Jose Juan Mata v. The State of Texas--Appeal from 406th Judicial District Court of Webb County

MEMORANDUM OPINION

No. 04-07-00277-CR

Jose Juan MATA,

Appellant

v.

The STATE of Texas,

Appellee

From the 406th Judicial District Court, Webb County, Texas

Trial Court No. 2006-CRD-000302

Honorable Oscar J. Hale, Jr., Judge Presiding

Opinion by: Rebecca Simmons, Justice

Sitting: Catherine Stone, Justice

Karen Angelini, Justice

Rebecca Simmons, Justice

Delivered and Filed: January 9, 2008

AFFIRMED

Appellant Jose Juan Mata was found guilty of the offense of possession of a controlled substance, namely, heroin, in an amount less than one gram, and assessed punishment at two years confinement in the Institutional Division of the Texas Department of Criminal Justice and a fine of $4,000.00. Mata asserts the trial court erred in denying his motion to suppress. We affirm the judgment of the trial court.

Factual Background

On January 14, 2007, at approximately 3:30 a.m., Laredo Police Officer Heriberto Avalos initiated a traffic stop for a defective taillight. As Avalos approached the vehicle, the driver, Appellant Mata, was already stepping out of the vehicle and walking toward the officer. Avalos testified that he advised Mata that for my safety and his, I was I advised him that I was going to pat him down for any weapons. Avalos explained his concerns were based on the time of day and the high crime-rate area. During the initial pat-down, Avalos noticed several hard objects in Mata s pockets and requested he pull out whatever he had inside his pockets. Mata complied and as he pulled the items out of his pocket, a small piece of aluminum foil fell to the ground. Mata was placed in Avalos patrol car and Avalos returned to the original location to search for the dropped evidence. Avalos located a small wad of aluminum foil on the ground, which he testified contained a brown, sticky substance. Mata was subsequently placed under arrest for possession of a controlled substance.

Motion to Suppress

 A.  Standard of Review

In an appeal of a trial court s ruling on a motion to suppress, an appellate court applies a bifurcated standard of review, giving almost total deference to a trial court s determination of historical facts and reviewing de novo the court s application of the law. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002); Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). In doing so, we afford almost total deference to a trial court s determination of historical facts supported by the record, especially when the findings are based on an evaluation of credibility and demeanor of the witnesses. Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005). Absent an abuse of discretion by the trial court, we will uphold the trial court s decision. Maddox v. State, 682 S.W.2d 563, 564 (Tex. Crim. App. 1985).

 B.  Stop and Frisk

Evidence obtained by an officer in violation of any provision of the Constitution or laws of the State of Texas or of the United States Constitution may not be admitted in a criminal case. Tex. Code Crim. Proc. Ann. art. 38.23(a) (Vernon 2005). A search without a valid warrant is per se unreasonable, subject only to limited exceptions. Katz v. United States, 389 U.S. 347, 357 (1967). One exception, however, allows for officers to stop and detain a person or vehicle for investigatory purposes. Terry v. Ohio, 392 U.S. 1, 22 (1968). An investigatory stop is justified if the officer can articulate specific facts from which he can reasonably surmise that the detained person is connected with a crime. Id.; Davis v. State, 829 S.W.2d 218, 219 (Tex. Crim. App. 1992). The action will be upheld if the facts and circumstances within the officer s knowledge, and of which he has reasonably trustworthy information, are sufficient for a person of reasonable caution to believe that a particular person has committed an offense. Amores v. State, 816 S.W.2d 407, 413 (Tex. Crim. App. 1991); see also McNairy v. State, 835 S.W.2d 101, 106 (Tex. Crim. App. 1991).

Once the stop is made, an officer may conduct a pat-down search for weapons in order to maintain safety. Terry, 392 U.S. at 30; Davis, 829 S.W.2d at 220-21. The scope of the pat-down search is limited to a frisk of the outer clothing of the person detained only to determine if there are any weapons. Davis, 829 S.W.2d at 220. If the officer conducting the search does not encounter anything indicating possession of a weapon, the scope of the search cannot be extended. Lippert v. State, 664 S.W.2d 712, 721 (Tex. Crim. App. 1984). An exception may apply, however, if the officer clearly identifies, through the sense of touch during the pat-down, the presence of contraband. Minnesota v. Dickerson, 508 U.S. 366, 375-76 (1993).

 C.  Reasonableness of the Search and Seizure

In his first issue, Mata claims that the trial court erred in denying his motion to suppress because the search was conducted without a valid warrant, probable cause, or reasonable suspicion.

An officer executes a lawful temporary detention when he has reasonable suspicion to believe that an individual is perpetrating a crime. Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). Reasonable suspicion exists if the officer has specific, articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably conclude that a particular person actually is, has been, or soon will be engaged in criminal activity. Id. We consider the totality of the circumstances in making a reasonable-suspicion determination. Id. at 492-93. To support a finding of reasonable suspicion, the State is not required to show that a traffic violation was actually committed, but only that the facts supported a reasonable suspicion that a violation was in progress or had been committed. Tex. Dept. of Pub. Safety v. Fisher, 56 S.W.3d 159, 163 (Tex. App. Dallas 2001, no pet.). A temporary detention is justified when a person commits a traffic violation in an officer s presence. Garcia v. State, 827 S.W.2d 937, 944 (Tex. Crim. App. 1992).

Moreover, in the context of a suppression hearing, the State is not required to prove that

a traffic violation was actually committed, but only that the facts supported a reasonable suspicion that a violation was in progress or had been committed. See Karam v. State, No. 04-04-00316-CR, 2004 WL 2597444, at *2 (Tex. App. San Antonio Nov. 17, 2004, no pet.); Held v. State, 948 S.W.2d 45, 51 (Tex. App. Houston [14th Dist.] 1997, pet. ref d) (stating that officer s observation of driver weaving back and forth across lanes is sufficient to give rise to a reasonable suspicion that the driver may be intoxicated, and it is irrelevant that the actual weaving may or may not be criminal in and of itself). There is no requirement that a particular statute be violated in order to give rise to reasonable suspicion. Gajewski v. State, 944 S.W.2d 450, 452 (Tex. App. Houston [14th Dist.] 1997, no pet.).

The evidence supports the trial court s finding that Avalos had reasonable suspicion to stop Mata for a traffic violation. Avalos testified that he saw the vehicle traveling on a public roadway with a defective taillight in violation of the Texas Transportation Code. Tex. Transp. Code Ann. 547.322 (Vernon 1999); Russell v. State, 904 S.W.2d 191, 199 (Tex. App. Amarillo 1995, pet. ref d). By the time Avalos was able to turn on his emergency lights, however, Mata had already parked and exited the vehicle. Accordingly, Avalos personal observation of the defective taillight provided objective, articulable facts supporting a reasonable suspicion that a traffic offense was occurring and thus justifying the temporary detention. See Castro v. State, 227 S.W.3d 737, 742 (Tex. Crim. App. 2007) (holding that officer s observation of illegal lane change provided sufficient objective, articulable facts to support finding of reasonable suspicion that driver committed traffic violation by failing to signal his lane change). Mata s first issue is, therefore, overruled.

D. Scope of the Search

Mata next argues that Avalos exceeded the permissible scope of a Terry search. Terry, provides that an officer may conduct a limited search of the detainee s outer clothing for weapons when specific and articulable facts lead him to reasonably conclude the person is armed and dangerous. Terry, 392 U.S. at 19-20. Under the plain-feel doctrine, if a police officer lawfully pats down a suspect s outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there is no invasion of the suspect s privacy beyond that already authorized by the officer s search for weapons under Terry. Dickerson, 508 U.S. at 375-76.

When Avalos conducted a pat-down of Mata, he testified that he felt several hard objects in Mata s pocket. Although Avalos testified that he could not tell what was in the pocket, he explained his concerns regarding the objects in Mata s pockets in light of the time of day and location of the traffic stop. We also note Officer Avalos was without a partner or backup when he initiated the traffic stop and that [r]oadside encounters between police and suspects are especially hazardous. Michigan v. Long, 463 U.S. 1032, 1049 (1983). Moreover, Avalos affirmatively testified that his search was conducted for my safety and the safety of Mata.

The trial court is the sole fact finder at a hearing on a motion to suppress evidence and may choose to believe or disbelieve any or all of the witnesses testimony. Arnold v. State, 873 S.W.2d 27, 34 (Tex. Crim. App. 1993). Here, the trial court believed the time of day and the high crime area warranted the search and seizure. We are not in a position to second-guess the trial court s determination in this regard. See Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000).

Moreover, reviewing the testimony and the circumstances surrounding the arrest, it appears that Mata emptied his pockets voluntarily. This case is also distinguishable from Dickerson wherein the Supreme Court held that such a search exceeded the permissible scope of a Terry frisk. Dickerson, 508 U.S. at 369. In Dickerson, the officer felt a lump in the defendant s pocket, examined the lump with his fingers, and then reached into the pocket to remove its contents. Id. at 378. Mata, on the other hand, voluntarily removed the items from his pocket at the request of Avalos.

Additionally, much like in Medrano v. State, No. 04-94-00330-CR, 1996 WL 269473, *3-4 (Tex. App. San Antonio 1996, no pet.), there was no evidence of duress or coercion, even assuming Mata was not made aware that he had a choice to not empty his pockets. See Green v. State, 594 S.W.2d 72, 74 (Tex. Crim. App. 1980); Arroyo v. State, 881 S.W.2d 784, 788-89 (Tex. App. Houston [14th Dist.] 1994, no pet.). Avalos did not search Mata s pocket, but merely patted it down externally to feel for weapons. It was Mata who undertook to take the hard object out of his own pocket allowing the foil wrappers to fall to the ground. As such, the foil wrappings were within the plain view of Avalos. Walter v. State, 28 S.W.3d 538, 541-42 (Tex. Crim. App. 2000) (defining plain view as contraband left in open view and observed by a police officer from a lawful vantage point so that no invasion of a legitimate expectation of privacy has occurred) (quoting Minnesota v. Dickerson, 508 U.S. 366 (1993)). Mata has provided us with no authority, and we know of none, that prevents an officer from merely asking a suspect what is in his pocket after having conducted a proper Terry pat-down. See Williams v. State, 27 S.W.3d 688, 690 n.1 (Tex. App. Beaumont 2000, no pet.).

We, therefore, hold the trial court s determination that Avalos did not exceed the permissible scope of a Terry search was within his discretion and Mata s second appellate issue is overruled.

Conclusion

In deference to the trial court s position as the sole trier of fact and credibility of the witnesses, we cannot say the trial court abused its discretion in determining that the initial traffic stop and subsequent pat-down search were valid. The judgment of the trial court is, therefore, affirmed.

Rebecca Simmons, Justice

Do Not Publish