Shelby v. State, No. 2-05-258-CR (TX 3/16/2006)
| Decision Date | 16 March 2006 |
| Docket Number | No. 2-05-258-CR.,2-05-258-CR. |
| Parties | NATHAN EDWARD SHELBY, Appellant, v. THE STATE OF TEXAS, State. |
| Court | Texas Supreme Court |
Appeal from the 371st District Court of Tarrant County.
Panel A: HOLMAN, J.; CAYCE, C.J.; and LIVINGSTON, J.
Appellant Nathan Edward Shelby appeals the trial court's denial of his motion to suppress. After the trial court denied his motion to suppress, Appellant entered an open plea of guilty to count one of the indictment charging him with possession of methamphetamine of less than one gram. The trial court sentenced Appellant to six months' confinement. In a single issue, Appellant complains that the trial court erred in denying his motion to suppress. We affirm.
While he was on patrol of The Parks Mall in Arlington during the Christmas season, Officer Jenkins' attention was drawn to a car parked in the mall parking lot. The car was parked on the far east side of the parking garage, away from the mall, and was occupying three parking spots. Officer Jenkins saw one man standing outside the vehicle,2 whom he identified as Appellant, and another man occupying the front passenger side of the car. He testified that he thought the behavior was suspicious because people do not usually park that far from the mall, given the parking spots available closer to the mall, and because the car was parked across three parking spaces.
Because he knew that there were a lot of car burglaries in that parking garage, as well as robberies, Officer Jenkins stopped and observed the car for approximately five minutes. During that time, Appellant continued to do something either under or on the seat. Appellant then got into the car and drove to another parking lot at the mall. Officer Jenkins followed the car out of the mall parking lot and across the street into another parking lot on the north side of a car stereo business. As he pulled his car into the parking lot, Officer Jenkins turned on his lights to indicate his location to other officers because he had called in for backup. He then approached the occupants.
When Officer Jenkins approached him, Appellant immediately began to tell Officer Jenkins that he had just bought a jacket and he insisted on showing Officer Jenkins the receipt. Officer Jenkins testified that Appellant was talking fast and was nervous. In light of Appellant's actions, Officer Jenkins asked Appellant to step out of the car in order to question Appellant about his intentions at the mall that day away from the passenger.
Appellant exited the car, and Officer Jenkins conducted a pat-down for officer safety and came across something that he suspected was contraband. He asked Appellant for consent to search his pockets and presented him with a "consent to search form," which Appellant read over for a very short amount of time and quickly signed. When he searched Appellant's pockets, Officer Jenkins found a small bag of what he recognized to be methamphetamine. Officer Jenkins then arrested Appellant for possession of a controlled substance and placed him in the back of the patrol car. Officer Alvarez assisted Officer Jenkins by running a routine warrant check on the passenger while Officer Jenkins conducted his investigation of Appellant.
Following Appellant's arrest, Officer Jenkins conducted an inventory search of the vehicle prior to having it towed. Upon searching Appellant's car, Officer Jenkins found over $ 15,000 in cash and other contraband. Appellant also had $875 in cash on his person.
In a single issue, Appellant contends that the trial court erred by denying his motion to suppress. He asserts that the arresting officer did not have reasonable suspicion to make an investigatory detention, his consent to search was not valid, and the unlawful detention vitiated his consent.
We review a trial court's ruling on a motion to suppress evidence under a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). In reviewing the trial court's decision, we do not engage in our own factual review. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Best v. State, 118 S.W.3d 857, 861 (Tex. App.-Fort Worth 2003, no pet.). The trial judge is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000); State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999). Therefore, we give almost total deference to the trial court's rulings on (1) questions of historical fact and (2) application-of-law-to-fact questions that turn on an evaluation of credibility and demeanor. Johnson v. State, 68 S.W.3d 644, 652-53 (Tex. Crim. App. 2002); State v. Ballman, 157 S.W.3d 65, 68 (Tex. App.-Fort Worth 2004, pet. ref'd). But when the trial court's rulings do not turn on the credibility and demeanor of the witnesses, we review de novo a trial court's rulings on mixed questions of law and fact. Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson, 68 S.W.3d at 652-53.
When reviewing a trial court's ruling on a mixed question of law and fact, the court of appeals may review de novo the trial court's application of the law of search and seizure to the facts of the case. Estrada, 154 S.W.3d at 607. When there are no explicit findings of historical fact, the evidence must be viewed in the light most favorable to the trial court's ruling. Id. We must uphold the trial court's ruling if it is supported by the record and correct under any theory of law applicable to the case even if the trial court gave the wrong reason for its ruling. Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003), cert. denied, 541 U.S. 974 (2004); Ross, 32 S.W.3d at 856; Romero, 800 S.W.2d at 543.
To suppress evidence because of an alleged Fourth Amendment violation, 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 occurred without a warrant. Id. Once the defendant has made this showing, the burden of proof shifts to the State, which is then required to establish that the search or seizure was conducted pursuant to a warrant or was reasonable.3 Id.
Whether a search is reasonable is a question of law that we review de novo. Kothe v. State, 152 S.W.3d 54, 62 (Tex. Crim. App. 2004). Reasonableness is measured by examining the totality of the circumstances. Id. at 63. It requires a balancing of the public interest and the individual's right to be free from arbitrary detentions and intrusions. Id. A search conducted without a warrant is per se unreasonable unless it falls within one of the "specifically defined and well-established" exceptions to the warrant requirement. McGee v. State, 105 S.W.3d 609, 615 (Tex. Crim. App.), cert. denied, 540 U.S. 1004 (2003); see Best, 118 S.W.3d at 862.
Appellant argues that Officer Jenkins did not have reasonable suspicion to make an investigatory detention. The State argues that Appellant was not subjected to an investigative detention, and alternatively, that if a detention did occur, it was based on specific, articulable facts. The State contends that Appellant was not subjected to an investigative detention because the car was already stopped before Officer Jenkins turned on his emergency lights and the fact that Officer Jenkins turned on his emergency lights does not automatically turn the consensual encounter into an investigative detention.
A detention, as opposed to an arrest, may be justified on less than probable cause if a person is reasonably suspected of criminal activity based on specific, articulable facts. Terry v. Ohio, 392 U.S. 1, 22, 88 S. Ct. 1868, 1880 (1968); Carmouche, 10 S.W.3d at 328. A seizure may occur in either of two ways: 1) when a person is subjected to physical force, however slight, or 2) when a person submits to a show of authority. See Johnson v. State, 912 S.W.2d 227, 234 (Tex. Crim. App. 1995).
In Garza v. State, the State argued that there was no investigative detention of the appellant because the appellant stopped his car at an auto parts store pursuant to a predetermined plan to do so, and the appellant did not stop in response to the patrol car's flashing lights. Garza, 771 S.W.2d 549, 556 (Tex. Crim. App. 1989). The court reviewed the testimony of the officers, which indicated that the emergency lights had been turned on before the appellant had pulled into the auto parts store. Id. at 557. The court determined that, according to the sequence of events, it could not be maintained that a reasonable person under the circumstances would have believed he was free to leave. Id.
Following Garza, Texas cases have held that when an officer turns on his traffic lights, the officer has made a sufficient show of authority to turn a consensual encounter into a detention or seizure. See, e.g., Klare v. State, 76 S.W.3d 68, 73 (Tex. App.-Houston [14th Dist.] 2002, pet. ref'd); Hernandez v. State, 963 S.W.2d 921, 924 (Tex. App.-San Antonio 1998, pet. ref'd). These cases differ from the present case in a material respect. The cited cases involve traffic stops of moving vehicles, whereas here, Appellant's vehicle was stopped prior to the time that Officer Jenkins turned on his emergency lights to indicate to other officers his location. None of the evidence presented indicates that Officer Jenkins' use of the emergency lights produced the stop or detention, or that Appellant yielded to Officer Jenkins' show of authority.
Thus, when Officer Jenkins approached Appellant's vehicle, there was no seizure; there was an...
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