Dimitrus Denise Ponds v. State of Texas ( 2001 )

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Dimitrus Denise Ponds

Appellant

Vs.                   No. 11-01-00140-CR  -- Appeal from Taylor County

State of Texas

Appellee

After the trial court overruled her motion to suppress evidence, Dimitrus Denise Ponds entered a plea of Ano contest@ to a first degree felony offense, possession of cocaine with intent to deliver.  The plea was part of a plea bargain agreement which was accepted by the trial court, and appellant was sentenced to confinement for ten years.  We affirm.

                                                                  Issues Presented

Appellant presents two points of error which read in full as shown:

[1] The trial court erred in receiving evidence, over appellant=s timely objection, resulting from a warrantless arrest, when there was no probable cause shown for such arrest.

[2] The trial court erred in overruling appellant=s motion to suppress evidence recovered when appellant was arrested without lawful warrant, probable cause or other lawful authority.

These points of error are overruled because there was probable cause for the warrantless arrest. 

                                             Evidence at Hearing on Motion to Suppress

Two police officers were the only witnesses at the hearing on appellant=s motion to suppress evidence of cocaine and marihuana found during the investigation of a reported theft.^[1] 

The first witness was Officer Michael R. Janusz of the Abilene Police Department.  At the time of trial, he had been employed by that department for 18 years, and he testified that he was a certified peace officer.  Officer Janusz testified that he was on duty at 1:00 p.m. on October 26, 2000, when he responded to a call on the police radio of a Atheft in progress@ at the Toys >R Us and Target stores.  The call indicated that there were two females and one male Apassing checks stolen out of Dallas@ and described their vehicle as a red Ford F-150 pickup.  The dispatcher called for Officer Jim Becker, but Officer Janusz was closer and was the first one to arrive at the scene.  Officer Janusz said that there was only one vehicle in the parking lot which matched the description on the dispatcher=s call, and he went to that vehicle and parked behind it.  There appeared to be two females and one male in the pickup.  The male was in the driver=s seat, and appellant was in the front passenger=s seat. It was later discovered that the other passenger was a male who was dressed as a woman.  There were packages in the bed of the pickup, and some of them were from the Toys >R Us store.

Officer Janusz told the driver that he had received a call about a theft and then asked him to identify himself.  The driver Aacted very nervous@ and said that his name was ALow Brown.@  The computer had  no driver=s license for that name. Officer Becker arrived about that time. As soon as Officer Becker arrived, Officer Janusz got the driver out of the car and placed him under arrest for Afailure to identify.@  The driver was handcuffed and placed in the back of the first police car. Then the two officers proceeded with their investigation of the theft which had been reported.  Officer Becker put the two passengers in the back of the second police car.  By that time, employees from the two stores had come to the scene of the investigation. Serena Alsides, an employee of Toys >R Us, was the person who had reported the theft to the police, and she told the two officers that there were four people involved.  She identified the three people who had been detained, and the officers began to look for the fourth suspect.  Alsides told Officer Janusz that it was her job to approve checks, that she discovered that the check had been Astolen out of Dallas,@ and that that is why she called the police to report the theft.  While they were in the parking lot, someone pointed across the parking lot toward a motel and said, AThere=s the other one.@  The officers at the scene called Officer McFadden on the police radio and had him pick up the fourth suspect and bring her to them.  The fourth suspect was the one who actually passed the stolen check. 

Officer Janusz also testified that, during the search of the vehicle, they found some contraband and Aa large amount of drugs.@ Officer Becker and Officer McFadden Ainventoried the stuff in the vehicle@ and booked everything into the evidence vault.

The other witness at the hearing on the motion to suppress was Officer Becker of the Abilene Police Department.  He testified at the hearing on March 8, 2001, that he had been with the department 28 years and that he was a certified peace officer. He also testified that on August 26, 2000, he received a call for Aforgery in progress@ at the Target store at 3710 Ridgemont and that the information on the call sheet indicated:

[T]here had been some subjects at Toys >R Us and there was a black male and two black females and they also gave a vehicle description of a red Ford pickup, extended cab, and a license number.

Officer Becker said that he arrived at the scene about three to five minutes after the call and that Officer Janusz had already arrived and parked behind a red Ford pickup with the license number they had been given.  Officer Janusz talked to the driver, and Officer Becker talked to the two passengers.  The female in the front seat identified herself as Dimitrus Denise Ponds.  The other passenger was dressed as a female, but he identified himself as Jason Keith Fisher.  Later, he said that his name was Eric Tyron Hall.  Officer Becker advised the two passengers that the officers had received a police call for a Aforgery in progress.@ Officer Becker also told them that Athey matched the physical description of the suspects@ and that their vehicle Amatched the description of the vehicle.@ Officer Becker said that there were several items in the bed of the pickup from Toys >R Us and some other bags of merchandise.  During his investigation, Officer Becker looked inside a nylon bag which was on the floor of the pickup. It contained several checkbooks which did not belong to any of the people who were in the pickup.  When he found those checkbooks, Officer Becker put appellant and Hall in the back of his squad car.  They were not handcuffed, but they could not get out of the car unless someone on the outside opened the door.  Officer Becker went back to the pickup and found a large handbag containing a substance that looked like crack cocaine.  There was also a bank bag inside the handbag, and it contained a large amount of cash.  When he arrived, Officer McFadden  opened the door and smelled marihuana.  A large amount of marihuana was found under the rear seat on the left side of the pickup.                                 

                                                               Standard of Review

Appellate courts must give great deference to the trial court=s Adetermination of the historical facts that the record supports.@  See, e.g., Guzman v. State, 955 S.W.2d 85, 89 (Tex.Cr.App.1997).  As the court said in Guzman v. State, supra at 90-91:

Article 14.01, [TEX. CODE CRIM. PRO. ANN. (Vernon 1977)], provides that a peace officer may arrest an offender without a warrant for any offense committed in his presence.  The test for probable cause for a warrantless arrest is:

Whether at that moment the facts and circumstances within the officer=s knowledge and of which [he] had reasonably trustworthy information were sufficient to warrant a prudent man in believing the arrested person had committed or was committing an offense.

Each search and seizure question must turn on the facts of that particular case.  

See also Stull v. State, 772 S.W.2d 449, 451 (Tex.Cr.App.1989).

                                                    This Court=s Ruling

The evidence supports the trial court=s implied finding that the police officers had satisfactory proof  Aupon the representation of a credible person@ that a felony theft had been committed and that the offenders were about to escape; therefore, the officers had probable cause to arrest appellant and the other suspects for theft by forgery.  TEX. CODE CRIM. PRO. ANN. art. 14.04 (Vernon 1977); see also TEX. CODE CRIM. PRO. ANN. art. 14.03(a)(1) (Vernon Supp. 2001).   During the investigation of that offense, the cocaine and marihuana were discovered.  The police officers had probable cause to believe that all four suspects were working together and were in joint possession of the contraband; consequently, that offense was committed in the presence of the officers.   At that point, the officers had the right to make a warrantless arrest of the four suspects for possession of cocaine and marihuana pursuant to Article 14.01. 

Appellant argues in her brief that the motion should have been sustained, citing U.S. CONST. amends. IV, V, VI, and XIV; TEX. CONST. art. I, ' 9; and TEX. CODE CRIM. PRO. ANN. art. 38.23 (Vernon Pamph. Supp. 2001).  We hold that the trial court did not err in overruling the motion to suppress and that appellant failed to show a violation of any of her constitutional or statutory rights.  Both points of error are overruled.

The judgment of the trial court is affirmed.

BOB DICKENSON

SENIOR JUSTICE

December 6, 2001

Do not publish.  See TEX.R.APP.P. 47.3(b).

Panel consists of:  Arnot, C.J., and

Wright, J., and Dickenson, S.J.^[2]

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^[1]See TEX. PENAL CODE ANN. ' 31.02  (Vernon 1994).

^[2]Bob Dickenson, Retired Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.