Ranulfo Ponce v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

ON REMAND

NO. 03-94-00769-CR

Ranulfo Ponce, Appellant

v.

The State of Texas, Appellee

FROM THE COUNTY COURT AT LAW NO. 5 OF TRAVIS COUNTY

NO. 407574, HONORABLE WILFRED AGUILAR, JUDGE PRESIDING

This cause was remanded to this Court by the Court of Criminal Appeals to

reevaluate appellant's complaint about the trial court's suppression ruling taking into consideration

the complaint and warrant found to be properly in the appellate record.

This appeal is taken from a conviction for unlawfully carrying a prohibited weapon,

to wit: a dagger. See Tex. Penal Code Ann. § 46.02 (West 1994). (1) Appellant entered a plea of

nolo contendere to the Class A misdemeanor in a bench trial. The trial court deferred adjudication

of guilt and placed appellant on "probation" for twelve months subject to certain conditions. If evidence was heard at the time of appellant's plea there is no statement of

facts or stipulation to show the facts surrounding the charged offense or appellant's arrest.

Appellant advances a single point of error contending that the trial court erred in

denying his pretrial motion to suppress evidence. (2) The motion sought to suppress any tangible

evidence "seized without lawful warrant, probable cause, or other lawful authority in violation

of the Defendant's rights under the Fourth and Fourteenth Amendments to the United States

Constitution, Article I, Section 9 of the Texas Constitution, and chapters 14 and 38 of the Texas

Code of Criminal Procedure."

When a defendant seeks to suppress evidence on the basis of a violation of the

Fourth Amendment to the United States Constitution or Article I, section nine of the Texas

Constitution or a related state statutory provision, the burden of proof is on the defendant. Russell

v. State , 717 S.W.2d 7, 9 (Tex. Crim. App. 1986); Johnson v. State , 834 S.W.2d 121, 122 (Tex.

App.--Houston [1st Dist.] 1992, pet. ref'd). In a hearing on a motion to suppress evidence, a

defendant, as the movant, must produce evidence that defeats the presumption of proper police

conduct and shifts the burden to the prosecution. Russell , 717 S.W.2d at 9 ; Borsari v. State , 919

S.W.2d 913, 916 (Tex. App.--Houston [14th Dist.] 1996, pet. filed); Musick v. State , 862 S.W.2d

794, 799 (Tex. App.--El Paso 1993, pet. ref'd). When the validity of a search is challenged and

the State produces a warrant, the defendant must go forward to establish the warrant's invalidity

on some ground such as the lack of probable cause in the affidavit underlying the arrest or search

warrant. Russell , 717 S.W.2d at 9-10 ; Rumsey v. State , 675 S.W.2d 517, 520 (Tex. Crim. App.

1984); State v. Morgan , 841 S.W.2d 494, 496 (Tex. App.--El Paso 1992, no pet.).

There were two hearings in the instant case on the motion to suppress. At the first

hearing appellant did not offer any evidence with regard to his arrest for possession of a dagger.

No witnesses were called to defeat the presumption of proper police conduct or to shift the burden

to the prosecution. Appellant's counsel simply stated that the parties had agreed to stipulate "that

the officer arrested Mr. Ponce on an outstanding warrant." The warrant was not otherwise

identified and the prosecutor remained silent as to appellant's statement. There was no inquiry

from the bench. Appellant's counsel then offered defense exhibits 1, 2, and 3 "which represent

the outstanding warrant and Defendant's exhibit 3 is the underlying speeding ticket." The

prosecutor made no objection to this offer. Exhibit 1 is a speeding complaint filed against Ranulfo

G. Ponce on June 8, 1993, in cause no. 2734582 in the Municipal Court of the City of Austin.

Attached thereto is an unexecuted warrant dated June 9, 1993. Exhibit two is a judgment of

conviction entered on December 10, 1993 in the Municipal Court of the City of Austin. The

judgment does not reflect a cause number or the defendant's name. Exhibit three is a speeding

citation issued to Ranulfo G. Ponce on May 8, 1993 with the court appearance date of May 18,

1993. (3) Appellant's counsel then announced that appellant was seeking to suppress evidence of the

knife found in a search "following the arrest based on this warrant." There was, of course, no

evidence at the suppression hearing that any "knife" had been found on appellant at any time or

after a search based on the particular unexecuted warrant introduced.

Having introduced the warrant and the complaint upon which it was based,

appellant then urged that the complaint was conclusory and did not reflect probable cause. The

complaint or affidavit in question provided in pertinent part:

I, the undersigned affiant, do solemnly swear that I have good reasons to believe

and do believe that one Ranulfo G. Ponce on or about the 8th day of May, 1993

. . . did drive and operate a motor vehicle upon a public street therein situated, to-wit: 2100 block Barton Springs Rd. at a speed which was greater than was

reasonable and prudent under the circumstances then existing, to-wit, at a speed

of 45 miles per hour, at which time and place the lawful maximum prima facie

reasonable and prudent speed indicated by an official sign then and there posted

was 35 miles per hour . . . . My belief of the aforesaid statement is based upon

information provided to me by M. Castillo, a police officer of the State of Texas,

who personally observed or has knowledge of such offense.

(Emphasis added.)

After an argument about the applicable law, the suppression hearing was postponed

for some six weeks. The second hearing commenced and ended with a colloquy about the law.

No evidence was introduced and no ruling on the motion was made. Subsequently, the trial court

entered a written order overruling the motion to suppress.

Appellant argues that in order to issue a valid warrant pursuant to article 15.04 of

the Texas Code of Criminal Procedure, (4) the underlying affidavit must contain, viewed in the

totality of the circumstances, information sufficient to justify a neutral and detached magistrate

to issue it. See State v. Martin , 833 S.W.2d 129, 132 (Tex. Crim. App. 1992) (citing Illinois v.

Gates , 462 U.S. 213, 239 (1983), and Hennessy v. State , 660 S.W.2d 87, 89 (Tex. Crim. App.

1983)); see also Gordon v. State , 801 S.W.2d 899 (Tex. Crim. App. 1990). He notes further that

in reviewing the sufficiency of the underlying affidavit, appellate courts must confine their inquiry

to the four corners of the document. Jones v. State , 568 S.W.2d 847, 855 (Tex. Crim. App.),

cert. denied , 439 U.S. 959 (1978). We agree.

In Martin , it was noted that each affidavit averred the place and the date of the

violation and that the information had been communicated to the affiant by the ticketing officers

who personally observed the offense. 833 S.W.2d at 132 . Thus, the affidavits submitted on

information supplied by the officers who had issued the traffic tickets were sufficient to permit

a neutral and detached magistrate to find probable cause to support the arrest warrant. See also

Gish v. State , 606 S.W.2d 883, 886 (Tex. Crim. App. 1980) (holding that observations reported

to affiant by other officers engaged in investigation can constitute reliable basis for issuing

warrant). An examination of the instant affidavit or complaint from its four corners leads to the

conclusion that a neutral and detached magistrate could have found probable cause and properly

issued the warrant. The affidavit contains the statement "My [affiant's] belief of the aforesaid

statement is based upon information provided to me by M. Castillo, a police officer of the State

of Texas, who personally observed or has personal knowledge of such offense."

The underlying affidavit is not patently conclusory and we defer to the judgment

of the issuing magistrate. Martin , 833 S.W.2d at 133 . An affidavit or complaint in support of

an arrest warrant need not contain the same particularity required of an indictment. Nor is the

information in such affidavit required to match the quality or quantity of the evidence necessary

to obtain a conviction. Janecka v. State , 739 S.W.2d 813, 822-23 (Tex. Crim. App. 1987).

Because of the legislative preference for the warrant process, we view arrest and search warrant

affidavits in a common sense manner, not in a hypertechnical fashion. Id. at 823 ; Thacker v.

State , 889 S.W.2d 380, 387 (Tex. App.--Houston [14th Dist.] 1994, pet. ref'd). In interpreting

an affidavit for an arrest warrant in a common sense and realistic manner, the magistrate is

entitled to draw reasonable inferences from the facts contained therein. Rumsey , 675 S.W.2d at

521 ; see also United States v. Ventresca , 380 U.S. 102, 108 (1965).

Appellant relies upon Curry v. State , 815 S.W.2d 263 (Tex. App.--Houston [14th

Dist.] 1991, no pet.), but Curry can be distinguished from the instant case on the differences in

the affidavits and in the Curry court's application of the strict but outdated and overruled two-prong test of Aguilar v. Texas , 378 U.S. 108 (1964), rather than the "totality of the

circumstances" test of Gates , 462 U.S. at 239 . Rumsey is also distinguishable on its facts and its

affidavits from the instant case.

In a suppression hearing, the trial court is the sole trier of fact and judge of the

credibility of the witnesses and weight to be given their testimony. Romero v. State , 800 S.W.2d

539, 543 (Tex. Crim. App. 1990). The trial court may accept or reject any or all of a witness's

testimony or evidence offered. Alvarado v. State , 853 S.W.2d 17, 23 (Tex. Crim. App. 1993).

In reviewing the trial court's decision, an appellate court does not engage in its own factual

review; it determines only whether the record supports the trial court's findings. Romero , 800

S.W.2d at 543 . The appellate court is not at liberty to disturb supported findings of fact absent

an abuse of discretion. Etheridge v. State , 903 S.W.2d 1, 15 (Tex. Crim. App. 1994); Cantu v.

State , 817 S.W.2d 74, 77 (Tex. Crim. App. 1991). The appellate court should not defer merely

to the trial court's findings regarding the historical facts, but also to the trial court's conclusion

regarding the legal significance of those facts. Dubose v. State , 915 S.W.2d 493, 497 (Tex.

Crim. App. 1996); State v. Carter , 915 S.W.2d 501, 504 (Tex. Crim. App. 1996). Normally,

appellate courts will address only the question of whether the trial court improperly applied the

law to the facts. Romero , 800 S.W.2d at 543 . If the trial court's decision is correct on any

theory of the law applicable to the case, it will be sustained even though the trial court may have

given the wrong reason for its ruling. Id.

If it can be said from this record that the warrant in question was actually used to

arrest appellant, we conclude that Martin is controlling and that the warrant is supported by the

underlying affidavit and is valid. See Martin , 833 S.W.2d at 132-33 . The trial court did not

abuse its discretion.

As noted on original submission, we are presented with a convoluted record. At

the suppression hearing, the facts surrounding the instant offense were not presented. On appeal,

appellant refers us only to page seven of the transcript. Page seven is the uncertified copy of an

"affidavit for warrant of arrest and detention" filed in the municipal court of the City of Austin

for arrest of Ranulfo Ponce for carrying a prohibited weapon. This uncertified copy bears no file

mark of the county clerk and has not been labeled an exhibit by the court reporter. There is no

reference to this document elsewhere in the record. Just how this instrument found its way into

the appellate record is not revealed. If it reflects the facts as appellant would have us believe, we

observe that it reflects that Austin Police Officer Chris Struhall stopped Ponce at 12:59 p.m. on

December 10, 1993, in the 1200 block of West Mary for running a red light at the intersection

of Heather and South Lamar; that Ponce "was placed under arrest for a traffic warrant" not

otherwise identified; that while inventorying the car Officer Struhall found on the left side of the

driver's seat "a large survival-type knife that was double edged;" (5) and that Ponce was transported

to central booking.

It is observed that the traffic warrant was not identified as a warrant for speeding

nor was it shown that there was only one outstanding traffic warrant for appellant's arrest.

Further, the speeding warrant introduced at the suppression hearing was unexecuted.

Any peace officer was authorized to arrest without a warrant any person found

committing a violation of the Uniform Act Regulating Traffic on Highways in effect on December

10, 1993. Act of June 5, 1947, 50th Leg., R.S., ch. 421, 1947 Tex. Gen. Laws 967 , 1001 (Tex.

Rev. Civ. Stat. art. 6701d, § 153, since codified). (6) "Running a red light" was a violation of

article 6701d at the time of the commissions of the instant offense. Act of March 8, 1973, 63d

Leg., R.S., ch. 12, § 1, 1973 Tex. Gen. Laws 15 , 16 (Tex. Rev. Civ. Stat. art. 6701d, § 33,

since codified). (7) The traffic violation committed in the officer's presence authorized the initial

stop in the instant case and the custodial arrest for that violation. Tex. Code Crim. Proc. Ann.

art. 14.01(b) (West 1977); Armitage , 637 S.W.2d at 937; Valencia v. State , 820 S.W.2d 397, 399

(Tex. App.--Houston [14th Dist.] 1990, pet. ref'd).

If the "affidavit" on page seven of the transcript constitutes the facts, then appellant

ran a red light while driving his motor vehicle in violation of article 6701d, section 33 and was

subject, under the circumstances, to a warrantless arrest under section 153 of article 6701d and

article 14.01(b) of the Texas Code of Criminal Procedure. See Christopher v. State , 639 S.W.2d

932, 935 (Tex. Crim. App. 1982); see also Williams v. State , 726 S.W.2d 99, 101 (Tex. Crim.

App. 1986); Ortega , 861 S.W.2d at 95; Valencia , 820 S.W.2d at 399 . Independent of any

outstanding traffic arrest warrant or warrants, appellant was subject to custodial arrest for the

traffic offense of failing to heed a traffic control device. Janecka , 739 S.W.2d at 822 . In

Janecka , it was held that a defendant's arrest pursuant to an arrest warrant for murder, which was

later held invalid, was nonetheless valid as the arresting officer at the time he arrested the

defendant, had a valid arson arrest warrant in his possession. Any technical irregularities

resulting from the failure to actually execute the arrest warrant for arson were not significant

enough to render the arrest illegal.

Under the circumstances presented by the affidavit on page seven of the transcript,

the officer had the right to make a custodial arrest for the traffic offense of running a red light and

then inventory the car, South Dakota v. Opperman , 420 U.S. 364 (1976); State v. Garcia , 801

S.W.2d 137 (Tex. App.--San Antonio 1990, pet. ref'd), or conduct a search incident to the arrest

for the traffic offense. New York v. Belton , 453 S.W.2d 454 , 460 (1981); Garcia , 801 S.W.2d

at 141 .

The point of error is overruled for the reasons stated above. We again affirm the

order deferring adjudication.

John F. Onion, Jr., Justice

Before Justices Powers, Kidd and Onion *

Affirmed on Remand

Filed: August 14, 1996

Do Not Publish

* Before John F. Onion, Jr., Presiding Judge (retired), Court of Criminal Appeals, sitting by

assignment. See Tex. Gov't Code Ann. § 74.003 (b) (West 1988).

1. This offense was allegedly committed before September 1, 1994, and is governed by the

law in effect at that time. Penal Code, 63d Leg., R.S., ch. 399, § 1, 1973 Tex. Gen. Laws

883 , 963. Because the Code amendments effective September 1, 1994 have no substantive

effect on this offense, the current code is cited for the sake of convenience.

2. Appellant is entitled to appeal the denial of his suppression motion even though there

has been no adjudication of guilt. See Dillehey v. State , 815 S.W.2d 623 (Tex. Crim. App.

1991).

3. A person lawfully released from custody, with or without bail, on condition that he

subsequently appear commits an offense if he intentionally or knowingly fails to appear in

accordance with the terms of his release. Tex. Penal Code Ann. § 38.11 (a) (West 1994).

4. Tex. Code Crim. Proc. Ann. art. 15.04 (West 1977).

5. The complaint and information alleged an unlawful carrying of a dagger.

6. See Tex. Transp. Code Ann. § 543.001 (West 1996).

7. See Tex. Transp. Code Ann. § 544.007 (d) (West 1996).

oc. Ann.

art. 14.01(b) (West 1977); Armitage , 637 S.W.2d at 937; Valencia v. State , 820 S.W.2d 397, 399

(Tex. App.--Houston [14th Dist.] 1990, pet. ref'd).

If the "affidavit" on page seven of the transcript constitutes the facts, then appellant

ran a red light while driving his motor vehicle in violation of article 6701d, section 33 and was

subject, under the circumstances, to a warrantless arrest under section 153 of article 6701d and

article 14.01(b) of the Texas Code of Criminal Procedure. See Christopher v. State , 639 S.W.2d

932, 935 (Tex. Crim. App. 1982); see also Williams v. State , 726 S.W.2d 99, 101 (Tex. Crim.

App. 1986); Ortega , 861 S.W.2d at 95; Valencia , 820 S.W.2d at 399 . Independent of any

outstanding traffic arrest warrant or warrants, appellant was subject to custodial arrest for the

traffic offense of failing to heed a traffic control device. Janecka , 739 S.W.2d at 822 . In

Janecka , it was held that a defendant's arrest pursuant to an arrest warrant for murder, which was

later held invalid, was nonetheless valid as the arresting officer at the time he arrested the

defendant, had a valid arson arrest warrant in his possession. Any technical irregularities

resulting from the failure to actually execute the arrest warrant for arson were not significant

enough to render the arrest illegal.

Under the circumstances presented by the affidavit on page seven of the transcript,

the officer had the right to make a custodial arrest for the traffic offense of running a red light and

then inventory the car, South Dakota v. Opperman , 420 U.S. 364 (1976); State v. Garcia , 801

S.W.2d 137 (Tex. App.--San Antonio 1990, pet. ref'd), or conduct a search incident to the arrest

for the traffic offense. New York v. Belton , 453 S.W.2d 454 , 460 (1981); Garcia , 801 S.W.2d

at 141 .

The point of error is overruled for the reasons stated above. We again affirm the

order deferring adjudication.

John F. Onion, Jr., Justice

Before Justices Powers, Kidd and Onion *

Affirmed on Remand

Filed: August 14, 1996

Do Not Publish