Gary Lyn Black v. State ( 2010 )

IN THE
TENTH COURT OF APPEALS
No. 10-08-00290-CR
GARY LYN BLACK,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 249th District Court
Johnson County, Texas
Trial Court No. F41933
MEMORANDUM OPINION
A jury found Appellant Gary Black guilty of possession of a controlled substance
(methamphetamine, between four and 200 grams) with intent to deliver, and assessed a
thirty-year prison sentence upon a “true” felony-enhancement finding. Raising one
issue, Black appeals the trial court’s denial of his motion to suppress. We will affirm.
We review a trial court’s ruling on a motion to suppress evidence under a
bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App.
2007). In reviewing the trial court’s decision, we do not engage in our own factual
review. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Best v. State, 118
S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, no pet.). The trial judge is the sole trier of
fact and judge of the credibility of the witnesses and the weight to be given their
testimony. Wiede v. State, 214 S.W.3d 17, 24-25 (Tex. Crim. App. 2007); State v. Ross, 32
S.W.3d 853, 855 (Tex. Crim. App. 2000), modified on other grounds by State v. Cullen, 195
S.W.3d 696 (Tex. Crim. App. 2006). Therefore, we give almost total deference to the trial
court’s rulings on (1) questions of historical fact, even if the trial court’s determination
of those facts was not based on an evaluation of credibility and demeanor; and
(2) application-of-law-to-fact questions that turn on an evaluation of credibility and
demeanor. Amador, 221 S.W.3d at 673; Montanez v. State, 195 S.W.3d 101, 108-09 (Tex.
Crim. App. 2006); Johnson v. State, 68 S.W.3d 644, 652-53 (Tex. Crim. App. 2002). But
when application-of-law-to-fact questions do not turn on the credibility and demeanor
of the witnesses, we review the trial court’s rulings on those questions de novo.
Amador, 221 S.W.3d at 673; Johnson, 68 S.W.3d at 652-53.
When reviewing the trial court’s ruling on a motion to suppress, we must view
the evidence in the light most favorable to the trial court’s ruling. Wiede, 214 S.W.3d at
24; State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). When the trial court
makes explicit fact findings, we determine whether the evidence, when viewed in the
light most favorable to the trial court’s ruling, supports those fact findings. Kelly, 204
S.W.3d at 818-19. We then review the trial court’s legal ruling de novo unless its explicit
fact findings that are supported by the record are also dispositive of the legal ruling. Id.
at 819.
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Investigator Brent Dickey of the S.T.O.P. Special Crimes Unit was in an
undercover vehicle watching an Alvarado house where Black was. Black and a woman
left the house and left in a car, with the woman driving. Dickey followed them. They
stopped and traded places, with Black driving toward Burleson. Dickey, who was
familiar with Black from recent drug investigations, was aware there had been active
warrants for Black’s arrest. He called the “warrants” division of the Johnson County
Sheriff’s Office and learned they were still active. Dickey, not wanting to lose his
undercover status, called for a marked Burleson police car to stop Black based on the
active arrest warrants. Officer John Morgan stopped Black, who did not have a driver’s
license. Morgan arrested Black on the outstanding warrants and for having no driver’s
license.
In a pat-down search, Morgan found a metal tin containing five baggies of
methamphetamine. Black moved to suppress the drugs on the ground that the arrest
warrants (for driving with expired license plates and for failure to appear) issued by
Johnson County Justice of the Peace Pat Jacobs were invalid because the supporting
complaints were made after the warrants’ issuance.1 After a suppression hearing, the
trial court denied the motion, finding that the Justice of the Peace’s arrest warrant for
failure to appear was authorized under article 45.103 of the Code of Criminal
Procedure. See TEX. CODE CRIM. PROC. ANN. art. 45.103 (Vernon 2006).
1The failure-to-appear arrest warrant was issued on April 19, 2007, and the court clerk’s sworn complaint
for it was signed on April 20, 2007.
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Both in the trial court and on appeal, Black asserts that the arrest warrants did
not comply with Code of Criminal Procedure article 15.03(a)(2) because the affidavits
were made after the arrest warrant. See TEX. CODE CRIM. PROC. ANN. art. 15.03(a)(2)
(Vernon 2005) (“A magistrate may issue a warrant of arrest or a summons: When any
person shall make oath before the magistrate that another has committed some offense
against the laws of the State;”). But we agree with the State that article 45.103 applies to
the “failure to appear” arrest warrant issued by the Justice of the Peace. That statute,
entitled “Warrant Without Complaint,” provides: “If a criminal offense that a justice of
the peace has jurisdiction to try is committed within the view of the justice, the justice
may issue a warrant for the arrest of the offender.” TEX. CODE CRIM. PROC. ANN. art.
45.103. The trial court did not err in concluding that article 45.103 allowed for the
Justice of the Peace’s issuance of the arrest warrant without a sworn complaint for
failure to appear. The arrest warrant was valid. Accordingly, the trial court did not
abuse its discretion in denying the motion to suppress.
We overrule Black’s sole issue and affirm the trial court’s judgment.
REX D. DAVIS
Justice
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Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
Affirmed
Opinion delivered and filed July 28, 2010
Do not publish
[CRPM]
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