Troy Donnell Hippolite v. State ( 2010 )

Opinion issued May 27, 2010

In The

Court of Appeals

For The

First District of Texas

NO. 01-09-00569-CR

TROY DONNELL HIPPOLITE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 339th District Court

Harris County, Texas

Trial Court Cause No. 1212950

MEMORANDUM OPINION

          A jury convicted Troy Donnell Hippolite of the felony offense of possession of a controlled substance, cocaine, weighing less than one gram.  See Tex. Health & Safety Code Ann. §§ 481.102(3)(D), 481.115(b) (Vernon Supp. 2009).  After Hippolite pleaded true to the allegations in two enhancement paragraphs, the trial court assessed punishment at four years’ confinement and a $5000 fine. On appeal, Hippolite contends that the trial court abused its discretion in denying his motion to suppress evidence because:  (1) the arresting officer lacked probable cause to stop Hippolite’s vehicle and his testimony that Hippolite committed a traffic violation was not credible; and (2) Hippolite made a statement regarding the cocaine before the officer gave Hippolite the Miranda warnings.  We hold that (1) the trial court did not abuse its discretion in determining that the officer’s testimony was credible and he had probable cause to stop Hippolite; and (2) Hippolite made his statement voluntarily and not in response to custodial interrogation.  We therefore affirm.

Background

In January 2009, Houston Police Department Officer Ashraf parked his patrol car in the parking lot of a Citgo station to observe the intersection of Kingspoint Road and Kleckley Drive, located in the “high crime, high narcotic activity” area of Almeda Mall in southeast Houston.  Ashraf parked at an angle in the parking lot, approximately twenty feet from the stop sign, so he could view the intersection.  Ashraf testified that his car was not hidden, but was located in plain view in the parking lot.  Five to ten minutes after arriving at the Citgo, Ashraf saw Hippolite fail to make a complete stop and fail to use his turn signal before turning right onto Kingspoint.  Ashraf estimated that ten cars passed by his patrol car and stopped at the intersection before Hippolite, and all of those cars properly stopped and properly signaled if they turned right.  Aside from Hippolite’s failure to stop properly and use his turn signal, nothing about his car or manner of driving caught Ashraf’s attention or made him want to single Hippolite out for further investigation.

Ashraf followed Hippolite for two blocks before pulling him over.  According to Ashraf, Hippolite was “very aggressive, non-cooperative, [and] defensive,” and he repeatedly demanded to know why Ashraf pulled him over.  Hippolite argued with Ashraf, stating that he had completely stopped and had used his turn signal.  Ashraf arrested Hippolite for failing to use his turn signal and asked whether he had any contraband on him or in his car.  After Hippolite responded that he did not have any contraband, Ashraf searched Hippolite and discovered a “lump” in Hippolite’s pants pocket.  Ashraf removed the lump and identified the substance as a crack-cocaine rock.  Hippolite then stated that he received the rock from a friend in exchange for giving that friend a ride.  On cross-examination, Ashraf acknowledged that he had not read Hippolite his Miranda warnings at the time Hippolite informed Ashraf of the rock’s origins.  According to Ashraf, after arresting Hippolite, the only question he asked was whether Hippolite had any contraband on himself or in his car, which Hippolite denied.  Ashraf testified on re-cross that he might have said “[w]hat’s this?” but only after he obtained the crack rock.  The only question he asked Hippolite was whether he had any contraband on himself or in his car prior to the search, and Hippolite answered that question by stating that he did not have any contraband.

Hippolite moved to suppress the cocaine and “[a]ll statements made, whether oral or written, and such other actions of the Defendant, if any, at the time of and subsequent to the stop, arrest, and search.”  The trial court carried the motion with the trial.  In the motion, Hippolite contended that Ashraf lacked probable cause to conduct the traffic stop.  At trial, Hippolite specified that Ashraf’s testimony on observing Hippolite’s failure to use his turn signal “lack[ed] credibility.”  The trial court denied the motion and admitted both the cocaine and Hippolite’s statement regarding how he obtained it.

Discussion

Standard of Review

          We review a trial court’s ruling on a motion to suppress for abuse of discretion.  Shepherd v. State, 273 S.W.3d 681, 684 (Tex. Crim. App. 2008).  We view the evidence in the light most favorable to the trial court’s ruling.  Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007) (quoting State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006)). The trial court is the “sole trier of fact and judge of credibility of the witnesses and the weight to be given to their testimony.”  St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007).  The trial court may choose to believe or disbelieve any part or all of a witness’s testimony.  Green v. State, 934 S.W.2d 92, 98 (Tex. Crim. App. 1996).  We defer to a trial court’s express or implied determination of historical facts, as well as to its application of law to fact questions if those questions turn on the evaluation of credibility and demeanor.  See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).  We will sustain the trial court’s ruling if it is reasonably 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).

Probable Cause to Conduct Traffic Stop

          Hippolite contends that the trial court abused its discretion by denying his motion to suppress evidence because the court’s determination that Officer Ashraf had probable cause to arrest Hippolite for failing to use his turn signal was “based on a flawed assessment of [Ashraf’s] credibility.”  The Transportation Code provides that a person commits a traffic violation if the person does not signal continuously for at least 100 feet before turning.  Tex. Transp. Code Ann. § 545.104(b) (Vernon 1999).  If a police officer observes a person committing a traffic violation, the officer may arrest the person without a warrant. Id. § 543.001; Tex. Code Crim. Proc. Ann. art. 14.01(a) (Vernon 2005); Dogay v. State, 101 S.W.3d 614, 618 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (“[A] police officer may stop and arrest a driver for a traffic violation and may search the car and the area of the car incident to the arrest.”).  Probable cause exists if the officer has a reasonable belief that, based on facts and circumstances within the officer’s personal knowledge or of which the officer has reasonably trustworthy information, the defendant committed an offense.  Torres v. State, 182 S.W.3d 899, 902 (Tex. Crim. App. 2005); see also Zervos v. State, 15 S.W.3d 146, 151 (Tex. App.—Texarkana 2000, pet. ref’d) (“If an officer has a reasonable basis for suspecting that a person has committed a traffic offense, the officer may legally initiate a traffic stop.”).

          In contending that Ashraf lacked probable cause to stop Hippolite’s car and was not a credible witness, Hippolite emphasizes Ashraf’s testimony that he parked his marked patrol car in plain view of the street and suggests that it is therefore “highly unlikely” that any person would commit a traffic violation in front of such a “plainly visible” officer. Further, Hippolite notes that Ashraf’s statement that the ten previous vehicles he observed at the intersection all properly stopped and signaled if they turned right “is subject to considerable common sense skepticism given Houstonians’ general failure to signal their lane changes.”  Hippolite’s aggressive demeanor, according to Hippolite, indicates that he had complied with the traffic laws.  Hippolite also contends that Ashraf was biased against him and “embellished” his trial testimony by testifying that Hippolite (1) failed to properly stop, (2) admitted to drinking a few beers before driving, and (3) had neither a driver’s license nor proof of insurance.  Ashraf included none of this information in his police report.

Even considering “Houstonians’ general failure to signal their lane changes,” it is reasonable to believe that the ten drivers who preceded Hippolite saw Ashraf’s marked patrol car observing the intersection and took care to not “commit a traffic violation in front of [a plainly visible] officer.”  Ashraf testified that, although he observed Hippolite’s “rolling” stop, he considered the turn signal violation to be the traffic offense on which he based the stop.  Ashraf offered two explanations for his failure to include the information regarding Hippolite’s improper stop, alcohol consumption, and lack of a driver’s license and insurance in his police report:  (1) mere oversight, and (2) he already had a strong possession case against Hippolite.

In denying Hippolite’s motion to suppress evidence, the trial court impliedly found that Ashraf’s testimony was credible and he had probable cause to believe that Hippolite committed a traffic offense.  Ashraf repeatedly testified that he observed Hippolite fail to use his turn signal.  The record therefore supports the trial court’s determination that Ashraf had probable cause to stop Hippolite.  See Guzman, 955 S.W.2d at 89 (stating that we defer to the trial court’s evaluation of the credibility and demeanor of the witness).

Hippolite cites the Court of Criminal Appeals’ decision in State v. Dixon for the proposition that Ashraf’s testimony regarding Hippolite’s failure to use his turn signal in a designated right-turn-only lane is not credible and deserves no deference.  See 206 S.W.3d 587, 590 (Tex. Crim. App. 2006).  In Dixon, the arresting officers observed Dixon make a right turn from a designated right-turn-only lane without signaling, followed Dixon for over a mile, observed him make a left turn from a designated left-turn-only lane without signaling, followed Dixon for another mile, pulled him over and discovered contraband in the ensuing search. Id. at 588.  The trial court granted Dixon’s motion to suppress evidence.  Id.  The Court of Criminal Appeals noted that “the trial court did not believe the officers’ allegations that they pulled [Dixon] over because he committed a traffic offense.”  Id. at 591.  In contrast to the trial judge’s disbelief of the officer’s testimony in Dixon, the trial court here believed Officer Ashraf, as demonstrated by its denial of the motion to suppress.  We hold that the record supports the trial court’s decision, and therefore the court did not abuse its discretion by denying Hippolite’s motion to suppress the cocaine.

Statement Made Before Miranda Warnings

          Hippolite further contends that the trial court abused its discretion by refusing to suppress Hippolite’s statement that he had obtained the crack-cocaine from a friend, because he made this statement before Officer Ashraf informed Hippolite of his Miranda rights.  Miranda prohibits the State from using statements made by the defendant during custodial interrogation, unless the State demonstrates that, before making the statement, the police informed the defendant of certain rights.  Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612 (1966); see also Tex. Code Crim. Proc. Ann. art. 38.22 §§ 2, 3 (Vernon 2005).  The Supreme Court defined “custodial interrogation” as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.”  Miranda, 384 U.S. at 444, 86 S. Ct. at 1612.  “Interrogation” refers “not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.”  Rhode Island v. Innis, 446 U.S. 291, 301, 100 S. Ct. 1682, 1689 (1980).  Similarly, article 38.22 does not preclude the admission of statements made by the defendant that do not stem from custodial interrogation.  Tex. Code Crim. Proc. Ann. art. 38.22 § 5.

          The Fifth Amendment does not bar “[v]olunteered statements of any kind.”  Miranda, 384 U.S. at 478, 86 S. Ct. at 1630; Innis, 446 U.S. at 299–300, 100 S. Ct. at 1689 (“Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence.”); see also Galloway v. State, 778 S.W.2d 110, 112 (Tex. App.—Houston [14th Dist.] 1989, no pet.) (“Article 38.22 § 5 specifically exempts . . . all voluntary statements, whether or not they result from custodial interrogation.”).  If the officer does not “solicit the comment” from the defendant and does not “do anything designed to elicit a response,” no interrogation exists, and the officer’s failure to give Miranda warnings before the statement does not violate the Fifth Amendment.  Cooks v. State, 5 S.W.3d 292, 298 (Tex. App.—Houston [14th Dist.] 1999, no pet.); see also Dossett v. State, 216 S.W.3d 7, 24 (Tex. App.—San Antonio 2006, pet. ref’d) (“[S]pontaneous, volunteered statements not made in response to interrogation are admissible, whether or not the defendant is in custody.”). The Austin Court of Appeals has noted that “[v]oluntary statements generally do not occur in response to a direct question from a police officer.  That the suspect was neither expressly nor implicitly questioned by police officers at the time the statement was made often determines the voluntariness of a statement.”  Ramirez v. State, 105 S.W.3d 730, 741 (Tex. App.—Austin 2003, no pet.).  In Ramirez, the officer informed Ramirez that he could see drug paraphernalia and residue in the garage and asked Ramirez, before giving the Miranda warnings, whether there was “anything else [the officer is] going to find in there that’s illegal, any more marijuana?”  Id. at 736.  Ramirez paused, but when the officer began walking into the garage, he responded that “there’s some pot in the red cooler.”  Id.  The Austin Court of Appeals held that, despite Ramirez’s pause, his statement “directly responded to an inquiry from [the officer].”  Id. at 742.  As a result, Ramirez’s statement was a product of custodial interrogation, and because the officer had not given Ramirez his Miranda warnings, the statement was inadmissible.  Id.

          Unlike the defendant in Ramirez, who made the incriminating statement in direct response to a question from the arresting officer, Hippolite made his admission unprompted and unsolicited.  Officer Ashraf arrested Hippolite, placed him in custody for failing to use his turn signal, and did not read the Miranda warnings.  As he handcuffed Hippolite, Ashraf asked whether Hippolite had any contraband on himself or in his car, and Hippolite responded that he did not.  During the search, Ashraf discovered a lump in Hippolite’s pocket.  After Ashraf pulled the crack-cocaine out of the pocket, Hippolite immediately stated that he got the rock in exchange for giving a friend a ride.  Ashraf repeatedly testified that he did not ask any questions to prompt this admission.  Hippolite already had responded to Ashraf’s earlier inquiry regarding the presence of contraband; his admission did not respond to Ashraf’s earlier question, but instead sought to explain the presence of cocaine in his pocket.  We hold that the trial court reasonably could have concluded that Hippolite’s statement was not in response to an inquiry from Ashraf, and thus was not a product of custodial interrogation.  See id. We therefore hold that the trial court did not abuse its discretion in denying Hippolite’s motion to suppress the statement.

Conclusion

We hold that the record supports the trial court’s implied determination that Officer Ashraf had probable cause to believe that Hippolite committed a traffic offense, and thus the trial court did not abuse its discretion by denying Hippolite’s motion to suppress the cocaine.  We further hold that the trial court did not abuse its discretion by denying Hippolite’s motion to suppress his statement about obtaining the cocaine from a friend.  We affirm the judgment of the trial court.

                                                          Jane Bland

                                                          Justice

Panel consists of Chief Justice Radack and Justices Bland and Sharp.

Do Not Publish.  Tex. R. App. P. 47.2(b).