Ex parte Laura Hall--Appeal from 147th District Court of Travis County

SUPREME COURT CASES

Laws-info.com » Cases » Texas » 3rd District Court of Appeals » 2007 » Ex parte Laura Hall--Appeal from 147th District Court of Travis County

State: Texas

Court: Texas Northern District Court

Docket No: 03-07-00352-CR

Case Date: 10/31/2007

Plaintiff: MARCIAL MATA BOCANEGRA

Defendant: THE STATE OF TEXAS--Appeal from 139th District Court of Hidalgo County

Preview:Rolando E. Lopez-Dena v. The State of Texas--Appeal
from 144th Judicial District Court of Bexar County
MEMORANDUM OPINION
No. 04-02-00639-CR
Rolando E. LOPEZ-DENA,
Appellant
v.
The STATE of Texas,
Appellee
From the 144th Judicial District Court, Bexar County, Texas
Trial Court No. 2002-CR-1369-B
Honorable Mark R. Luitjen, Judge Presiding
Opinion by: Catherine Stone, Justice
Sitting: Catherine Stone, Justice
Sarah B. Duncan, Justice (concurring in the judgment only)
Karen Angelini, Justice
Delivered and Filed: August 6, 2003
AFFIRMED
Rolando Lopez-Dena ("Lopez") appeals his conviction of possession of marijuana. Lopez asserts that the trial court
erred in denying his motion to suppress because the officers lacked probable cause to arrest him and entered his
apartment without a search warrant and without voluntary consent. We affirm the trial court's judgment.
Standard of Review
We review a trial court's suppression ruling under an abuse of discretion standard. See Guzman v. State, 955 S.W.2d
85, 89 (Tex. Crim. App. 1997). Therefore, we afford almost total deference to the trial court's determination of
historical facts supported by the record, especially when those findings are based on credibility and demeanor. Id.
Trial Court's Findings
At the conclusion of the hearing on Lopez's motion to suppress, the trial court entered several verbal findings. First, the
trial court found that no credible evidence suggested that Lopez was unable to understand the officers. Second, the trial
court found that when the officers initially approached Lopez, he was not under arrest but only temporarily detained.
The trial court stated that he did not find the testimony of Lopez or his girlfriend credible when compared with the
testimony of the other officers. After Lopez asked the officers, "Is this about the drugs?", the officers had probable
cause to arrest Lopez. Finally, the trial court found that Lopez voluntarily consented to the officers' entry into and
search of his apartment.
Investigative Detention or Arrest
An officer may conduct a brief investigative detention when he has a reasonable suspicion to believe that an individual
is involved in criminal activity. Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002). An arrest, however,
must be supported by probable cause. See McGee v. State, 105 S.W.3d 609, 614 (Tex. Crim. App. 2003). "Probable
cause exists where police have reasonably trustworthy information sufficient to warrant a reasonable person to believe
file:///C|/Users/Peter/Desktop/opinions/PDFs1/16329.html[8/20/2013 7:39:04 PM]

that a particular person has committed or is committing an offense." Id. An arrest may be upheld when police officers
observe behavior that is not overtly criminal but when coupled with the officers' prior knowledge produces probable
cause. Id.
In this case, the trial court found that the officers' initial approach was a temporary detention; however, this finding is
not supported by the record. An arrest occurs when a person's movement or liberty is restricted or restrained. Flores v.
State, 895 S.W.2d 435, 441 (Tex. App.--San Antonio 1995, no pet.). In Colston v. State, 511 S.W.2d 10, 11-12 (Tex.
Crim. App. 1974), the Texas Court of Criminal Appeals held that an arrest occurred when four officers parked behind
the van the defendant was about to enter, one of the officers jumped from the car with a shotgun, told the defendant to
freeze, and ordered him to place his hands on the van. In Flores v. State, this court held an arrest occurred when the
defendant was forced to exit his car at gunpoint, assume a spread-eagle position with his hands on the roof of the car
and remain there, and the officer testified that the defendant was not free to leave until she completed her investigation.
895 S.W.2d at 441. The facts in the instant case are similar to Colston and Flores.
In this case, Lopez was at his car when the officers blocked Lopez's car with their three cars, one of which had its
lights flashing. The officers rapidly approached Lopez with their guns drawn. Agent Thrash testified that he told Lopez
that they wanted to question him "and that he was possibly under arrest." Agent Thrash testified that when the officers
approached Lopez with their guns drawn, he was not free to leave. Agent Thrash testified his intent was "eventually" to
arrest Lopez. We believe that under these circumstances, the initial detention of Lopez was in fact an arrest.
The next question becomes whether the officers had probable cause to arrest Lopez. We believe probable cause was
established.
The Drug Enforcement Administration received an initial tip on October 4, 2001, regarding possible narcotics activity,
and investigative measures were undertaken with regard to apartment 128 in the Ventana apartment complex. Through
investigation, agents determined that Lopez and Jaime Hernandez lived in the apartment and also discovered some
personal identifiers and vehicle descriptions from lease records. Based on on-going DEA investigations from Eagle
Pass, Texas, and the interception of Lopez's phone conversations, the agents determined that Lopez and Hernandez
were involved in a multi-hundred pound marijuana distribution smuggling organization based out of Piedras Negras,
Mexico.
On November 1, 2001, Agent Richard Salter received a tip from a private citizen regarding possible narcotics activity
at apartment number 128. The tip provided information regarding "vehicles arriving with Mexico tags, a vehicle
backing into Mr. Lopez's garage, and several individuals in and out, and then banging noises." Agent Salter ran a
search of the Mexican tags and was told that the vehicle was a Volkswagen van that had crossed the border
approximately two and one-half hours earlier. This evidence indicated to Agent Salter that the van had driven straight
to San Antonio. Based on that information, Agent Salter suspected that a drug load was being delivered.
Based on the tip, Agent Gregory Thrash and Agent Gilbert Zapata set up surveillance at the apartment at
approximately 7:15 p.m. The tip directed the agents' attention to a garage attached to the apartment. The garage light
was on. At approximately 7:30 p.m., the garage door opened, and three Hispanic males walked out. One of those males
was Lopez. A white Volkswagen van was parked inside the garage. The van was moved from the garage to the parking
lot, and a red Ford F-150 was moved into the garage. Shortly thereafter, the white van exited the parking lot.
Agent Thrash and Agent Zapata followed the van and a Geo Metro to a motel. The drivers went into the lobby and
checked into a room. The driver of the white van stayed at the motel, and the other driver left in the Geo Metro. The
agents stayed at the motel for a short time, but then they refocused their efforts back on the apartment.
When Thrash returned to the apartments, Zapata advised him that a white Toyota Celica had arrived at the apartments,
the driver went into apartment number 128, stayed a short time, and then departed with another individual and went to
Pizza Hut. The Toyota Celica then returned to the apartments, and the passenger was dropped off.
Several agents followed the Toyota Celica, stopping it after they observed several traffic violations. The driver, Derek
Alan DeJohn, admitted that he had a pound of marijuana in his vehicle. DeJohn also admitted that he obtained the
marijuana from Jaime Hernandez in apartment number 128. DeJohn agreed to show the agents the apartment to which
file:///C|/Users/Peter/Desktop/opinions/PDFs1/16329.html[8/20/2013 7:39:04 PM]

he was referring.
The agents returned to the apartment at approximately 10:00 or 10:15 p.m. The agents identified themselves as police
officers as they approached Lopez and his girlfriend with their weapons drawn. As they approached, Lopez made the
statement, "Is this about the drugs?" The statement was made in English.
Based on this evidence, the officers knew Lopez was involved in a multi-hundred pound marijuana distribution
smuggling organization. The officers were acting on a tip regarding possible narcotics activity when they set up
surveillance and watched as a van that recently arrived from Mexico was taken from the garage at the apartment with
Lopez assisting. Shortly after the van departed, DeJohn arrived at the apartment and obtained a pound of marijuana.
Considering all of the circumstances and information known to the officers, we believe the officers had probable cause
to arrest Lopez when they initially approached him. See McGee, 105 S.W.3d at 614 (citing with approval Lunde v.
State, 736 S.W.2d 665 (Tex. Crim. App. 1987), in which the court found probable cause based on a tip and activity
consistent with a drug transaction).
Voluntary Consent to Search
For consent to be a valid exception to the warrant requirement, that consent must be voluntary. Guevara v. State, 97
S.W.3d 579, 582 (Tex. Crim. App. 2003). The validity of an alleged consent to search is a question of fact to be
determined from all the circumstances, and the Texas Constitution requires the State to show by clear and convincing
evidence that the consent was valid. Id.
As the agents approached Lopez, he asked, "Is this about the drugs?" After about ten minutes of questioning, the
agents asked Lopez if he was amenable to getting out of the parking lot and returning to his apartment, and Lopez
agreed. The agents reholstered their weapons before accompanying Lopez to his apartment, and Lopez was never
handcuffed. Lopez was cooperative, and Lopez mutually agreed with the officers to get out of the parking lot and go
somewhere private.
Because Lopez was primarily Spanish-speaking, the agents waited for the arrival of another agent, Aaron Barasa, who
was more fluent in Spanish. Upon his arrival, Barasa read Lopez his Miranda warnings in Spanish and then asked
Lopez to read the warnings from the card again. Lopez then gave his verbal consent to search. Barasa and another
agent also obtained Lopez's written consent. Lopez was very cooperative, calm, and relaxed. Lopez was not coerced or
threatened. During the course of the search, Lopez directed the agents to where the drugs were actually kept in a
locked patio closet. The agents asked Lopez for the keys, and he provided the keys to them. Twenty-two to twenty-
three pounds of marijuana was discovered in a black bag in the closet.
Reyes stated that Agent Barasa arrived after a black bag was removed from the apartment. Reyes stated that Lopez
would understand the Miranda warnings written in Spanish on the card that Agent Barasa said was given to Lopez to
read; however, Reyes testified that Lopez could not understand English.
Lopez testified that after the agents turned off his car, they each grabbed one of his hands and took him to his door. At
the door, one of the agents gave Lopez the keys to open the door. Lopez testified that he opened the door because the
agent motioned for him to open the door and he had a pistol at his back. Lopez testified that the agents searched his
apartment, opened the storage unit with the keys, and retrieved a black bag. Lopez stated that one of the agents tried to
talk to him in Spanish but he did not understand. Lopez stated the agent threw the card containing the Miranda
warnings at him to read and that he asked for an attorney. Lopez stated he did not sign any documents at his
apartment. Lopez stated that he signed the documents because they told him he could go after he signed.
The trial court expressly found that no credible evidence suggested that Lopez was unable to understand the officers
and that the testimony of Lopez and Reyes was not credible. Considering all of the circumstances, and giving proper
deference to the trial court's determination, we hold that the State proved by clear and convincing evidence that Lopez
voluntarily consented to returning to his apartment and to the search.
Conclusion
file:///C|/Users/Peter/Desktop/opinions/PDFs1/16329.html[8/20/2013 7:39:04 PM]

The trial court's judgment is affirmed.
Catherine Stone, Justice
DO NOT PUBLISH
file:///C|/Users/Peter/Desktop/opinions/PDFs1/16329.html[8/20/2013 7:39:04 PM]

Download 16329.pdf