right to due process by failing to maintain impartiality during the proceedings. After a panel of our court issued its opinion in this case, Rocha moved for rehearing en banc. The en banc court denies the motion for rehearing; however, the panel withdraws its opinion and judgment and issues this opinion and judgment in their stead. Finding no error, we affirm.

Background

In February 2010, Patrol Officer J.P. Cruz observed a blue Ford Expedition with tinted windows parked in an apartment complex parking lot after dark, its lights on and engine running. The complex's leasing office had received numerous complaints regarding narcotics deals, prostitution, and trespassing taking place in this parking lot. Officer Cruz was aware of these complaints, and he personally had observed narcotics activity in this parking lot. He had observed individuals parked in the complex parking lot with their car engines running and headlights on before making narcotics transactions. The Expedition remained parked for five to ten minutes. No one entered or exited the car.

Officer Cruz observed at least three people sitting in the Expedition.

Officer Cruz approached the Expedition on foot with a flashlight. He approached the vehicle because no one was exiting it, and its lights and engine had been on for five to ten minutes. As a safety precaution, he also drew his handgun, but pointed it down and close to his body. Officer Cruz testified that he noticed the driver's window was partially open; as he approached it, he smelled a strong odor of marijuana emanating from the car. Officer Cruz waved to the driver, who was Rocha. In response, Rocha further rolled down his window.

Officer Cruz asked the passengers to exit the car, and he handcuffed them. Officer Cruz asked Rocha if he had marijuana in the car. Rocha confessed that he did and that it was in the car's center console. Officer Cruz discovered marijuana in the car's center console, wrapped in 25 clear, small bags. All of the small bags were further enclosed in a large, clear bag.

Course of Proceedings

On February 5, 2010, the State filed an information against Rocha. On April 19, 2010, Rocha pleaded guilty to possession of marijuana pursuant to a plea bargain. The trial court convicted him and assessed his punishment at thirty days' confinement. Rocha later filed a successful writ of habeas corpus pursuant to Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). The record is silent as to when Rocha filed the writ and when the writ was granted. The State proceeded to a re-trial. The trial court reset the case on multiple occasions in 2013: on April 15, May 16, June 14, and June 24.

At the last trial setting, the State moved to dismiss the case and noted that it would re-file it. The trial court granted the State's motion. The State then filed a new information against Rocha, and the trial court set the case for trial. Rocha moved to suppress the evidence of marijuana and his statements to Officer Cruz, and at trial, the trial court held a hearing on the motion. Rocha also moved to dismiss the case, contending that the State's earlier non-suit precluded it from refiling the same criminal charges. The trial court denied both motions.

At trial, Officer Cruz testified that based on his experience, a narcotics dealer who plans to make a sale typically will park his car in a parking lot, will leave its engine running, will remain in the car, and will occasionally leave its lights on, because the dealer plans to conduct the sale from the car and leave the parking lot as soon as the transaction is complete. Officer Cruz also testified that, as he approached the Expedition, he drew his gun for his own safety, because a narcotics dealer typically carries a weapon.

Discussion

I. Re-filed Information

Standard of review

We review a trial court's decision to deny a defendant's motion to dismiss a charging instrument under a bifurcated standard.See State v. Krizan–Wilson, 354 S.W.3d 808, 815 (Tex.Crim.App.2011) (citing Guzman v. State, 955 S.W.2d 85, 87–89 (Tex.Crim.App.1997) ). We defer to a trial court's “findings of fact that are supported by the record, as well as mixed questions of law and fact that rely upon the credibility of a witness.” Id. We review de novo “pure questions of law and mixed questions that do not depend on credibility determinations.” Id.

Analysis

Rocha contends that the State's re-filing of the case violated (1) his right to due process; and (2) articles 29.03 and 29.04 of the Texas Code of Criminal Procedure. See Tex.Code Crim. Proc. Ann. arts. 29.03, 29.04 (West 2006). These contentions lack merit. The Due Process Clause of the Fifth Amendment “has a limited role to play in protecting against oppressive delay” and concerns only pre-indictment delays. Krizan–Wilson, 354 S.W.3d at 814 (quoting United States v. Lovasco, 431 U.S. 783, 789, 97 S.Ct. 2044, 2048, 52 L.Ed.2d 752 (1977) ); State v. Harbor, 425 S.W.3d 508, 515 (Tex.App.—Houston [1st Dist.] 2012, no pet.). Here, Rocha's complaint does not concern pre-information or investigative delay; rather, it concerns the State's delay during the prosecution of the case. Accordingly, the State's motion to dismiss and immediate re-filing of the case did not violate the Fifth Amendment's Due Process Clause. See Harbor, 425 S.W.3d at 515.

Relying on United States ex. rel. Hetenyi v. Wilkins, Rocha next contends that the State's re-filing of the case was fundamentally unfair, violating the Due Process Clause of the Fourteenth Amendment. 348 F.2d 844, 867 (2d Cir.1965). Hetenyi, however, is distinguishable. There, the State charged the defendant with first-degree murder, but the jury found him guilty of second-degree murder. Id. at 847. After his conviction was vacated on appeal, the State again prosecuted the defendant for first-degree murder. Id. The federal appellate court held that the reprosecution for first-degree murder violated the due process clause of the Fourteenth Amendment, because the jury refused to convict the defendant of first-degree murder in the first trial. Id. at 856–57. In contrast to the facts in Hetenyi, the State moved to dismiss this case before any trial took place, and Rocha had not been acquitted of possession of marijuana.

Rocha further contends that the State's immediate re-filing of the information violates articles 29.03 and 29.04 of the Code of Criminal Procedure. See Tex.Code Crim. Proc. Ann. arts. 29.03, 29.04. Article 29.03 provides that:

A criminal action may be continued on the written motion of the State or of the defendant, upon sufficient cause shown; which cause shall be fully set forth in the motion. A continuance may be only for as long as is necessary.

Id. art. 29.03. Article 29.04 similarly provides the grounds for a State's motion to continue the case. See id. art. 29.04 (outlining requirements of State's motion for continuance for want of a witness). Neither provision, however, limits the State's right to re-file a case after dismissal; both are inapplicable to the facts presented in this case. We hold that the trial court properly denied Rocha's motion to dismiss the State's re-filed information.

II. Suppression Ruling

Standard of review and applicable law

We evaluate a trial court's ruling on a motion to suppress under a bifurcated standard of review. Ford v. State, 158 S.W.3d 488, 493 (Tex.Crim.App.2005). The trial judge is the sole trier of fact and judge of the weight and credibility of the evidence and testimony. Wi e de v. State, 214 S.W.3d 17, 24–25 (Tex.Crim.App.2007). Accordingly, we defer to the trial court's determination of historical facts if the record supports them. Ford, 158 S.W.3d at 493. We review de novo the trial court's application of the law to those facts. Id. “[T]he prevailing party is entitled to ‘the strongest legitimate view of the evidence and all reasonable inferences that may be drawn from that evidence.’ ” State v. Castleberry, 332 S.W.3d 460, 465 (Tex.Crim.App.2011) (quoting State v. Garcia–Cantu, 253 S.W.3d 236, 241 (Tex.Crim.App.2008) ). A trial court's ruling will be sustained if it is “reasonably supported by the record and correct on any theory of law applicable to the case.” Laney v. State, 117 S.W.3d 854, 857 (Tex.Crim.App.2003) (quoting Willover v. State, 70 S.W.3d 841, 845 (Tex.Crim.App.2002) ).

“Law enforcement and citizens engage in three distinct types of interactions: (1) consensual encounters; (2) investigatory detentions; and (3) arrests.” State v. Woodard, 341 S.W.3d 404, 410–11 (Tex.Crim.App.2011) (citing Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 2386, 115 L.Ed.2d 389 (1991), Gerstein v. Pugh, 420 U.S. 103, 111–12, 95 S.Ct. 854, 862, 43 L.Ed.2d 54 (1975), and Terry v. Ohio, 392 U.S. 1, 30–31, 88 S.Ct. 1868,...