Opinion
No. 04-14-00709-CR
04-27-2016
Francisco Javier GONZALEZ, Appellant v. The STATE of Texas, Appellee
MEMORANDUM OPINION
From the 399th Judicial District Court, Bexar County, Texas
Trial Court No. 2011CR9697
Honorable Ray Olivarri, Judge Presiding Opinion by: Rebeca C. Martinez, Justice Sitting: Rebeca C. Martinez, Justice Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice AFFIRMED
Francisco Gonzalez appeals his conviction for possession of a controlled substance. TEX. HEALTH & SAFETY CODE ANN. § 481.115(B) (West 2010). We overrule Gonzalez's issues on appeal and affirm the trial court's judgment.
BACKGROUND
On the afternoon of September 9, 2011, San Antonio Police Officer Joe Carmona was in his police vehicle on general patrol in the Five Palms area of southwest San Antonio. He noticed a dark blue vehicle parked in front of a "suspected narcotics house." Officer Carmona observed the blue vehicle drive away from the house and turn on to Five Palms Road. Officer Carmona followed the vehicle, driven by Gonzalez, for approximately one quarter mile "looking for any kind of traffic violations." As Officer Carmona trailed Gonzalez's vehicle, he ran a computer check on the license plate and learned the vehicle registration was expired. Officer Carmona activated his emergency lights and stopped Gonzalez's vehicle for the violation. There is no video or audio recording of the stop.
Officer Carmona approached the vehicle, informed Gonzalez of the expired registration, and obtained Gonzalez's driver's license and proof of insurance. Officer Carmona testified that Gonzalez's "hands were shaking a little bit" when he handed him the documents, and that Gonzalez appeared "very nervous." Officer Carmona returned to his vehicle and, according to standard procedure, ran a computer check on the driver's license for any active warrants; there were none. Officer Carmona returned to Gonzalez's vehicle and asked Gonzalez some general questions, including where he was coming from and where he was going. Gonzalez answered that he "had just gotten off of work" at the Jim's Restaurant on San Pedro and Hildebrand and he was headed to his home on the 6900 block of Sun Valley. Officer Carmona stated he found Gonzalez's story suspicious because his purported route was inconsistent with Officer Carmona's initial observation of Gonzalez's vehicle at the suspected drug house "on the other side of the highway from his home; and the direction from where his work was at, if he was to be coming home, his home was further north of where he was actually coming from. So he wouldn't be coming from work to home the direction that I saw him in." Officer Carmona stated that, because "his story [was] not matching up," he then asked Gonzalez "if he had any kind of narcotics on him?" Gonzalez stated he did not, and said that Officer Carmona "could check his person and the vehicle." Officer Carmona testified he then directed Gonzalez to stand in front of the patrol vehicle and place his hands on the bumper.
While his partner searched the vehicle, Officer Carmona began patting down Gonzalez's person. Officer Carmona stated that Gonzalez kept lifting his left hand off the bumper and "trying to reach to his back pocket," which further raised Officer Carmona's suspicions. After Gonzalez reached toward his back pocket for the second or third time, Officer Carmona told Gonzalez, "if he had anything on him to let [him] know." At that time, Gonzalez replied that he had cocaine in his back pocket. Officer Carmona retrieved a small baggie of cocaine from Gonzalez's back pocket. Officer Carmona stated he then placed Gonzalez in handcuffs. A crime scene investigator arrived at the scene within 20 minutes and conducted a field test which confirmed the substance inside the baggie was cocaine. Gonzalez was transported to the magistrate's office and booked for possession of a controlled substance, cocaine, in an amount less than one gram.
Gonzalez pled not guilty and proceeded to a jury trial. Gonzalez filed a motion to suppress the evidence, including his statements, which he asserted were obtained as a result of an illegal detention effected without reasonable suspicion, probable cause, or a valid warrant. The motion to suppress was carried with the trial. After Officer Carmona completed his trial testimony, the trial court heard arguments on the motion to suppress outside the jury's presence. Gonzalez argued that Officer Carmona lacked sufficient reasonable suspicion to prolong Gonzalez's detention beyond the purpose of the traffic stop, and the traffic stop was completed when the warrant check came back clear and Officer Carmona returned to Gonzalez's vehicle. The State argued that Officer Carmona's general questions about Gonzalez's travel plans were permitted during the lawful traffic stop and led to Gonzalez's voluntary consent to a search of his person and vehicle, and, even if the purpose of the traffic stop was completed, the officer had reasonable suspicion to prolong the stop into an investigative detention. After reviewing the officer's testimony during the lunch recess, the trial court verbally denied the motion to suppress. At the conclusion of trial, the jury convicted Gonzalez and he was sentenced to two years' confinement; however, the court suspended his sentence and placed him on community supervision for a period of four years. The trial court later made written findings of fact and conclusions of law in support of its ruling on the motion to suppress.
The jury was instructed pursuant to Code of Criminal Procedure article 38.23 that if they believed, or had a reasonable doubt, that the evidence was obtained in violation of the federal or state constitution or laws, then they were to disregard such illegally obtained evidence. See TEX. CODE CRIM. PROC. ANN. art. 38.23 (West 2005).
Gonzalez raises two issues on appeal, arguing the trial court erred in (1) holding that reasonable suspicion existed to prolong his detention beyond the purpose of the traffic stop and thus erred in denying his motion to suppress, and (2) limiting the scope of his cross-examination of Officer Carmona concerning the length of time between the offense date and the trial.
MOTION TO SUPPRESS
Gonzalez argues the trial court erred in denying his motion to suppress because Officer Carmona lacked reasonable suspicion to prolong the encounter and conduct an investigative detention beyond the scope of the original traffic stop. Gonzalez argues in the alternative that, even if Officer Carmona developed additional facts amounting to reasonable suspicion for an investigative detention, they were developed too late, i.e., after the purpose of the traffic stop was concluded.
Standard of Review
In reviewing the trial court's ruling on a motion to suppress, we afford almost total deference to the court's determination of historical facts, especially when it is based on assessment of a witness's credibility, as long as the fact findings are supported by the record. Johnson v. State, 414 S.W.3d 184, 192 (Tex. Crim. App. 2013); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We apply the same deferential standard when reviewing the court's ruling on mixed questions of law and fact where resolution of those issues turns on an evaluation of credibility. Johnson, 414 S.W.3d at 192. We review de novo the trial court's application of the law to the facts and its resolution of mixed questions of law and fact that do not depend upon credibility assessments. Id.; Wade v. State, 422 S.W.3d 661, 669 (Tex. Crim. App. 2013) (question of whether a certain set of historical facts constitutes reasonable suspicion for a detention is reviewed de novo). When, as here, the trial court makes express findings of fact, we view the evidence in the light most favorable to the court's ruling and determine only whether the evidence supports the fact findings. Johnson, 414 S.W.3d at 192; Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010).
Applicable Law
A traffic stop is reasonable if (1) the police officer was justified in initiating the stop and (2) the officer's actions during the stop were limited in length and scope to those necessary to fulfill the purpose of the stop. Kothe v. State, 152 S.W.3d 54, 63 (Tex. Crim. App. 2004) (citing Terry v. Ohio, 392 U.S. 1, 19-20 (1968)). Here, there is no dispute that the traffic stop was justified at its inception. "In deciding whether the scope of a Terry detention is 'reasonable,' the general rule is that an investigative stop can last no longer than necessary to effect the purpose of the stop." Kothe, 152 S.W.3d at 63. No specific time limit exists, but once the reason for the traffic stop has been satisfied, the stop may not be used as a "fishing expedition" for unrelated criminal activity. Terry, 392 U.S. at 20; Kothe, 152 S.W.3d at 64. It is well established that, during a traffic stop under Terry, an officer may request identification, proof of ownership and insurance, and vehicle registration; an officer may check for outstanding warrants; and an officer may ask about the purpose of the trip and the destination. Kothe, 152 S.W.2d at 63; Davis v. State, 947 S.W.2d 240, 245 n.6. (Tex. Crim. App. 1997). An officer may also check a driver's criminal history as long as it does not unduly prolong the traffic stop. Hamal v. State, 390 S.W.3d 302, 307-08 (Tex. Crim. App. 2012).
If, during the course of a lawful traffic stop, reasonable suspicion of additional criminal activity arises before the purpose of the stop is fulfilled, then the officer may lawfully prolong the detention in order to confirm or dispel the newly-developed reasonable suspicion. Davis, 947 S.W.2d at 244; St. George v. State, 197 S.W.3d 806, 817 (Tex. App.—Fort Worth 2006), aff'd, 237 S.W.3d 720 (Tex. Crim. App. 2007). Reasonable suspicion exists if an officer has specific, articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably conclude that the person detained is, has been, or soon will be engaged in additional criminal activity. Wade, 422 S.W.3d at 668. The determination of whether reasonable suspicion exists is based on the totality of the circumstances, which individual circumstances may seem innocent enough in isolation, but when combined reasonably suggest the imminence of criminal conduct, thereby warranting an investigative detention. Id. The facts invoked to justify an investigative detention must amount to more than a mere hunch or good-faith intuition of criminal activity. Derichsweiler v. State, 348 S.W.3d 906, 916 (Tex. Crim. App. 2011). It is an objective standard that disregards the actual subjective intent of the arresting officer and looks, instead, to whether there was an objectively justifiable basis for the detention. Wade, 422 S.W.3d at 668.
Analysis
As noted, supra, the trial court entered written findings of fact and conclusions of law in support of its denial of Gonzalez's motion to suppress. In its findings of fact, the trial court found the existence of the facts set forth in detail above, and expressly found Officer Carmona to be credible. In its conclusions of law, the trial court concluded that the following "combined factors" led to a reasonable suspicion for Officer Carmona's investigative detention of Gonzalez beyond the traffic stop: (1) Officer Carmona observed Gonzalez "leaving a suspected drug house" about which Officer Carmona had received neighbor complaints; (2) Gonzalez appeared nervous and his hands were shaking during the traffic stop; and (3) Officer Carmona believed Gonzalez was lying about where he was coming from and where he was going based on the location of his workplace and home. The court found these factors existed before Officer Carmona initially asked Gonzalez if he had any narcotics on him, at which point Gonzalez gave consent for a search of his person and vehicle. The court concluded that the investigative detention of Gonzalez was not unnecessarily long or unreasonable; that during the investigative detention Officer Carmona became more suspicious that Gonzalez was involved in criminal activity; and that Gonzalez consented to a search of his person and vehicle during the course of the ongoing investigation.
Gonzalez devotes multiple pages in his initial and reply briefs to attacking each of the three factors cited by the trial court in support of reasonable suspicion as "mere inarticulate hunches" rather than specific, articulable facts known to the officer. See Crain v. State, 315 S.W.3d 43, 52 (Tex. Crim. App. 2010) ("Articulable facts must amount to more than a mere inarticulate hunch, suspicion, or good faith suspicion that a crime was in progress."). Gonzalez argues that Officer Carmona had only an "inarticulate hunch" that the house at which he saw Gonzalez parked was possibly involved in the sale of narcotics — he had no personal knowledge of any drug deals taking place there and had not yet had any interactions with people at the house at that time; he did not articulate specific and reliable information about the house being a drug house; and he never said it was a "known" drug house. At trial, Officer Carmona testified that his suspicion that the house was being used for drug dealing was based on his experience patrolling that district and the complaints provided to him by neighbors that the individuals in the house "might be dealing narcotics out of that location." He clarified that, at that time, he had not personally had any interactions or dealings with anyone in the house, but did subsequently.
Officer Carmona testified to certain observations that generally indicate a house is being used for drug deals, such as: "[s]everal cars coming and going; people on foot coming and going; not staying for more than one or two minutes; walking up to the door and leaving." He did not, however, state that he observed such activity occurring at the house in issue.
Gonzalez next argues that nervousness during a traffic stop is not a "particularly probative" factor. See Wade, 422 S.W.3d at 671 (recognizing that "most citizens with nothing to hide will nonetheless manifest an understandable nervousness in the presence of the officer"). He relies on cases holding that nervousness alone is insufficient to justify reasonable suspicion for prolonging a traffic stop into an investigative detention. See id.; see also Hamal, 390 S.W.3d at 308. However, as noted in Hamal, "[a]lthough nervousness alone is not sufficient to establish reasonable suspicion for an investigative detention, it can do so in combination with other factors." Hamal, 390 S.W.3d at 308. Here, Gonzalez's nervousness and shaky hands during the traffic stop were considered as only one factor within the totality of the circumstances, not as the only factor to establish reasonable suspicion to prolong the stop. See id.
With respect to the third factor, Gonzalez asserts that the travel route he told Officer Carmona he took that night was not "suspicious" just because the officer labeled it as such. See Wade, 422 S.W.3d at 670-72 (record did not support game warden's characterization of defendant's answers to his questions as a "changing story," thus that "fact" had no probative value in reasonable suspicion analysis). Gonzalez points out that Officer Carmona agreed on cross-examination that Gonzalez may have chosen to take a route home that is different from the route the officer would have taken, and "may have stopped somewhere" on his way home from work; Officer Carmona also acknowledged that food items were found inside Gonzalez's car. Officer Carmona did not, however, state that would explain the discrepancies regarding Gonzalez's driving route from his job to his home. Further, on re-direct, the State admitted three maps and Officer Carmona explained that he stopped Gonzalez at the Chevron gas station depicted on State Exhibit No. 5, and the Jim's restaurant at San Pedro and Hildebrand is located to the northeast as depicted on State Exhibit No. 3, while Gonzalez's home is located on the other side of Loop 410 to the northwest. Officer Carmona reiterated that the most convenient path of travel between the Jim's restaurant and Gonzalez's home would not include the street where he saw Gonzalez's vehicle, which caused him to suspect Gonzalez was lying about why he was parked at the suspected drug house.
As the State points out, these three factors identified by the trial court in its written findings are considered not in isolation, but in combination with each other as forming the "totality of the circumstances" surrounding the basis for prolonging the traffic stop into an investigatory detention for additional criminal activity. See Wade, 422 S.W.3d at 668; see also St. George, 197 S.W.3d at 817. In addition to these three factors, the record shows that the trial court also heard Officer Carmona's testimony, outside the jury's presence, that he ran a criminal history check on Gonzalez during the stop and learned that he had a prior felony drug arrest. While a prior criminal record does not by itself establish reasonable suspicion, it is a factor that can contribute to reasonable suspicion. See Hamal, 390 S.W.3d at 308. Gonzalez argues his prior felony drug arrest should be disregarded because he did not lie about it to Officer Carmona. It is not necessary that a defendant lie about his criminal history for it to be a factor considered within the totality of the circumstances; however, a defendant's deception regarding his criminal record can also be a separate factor contributing to reasonable suspicion. See id. Gonzalez also asserts that because his drug arrest was seven years old, it should not be considered. However, the age of the prior drug arrest goes to the weight of that factor, not to whether it may be considered in evaluating whether reasonable suspicion existed.
Gonzalez also challenges the credibility of Officer Carmona by pointing out inconsistencies between his testimony and his written report, and within his trial testimony. Such inconsistencies include that Officer Carmona testified Gonzalez was driving a dark blue Scion, but his report states the vehicle was a dark blue Saturn. When asked by defense counsel if they are "similar sedans," Officer Carmona stated he was "not sure." On re-direct, however, Officer Carmona confirmed that the vehicle he stopped was the same vehicle he saw parked at the suspected narcotics house. Gonzalez also refers to the omission in Officer Carmona's report of the fact that Gonzalez's hands were shaking when he handed his driver's license and insurance to the officer, and Officer Carmona's concession at trial that Gonzalez could have made a detour to a restaurant on his way home. These and other inconsistencies in Officer Carmona's testimony are matters of credibility for the trial court to resolve as the fact finder on the motion to suppress. See Valtierra, 310 S.W.3d at 447 (on a motion to suppress, the "trial judge is the sole trier of fact and judge of the credibility of the witnesses and weight to be given their testimony"). The trial court heard Officer Carmona's testimony live and observed his demeanor at the time, and also reviewed the transcript of the testimony before making its ruling. As noted, the court included an express written finding that it found Officer Carmona to be credible, and the record does not contradict that finding.
Finally, Gonzalez argues in the alternative that, even if the above factors combined to create a reasonable suspicion of additional criminal activity beyond the reason for the traffic stop, those facts were developed after the purpose of the traffic stop was concluded. Officer Carmona testified that he did not write a citation for the expired vehicle registration and instead gave Gonzalez a verbal warning. However, Officer Carmona did not state when during the sequence of events he gave Gonzalez the verbal warning. Gonzalez argues that it was the State's burden to establish when the verbal warning was given in completion of the traffic stop, and, in the absence of any direct evidence, it is reasonable to infer that Officer Carmona gave the warning for the expired registration at the time the warrant-check came back clear and Officer Carmona returned to the vehicle. The State argues it is equally reasonable to infer from Officer Carmona's testimony that the warning occurred during the latter part of the investigative detention, after he determined that Gonzalez was going to be arrested for possession of narcotics. Under the applicable standard of review, we afford the prevailing party, here, the State, "the strongest legitimate view of the evidence and all reasonable inferences that may be drawn from it." Wade, 422 S.W.3d at 666-67 (citing State v. Woodard, 341 S.W.3d 404, 410 (Tex. Crim. App. 2011)).
Gonzalez asserts that "it is at [the] moment" of Officer Carmona's initial question about narcotics that he needed reasonable suspicion to conduct an investigative detention for narcotics. The trial court's findings indicate, and the record supports, that the three factors recited by the court in concluding reasonable suspicion existed (i.e., the suspected narcotics house, nervousness, and lying about the driving route) were developed by Officer Carmona during the stop before he asked Gonzalez whether he had any narcotics on him. "[A]n investigation pursuant to a traffic stop 'may last as long as is reasonably necessary to effectuate the purpose of the stop, including the resolution of reasonable suspicion, supported by articulable facts within the officer's professional judgment, that emerges during the stop.'" St. George, 197 S.W.3d at 817.
Scope of Cross-Examination
In his second issue, Gonzalez argues the trial court abused its discretion by restricting his cross-examination of Officer Carmona with respect to his memory of the stop in view of the fact that it occurred in September 2011, three years before the trial. We review a complaint concerning the trial court's limitation on the scope of cross-examination under an abuse of discretion standard. Matchett v. State, 941 S.W.2d 922, 940 (Tex. Crim. App. 1996), superseded by statute on other grounds by Van Nortrick v. State, 227 S.W.3d 706, 709 (Tex. Crim. App. 2007). A trial court has wide discretion to impose reasonable limits on cross-examination based on concerns such as harassment, prejudice, confusion of the issues, the witness's safety, or interrogation that is repetitive or only marginally relevant. Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986).
Specifically, Gonzalez's complaint centers on the following exchange during defense counsel's cross-examination of Officer Carmona:
Q: And particularly I think the attorney for the State mentioned that, Well, you know, this offense happened back in 2011.
A: Correct.
Q: September of 2011?
A: Correct.
Q: Okay. And I see you're looking at your report now to remember some of these dates, right?
A: Yes.
Q: Okay. And - -
THE COURT: Can the attorneys come up for a minute.
THE COURT: (At the bench on the record)
Since this case is old, I'm going to limit you on what you say. Because if you continue with that, I'm going to tell them why it's old. Because it's y'all that took all the resets on this case, and I want to mention that.
When defense counsel returned from the bench, he continued questioning Officer Carmona on a different topic. No objection was raised to the limitation of his cross-examination, and no formal bill of exception or informal proffer was made as to any question or answer that was prohibited. Gonzalez's failure to object to the trial court's ruling forfeited any error by the court. TEX. R. APP. P. 33.1(a); Reyna v. State, 168 S.W.3d 173, 179 (Tex. Crim. App. 2005).
Even if Gonzalez had preserved any potential error for review, he failed to establish that he suffered any harm. See TEX. R. APP. P. 44.2; see also Saglimbeni v. State, 100 S.W.3d 429, 435 (Tex. App.—San Antonio 2002, pet. ref'd) (any error that improperly limits the right of confrontation, including the right to cross-examination, is subject to a harmless error analysis). Gonzalez asserts that the trial court's ruling "had a chilling effect" on his ability to cross-examine Officer Carmona about the effect of the passage of time on his memory and credibility. In conducting a harmless error analysis, we apply a three-prong test to our review of the entire record. Id. at 435-36 (citing Shelby v. State, 819 S.W.2d 544, 547 (Tex. Crim. App. 1991)). The court first assumes the damaging potential of the excluded cross-examination was fully realized. Shelby, 819 S.W.2d at 547 (citing Van Arsdall, 475 U.S. at 684). Second, with that assumption in mind, the court reviews the error in connection with the following five factors: (1) the importance of the witness's testimony in the State's case; (2) whether the testimony was cumulative; (3) the presence or absence of other evidence corroborating or contradicting the witness's testimony on material points; (4) the extent of cross-examination otherwise permitted; and (5) the overall strength of the State's case. Id.; Van Arsdall, 475 U.S. at 684. Third, the court determines whether, in view of the first two prongs, the error was harmless beyond a reasonable doubt. Shelby, 819 S.W.2d at 547; Van Arsdall, 475 U.S. at 684.
Here, assuming the three-year trial delay's damaging effect on Officer Carmona's memory was fully realized, based on our review of the entire record we conclude any error in restricting defense counsel's cross-examination on that topic was harmless beyond a reasonable doubt. See Shelby, 819 S.W.2d at 547. Looking to the five factors, the State's case on the possession charge was strong, consisting of three witnesses and the physical evidence seized from Gonzalez, i.e., the cocaine. As the officer who conducted the traffic stop/detention and performed the search of Gonzalez's person resulting in the discovery of cocaine in his back pocket, Officer Carmona was the key witness for the State. Officer Carmona testified to the sequence of events and the statements made by Gonzalez, including his voluntary consent to the search. Gonzalez did not testify and no evidence contradictory to Officer Carmona's testimony was admitted. In addition, the investigating detective and forensic scientist testified and confirmed the substance Officer Carmona seized from Gonzalez tested positive for cocaine. Multiple references to the offense date of September 9, 2011 were made in the jury's presence by both the prosecutor and defense counsel during their questioning of the witnesses, including Officer Carmona; in addition, the indictment and jury charge both contained the offense date. Further, defense counsel and the prosecutor also referenced the witnesses' use of their reports to refresh their memories about the details of the case in front of the jury. The jury was therefore made well aware of the passage of three years between Gonzalez's detention in September 2011 and trial in August 2014, enabling it to draw inferences about the effect of the time lapse on Officer Carmona's memory and credibility. The excluded area of questioning was therefore repetitive and cumulative, and any error was harmless. See id.
Gonzalez also asserts the trial court's comments about him being responsible for the trial delay "threatened to undermine [his] counsel's credibility in front of the jury." The record reflects, however, that the court's comments about the delay being the defendant's fault were made at the bench outside the presence of the jury. --------
CONCLUSION
Based on the foregoing reasons, we overrule Gonzalez's issues on appeal and affirm the trial court's judgment.
Rebeca C. Martinez, Justice DO NOT PUBLISH