VASQUEZ v. The State of Tex.
| Decision Date | 09 December 2010 |
| Docket Number | No. 14-09-00620-CR.,14-09-00620-CR. |
| Parties | Edgar Josias VASQUEZ, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
OPINION TEXT STARTS HERE
COPYRIGHT MATERIAL OMITTED.
Connie Brown Williams, Houston, for appellant.
Lana S. Shadwick, Houston, for state.
Panel consists of Justices ANDERSON, FROST, and SEYMORE.
Appellant, Edgar Josias Vasquez, appeals the trial court's denial of his motion to suppress. Appellant was charged by indictment with the felony offense of possession with intent to deliver a controlled substance, namely, cocaine. After the trial court denied his motion to suppress, appellant pled guilty. The trial court found appellant guilty and assessed punishment at thirty-five years' confinement in the Institutional Division of the Texas Department of Criminal Justice. Tex. Health & Safety Code § 481.112(f). We affirm.
State Trooper Charles Kibble has worked for the Texas Department of Public Safety for fifteen years. During this time, he attended several schools that train police officers to “recognize signs of deception, signs of nervousness, and also clinical and nonverbal indicators” that someone is involved in criminal activity. Trooper Kibble also specializes in the “detection and apprehension of drug or narcotics carriers on major highways.”
On December 11, 2007, Trooper Kibble was stationary in his patrol car running his radar on the Highway 59 freeway when he noticed appellant had what appeared to be illegal tinting on the windows of his vehicle, a Ford F150 extended cab truck. After pacing appellant's car, Trooper Kibble determined appellant was speeding so he activated his emergency lights and gestured appellant to move his vehicle to the right side of the road. However, appellant hesitated to move to the right and eventually stopped in the left emergency lane at approximately 11:10 a.m. During this time, Trooper Kibble ran a license and registration check which ultimately turned out clear. Due to his failure to move to the right lane, Trooper Kibble stopped in front of appellant's vehicle, used hand gestures, and operated the P.A. system on his patrol car to get appellant to move to the right side and off the freeway. Based on his training and experience, Trooper Kibble considered the initial stop unusual because drivers typically move to the right instead of the left, which “perked [his] interest from the get-go.”
At approximately 11:13 a.m., appellant stopped on the service road. Trooper Kibble proceeded to ask appellant questions regarding his driving record, unpaid traffic tickets, and travel plans. Appellant informed Trooper Kibble he lived in the Pasadena area and was en route to Greenspoint Mall to purchase a dress for his wife. Trooper Kibble grew more suspicious because there were three or four major malls located between Pasadena and the Greenspoint Mall. Based on his experience, Trooper Kibble knew Greenspoint Mall to be a “high-crime area” and a “source location” for drugs and narcotics. Furthermore, Trooper Kibble testified appellant presented “nonverbal indicators of deception” during the initial questioning. Specifically, Trooper Kibble testified appellant engaged in “a lot of facial scratching[,]” which is “one of the keys that [he] always look[s] at.” Trooper Kibble further testified appellant's frequent scratching was “a sign of nervousness” and “one of the nonverbal indicators that [he was] trained to recognize.”
Trooper Kibble also testified appellant's carotid artery was heavily pronounced and rapidly pulsating. When asked whether he had been trained in recognizing abnormally distended arteries, Trooper Kibble did not answer in the affirmative. Instead, Kibble testified that he did recognize the difference in appellant's arteries, which were “sticking out of his neck” during the traffic stop, as opposed to appellant's non-pulsating arteries at the time of the suppression hearing. Trooper Kibble further testified it did not “make any sense” that appellant was not working during the day. He also found it odd appellant would drive to a more distant mall when there were several malls in between his home and Greenspoint Mall, especially when gas prices were nearly $4.00 a gallon. Trooper Kibble's suspicions grew when appellant could not name the store he intended to visit to purchase his wife's dress.
Around 11:19 a.m., Trooper Kibble returned to his patrol car, finished writing the warning citation, and made a comment stating: “I'm going to go a little bit deeper here.” By this point, Trooper Kibble had already decided “some kind of criminal activity was more likely being perpetrated.” At 11:21 a.m., Trooper Kibble received a second “clear” with regard to appellant's possible warrants. However, Trooper Kibble maintained his suspicions based on appellant's prior physical and verbal responses. As a result, Trooper Kibble returned to appellant's vehicle, and again questioned appellant about his wife's dress. Trooper Kibble then, without returning appellant's license, asked appellant for his consent to search his truck “specifically for drugs and narcotics.” Both Trooper Kibble and appellant testified that appellant voluntarily and freely told Trooper Kibble that he could search appellant's vehicle at 11:23 a.m. Trooper Kibble did not place handcuffs on appellant, but asked for permission to do a pat down search of appellant for officer safety. According to Trooper Kibble, appellant consented to that search, which did not reveal any weapons. Trooper Kibble then requested that appellant sit in the patrol car while he searched appellant's truck, again for officer safety. Appellant agreed. Id. Trooper Kibble informed appellant that, at any time, he could activate a switch located at the back of Trooper Kibble's patrol car if he wanted Trooper Kibble to stop searching his vehicle.
Once Trooper Kibble placed appellant in the patrol car, he proceeded with the search. Trooper Kibble inspected the passenger areas in the front and back of the vehicle and found no contraband. Eventually, Trooper Kibble moved to the tailgate area of the truck where he found a locked, hard cover painted to match the body color of the vehicle. When Trooper Kibble could not determine which key opened the hard cover, 1 he returned to appellant in the patrol car and asked him which key opened the hard cover. At approximately 11:30 a.m., Trooper Kibble unlocked the hard cover and discovered a white, powdery substance, which was later identified as cocaine. Trooper Kibble found forty-nine individual bundles totaling sixty-eight kilograms of cocaine. After Trooper Kibble called for a wrecker, he gave appellant his Miranda warnings 2 and arrested him.
At the suppression hearing, the video of Trooper Kibble's traffic stop and search of appellant's vehicle that was recorded by the patrol car camera was admitted into evidence. The DVD 3 provided an audible recording of the conversation between Trooper Kibble and appellant. During the hearing, appellant identified himself as the person operating the truck in the video recording. Appellant then testified he pulled to the left lane instead of the right because he was closer to the left lane. Appellant also testified he was en route to Greenspoint Mall to purchase a dress for his wife because he “didn't find anything” at other malls. When the State asked whether appellant “voluntarily and freely told [Kibble] he could search [his] car,” appellant replied in the affirmative. Appellant also confirmed the fact that Trooper Kibble informed appellant of his option to press a button to stop the search at any time. However, during closing arguments, appellant's trial counsel argued the evidence seized by Trooper Kibble should have been suppressed because Trooper Kibble “unduly prolonged” appellant's detention. Appellant argued Trooper Kibble did not have articulable facts that “would lead to reasonable suspicion of criminal activity ... [which] certainly do not connect or indicate ... criminal activity.” Finally, appellant argued his consent to search was “tainted” due to the illegality of the detention.
The trial court orally made findings of fact and conclusion of law on the record as follows:
[3.] The Court further finds that Trooper Kibble's suspicions first arose when the defendant failed to yield [the] right-of-way in the proper manner and stopped his vehicle in the left emergency lane.
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