State v. Simmang
Decision Date | 09 April 1997 |
Docket Number | 04-95-00968-CR,Nos. 04-95-00967-C,s. 04-95-00967-C |
Parties | The STATE of Texas, Appellant, v. Wayman E. SIMMANG, Jr., Appellee. |
Court | Texas Court of Appeals |
Brenda Levenstein, Assistant Criminal District Attorney, San Antonio, for appellant.
Stephanie L. Stevens, Katrina Mohrer, St. Mary's Criminal Justice Clinic, San Antonio, for appellee.
Before RICKHOFF, STONE and ONION, 1 JJ.
These appeals are taken by the State from orders granting motions to suppress evidence. See TEX.CODE CRIM. PROC. ANN. art. 44.01(a)(5) (Vernon Supp.1997). Appellant, Wayman E. Simmang, Jr., was charged with the offenses of knowingly and intentionally possessing two ounces or less of marihuana, TEX. HEALTH & SAFETY CODE ANN. § 481.121(a)(b)(1) (Vernon Supp.1997), and with unlawfully carrying a handgun. TEX. PENAL CODE ANN. § 46.02(a) (Vernon 1994). Appellant filed a motion to suppress evidence in each case seeking to suppress the fruits of what he claimed was an illegal warrantless arrest or detention and search and seizure. He relied upon constitutional provisions. See U.S. Const. amend. IV, XIV; Tex. Const. art. I, § 9. At the conclusion of a pretrial hearing, the trial court granted the motions to suppress. The State gave timely notice of appeal in each case.
The State advances the same points of error in each case. They shall be considered together. The points of error read:
(1) The trial court erred in granting the motion to suppress because the information provided to the police by the anonymous person, coupled with the corroboration by Officer Leal, established reasonable suspicion to detain Appellee, and the smelling of marijuana by Officer Leal as he approached Appellee's vehicle gave Officer Leal probable cause to search Appellee.
(2) The trial court erred in granting the motion to suppress because the information provided to the police by the anonymous person, coupled with the §§ corroboration by Officer Leal, established reasonable suspicion to detain Appellee and ask him to step out of his vehicle, and Officer Leal saw a weapon inside Appellee's vehicle in plain view.
To decide the constitutional issues urged, we are presented with a record of a one-witness suppression hearing where the evidence was not developed as well as it might have been. At the outset, the State assumed the burden of proof 2 and called as its witness, San Antonio Police Officer Rudy Leal.
Leal testified that about 4:45 p.m. on March 22, 1995, he was on patrol in the 2500 block of Austin Highway. He was on duty in uniform and in a marked police vehicle when he received a call from the dispatcher about a sex offense. He was informed of an anonymous tip that a man was masturbating in a car located in a parking lot at the intersection of "Crestway and Randolph." The only description given of the individual was "a white male." The car was simply described as "a gold-colored four door sedan."
Officer Leal acknowledged that he was not given a license plate number, nor did he recall being given the make or model of the car. He admitted that he did not talk to the informant, did not know the informant, did not know the informant's identity, reliability or source of knowledge.
Officer Leal related that upon receiving the call, he immediately proceeded to the parking lot at the Michael's Arts and Crafts store where he observed a gold-colored car with a white male sitting in it. He did not see any other gold-colored car in the area. Leal parked his police vehicle "kitty-corner" to the gold-colored car. Officer Lozcano arrived about the same time and parked his vehicle behind Leal's. Leal admitted that Leal conceded that the individual in the car was not free to leave and not free to drive away. Leal stated that his intent at the time was to investigate "the call," and that he considered that the man in the car was detained and in custody.
Leal approached the blocked car and identified appellee as the man he saw seated inside the car. Leal observed no criminal activity. Appellee's hands were not in view, but appellee was dressed and his clothing was intact. The car window was rolled down and Leal testified that he smelled the odor of marihuana emanating from the interior of the car. Leal ordered appellee out of the car and then started "searching him [appellee] for drugs." During the search, Leal related that he detected the strong odor of marihuana on appellee's clothing. The officer then stated that he smelled the marihuana odor when he was "searching" not for drugs but weapons, and then changed that to "frisking" for weapons. He found no weapons on appellee's person. At this point, Leal indicated that he looked into the car through an open car door and saw in plain view a weapon on the floorboard on the driver's side of the transmission hump. Appellee was immediately arrested for unlawfully carrying a weapon and given his Miranda 3 warnings. A search of appellee's person produced no drugs or weapons. Appellee was handcuffed and placed in a police vehicle. Officer Leal then began an "inventory" of the car, and found a box of bullets and less than two ounces of marihuana in a baggie inside a closed briefcase on the front seat.
Appellee was arrested for the possession of marihuana and Leal "inventoried further." Upon further questioning by the prosecutor, Leal indicated that he was actually searching the car incident to arrest.
On cross-examination by appellee, Officer Leal was confronted with his offense report which reflected that Leal had smelled the odor of marihuana only when he was frisking or searching appellee outside of the car. He stated that his report was correct that "basically" was what happened. On re-direct examination, he stated that he had detected the marihuana odor both times. On recross-examination, the record reflects:
Q. Okay. Your report indicates that you did not smell marijuana until you had Mr. Simmang outside of the vehicle, and was frisking him.
A. That's what my report says.
Leal then agreed that he had prepared the report the day of the arrest when his memory was better. When asked again if his report was incorrect, Leal stated that he "believed it to be a fact." The officer's conflicting testimony left a question for the trial court to resolve.
In a suppression hearing, the trial court is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990). The trial court may accept or reject any or all of a witness's testimony or evidence offered. Alvarado v. State, 853 S.W.2d 17, 23 (Tex.Crim.App.1993). In reviewing the trial court's decision, an appellate court views the evidence in the light most favorable to the trial court's ruling. Green v. State, 615 S.W.2d 700, 707 (Tex.Crim.App. [Panel Op.] 1980), cert. denied, 454 U.S. 952, 102 S.Ct. 490, 70 L.Ed.2d 258 (1981). In fact, an appellate court does not engage in its own factual review; it determines only whether the record supports the trial court's findings. Romero, 800 S.W.2d at 543. The reviewing court is not at liberty to disturb supported findings of fact absent an abuse of discretion. Etheridge v. State, 903 S.W.2d 1, 15 (Tex.Crim.App.1994), cert. denied --- U.S. ----, 116 S.Ct. 314, 133 L.Ed.2d 217 (1995); Cantu v. State, 817 S.W.2d 74, 77 (Tex.Crim.App.1991). The appellate court should defer not only to the trial court's findings regarding the historical facts but also to the trial court's conclusions regarding the legal significance of those facts. DuBose v. State, 915 S.W.2d 493, 497 (Tex.Crim.App.1996); State v. Carter, 915 S.W.2d 501, 504 (Tex.Crim.App.1996). If findings and conclusions are not filed, it is presumed that the trial court made findings necessary to support its ruling so long as those implied findings are supported by the record. Jones v. State, 926 S.W.2d 386, 388 (Tex.App.--Fort Worth 1996, pet. ref'd); Ice v. State, 914 S.W.2d 694, 695-96 (Tex.App.--Fort Worth 1996, no pet.); see also DuBose, 915 S.W.2d at 497, 497 n. 5. The appellate court will normally address only the question of whether the trial court improperly applied the law to the facts. Romero, 800 S.W.2d at 543. If the trial court's decision is correct on any theory of the law applicable to the case, it will be sustained even though the trial court may have given the wrong reason for its ruling. Id.; Calloway v. State, 743 S.W.2d 645, 651-52 (Tex.Crim.App.1988).
The Fourth Amendment does not, of course, provide guarantees against all searches and seizures, but only against unreasonable searches and seizures. See Elkins v. United States, 364 U.S. 206, 222, 80 S.Ct. 1437, 1446, 4 L.Ed.2d 1669 (1960); Worley v. State, 912 S.W.2d 869, 872 (Tex.App.--Fort Worth 1995, pet. ref'd). The same is true of article I, section 9 of the Texas Constitution. Giacona v. State, 372 S.W.2d 328, 333 (Tex.Crim.App.1962), cert. denied, 375 U.S. 843, 84 S.Ct. 92, 11 L.Ed.2d 70 (1963); see also Alvarez v. State, 857 S.W.2d 143, 145-46 (Tex.App.--Corpus Christi 1993, pet. ref'd).
There are three general categories of police and civilian interaction which have been recognized in both federal and state cases. See e.g., Florida v. Royer, 460 U.S. 491, 497-502, 103 S.Ct. 1319, 1324-26, 75 L.Ed.2d 229 (1983); Harris v. State, 913 S.W.2d 706, 708 (Tex.App.--Texarkana 1995, no pet.); Francis v. State, 896 S.W.2d 406, 408 (Tex.App.--Houston [1st Dist.] 1995), pet. dism'd, 922 S.W.2d 176 (Tex.Crim.App.1996). The first category is an encounter. Terry v. Ohio, 392 U.S. 1, 13, 88 S.Ct. 1868, 1876, 20 L.Ed.2d 889 (1968) spoke of "encounters" initiated by the police for a wide variety of purposes, some of which are wholly unrelated to a desire to prosecute a crime. Police officers do not violate the Fourth Amendment by merely approaching an individual in public to ask questions. Royer,...
To continue reading
Request your trial-
Garcia v State
...three categories of police-civilian interaction: (1) encounter; (2) temporary detention or stop; and (3) arrest. See also State v. Simmang, 945 S.W.2d 219, 222-23 (Tex. App.--San Antonio 1997, no pet.); Francis v. State, 896 S.W.2d 406, 408-09 (Tex. App.--Houston [1st Dist.] 1995), pet. dis......
-
Davis v. State, 03-98-00221-CR
...categories of police-civilian interaction: (1) encounter; 3 (2) temporary detention or stop; and (3) arrest. 4 See also State v. Simmang, 945 S.W.2d 219, 222-23 (Tex.App.--San Antonio 1997, no pet.); Francis v. State, 896 S.W.2d 406, 408-09 (Tex.App.--Houston [1st Dist.] 1995), pet. dism'd ......
-
Zarychta v. State
...the trial court made findings necessary to support its ruling so long as those implied findings are supported by the record. State v. Simmang, 945 S.W.2d 219, 221-22 (Tex. App.--San Antonio 1997, no Ordinarily, a peace officer may exercise his powers as a law enforcement officer only within......
-
Josey v. State
...trial court made findings necessary to support its ruling so long as those implied findings are supported by the record. See State v. Simmang, 945 S.W.2d 219, 221-22 (Tex.App.--San Antonio 1997, no A. REASONABLENESS OF INITIAL STOP In his first and second points of error, appellant contends......