Ronald Coleman, Sr. v. State ( 2012 )


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  •                                   NO. 07-11-00305-CR
    IN THE COURT OF APPEALS
    FOR THE SEVENTH DISTRICT OF TEXAS
    AT AMARILLO
    PANEL A
    MAY 15, 2012
    RONALD COLEMAN, SR., APPELLANT
    v.
    THE STATE OF TEXAS, APPELLEE
    FROM THE 242ND DISTRICT COURT OF HALE COUNTY;
    NO. B18708-1102; HONORABLE EDWARD LEE SELF, JUDGE
    Before CAMPBELL and HANCOCK and PIRTLE, JJ.
    MEMORANDUM OPINION
    Appellant, Ronald Coleman, Sr., was convicted of tampering with evidence1 and
    sentenced to confinement in the Institutional Division of the Texas Department of
    Criminal Justice (ID-TDCJ) for two years and fined $3,000. By one issue, appellant
    contends that the trial court committed reversible error in overruling his motion to
    suppress the evidence that resulted from his illegal detention. We will affirm.
    1
    See TEX. PENAL CODE ANN. § 37.09(a)(1) (West 2011).
    Factual and Procedural Background
    On January 24, 2011, appellant approached a house located near the
    intersection of 10th Street and Austin Avenue in Plainview, Texas.          Unknown to
    appellant, this house was the subject of a request to watch the traffic coming and going
    from the house that the detective in charge of drug enforcement for the Plainview Police
    Department had relayed to all patrol officers. On this day, Sergeant Ernesto Amaya
    was observing the house. Amaya testified that he watched appellant go to the front
    door and then enter the house. Appellant was inside the house for approximately 30
    seconds before he came out and headed away from the house. Amaya said he could
    not see who opened the door for appellant nor what appellant did while inside the
    house. As Amaya observed appellant walking across a vacant lot away from the house,
    appellant put his right hand inside the right pocket of his “hoodie.” Amaya then walked
    toward appellant.      As Amaya approached appellant, he made eye contact with
    appellant. According to Amaya, after he made eye contact with appellant, appellant put
    his right hand back in the pocket of his “hoodie.” On direct examination at the hearing
    on the motion to suppress, Amaya testified that appellant then withdrew his hand from
    the right pocket of the “hoodie” in a cup-like motion, as if he was trying to conceal
    something. At this time, Amaya asked appellant if he could speak to him. Appellant
    stopped and, because Amaya had seen appellant bring his hand out of the “hoodie”
    pocket as if to hide something, Amaya attempted to conduct a Terry2 frisk. As Amaya
    was beginning to attempt the Terry frisk, appellant placed what was in his hand into his
    mouth, chewed, and swallowed what was in his hand.
    2
    See Terry v. Ohio, 392 U.S.1, 30, 
    88 S. Ct. 1868
    , 
    20 L. Ed. 2d 889
    (1968).
    2
    During cross-examination, Amaya admitted that, prior to appellant making the
    motion toward his mouth with his hands, he ordered appellant to place his hands on one
    of the patrol cars there in the parking area. During cross-examination, Amaya admitted
    that the information he received from the narcotics detective was several days old.
    Further, Amaya did not have any idea how old the information was that the narcotics
    detective received from the confidential informant.
    At the conclusion of the hearing on the motion to suppress, the trial court took the
    matter under advisement. Later, the trial court issued a short order denying the motion
    to suppress. No findings of fact or conclusions of law were entered. Appellant was
    subsequently tried and convicted of tampering with evidence and sentenced to serve
    two years confinement in the ID-TDCJ and a fine of $3,000.             Appellant appeals,
    contending that the trial court’s denial of the motion to suppress was an abuse of
    discretion. We will affirm.
    Suppression Issue
    Appellant’s single issue is that the trial court committed reversible error by
    denying appellant’s motion to suppress based upon a lack of reasonable suspicion on
    the part of the investigating officer. However, our review of the record leads us to
    conclude that we do not need to address the legality of the officer’s detention to resolve
    this matter.
    3
    Analysis
    Initially, we observe that a person who is stopped or detained illegally is not
    immunized from prosecution for crimes committed during any period of detention. See
    Bryant v. State, 
    253 S.W.3d 810
    , 812 (Tex.App.—Amarillo 2008, pet. ref’d) (citing
    United States v. Garcia-Jordan, 
    860 F.2d 159
    , 160 (5th Cir. 1988)). In Bryant, appellant
    had been detained while the police were investigating a disturbance call. 
    Id. at 811.
    During his detention, Bryant was able to destroy a glass meth pipe that police had found
    in his possession. 
    Id. at 812.
    Bryant was subsequently charged with tampering with
    evidence. 
    Id. Bryant filed
    a motion to suppress contending that the evidence found was
    the result of an illegal detention. This court concluded that the tampering with evidence
    charge was a new crime, and the exclusionary rule found in article 38.23 of the Code of
    Criminal Procedure does not require suppression of such evidence. 
    Id. at 813.
    We are faced with the same situation. Here, appellant contends that he was
    illegally detained by the police. This arose, according to appellant, because the officer
    ordered appellant to place his hands on the hood of a patrol car after encountering
    appellant. Appellant’s actions in placing the suspected item in his mouth, chewing, and
    swallowing it occurred after appellant had been detained by the officer.        The only
    actions taken by appellant that lead to the charge is the placement of the item in his
    mouth, chewing it, and swallowing.     Thus the crime, tampering with evidence, was
    completed after the detention. As such, the exclusionary rule and article 38.23 of the
    Texas Code of Criminal Procedure do not require suppression of the officer’s testimony
    4
    regarding the actions of appellant after the detention. 
    Id. Accordingly, appellant’s
    single issue is overruled.
    Conclusion
    Having overruled appellant’s single issue, we affirm the judgment of the trial
    court.
    Mackey K. Hancock
    Justice
    Do not publish.
    Pirtle, J., dissenting.
    5
    

Document Info

Docket Number: 07-11-00305-CR

Filed Date: 5/15/2012

Precedential Status: Precedential

Modified Date: 10/16/2015