Fernando Yanez v. State ( 2006 )

Affirmed and Memorandum Opinion filed September 28, 2006

Affirmed and Memorandum Opinion filed September 28, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-05-00546-CR

NO. 14-05-00547-CR

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FERNANDO YANEZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 230^th District Court

Harris County, Texas

Trial Court Cause Nos. 1009781 & 1009782

M E M O R A N D U M   O P I N I O N

Appellant, Fernando Yanez, pled guilty to two counts of possession with the intent to deliver both cocaine and heroin after the trial court denied his motion to suppress.  He also pled Atrue@ in each case to enhancement paragraphs alleging two prior felony convictions for possession of a controlled substance.  Pursuant to a plea bargain, appellant received a forty-year sentence.  He contends the trial court abused its discretion by denying his motion to suppress.  We affirm.

On December 6, 2004, Houston Police Department narcotics officer Frank Scoggins obtained a ASearch and Arrest Warrant@ commanding the search of appellant=s home for heroin, as well as, appellant=s arrest.  The warrant was based on information obtained from a confidential informant who had proved reliable in the past and on a follow-up investigation conducted by Officer Scoggins.

On December 8, 2004, Officer Scoggins and his narcotics team set up surveillance around appellant=s home.  During the surveillance, the officers observed appellant take a Aweighty@ bag to his truck parked in front of the residence.  Appellant later returned to his truck and drove a block away, where he stopped and got out, apparently to speak with an acquaintance.  Appellant left the truck running and the driver=s side door open. The officers arrested appellant pursuant to the arrest warrant while he stood in the street.  They placed him in the back of a patrol car and drove to his residence.  Officer Ashwood drove the truck back to appellant=s home and parked in the street.^[1] Officer Ashwood searched the vehicle while other narcotics officers executed the search warrant inside the residence.  No drugs were found in the home. Officer Ashwood found heroin and cocaine hidden in the false bottom of a spray paint can that was located in the bag appellant had carried to his truck that morning.

Although appellant lists twelve separate Aissues@ in his brief to this Court, nine of these are questions of uncontested fact clearly established at the motion to suppress hearing.  The remaining three issues are:  (1) whether appellant=s truck was Aso immobile that it took on the characteristic of a dwelling,@^[2] (2) whether officers had a constitutional duty to obtain a warrant to search appellant=s truck under the circumstances, and (3) whether the search of appellant=s truck was an inventory search or a search for narcotics.  Appellant does not contest the validity of his arrest.

When reviewing a trial court=s ruling on a motion to suppress, we will reverse only for an abuse of discretion.  Flores v. State, 172 S.W.3d 742, 748 (Tex. App.CHouston [14th Dist.] 2005, no pet.).  The trial court is the sole trier of fact, therefore, we must view the evidence in a light most favorable to the trial court=s ruling, giving almost total deference to the trial court=s determination of facts dependent upon credibility and demeanor.  Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996).  We review de novo any mixed questions of fact and law that do not turn on an evaluation of credibility and demeanor. Laney v. State, 117 S.W.3d 854, 857 (Tex. Crim. App. 2003).  As a result, we must sustain the trial court=s decision if the ruling is correct on any theory of law applicable to the case and reasonably supported by the record.  Id.

Both the United States Constitution and the Texas Constitution guarantee the right of protection against unreasonable search and seizure.  U.S. Const. amend. IV; Tex. Const. art. 1, ' 9.  A warrantless search is generally considered unreasonable, but with a few exceptions, such as a search incident to a lawful arrest.  McGee v. State, 105 S.W.3d 609, 615 (Tex. Crim. App. 2003).  Pursuant to a lawful arrest, an officer may contemporaneously search the passenger compartment and any containers inside the arrestee=s vehicle.  Williams v. State, 726 S.W.2d 99, 100_01 (Tex. Crim. App. 1986).  The police may permissibly conduct a search of the vehicle as long as the arrestee was a recent occupant and the search is contemporaneous to the arrest.  Strong v. State, 138 S.W.3d 546, 555 (Tex. App._Corpus Christi 2004, no pet.) (citing Thornton v. United States, 541 U.S. 615, 621B22 (2004)).

Here, the police arrested appellant pursuant to a valid arrest warrant, moved his truck one block away, and searched his vehicle. Despite appellant=s argument to the contrary, the officers were not obligated to obtain a separate warrant to validate this search.  We find the search was valid as incident to a lawful arrest, and the trial court did not abuse its discretion in denying appellant=s motion to suppress.

Because we find this search valid as incident to a lawful arrest, we need not address the parties= arguments concerning the inventory and automobile exceptions to the warrant requirement. We affirm the trial court=s judgment.

/s/      J. Harvey Hudson

Justice

Judgment rendered and Memorandum Opinion filed September 28, 2006.

Panel consists of Justices Hudson, Mirabal, and Amidei.  (Senior Justice Margaret Mirabal and Former Justice Maurice Amidei sitting by assignment.)

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

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^[1]  When asked why the officers moved appellant=s truck before searching it, Officer Scoggins explained the officers needed to search appellant=s home quickly to avoid any destruction of evidence.  In fact, someone had already phoned  appellant=s house to alert his family he had been arrested in the short time it took police to travel to appellant=s home.  Officer Scoggins also explained that, since appellant was under arrest, the police had a duty to ensure the vehicle was not stolen or damaged.

^[2]  Because appellant makes no argument in support of his first issue, we find he has waived it on appeal.  Tex. R. App. P. 38.1(h).