*1 employers. their In doing we also
acknowledge the amicus brief received General, Attorney from the in which the Hoffman, Brownsville, Richard S. for General judicially asserts creating Appellant. such an exemption would adversely affect ability statute, the General’s to enforce the Hartmann, David Atty., W. Asst. Dist. which ultimately protections will affect the Brownsville, Paul, Matthew Atty., State’s afforded to consumers.45 Austin, for State. III. Conclusion OPINION Keyser is a “person” under the language opinion The was delivered PER plain DTPA. Because the language CURIAM. of the DTPA provides agent liability for agent personally when that violates the possession was convicted of of DTPA, we reverse judgment cocaine and the of Appeals Court af- appeals. Keyser court of raised additional granted firmed.1 We appellant’s petition issues in the appeals court of that were not discretionary review to address wheth- presented to this Court. Pursuant to Rule er the court holding erred in 53.4 of the Appellate Texas Rules of Proce- that the warrantless search and seizure of dure, we remand this case to the court of appellant was reasonable. After reviewing appeals for proceedings. further the parties’ briefs and the por- relevant record, hearing
tions of the and after argu- Justice SCHNEIDER did not case, ment on the we conclude that our participate in the decision. to grant petition improvi- decision
dent. Accordingly, appellant’s dismiss we petition for discretionary review.2 HOLCOMB, J., dissenting filed a PRICE, J., opinion joined. in which MEYERS, J., dissented. Raymond Joseph ROY, Appellant, OPINION The STATE of Texas. HOLCOMB, J., dissenting filed a
No. 1718-01. PRICE, J., opinion, joined. in which Court of Criminal Appeals Texas. respectfully majority’s dissent to the appellant’s petition decision to dismiss
Nov.
2002.
discretionary
improvidently
as
review
granted. Although the Thirteenth Court
Appeals reached the correct result
case,
possession
this cocaine
its Fourth
17.47(a).
§
45. Tex.R.App.
Tex. Bus. & Com.Code
2. See
P. 69.3.
Roy
(Tex.App.-Cor-
Amendment —a an oversized wearing male Anglo young, explain write to I believe we should best. into pants oversized this T-shirt and analyze a case of way better to the —walked terminal airport populated I majority sparsely will not do the the sort. Since agents, plainclothes the one of and over to will. Mijares asked Mijares. Appellant R. Juan I counter, and ticket to the directions Appellant him directions. County grand jury Mijares gave indicted A Cameron got and felony counter Roy, for to the ticket Raymond Joseph then walked appellant, coun- the ticket Mijares of cocaine walked to grams of 400 or more in line. possession ter, too, appellant, Tex. Health & few feet from stopped intent to deliver. See a with 481.112(f). § filed identification Safety Appellant enforcement Code his law placed neck, Ap- cocaine on the quietly. to the waited a motion and around his warrant, getting it was obtained “without and “started ground pellant saw authority,” other purchased cause or lawful appellant After very nervous.” Amendment of his Fourth violation an escalator ticket, walked toward his he unreasonable to be free from appellant area. As boarding to the court The trial searches and seizures. him, walked, walked Mijares approached evidentiary hearing an to consider escalator, held and him toward the alongside present- appellant’s motion. The evidence law enforcement himself as a introduced hearing consisted of the testimo- ed at the plainclothes agent The other agent. witnesses, two exhib- along of two with ny Mijares asked feet behind. walked several evidence, light in the That viewed its.1 take a mo- he “could whether later to the trial court’s most favorable time,” and [appellant’s] ment of ruling,2 following: the established Mijares then affirmative. replied in the and identifi- for his name asked 2, 1999, noti- August an informant3
On at the foot stopped Appellant cation. County Drug the Enforce- fied Cameron escalator, shaking though “he the early the next Task Force that ment bit,” a Connecticut produced a quite thin, young, Anglo a male named morning, him “Ho- as license identified driver’s Jr., Roy, attempt would Raymond Julian com- also Appellant racio Fernandez.” a kilogram of cocaine onto smuggle to to miss going that “he was plained In flight Harlingen from to Connecticut. Ray- the Mijares then contacted plane.” response tip, to that Task Force officials by cellular Department mondville Police drug enforce- dispatched plainclothes two background for a and asked telephone Harlingen airport to the agents ment provided.4 on the name check August On purpose the of surveillance. establish evidence did not 3. The record prosecution were witness 1. The two witnesses anonymous. informant was Mijares, agent the Cameron whether the Juan R. Force, Drug County Enforcement Task employee Figeroa, an witness Kim L. defense part as follows: Mijares testified in exhibits were Airlines. The two of Southwest Q: you any time on Did he indicate showing appellant with a photographs, one he was in way the escalator that abdomen, taped kilogram to his of cocaine hurry? showing driv- his false Connecticut the other Yes, going to miss his A: he said er’s license. plane. Q: mean, him, even you And detained review. applicable standard of 2. This is the plane? discussion, going miss his though he was our infra. visibly upset became at this and “started At presentation conclusion getting very fidgety.” At the evidence at point, suppression this hearing, appellant argued plainclothes agent second to the trial court that moved closer to cocaine suppressed should be as Mijares and the fruit appellant. Mijares then *3 of an unlawful seizure subsequent and un- asked appellant whether he step- minded lawful search. The trial court ap- denied ping escalator, away from the appel- and pellant’s suppress motion to without expla- lant nearby walked to a seating area. nation. Appellant pled then guilty to the they While seating waited at the area for charged offense and was sentenced to im- the background Mijares noticed prisonment years. for fifteen that appellant was “fidgeting with some- in thing” right Mijares his front pocket. On direct appeal, appellant argued that appellant asked whether he any weap- had the trial in denying court erred his motion person, ons on his appellant replied, and to because the cocaine was the Mijares “No.” then asked appellant what fruit of an particu- unlawful seizure. More right was in his front pocket, appellant but larly, appellant contended that he un- was Mijares did not answer. then ap- asked (ie., “seized”) lawfully detained at the mo- pellant Mijares whether he minded if pat- Mijares ment telephoned Raymondville ted down his pocket, again front but Police Department for a background check appellant Mijares did not answer. then on the name on the Connecticut driver’s approached appellant “By license. pat taking Appellant’s down the identifica- tion,” pocket, appellant argued, Mijares but appel- before could do “Officer effectively detained by maintaining [him] lant “tried to turn away get away.” and control turned, important possession, of and appellant As clothing his loose be- taut, keeping boarding flight.” from flat, [him] Mijares came and saw a rectan- argued the alternative that he gular bundle clothing under his at waist Mijares was unlawfully detained when level. The bundle approximately was two asked him to from the step away escalator. by inches by three inches six inches in Appellant also argued cocaine Mijares size. patted appellant’s down should be fruit of an suppressed as the pocket, discovered a pair sunglasses, of failed,” unlawful ap- search. “The State and appellant then asked what the bundle pellant argued, “to sustain its burden of Appellant replied by was. saying “What demonstrating suspicion either reasonable Mijares bundle?” or words to that effect. or for cause then handcuffed and escorted weapons.” office, him airport security to the where appel- removed the bundle from Appeals reject The Thirteenth Court of lant’s waist. After the bundle was re- appellant’s arguments ed all of and af moved, appellant admitted that it con- judgment.5 Roy firmed the trial court’s - Mijares tained a “kilo” of cocaine. then 55 (Tex.App.-Corpus S.W.3d 153 2001). formally appellant. arrested Christi The court of rea I analysis. example, A: asked him for his identification. For the Thirteenth Court expedite told him I would it as soon as I failed to mention the evidence that the Cam- going could. I saw I was to detain him County Drug eron Enforcement Task Force If that, go. more than I would let him tip largely tip received a that the was by Agent Mijares corroborated before he ar- Strangely, opinion the Thirteenth Court’s appellant. rested failed to mention certain evidence that I con- proper sider essential to a Fourth Amendment
723
or makes
person,
seized,
forcibly restrains
for the
soned
a reason-
under which
Amendment,
authority,”
only “show
the Fourth
purposes
leave,
free to
handcuffed,
not feel
and that
would
person
able
point
at the
to that show
pat-
a lawful
submits
was the fruit of
the cocaine
D., 499
Hodari
at 156-157.
weapons.
authority.
Id.
down search
California
626-627,
111 S.Ct.
U.S.
dis-
appellant’s petition for
granted
We
(1991).
may
official
A state
L.Ed.2d
whether
cretionary review to determine
briefly
investigation
detain
affirming
Thirteenth Court erred
point
can
if the official
a warrant
without
mo-
appellant’s
denial of
the trial court’s
facts, together
and articulable
specific
Tex.R.App. Proc.
suppress.
tion
from those
inferences
with reasonable
*4
66.3(c).
person
the
facts,
reasonably suggest
that
in criminal
II
involved
presently
detained is
21-22,
Ohio,
1,
392 U.S.
activity. Terry v.
suppress,
a
hearing
At a
on motion
(1968).
1868,
In-
jares “seized” at the moment he
telephoned request for a background trial court could have reason- concluded, record,
ably on this Mi-
jares had suspicion reasonable to detain
appellant briefly purposes investiga- evidence, According
tion. to the record Mijares telephoned moment re- Guy WILLIAMS, Appellant, (1) quest for a background he knew that law enforcement officials had received thin; tipa that that morning, young, on FLORES, Appellee. Alma
Anglo male would attempt smuggle kilogram flight of cocaine onto a from Har- No. 13-01-545-CV. (2) Connecticut, lingen to that fit general description Texas, de- Court of Appeals (3) few, tip, scribed that there were Corpus Christi-Edinburg. if any, people airport other in the terminal 25, 2001. Oct. morning that general descrip- who fit the (4) tion described in the tip, seeing nervous acted after identification,
Mijares’ law enforcement (5) had a Connecticut specific
driver’s license. These and articu- reasonably
lable facts could have suggest-
ed to that appellant was involved
in criminal activity.. addition,
In on this record the trial court reasonably
could have concluded that the question
cocaine in was the fruit of a war-
rantless search incident to arrest. Accord- evidence,
ing record at the moment
Mijares began appellant’s per-
son, Mijares already all the knew facts previously
mentioned as well as the fact