No. 01-03-00858-CR
Opinion issued August 31, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 351st District Court, Harris County, Texas, Trial Court Cause No. 933216.
Panel consists of Justices TAFT, ALCALA, and HIGLEY.
ELSA ALCALA, Justice.
Appellant, Marco A. Melendez, pleaded guilty to the felony offense of felon in possession of a weapon. See Tex. Pen. Code Ann. § 46.04 (Vernon 2004). Pursuant to a plea agreement, the trial court assessed appellant's punishment at confinement for ten years in prison. The trial court certified appellant's right to appeal rulings on matters raised by written motion filed and ruled on before trial. See Tex.R.App.P. 25.2(a)(2). Appellant's counsel, who was appointed to represent appellant for this appeal, submitted a brief stating his professional opinion that the appeal was without merit and that there were no arguable grounds for reversal on appeal. See Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967). The brief meets the minimum Anders requirements by presenting a professional evaluation of the record and stating why there are no arguable grounds for reversal on appeal. See Gainous v. State, 436 S.W.2d 137, 138 (Tex.Crim.App. 1969). Appellant's counsel sent a copy of the brief to appellant, requested permission to withdraw from the case, and notified appellant of his right to review the record and file a pro se response. Appellant filed a pro se response brief. The State has not filed an appellee's brief. Appellant's pro se brief asserts eight issues on appeal, in which he complains of errors that concern pretrial, trial, and posttrial matters. We address appellant's complaint that the trial court erred by denying his motion to suppress, but decline to address appellant's remaining issues for lack of jurisdiction. We affirm appellant's conviction.
Background
On February 13, 2002, an undercover police officer employed by the Houston Police Department (HPD) observed appellant and Luis Olvera conducting what appeared to be narcotics transactions with several people who approached them as they stood in the parking lot outside two bars. The undercover officer also observed appellant put what appeared to be crack cocaine into his mouth when a marked police car drove near the parking lot. When the bar closed at 2 a.m., the undercover officer saw both appellant and Olvera enter the bar and leave with an opened beer bottle. The two men then got into appellant's car. As appellant backed out of the parking lot, the undercover officer saw the passenger, Olvera, take a drink from the beer bottle. The undercover officer relayed his observations to surveillance officers located nearby in a marked patrol car, who stopped appellant's car near his house. When the officers approached appellant's car, Olvera, the passenger, dropped the beer bottle to the ground, mumbling as he spoke. Olvera was then instructed to spit out the objects in his mouth, which were impairing his speech. Olvera complied and spat crack rocks from his mouth. One of the officers, Officer Miller, ordered appellant to get out of the car. As appellant stepped from the car, the officer placed his hands on appellant to pull him away from the open car door and observed a large piece of crack cocaine on the front seat of the car, where appellant had been sitting. Officer Miller decided to take appellant into custody for possession of the cocaine found near him near him in the car and told appellant to turn around and place his hands on the car. Officer Miller's search of appellant revealed a handgun in the right pocket of his jacket. During the hearing on the motion to suppress, appellant and Olvera testified that, after they drank beer inside the bar that night, appellant gave Olvera a ride in appellant's car. They claimed that appellant began to take Olvera home, but that they changed their plans and ended up at appellant's house, which was less than one block from the bar. Each testified that police officers did not approach them in the car until 20 to 25 minutes after they had left the bar, that the officers approached the car with their guns drawn, and that one of the officers choked Olvera. Appellant testified that no sale of narcotics occurred outside the bar that night, and that he was not aware that Olvera possessed any cocaine. Appellant also said that he possessed neither narcotics, nor any firearm on his person or in his car. Anders Procedure
After this Court receives an Anders brief from a defendant's court-appointed attorney, who asserts that no arguable grounds for appeal exist, we must review the record to make an independent determination of that issue. Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991). We consider any pro se response that the defendant files to the Anders brief, but we do not rule on the ultimate merits of the defendant's pro se response. If we determine that there are arguable grounds for appeal, we must abate the appeal, remand the case to the trial court, and allow the court-appointed attorney to withdraw. Id. The trial court must then either (1) appoint another attorney to present all arguable grounds for appeal or (2) allow the defendant to proceed pro se if the defendant so desires. Id. Appealable Issues
As a preliminary matter, we must determine which issues appellant has the right to appeal, given that the trial court's certification to appeal permits only challenges to rulings on matters raised by written motion filed and ruled on before trial. See Tex.R.App.P. 25.2(a)(2). The only pretrial ruling that appellant challenges here is the trial court's ruling on appellant's motion to suppress evidence. The remainder of appellant's issues concern matters that occurred during the trial or after trial. Because the trial court did not certify any non-pretrial issues for appeal, we have no jurisdiction to address appellant's complaints that his conviction constitutes a double jeopardy violation; that the evidence is legally insufficient to support his conviction; that he received ineffective assistance of counsel during his trial counsel's representation when appellant pleaded guilty and during the motion to suppress hearing; that the plea agreement was not entered into voluntarily; that the trial court did not properly admonish appellant during his plea of guilty; that the trial court erred by failing to withdraw appellant's plea of guilty, sua sponte; that the trial court erred by failing to hold a hearing on his motion for new trial and by failing to appoint appellate counsel timely. Tex.R.App.P. 25.2(a)(2). The trial court certified appellant's right to appeal only the trial court's rulings on matters raised by written motion filed and ruled on before trial. See Tex.R.App.P. 25.2(a)(2)(A). The Rules of Appellate Procedure clearly state that, in a plea-bargained case, as here, an appellant may appeal only "those matters that were raised by written motion filed and ruled on before trial" or "after getting the trial court's permission to appeal." Tex.R.App.P. 25.2(a)(2); Estrada v. State, 149 S.W.3d 280, 282 (Tex.App.-Houston [1st Dist.] 2004, pet. ref'd). In plea-bargained cases, therefore, we have no authority to address issues other than as authorized by current rule 25.2(a)(2) and former rule 25.2(b)(3). See Estrada, 149 S.W.3d at 283; see also Woods v. State, 108 S.W.3d 314, 316 (Tex.Crim.App. 2003) (holding, under former rule 25.2(b)(3), that claims of ineffective assistance of counsel relating to pretrial matters did not fall within category of claims concerning appeals from rulings on written motions raised and ruled on before trial). We therefore hold that, with the exception of the trial court's pretrial ruling on appellant's motion to suppress, we have no jurisdiction to address appellant's complaint that he received ineffective assistance of counsel during the hearing on his motion to suppress or his remaining issues in this appeal. See Tex.R.App.P. 25.2(a)(2); Estrada, 149 S.W.3d at 283. Motion to Suppress
In his third issue, appellant contends that the trial court erred by denying his motion to suppress because the trial court (1) abused its discretion by concluding that the officers had probable cause to arrest him, (2) failed to file findings of fact and conclusions of law concerning its suppression ruling, and (3) allowed witnesses to give false testimony in violation of appellant's right to due process. Appellant argues that the officer's testimony was incredible, inconsistent, insufficiently detailed, and that it failed to establish either that the officers had reasonable suspicion to detain, or probable cause to arrest, for the suspected narcotics activity or the alcohol violation. Appellant further contends that his and Olvera's testimony was more credible than the State's testimonial evidence. We review a trial court's ruling on a motion to suppress for abuse of discretion, and we review the record of the hearing on the motion in the light most favorable to the trial court's ruling. Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App. 2002); Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App. 1996). Ruling on a motion to suppress lies within the sound discretion of the trial court. Villarreal, 935 S.W.2d at 138. 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 at a suppression hearing. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000). The trial court is free to believe or disbelieve any or all parts of a witness's testimony. Dewberry v. State, 4 S.W.3d 735, 747 (Tex.Crim.App. 1999). Accordingly, we "must view the record evidence and all reasonable inferences therefrom in the light most favorable to the trial court's ruling, and we must sustain the trial court's ruling if it is reasonably supported by the record and is correct on any theory of law applicable to the case." Villarreal, 935 S.W.2d at 138; Romero, 800 S.W.2d at 543. In reviewing the trial court's exercise of discretion, we apply a bifurcated standard of review that requires us to defer almost totally to the trial court's determination of facts that depend on credibility assessments. State v. Ross, 32 S.W.3d 853, 856 (Tex.Crim.App. 2000); Dickey v. State, 96 S.W.3d 610, 612 (Tex.App.-Houston [1st Dist.] 2002, no pet.). We review the trial court's application of the law de novo. See Ross, 32 S.W.3d at 856; Dickey, 96 S.W.3d at 612. We will uphold the trial court's ruling on a motion to suppress if any applicable legal theory supports it. Romero, 800 S.W.2d at 543. An officer is entitled to make an investigatory stop when he has reasonable suspicion, based on objective facts, that an individual or individuals are engaged in criminal activity. Brown v. Texas, 443 U.S. 47, 51, 99 S. Ct. 2637, 2641 (1979); Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 1884 (1968). An officer has probable cause to arrest when facts and circumstances within the knowledge of the arresting officer, and of which he has reasonably trustworthy information, would warrant a reasonably prudent person to believe that a particular person has committed or is committing an offense. Beck v. Ohio, 379 U.S. 89, 91, 85 S. Ct. 223, 221 (1964); Armendariz v. State, 123 S.W.3d 401, 404, n. 4 (Tex.Crim.App. 2003). Furthermore, a peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view. See Tex. Code Crim. Proc. Ann. art. 14.01(b) (Vernon 2005); Pierce v. State, 32 S.W.3d 247, 248 n. 1 (Tex.Crim.App. 2000). The record shows that the undercover officer saw appellant and Olvera get into appellant's car with opened beer bottles and drive away, in violation of section 49.031 of the Penal Code. Tex. Pen. Code Ann. § 49.031(b) (Vernon 2004) ("It is an offense if a person knowingly possesses an open [alcoholic beverage] container in a passenger area of a motor vehicle that is located on a public highway, regardless of whether the vehicle is being operated or is stopped or parked."). The undercover officer relayed his observations to nearby surveillance officers, who detained appellant's vehicle. "It is well-established that an officer who does not himself possess probable cause for making a warrantless arrest may act upon the basis of information relayed to him by another officer requesting that an arrest be made." See Armendariz, 123 S.W.3d at 404, n. 4; Pyles v. State, 755 S.W.2d 98, 109 (Tex.Crim.App. 1988). The record further shows that, pursuant to the detention of appellant and his car, when Officer Miller ordered appellant out of the car, the officer observed, in plain view, crack cocaine on the seat of the car where appellant had been sitting. Officer Miller's observing the cocaine in appellant's car created a reasonable belief that appellant was in possession of the illegal contraband, thus establishing probable cause for arrest and justifying a search of appellant's person incident to the arrest. The privacy interests of a person who has been lawfully arrested must yield, for a reasonable time and to a reasonable extent, in order to permit the police to search for weapons, means of escape, and evidence. Oles v. State, 993 S.W.2d 103, 107 (Tex.Crim.App. 1999). We conclude that Officer Miller's search was a search incident to a lawful arrest and that the trial court's ruling denying appellant's motion to suppress is supported by the record and correct under a theory of law applicable to his case. See McGee v. State, 105 S.W.3d 609, 615 (Tex.Crim.App. 2003); see also Villarreal, 935 S.W.2d at 138 (holding that trial court's ruling may be upheld on any theory applicable to case). Appellant also asserts that the trial court erred by failing to provide him with findings of fact and conclusions of law after the court denied his motion to suppress. In deciding a motion to suppress, a judge has no duty to file findings of fact, even upon request. Smith v. State, 962 S.W.2d 178, 181 (Tex.App.-Houston [1st Dist.] 1998, pet. ref'd). Appellant further contends that the trial court denied him a fair hearing on his motion to suppress by permitting witnesses to give false testimony in violation of his right to due process. Appellant failed to object on this ground as a basis for the trial court's denial of his motion to suppress. and has therefore waived this complaint on appeal. See Tex.R.App.P. 33.1 (To preserve error for appeal, a defendant must (1) object, (2) state the grounds with sufficient specificity, and (3) obtain an adverse ruling.); Wilson v. State, 71 S.W.3d 346, 349 (Tex.Crim.App. 2002); Goff v. State, 931 S.W.2d 537, 551 (Tex.Crim.App. 1996). We conclude that appellant's third issue is without merit. Conclusion
After reviewing appellant's pro se responses and conducting an independent examination of the appellate record, we conclude that there are no arguable grounds for appeal. Accordingly, we affirm the judgment of the trial court and grant counsel's motion to withdraw.