*1 history, propensity reputation for vio- motion for new trial. The first point of lence, “being aggressor.” first error overruled.
Appellant stated that of “[s]ome these wit- judgment The of conviction is affirmed. would testify nesses that the victim was under doctor’s care for mental prob- health
lems.” Appellant concluded that “[t]hese
issues would have my substantiated de- motion,
fense.” As in the the defense was designated.
not
Appellant’s affidavit made no reference GREEN, Appellant Ronald Lewis attempt to or to disclaim trial counsel’s statement, absence, jury’s why, as to appellant’s agreement, counsel would TEXAS, Appellee. The State of not offer witnesses and evidence as acts of violence between the appellant. victim and No. 10-07-00085-CR. The counsel, record reflects that for the Texas, Court of Appeals purposes of strategy, was any fearful such Waco. evidence “open would the door” for the State to show appellant allegedly tried April to drown the victim and choked another woman as well as other prejudicial acts.
A motion’s bare assertions and an conclusory
affidavit that is in nature and
unsupported by put facts are insufficient to
a trial court on notice that
grounds Jordan, exist for relief. 665; King see also 569 (Tex.Crim.App.2000). Ap
pellant’s motion and affidavit fall this
category. further, May
Still after the
filing appellant’s motion for extension of
time to file affidavits and attachment of motion,
the affidavit to appellant’s no rul
ing request on the was made and no fur by action anyone.
ther was taken It was
appellant’s burden to ensure that hear
ing was held within 75-day period
after sentence. Keen v. ref'd); 411 (Tex.App.-Tyler pet.
see also Baker v. 956
(Tex.Crim.App.1997).
Under the presented, circumstances we
find by no abuse of discretion the trial
court in conducting on hearing *3 plate either have a rear license
did not stop. a traffic to make decided and noticed the the block went around of a on stopped in front house Vine- truck walk a man turn and yard, where saw From the truck to the house. away from (he made a traffic experience just the house that had left of a vehicle *4 crack) and from possessed and the driver officers, the house to Abrego knew other thought that the and he “drug be a house” Abrego up narcotics. picking driver was the truck. lights stopped and activated his videotaped; Abrego’s The was shop, in the and he police usual car was temporary car and had not using was power. turned on the car, Green, Abrego got out of his Before driver, gotten be- had out and Law, the truck’s Doan, Attorney At Corsi- Amanda walking Abrego, get- who was gan toward cana, TX, Appellant/Relator. for Standing of his car. behind his ting out Crain, Dent, Nicole M. Dan V. Hill Abrego ordered protection, door for TX, Hillsboro, County Atty., District for Green, making nervous who had been Appellee/Respondent. truck, his to return to his glances toward Abrego’s similar experience, From truck. GRAY, Before Chief Justice Justice vehicle had glances stopped nervous at a VANCE, and Justice REYNA. illegal being always something resulted in Green several times found. He had to tell OPINION truck, and because get to back in his VANCE, BILL Justice. open, Abrego told then left his door Green it and to the window. him to close lower to After the trial court denied his motion he back to his Abrego said that sent Green suppress, Appellant Ronald Green entered because, gun in if Green had a truck even agreement possession of plea into a for the truck, get to then the would have (less Green than one a controlled substance him or shoot out of the truck shoot back years gram), receiving four of deferred truck, given have from his which would adjudication community supervision with cover. Abrego more of a shield and more ruling. right appeal suppression Abrego putting did admit that Green But affirm. willWe him given in truck would have back in the truck. gun Evidence to a one were access any arm or hand Abrego not notice did January Around 10:00 a.m. on truck, but by Green in the movements Abrego, police warrant Israel Hillsboro for own Abrego says he was concerned officer, Sycamore pickup truck on saw a safety on Green’s nervousness. based plate front license as the vehicle without a truck, he no- Abrego approached it As passed, him. After approaching was rear in the truck’s tag truck ticed a “dealer” and noticed that the Abrego turned Green, detention; window. He then approached ad- and Green’s consent vised him the stop, reason for the involuntary was thus invalid. asked driver’s license insurance
information, provided. which Standard of Review Green Abre- go plain saw no contraband sight, nor suppress alleged To evidence on an did smell drags he an odor of of a rights, violation of Fourth Amendment masking agent, but he asked to get pro defendant bears the initial burden they out of the truck so could talk. Abre- ducing evidence that the presump rebuts that, go point, being said this Green was tion of proper police conduct. Ford detained for investigation and not free (Tex.Crim.App. to leave he because was nervous and was 2005). A defendant satisfies this burden seen front of a drug known house. by establishing that a search or seizure why out, Green asked he to get occurs without a warrant. Id. Once the him told it was because showing, defendant makes this the burden *5 was acting nervous and suspicious, thus State, to shifts which must then estab making Abrego think that try- Green was lish that the search or seizure con was ing to something. Abrego hide found ducted with a warrant or was reasonable. nothing person. on Green’s Id. Abrego if anything asked Green he had We review a trial ruling court’s on a illegal truck, in this responded, and Green motion suppress to under bifurcated “No, why?” Abrego asked if he could State, standard of review. Carmouche truck, said, search the and again Green 10 S.W.3d 327 (Tex.Crim.App.2000); “No, why?” Abrego then told Green that (Tex. Guzman v. 955 89 S.W.2d way acting, because Abrego Crim.App.1997). A trial court’s of denial believed that Green was hiding something. motion to is suppress reviewed for abuse He told Green that he didn’t need his of discretion. Oles 993 S.W.2d permission to search his track and was (Tex.Crim.App.1999). 106 The trial going to it anyway: do “I have reason to court’s findings given of fact are “almost vehicle, your I’m going to search it deference,” total and in of the absence going but I’m you anyway.” to ask Abre- explicit findings, appellate court as go going testified that he was search the to ap sumes court made the trial whatever truck with or without Green’s consent. propriate implicit findings sup that are
Abrego again, asked for consent Carmouche, ported by the record. 10 Green go told him to Abrego ahead. 327-28; Guzman, at 955 S.W.2d at searched the truck and found crack co- 89-90. But when the trial rulings court’s caine in a cigarette box stuffed next to the credibility do not turn on the and demean- seat. The detention lasted from ten to witnesses, or of the we review de novo a fifteen minutes. rulings trial on questions court’s mixed
Green’s sole issue asserts that the trial law and fact. Estrada v. Therefore, denying court erred in motion to sup- (Tex.Crim.App.2005). press although the evidence weight given obtained from the war- due should be to the Specifically, rantless search. alleg- by judges Green trial and law inferences drawn officers, es Abrego that: once determined that enforcement determinations occurred, no traffic violation had the de- such suspicion matters as reasonable tention should have ended because cause are reviewed de novo on lacked Guzman, reasonable suspicion appeal. continue the 87.
Applicable activity, unusual Law detainee activity indication that the unusual some case, In this does not chal Davis, to crime. See related stop. initial In lenge Abrego’s traffic what at 244. Terry stop investigative as know a or an detention, briefly stop an officer words, con In “an officer other person suspected of criminal ac detain a de temporary investigative ducts a lawful tivity is constitu on less information than when the officer has reasonable tention for ar tionally probable cause to required suspicion to believe that an individual is Ohio, Terry v. rest. U.S. Ford, the law.” violating (1968); S.Ct. L.Ed.2d suspicion “Reasonable exists Walter v. that, specific, has articulable facts stops Crim.App.2000). Routine traffic are rational when combined with inferences analogous investigative detentions more facts, him to reason from those would lead arrests thus ana than custodial and are person ac ably particular conclude that a lyzed Terry stops. as McCar Berkemer v. been, is, tually engaged will has or soon be 3138, 3150, ty, 468 U.S. activity.” give criminal Id. We due (1984). investigative L.Ed.2d An weight not the officer’s inchoate and of, apart detention —either as a or part “hunch,” unparticularized suspicion but from, a traffic a seizure —is specific inferences to the Fourth Amendment Fran purposes. See *6 is entitled to draw from the facts in (Tex. 176, 922 cis S.W.2d 178 Davis, experience. his light of See 947 Therefore, Crim.App.1996). stop a traffic investigative at 243 n. 3. deten S.W.2d An any investigative concomitant deten suspi tion that is not based on reasonable tion must be reasonable under the United cion is unreasonable and thus violates the States and Texas U.S. Constitutions. See Fourth Amendment. Id. Const, Const, IV; I, amend. art. Tex. § 9. Terry prong, the Under second tempo must investigative an detention be investigative An is rea detention rary longer necessary last no than is (1) sonable, constitutional, and thus the stop. purpose the of the to effectuate See justified officer’s action at the deten 491, 500, Royer, Florida v. 460 U.S. 103 (2) inception, tion’s the detention was (1983). 1325, 1319, 229 S.Ct. 75 L.Ed.2d reasonably related in circum scope to the stop the reason has been Once for the justified that stances the interference satisfied, stop may the not be used as a 19-20, place. Terry, the first at 392 U.S. “fishing expedition for unrelated criminal For at 1879. the officer’s initial 88 S.Ct. Davis, (quot at 243 activity.” 947 S.W.2d justified Terry action to be under the first Robinette, 33, 41, ing Ohio v. 519 U.S. 117 spe we ask whether there existed prong, L.Ed.2d 347 S.Ct. 136 cific, that, together facts articulable taken Also, J., (Ginsberg, concurring)). the facts, with rational inferences from those scope of the seizure must be restricted to reasonably warranted that intrusion. Id. necessary pur the that fulfill seizure’s 1880; at at 88 S.Ct. see also Davis v. Royer, 460 S.Ct. pose. U.S. at 103 at (Tex.Crim.App. 947 S.W.2d 242 1997). Specifically, the must have a officer suspicion activity stop investigation some out
reasonable Once traffic is concluded, longer ordinary occurring is or has oc must no officer driver, curred, permit suggestion connect the who must be some detain 462 Kothe, 21-22, 1880;
ted to
Terry,
leave.
at 63-
at
at
S.W.3d
392 U.S.
88 S.Ct.
64;
Davis,
at
see Perales v.
243. The determina-
S.W.3d
by
suspicion
tion of
pet.
reasonable
is made
(Tex.App.-Corpus Christi
refd)....
totality
considering
of the circum-
Ford,
If, during
stop and
a valid traffic
de
tention, the
Continued Detention
develops
officer
suspicion
engaged
that the
detainee
argues
that nervousness
activity,
criminal
or
prolonged
continued
being
near a known
did
drug
house
Davis,
justified.
detention is
See
Ner
not warrant continued detention.
244; Perales,
S.W.2d at
117 S.W.3d at
alone does not warrant
vousness
reason
439. Additional facts and information
Davis,
suspicion.
able
See
at
by
during
discovered
an
lawful
(“It
guilt
indicative of
detention
form
for a rea
the basis
by
person to be nervous when confronted
suspicion
sonable
that another offense
In
police
asking questions.”).
officers
has been or is being committed. See Haas, we said:
Razo
traditionally
“Extreme nervousness has
1979); Powell,
Crim.App.
Op.]
[Panel
been a fact that
law enforcement has
Mohmed,
378-79;
at
leading up
in its list of
used
elements
coming
at 628. Articulable facts
to the
suspicion
either reasonable
knowledge during
proper
officer’s
Veal, 28
(citing
cause.”
S.W.3d at 837
stop or
may justify
detention
further
Sokolow,
U.S. at
109 S.Ct.
investigation. Razo,
711;
Haas cumstances, disagree that we with Green ref'd). 2005, pet. App.-Waco Abrego’s detention unrea- continued was following appeal, Abrego On we review the reasonableness sonable. articulated the was perspective specific, the detention from the articulable facts that of same Green standard, using objective activity: the officer: an in criminal Green engaged as house, ask whether the at the in front of a known stopped drug we facts available walking of warrant a from truck per- moment detention would with someone Green’s house; of the that out gotten son reasonable caution in belief back to the Green had from was away action taken See of and his truck when he appropriate. the was that the de- search’ your consent to Abre- need walking and was toward pulled over search.” the right to resist car, fendant had no initially comply did not go’s and he 8). (State’s The State truck; agree. Brief at We Abrego’s order to return to his not contends, however, that the search nervous nervousness and and Green’s (1) safety, totality illegal of for two reasons: Under the at his truck. glances existed. probable cause circumstances, not the trial court did the Abrego that implicitly determining err Frisk Vehicle to to continue suspicion had reasonable posits that first The State purpose of the traf- Green after the detain for a “vehicle frisk” could conduct Haas, See fic had been satisfied. search is safety. weapons A his own at 53-54. situations. in all confrontational authorized Search Consent to (a Carmouche, weap See “only justified where the vol- ons search challenges next articulable to point specific officer can search alleged consensual untariness him to con reasonably lead facts which Abrego’s discovery of the con led to that a possess suspect might clude that Abrego’s trolled substance because weapon”). Green that he did not need statement to search going
his consent because he was lawfully de officer who has police A anyway. truck Green’s of sus person investigation tained a exceptions One of the established activity may conduct criminal pected requirements of a warrant and both the weapons only if the limited search for a search conducted cause is officer reason give circumstances pursuant v. to consent. Corea person detained believe (Tex.App.-Houston 315-16 Terry dangerous. v. armed and See ref'd) (citing pet. [1st Dist.] Ohio, 88 S.Ct. 392 U.S. Bustamonte, 412 U.S. Schneckloth (1968); Spillman L.Ed.2d 889 2043-44, (Tex.App.-Austin (1973)). can es The State L.Ed.2d 854 ref'd). Under some circum pet. illegal the lawfulness of an tablish stances, protec right this to conduct through bearing the burden pas extend to tive frisk also by convincing evi proving, clear detainee’s compartment of the senger *8 dence, freely that consent was and vol automobile. (citing Bump
untarily given. Id. at 316 passenger com- search [T]he 548, Carolina, 543, er v. North 391 U.S. automobile, an limited partment L.Ed.2d 797 S.Ct. may be weapon in a those areas which (1968)). Hence, the State show must hidden, if the permissible placed un positive that the consent was possesses reasonable police officer merely acquies and not an equivocal “specific and articula- based on belief authority. to a claim lawful cence which, together taken with facts ble 313, 317-18 v. 177 S.W.3d Grubbs inferences from those the rational 2005, pet. (Tex.App.-Houston [1st Disk] the officer facts, reasonably warrant” ref'd). suspect is dan- believing that may gain im- suspect gerous and case, that State concedes
In this
weapons.
control of
mediate
“in
valid consent:
this
Abrego did
have
1049,
1032,
463 U.S.
Michigan
Long,
v.
did not have valid consent
the officer
case
3469,
77 L.Ed.2d
T
103 S.Ct.
implied by his statement
don’t
as he
(quoting Terry,
21,
at
possesses
U.S.
88 S.Ct.
he did not
a reasonable belief
1868,
889).
A police
L.Ed.2d
specific
that,
officer based on
and articulable facts
may not
an
weap-
automobile for
together
taken
with the rational inferences
ons whenever the officer effects an in-
facts, reasonably
from those
warrant him
vestigative stop,
only
but
do so
if
in believing
dangerous
that Green was
possesses
the officer
suspi-
level of
had
his truck a weapon that he could
cion
Terry.
14,
identified in
See id. n.
gain immediate control
Long,
of. See
1,
1868,
392 U.S.
20 L.Ed.2d
1049,
3480;
U.S. at
103 S.Ct. at
State
Thirty
Sixty
Thousand Six Hundred
Dol
A police officer’s authority
no/100,
to search
lars and
402-03
weapons
for
in the
of probable
absence
(Tex.App.-Corpus
pet.
Christi
de
narrowly drawn,
Horton,
nied);
cause
853-54;
even when the
cf.
reasonably
suspects
criminal
Ramsey
ac-
d)
tivity.
Terry,
See
88 App.-Austin
pet.
U.S.
(holding
ref
that
S.Ct.
specific
L.Ed.2d 889.
In deter-
officer had
and articulable facts
mining
an
warranting
whether
officer acted reason-
reasonable belief that defen
ably
case,
particular
in a
weight
posed
due
dant
danger
he
permitted
were
given,
must be
not to the officer’s incho-
reenter his car because defendant had
ate and unparticularized suspicion or
officer,
tried to
shaving
hide
kit from
hunch,
specific
but
to the
that
reasonably
officer acted
in taking pre
inferences which the officer is entitled to ventive
measures
ensure
no
there were
draw from the
in light
facts
of experi- weapons within
grasp
defendant’s
before
ence. See id.
car);
allowing him to return to
also
cf
Tasby v.
(TexApp.-
ted given that this would have Green ac- police may a conduct warrantless gun cess to if a one in his were truck. of an automobile he she has Abrego’s frisk,” reasons for a “vehicle probable cause believe a crime has coupled with his inconsistent and counter- been committed and there is contraband intuitive action in ordering Green back into located somewhere inside the vehicle. 132, the States, truck —where he would have access to Carroll v. United 267 U.S. very weapon the allegedly 158-59, that serves as 45 L.Ed. 543 S.Ct. Abrego’s (1925); State, the basis for concerns about his Wiede v. S.W.3d safety own in our justifica conclusion that The (Tex.Crim.App.2007). —result truck; of and out getting exception are from Green’s tions this automobile was pulled away from his truck when inherently are mobile that vehicles car, and walking Abrego’s toward over and respect privacy of 'with expectation the order Abrego’s initially complying not relatively to an low. Id. automobile truck; and nervousness to his Furthermore, to return justification to conduct the looking his truck. Based nervously a search does not vanish warrantless experience including training on his is immobilized. See once the vehicle — just it 259, 261, a vehicle after had Thomas, prior of Michigan v. 458 U.S. pos- and the driver left same house the 73 L.Ed.2d knowledge from other Guzman, sessed crack—and (1982); v. State house, Abrego believed the officers about Ac (Tex.Crim.App.1998). n. 3 just happened drug buy a that a be searched on cordingly, vehicle in Green’s drugs be found that would probable basis of cause to believe the truck. although contraband exi that it contains gent justi do not exist to circumstances circumstances, the totality the of Under Id.; fy such a warrantless search. Dix to search probable officer had cause on v. 619 n. 25 Curry, 228 truck. See Green’s (“A finding (Tex.Crim.App.2006) prob not Accordingly, the trial court did automobile able cause ‘alone satisfies the suppress. the motion to denying err exception to the Fourth Amendment and af- Green’s sole issue We overrule ”). requirement.’
warrant
judgment.
firm trial court’s
cause,
In determining probable
courts
(Chief
in the
GRAY concurs
Justice
circum
totality
must consider the
part of
join any
not
judgment. He does
Gates,
Illinois v.
462 U.S.
stances.
will
opinion
opinion.
separate
A
238, 103
2317, 2332,
person of reasonable caution to believe
that a crime Tor has been committed. (Tex.
res v. infor
Crim.App.2005). The sum of the to the officers cooperating
mation known BELL, Jr., Appellant at the time of search is to be consid Frankie Lee determining ered in whether there was sufficient cause. Woodward Texas, Appellee. The STATE (Tex.Crim. App.1982). No. 10-06-00380-CR. Curry v. Texas, Appeals of Court of 'd). 2007, pet. ref App.-Waco Waco. *10 rea- following as Abrego articulated April why he had cause to search sons of a stopping truck: front Green’s house, walking drug
known with someone