Cesar Rocha v. State , 464 S.W.3d 410 ( 2015 )

Opinion issued March 12, 2015
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-13-00897-CR
———————————
CESAR ROCHA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court at Law No. 1
Harris County, Texas
Trial Court Case No. 1914250
OPINION ON REHEARING
A jury found Rocha guilty of possession of marijuana in a useable quantity
of more than two ounces and less than four ounces and assessed his punishment at
270 days’ confinement. On appeal, Rocha contends that the trial court erred in
(1) denying his motion to dismiss, because the State’s re–filing of the case violated
his right to due process and articles 29.03 and 29.04 of the Texas Code of Criminal
Procedure; (2) denying his motion to suppress pursuant to the Fourth Amendment;
and (3) denying his request for a jury instruction pursuant to article 38.23 of the
Texas Code of Criminal Procedure. Rocha further contends that the trial court
violated his right to due process by failing to maintain impartiality during the
proceedings. After a panel of our court issued its opinion in this case, Rocha
moved for rehearing en banc. The en banc court denies the motion for rehearing;
however, the panel withdraws its opinion and judgment and issues this opinion and
judgment in their stead. Finding no error, we affirm.
Background
In February 2010, Patrol Officer J. P. Cruz observed a blue Ford Expedition
with tinted windows parked in an apartment complex parking lot after dark, its
lights on and engine running. The complex’s leasing office had received numerous
complaints regarding narcotics deals, prostitution, and trespassing taking place in
this parking lot. Officer Cruz was aware of these complaints, and he personally
had observed narcotics activity in this parking lot. He had observed individuals
parked in the complex parking lot with their car engines running and headlights on
before making narcotics transactions. The Expedition remained parked for five to
ten minutes. No one entered or exited the car. Officer Cruz observed at least three
people sitting in the Expedition.
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Officer Cruz approached the Expedition on foot with a flashlight. He
approached the vehicle because no one was exiting it, and its lights and engine had
been on for five to ten minutes. As a safety precaution, he also drew his handgun,
but pointed it down and close to his body. Officer Cruz testified that he noticed the
driver’s window was partially open; as he approached it, he smelled a strong odor
of marijuana emanating from the car. Officer Cruz waved to the driver, who was
Rocha. In response, Rocha further rolled down his window.
Officer Cruz asked the passengers to exit the car, and he handcuffed them.
Officer Cruz asked Rocha if he had marijuana in the car. Rocha confessed that he
did and that it was in the car’s center console. Officer Cruz discovered marijuana
in the car’s center console, wrapped in 25 clear, small bags. All of the small bags
were further enclosed in a large, clear bag.
Course of Proceedings
On February 5, 2010, the State filed an information against Rocha. On April
19, 2010, Rocha pleaded guilty to possession of marijuana pursuant to a plea
bargain. The trial court convicted him and assessed his punishment at thirty days’
confinement. Rocha later filed a successful writ of habeas corpus pursuant to
Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473 (2010). The record is silent as
to when Rocha filed the writ and when the writ was granted. The State proceeded
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to a re–trial. The trial court reset the case on multiple occasions in 2013: on April
15, May 16, June 14, and June 24.
At the last trial setting, the State moved to dismiss the case and noted that it
would re–file it. The trial court granted the State’s motion. The State then filed a
new information against Rocha, and the trial court set the case for trial. Rocha
moved to suppress the evidence of marijuana and his statements to Officer Cruz,
and at trial, the trial court held a hearing on the motion. Rocha also moved to
dismiss the case, contending that the State’s earlier non–suit precluded it from re–
filing the same criminal charges. The trial court denied both motions.
At trial, Officer Cruz testified that based on his experience, a narcotics
dealer who plans to make a sale typically will park his car in a parking lot, will
leave its engine running, will remain in the car, and will occasionally leave its
lights on, because the dealer plans to conduct the sale from the car and leave the
parking lot as soon as the transaction is complete. Officer Cruz also testified that,
as he approached the Expedition, he drew his gun for his own safety, because a
narcotics dealer typically carries a weapon.
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Discussion
I. Re-filed Information
Standard of review
We review a trial court’s decision to deny a defendant’s motion to dismiss a
charging instrument under a bifurcated standard. See State v. Krizan–Wilson, 354
S.W.3d 808, 815 (Tex. Crim. App. 2011) (citing Guzman v. State, 955 S.W.2d 85,
87–89 (Tex. Crim. App. 1997)). We defer to a trial court’s “findings of fact that
are supported by the record, as well as mixed questions of law and fact that rely
upon the credibility of a witness.” Id. We review de novo “pure questions of law
and mixed questions that do not depend on credibility determinations.” Id.
Analysis
Rocha contends that the State’s re–filing of the case violated (1) his right to
due process; and (2) articles 29.03 and 29.04 of the Texas Code of Criminal
Procedure. See TEX. CODE CRIM. PROC. ANN. arts. 29.03, 29.04 (West 2006).
These contentions lack merit. The Due Process Clause of the Fifth Amendment
“has a limited role to play in protecting against oppressive delay” and concerns
only pre–indictment delays. Krizan–Wilson, 354 S.W.3d at 814 (quoting United
States v. Lovasco, 431 U.S. 783, 789, 97 S. Ct. 2044, 2048 (1977)); State v.
Harbor, 425 S.W.3d 508, 515 (Tex. App.—Houston [1st Dist.] 2012, no pet.).
Here, Rocha’s complaint does not concern pre–information or investigative delay;
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rather, it concerns the State’s delay during the prosecution of the case.
Accordingly, the State’s motion to dismiss and immediate re–filing of the case did
not violate the Fifth Amendment’s Due Process Clause. See Harbor, 425 S.W.3d
at 515.
Relying on United States ex. rel. Hetenyi v. Wilkins, Rocha next contends
that the State’s re–filing of the case was fundamentally unfair, violating the Due
Process Clause of the Fourteenth Amendment. 348 F.2d 844, 867 (2d Cir. 1965).
Hetenyi, however, is distinguishable. There, the State charged the defendant with
first–degree murder, but the jury found him guilty of second–degree murder. Id. at
847. After his conviction was vacated on appeal, the State again prosecuted the
defendant for first–degree murder. Id. The federal appellate court held that the re–
prosecution for first–degree murder violated the due process clause of the
Fourteenth Amendment, because the jury refused to convict the defendant of first–
degree murder in the first trial. Id. at 856–57. In contrast to the facts in Hetenyi,
the State moved to dismiss this case before any trial took place, and Rocha had not
been acquitted of possession of marijuana.
Rocha further contends that the State’s immediate re–filing of the
information violates articles 29.03 and 29.04 of the Code of Criminal Procedure.
See TEX. CODE CRIM. PROC. ANN. arts. 29.03, 29.04. Article 29.03 provides that:
A criminal action may be continued on the written motion of the State
or of the defendant, upon sufficient cause shown; which cause shall be
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fully set forth in the motion. A continuance may be only for as long
as is necessary.
Id. art. 29.03. Article 29.04 similarly provides the grounds for a State’s motion to
continue the case. See id. art. 29.04 (outlining requirements of State’s motion for
continuance for want of a witness). Neither provision, however, limits the State’s
right to re–file a case after dismissal; both are inapplicable to the facts presented in
this case. We hold that the trial court properly denied Rocha’s motion to dismiss
the State’s re–filed information.
II. Suppression Ruling
Standard of review and applicable law
We evaluate a trial court’s ruling on a motion to suppress under a bifurcated
standard of review. Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005).
The trial judge is the sole trier of fact and judge of the weight and credibility of the
evidence and testimony. Weide v. State, 214 S.W.3d 17, 24–25 (Tex. Crim. App.
2007). Accordingly, we defer to the trial court’s determination of historical facts if
the record supports them. Ford, 158 S.W.3d at 493. We review de novo the trial
court’s application of the law to those facts. Id. “[T]he prevailing party is entitled
to ‘the strongest legitimate view of the evidence and all reasonable inferences that
may be drawn from that evidence.’” State v. Castleberry, 332 S.W.3d 460, 465
(Tex. Crim. App. 2011) (quoting State v. Garcia–Cantu, 253 S.W.3d 236, 241
(Tex. Crim. App. 2008)). A trial court’s ruling will be sustained if it is “reasonably
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supported by the record and correct on any theory of law applicable to the case.”
Laney v. State, 117 S.W.3d 854, 857 (Tex. Crim. App. 2003) (quoting Willover v.
State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002)).
“Law enforcement and citizens engage in three distinct types of interactions:
(1) consensual encounters; (2) investigatory detentions; and (3) arrests.” State v.
Woodard, 341 S.W.3d 404, 410–11 (Tex. Crim. App. 2011) (citing Florida v.
Bostick, 501 U.S. 429, 434, 111 S. Ct. 2382, 2386 (1991), Gerstein v. Pugh, 420
U.S. 103, 111–12, 95 S. Ct. 854, 862 (1975), and Terry v. Ohio, 392 U.S. 1, 30–31,
88 S. Ct. 1868, 1884–85 (1968)). Consensual police–citizen encounters do not
implicate Fourth Amendment protections. Id. at 411 (citing Bostick, 501 U.S. at
434, 111 S. Ct. at 2386). In contrast, if there is a detention, the detaining officer
must have reasonable suspicion that the person “is, has been, or soon will be,
engaged in criminal activity.” Id. (citing Florida v. Rodriguez, 469 U.S. 1, 5–6,
105 S. Ct. 308, 310–11 (1984)). When there is a warrantless arrest, the arresting
officer must have “probable cause to believe the same.” Id. (citing Atwater v. City
of Lago Vista, 532 U.S. 318, 354, 121 S. Ct. 1536, 1557 (2001)).
We consider the “totality of the circumstances surrounding the interaction to
determine whether a reasonable person in the defendant’s shoes would have felt
free to ignore [a police officer’s] request or terminate the interaction.” Id. (citing
Brendlin v. California, 551 U.S. 249, 255, 127 S. Ct. 2400, 2405–06 (2007)).
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Although we consider “[t]he surrounding circumstances, including time and place,
. . . the officer’s conduct is the most important factor” in deciding whether an
encounter between a citizen and a police officer was consensual or a Fourth
Amendment seizure. Id. (citing Garcia–Cantu, 253 S.W.3d at 244). “[W]hen an
officer through force or a showing of authority restrains a citizen’s liberty, the
encounter is no longer consensual.” Id. (citing Brendlin, 551 U.S. at 254, 127 S.
Ct. at 2405). To support a reasonable suspicion that a person is, has been, or soon
will be engaged in criminal activity, an officer must have “specific, articulable
facts . . . combined with rational inferences from those facts.” Derichsweiler v.
State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011) (citing United States v.
Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585 (1989), and Crain v. State, 315
S.W.3d 43, 52 (Tex. Crim. App. 2010)). We examine the reasonableness of a
temporary investigative detention in light of the totality of the circumstances to
determine whether an officer had an objectively justifiable basis for the detention.
Id. (citing Terry, 392 U.S. at 21–22, 88 S. Ct. 1868, 1880, and United States v.
Cortez, 449 U.S. 411, 417–18, 101 S. Ct. 690, 695 (1981)); Balentine v. State, 71
S.W.3d 763, 768 (Tex. Crim. App. 2002) (citing Woods v. State, 956 S.W.2d 33,
38 (Tex. Crim. App. 1997)). Reasonable suspicion may exist even if the conduct
of the person detained is “as consistent with innocent activity as with criminal
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activity.” York v. State, 342 S.W.3d 528, 536 (Tex. Crim. App. 2011) (quoting
Curtis v. State, 238 S.W.3d 376, 378–79 (Tex. Crim. App. 2007)).
A defendant has the “burden of producing evidence to rebut the presumption
of proper conduct by law enforcement” and can satisfy it “with evidence that the
seizure occurred without a warrant.” Woodard, 341 S.W.3d at 412. “If the
defendant satisfies the initial burden, the burden then shifts to the State to establish
that the seizure was nevertheless reasonable under the applicable standard—either
reasonable suspicion or probable cause.” Id.
A police officer “may conduct a warrantless search of a vehicle if it is
readily mobile and there is probable cause to believe that it contains contraband.”
Keehn v. State, 279 S.W.3d 330, 335 (Tex. Crim. App. 2009) (citing Pennsylvania
v. Labron, 518 U.S. 938, 940, 116 S. Ct. 2485, 2487 (1996), and California v.
Carney, 471 U.S. 386, 393, 105 S. Ct. 2066, 2070 (1985)). A strong odor of
marijuana emanating from a car establishes probable cause to search the car and its
occupants. Jordan v. State, 394 S.W.3d 58, 64–65 (Tex. App.—Houston [1st
Dist.] 2012, pet. ref’d) (citing Parker v. State, 206 S.W.3d 593, 597 n.11 (Tex.
Crim. App. 2006)); see also Miller v. State, 608 S.W.2d 684, 685–86 (Tex. Crim.
App. 1980) (holding that officers were authorized to conduct pat-down search after
smelling odor of marijuana emanating from car and from appellant’s person); State
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v. Crawford, 120 S.W.3d 508, 510 (Tex. App.—Dallas 2003, no pet.) (finding that
officers had probable cause to search car after smelling odor of burned marijuana).
Analysis
Rocha contends that Officer Cruz violated his Fourth Amendment rights in
connection with Rocha’s detention and subsequent arrest.1 The State adduced
sufficient evidence, however, that Officer Cruz had specific, articulable facts
supporting a reasonable suspicion that Rocha was connected with criminal activity.
See Woodard, 341 S.W.3d at 411; Derichsweiler, 348 S.W.3d at 914. Officer Cruz
approached the Expedition because the driver and passengers exhibited behavior
consistent with that of other individuals he had observed conducting narcotics
transactions in the same parking lot. Officer Cruz testified to specific, articulable
facts: the passengers and driver waited in the car for several minutes at a location
where he previously had observed narcotics activity, without turning off their car
engine or lights or exiting the car. See Derichsweiler, 348 S.W.3d at 914. The
circumstances, viewed in totality, support Cruz’s investigative detention. See id;
Balentine, 71 S.W.3d at 768.
The State also adduced sufficient evidence supporting probable cause to
arrest Rocha. Officer Cruz smelled a strong odor of marijuana emanating from
1
Rocha also contends that Officer Cruz’s conduct violated his Fifth and Sixth
Amendment rights. Rocha, however, provides no argument or authority in support
of his contention. Accordingly, we do not address these issues. See TEX. R. APP.
P. 38.1(i).
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Rocha’s car as soon as he approached Rocha’s window. Although two of the
passengers contested Officer Cruz’s testimony that the window was rolled down as
he approached, we defer to the trial court’s determination of witness credibility
where the record supports it, as it does here. See Weide, 214 S.W.3d at 24–25;
Ford, 158 S.W.3d at 493. When Officer Cruz smelled an odor of marijuana, he
had probable cause to search the car and its occupants. See Jordan, 394 S.W.3d at
64–65. We hold that the trial court did not err in denying Rocha’s motion to
suppress.
III. Jury Charge
Standard of review
Rocha contends that the trial court erred in denying his request for a jury
instruction pursuant to article 38.23 of the Code of Criminal Procedure, because he
adduced material evidence that the Officer Cruz’s search was unlawful. See TEX.
CODE CRIM. PROC. ANN. art. 38.23(a) (West 2005). If a fact issue exists
concerning whether evidence was unlawfully obtained, then a trial court must
instruct the jury that if it believes that the evidence was obtained in violation of
article 38.23, then it should disregard the evidence so obtained. Madden v. State,
242 S.W.3d 504, 510 (Tex. Crim. App. 2007); Pierce v. State, 32 S.W.3d 247, 251
(Tex. Crim. App. 2000). The evidence (1) must raise an issue of fact; (2) must be
affirmatively contested; and (3) must be material to the lawfulness of the
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challenged conduct. Madden, 242 S.W.3d at 510. The defendant must request a
jury instruction on a specific historical fact to obtain one. Id. at 511. “[I]f other
facts, not in dispute, are sufficient to support the lawfulness of the challenged
conduct, then the disputed fact . . . is not material to the ultimate admissibility of
the evidence.” Id. at 510. In other words, “[t]he disputed fact must be an essential
one in deciding the lawfulness of the challenged conduct.” Id. at 511.
Analysis
Rocha disputes the facts surrounding his arrest, including: (1) whether
Officer Cruz displayed his gun as a show of force; (2) whether a reasonable person
in his position would have felt free to leave; (3) whether the apartment complex
was a high–crime area; (4) whether Rocha or anyone else in the Expedition was
acting suspiciously; (5) whether Rocha’s window was rolled up when Officer Cruz
approached the Expedition; and (6) whether Officer Cruz had reasonable suspicion.
Fact issues (1) and (2) are not material, because Officer Cruz had reasonable
suspicion to detain Rocha before approaching the Expedition with his gun drawn.
See id. at 510–11. Issues (3) and (4) are undisputed. No one contested Officer
Cruz’s testimony that he had viewed many narcotics transactions at the apartment
complex. See id. at 510. No one contested that Rocha and the passengers were
waiting in the Expedition in the complex parking lot for several minutes with the
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car engine running and lights on, the basis for the temporary investigative
detention.
Fact issue (5) is not material. Although both passengers testified that the
windows were rolled up as Officer Cruz approached, Officer Cruz also could have
smelled marijuana as the passengers exited the car, which occurred before Officer
Cruz asked Rocha if he had any marijuana. Once Officer Cruz smelled marijuana,
he had probable cause to search the car and its occupants. See Jordan, 394 S.W.3d
at 64–65. The ultimate material fact is whether there was an odor of marijuana at
some point, not whether the window was up or down at the initial detention.
Although both passengers contested Officer Cruz’s testimony that the window was
open, this contested fact was not material. See Madden, 242 S.W.3d at 510–11.
Thus, Rocha’s first five challenges were either not material or not contested.
Issue (6) is not a factual issue, but a legal issue. Whether a police officer has
reasonable suspicion is a question of law, not fact. See id. at 511 (“The jury . . . is
not an expert on legal terms of art. . . . It cannot be expected to decide whether the
totality of certain facts do or do not constitute ‘reasonable suspicion’ under the
law.”).
Because Rocha did not raise any material fact issue, he was not entitled to an
article 38.23 jury instruction. See id. at 510. Accordingly, the trial court did not
err in denying his request for an article 38.23 jury instruction.
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IV. Impartiality of trial court
Rocha contends that the trial court violated his right to due process in failing
to maintain impartiality during the proceedings. “Due process requires a neutral
and detached hearing body or officer.” Brumit v. State, 206 S.W.3d 639, 645 (Tex.
Crim. App. 2006). A trial court’s actions will be presumed to have been correct,
absent a clear showing of bias. Id.
Rocha first challenges the following exchange, outside the presence of the
jury, during the State’s argument on Rocha’s motion to suppress:
The Court: Okay. Let’s say it’s not a consensual encounter. What’s the
reasonable suspicion to temporarily detain to confirm or dispel any
suspicions about criminal activity having taken place or about to take place?
State’s counsel: The reasonable suspicion for the officer to approach—are
you referring other than the high criminal activity in the area?
The Court: Other than the high crime area.
A trial judge has broad discretion in maintaining control and expediting a trial and
may interject to clarify a point of confusion. Jasper v. State, 61 S.W.3d 413, 421
(Tex. Crim. App. 2001); Murchison v. State, 93 S.W.3d 239, 262 (Tex. App.—
Houston [14th Dist.] 2002, pet. ref’d). Rocha contends that the trial court went
beyond those bounds and aided the State by intimating that it would find that
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reasonable suspicion existed when the State had not previously argued this theory. 2
This contention is without merit. The State had earlier argued that Officer Cruz
had probable cause to search the car and detain Rocha:
State’s counsel: . . . And then once he had that smell, once he had that
admission, he could search the vehicle. That’s that. It’s very simple. There
is no complicated explanation as to what happened there and whether the
officer could enter the vehicle. It’s very simple. He had probable cause to
search the vehicle.
The Court: So, your position is that a detention did not exist until after he
smelled the marijuana?
State’s counsel: Yes.
The State argued at the outset that no search occurred until after Officer
Cruz smelled the marijuana emanating from the car. The trial court acted within its
discretion by responding with a question to clarify. See Jasper, 61 S.W.3d at 421.
The State clarified that its position was that no detention occurred until after
Officer Cruz smelled the marijuana. In the subsequent complained–of exchange,
the trial court did not introduce a new alternative theory and thus did not assist the
State.
Rocha also contends that the trial court violated his right to due process in
failing to hold a pre–trial hearing on his motion to suppress. But a trial court is not
2
Rocha failed to object to this exchange. But, because the Court of Criminal
Appeals has not spoken definitively on the issue of whether a trial judge’s
comments can be challenged on appeal absent an objection, we address the merits
of Rocha’s complaint. See Brumit v. State, 206 S.W.3d 639, 644–45 (Tex. Crim.
App. 2006).
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required to rule on a motion to suppress before trial and may carry the motion
along with the trial on the merits. York v. State, 342 S.W.3d 528, 550–51 (Tex.
Crim. App. 2011) (citing Calloway v. State, 743 S.W.2d 645, 649 (Tex. Crim. App.
1988)). Accordingly, we hold that Rocha failed to make a clear showing of bias
and thus does not overcome the presumption that the trial court maintained its
impartiality during the proceedings.
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Conclusion
The trial court did not err in denying Rocha’s motion to dismiss, motion to
suppress, and request for an article 38.23 jury instruction, nor did it fail to maintain
impartiality during the proceedings. We therefore affirm the judgment of the trial
court. The motion for rehearing en banc is denied.
Jane Bland
Justice
Panel consists of Justices Higley and Bland. ∗
En banc court consists of Chief Justice Radack and Justices Jennings, Keyes,
Higley, Bland, Massengale, Brown, Huddle, and Lloyd.
Publish. See TEX. R. APP. P. 47.2(b).
∗
Justice Jim Sharp was a member of the original panel, which unanimously voted to
affirm, but his term of office expired in the interim. The two remaining justices
issue the opinion on rehearing. See TEX. R. APP. P. 41.1 & 49.3.
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