NUMBER 13-12-00233-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
RODOLFO RODRIGUEZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 103rd District Court
of Cameron County, Texas.
MEMORANDUM OPINION
Before Justices Garza, Benavides, and Perkes
Memorandum Opinion by Justice Benavides
Appellant, Rodolfo Rodriguez, entered a plea of “no contest” to an indictment of
possession of a controlled substance, namely cocaine, in an amount of 400 grams or
more.1 See TEX. HEALTH & SAFETY CODE ANN. § 481.115(f) (West, Westlaw through
1 Although Rodriguez entered a plea agreement, the trial court certified his right to appeal. See
2013 3d C.S.). The trial court sentenced Rodriguez to fifteen years’ confinement. By
one issue, Rodriguez contends the trial court erred in denying his motion to suppress,
thus admitting the evidence of narcotics found during a warrantless search of
Rodriguez’s vehicle. We affirm.
I. BACKGROUND
On August 8, 2011, Brownsville police officers and agents from the U.S.
Department of Homeland Security—Immigration and Customs Enforcement (ICE)
Division received information from a confidential informant that a possible drug transfer
would occur in the K-Mart parking lot on Pablo Kisel Boulevard in Brownsville, Texas.
According to Special Agent Jacob Moya, who works with the ICE High Intensity Drug
Trafficking Area task force, this informant had provided reliable information in the past.
The informant advised that the transaction would involve a red Ford pickup truck with
Mexican license plates. At the last minute, however, the informant advised that the
transfer would instead occur at the Gold’s Gym parking lot, located approximately a
block and a half away further down Pablo Kisel Boulevard.
Officers quickly set up surveillance at the new location. The suspect vehicle, the
red Ford pickup truck, drove into the parking lot. Over the radio, Brownsville Police
Officer Robert Nieto heard that a transfer occurred from the red pickup to a silver
Chevrolet Monte Carlo. Officer Nieto thought Special Agent Moya reported this
transfer, but he was not sure. Special Agent Moya, however, testified that another
agent reported this event. Officer Nieto followed the silver Monte Carlo. 2 He reported
that the driver, Rodriguez, “was very nervous. He was looking around, kept looking in
TEX. R. APP. P. 25.2(a)(2)(b).
2 Other officers followed the red Ford pickup truck.
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his rearview mirror, just looking right and left.” Officer Nieto followed Rodriguez to a
Stripes convenience store, where Rodriguez parked at the gas pumps. Officer Nieto
saw Rodriguez “walk into the store, very nervous, looking around everywhere.”
Rodriguez did not purchase anything, “just kept looking out,” and then went back to his
vehicle. He moved the car to the west side of the store and went back into the
convenience store. According to Officer Nieto, Rodriguez came out of the store again,
walked toward his car, and then walked away from the car toward the gas pumps. At
that point, Officer Nieto asked for a unit to make contact with Rodriguez. When an
officer called out to him, Rodriguez began running. Officers yelled, “Stop! Police!”, but
Rodriguez kept running across FM 802, a busy thoroughfare. He was apprehended
nearly a block away, placed into custody, and driven back to the gas station by officers.
At the gas station, Officer Nieto asked Officer David Schaelchlin of the
Brownsville Police Department K-9 unit to secure Rodriguez’s vehicle. Officer Nieto
then asked Rodriguez for consent to search his vehicle. Rodriguez agreed, but when
Officer Nieto asked him to sign a written consent form, Rodriguez replied, “I’m not
signing anything.” Officer Nieto testified that he thought Rodriguez may have rescinded
his consent by refusing to sign the form. At that point, Officer Schaelchlin then returned
to Officer Nieto and reported that his canine had alerted that narcotics were present in
Rodriguez’s vehicle. Because Officer Nieto knew that a transfer of some sort had
occurred, he had the vehicle towed to the Brownsville Police Department.
At the department, Officer Nieto contacted the Cameron County District Attorney’s
office. He explained that Rodriguez had consented to the search but refused to sign the
consent form, and he asked whether he needed to request a search warrant to search
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the vehicle. Officer Nieto testified that the D.A.’s office told him that he could proceed
without a warrant. He then asked Officer Schaelchlin to conduct the search. Officer
Schaelchlin found sixteen bundles of cocaine weighing approximately 42.66 pounds in
the backseat compartment along the driver’s side panel. Rodriguez was arrested.
Prior to trial, Rodriguez filed a motion to suppress arguing that the warrantless
vehicle search was unconstitutional. He argued that he rescinded his consent to search
when he refused to sign the written consent form. The trial court denied this motion and
filed findings of facts and conclusions of law to support its decision. The relevant
conclusions of law follow:
1. The Confidential Informant was reliable and the information provided
regarding the August 8, 2011 narcotics transaction was corroborated by
the agents.
2. The corroborated information obtained from the Confidential Informant, the
transfer of contraband from the red single cab Ford truck to the silver
Monte Carlo observed by the agents, combined with the defendant’s
suspicious demeanor, his evading detention, his abandonment of the
vehicle, and the alert by the canine provided agents with ample probable
cause to perform a warrantless search of the silver Monte Carlo.
3. The defendant voluntarily, intelligently, and unequivocally gave verbal
consent for agents to search his silver Monte Carlo.
4. The defendant did not request or limit the consent to search to exclude any
areas of the silver Monte Carlo.
5. The defendant did not withdraw nor limit consent to search the vehicle
when he refused to sign a written consent to search form.
6. The warrantless search and seizure of the sixteen (16) bundles of cocaine
were performed with probable cause and with the defendant’s voluntary,
intelligent, and unequivocal verbal consent.
(Internal citations omitted). Rodriguez pleaded no contest to the charge of possession
of a controlled substance, namely cocaine, in an amount of 400 grams or more, and the
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trial court sentenced him to fifteen years’ confinement in the Texas Department of
Criminal Justice—Institutional Division. This appeal ensued.
II. STANDARD OF REVIEW
We review motions to suppress evidence on a bifurcated standard of review.
See Guevara v. State, 97 S.W.3d 579, 582 (Tex. Crim. App. 2003). We give almost
total deference to a trial court’s determination of historical facts, as it is the sole trier of
fact and the sole judge of credibility of the witnesses and the weight to be given their
testimony. Id.; see also Wiede v. State, 214 S.W.3d 17, 24–25 (Tex. Crim. App. 2007).
However, we review de novo the court’s application of constitutional search and seizure
law to the facts of the case. Guevara, 97 S.W.3d at 582. A trial court’s denial of a
motion to suppress is reviewed for an abuse of discretion. Maddox v. State, 682
S.W.2d 563, 564 (Tex. Crim. App. 1985). “In reviewing a trial court's ruling on a
motion to suppress, an appellate court must view the evidence in the light most favorable
to the trial court's ruling.” State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006).
“When a trial court makes explicit fact findings, the appellate court determines whether
the evidence (viewed in the light most favorable to the trial court's ruling) supports these
fact findings.” Id.
III. ANALYSIS
By his sole issue, Rodriguez contends the trial court erred in denying his motion to
suppress and admitting the discovery of nearly 43 pounds of cocaine into evidence.
First, Rodriguez contends that there was no probable cause to search his vehicle.
Second, Rodriguez argues that he revoked his consent when he refused to sign the
written consent-to-search form.
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The Fourth Amendment protects individuals from unreasonable searches and
seizures. See U.S. CONST., amend. IV. State and federal constitutional law, however,
recognize an “automobile exception” to the Fourth Amendment: if there is probable
cause that a vehicle contains “contraband or the instrumentalities of a crime,” it may be
searched without a warrant. See State v. Guzman, 959 S.W.2d 631, 632–33 (Tex.
Crim. App. 1998); Chambers v. Maroney, 399 U.S. 42, 48 (1970) (noting the difference
between warrantless searches of vehicles as opposed to residential homes or business
offices). In short, “‘a vehicle lawfully in police custody may be searched on the basis of
probable cause to believe that it contains contraband, and there is no requirement of
exigent circumstances to justify such a warrantless search.’” Guzman, 959 S.W.2d at
634 (quoting United States v. Johns, 469 U.S. 478, 484 (1985)); see Neal v. State, 256
S.W.2d 264, 283 (Tex. 2008).
“Probable cause to search exists when reasonably trustworthy facts and
circumstances within the knowledge of the officer on the scene would lead a man of
reasonable prudence to believe that the instrumentality of a crime or evidence of a crime
will be found.” Estrada v. State, 154 S.W.3d 604, 609 (Tex. Crim. App. 2005). Here,
the trial court found that probable cause existed based on the following “reasonably
trustworthy facts and circumstances”:
The corroborated information obtained from the Confidential Informant, the
transfer of contraband from the red single cab Ford truck to the silver
Monte Carlo observed by the agents, combined with the defendant’s
suspicious demeanor, his evading detention, his abandonment of the
vehicle, and the alert by the canine provided agents with ample probable
cause to perform a warrantless search of the silver Monte Carlo.
Probable cause may arise from a tip supplied by a confidential informant if it is
corroborated. Eisenhauer v. State, 678 S.W.2d 947, 955 (Tex. Crim. App. 1984). In
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the underlying case, the confidential informant advised officers when a possible drug
transaction would occur in the Gold’s Gym parking lot on Pablo Kisel Boulevard in
Brownsville, Texas. The informant also relayed that the transfer would be initiated by
someone in a red Ford pickup truck. This tip was corroborated by Officer Nieto’s
observations that Rodriguez, the recipient of the transfer, was nervous, abandoned his
vehicle, and evaded attention, and the alert by Officer Schaelchlin’s narcotics dog. See
Green v. State, 256 S.W.3d 456, 462 (Tex. App.—Waco 2008, no pet.) (holding that
“extreme nervousness” can be a factor in establishing probable cause); $217,590.00 in
U.S. Currency v. State, 54 S.W.3d 918, 923 (Tex. App.—Corpus Christi 2001, no pet.) (“it
is well-settled that a trained narcotics dog’s positive alert for drugs is sufficient to
establish probable cause for arrest.”).
Rodriguez places great weight on the fact that neither Special Agent Moya nor
Officer Nieto actually “witnessed” the transfer between the red pickup truck to the silver
Monte Carlo that Rodriguez drove, and he argues that this should factor against a finding
of probable cause. However, both agents testified that one of the law enforcement
officers involved in the surveillance of Gold’s Gym clearly reported witnessing the
transfer over the radio. Further, the fact that Rodriguez’s vehicle was towed to the
Brownsville Police Department does not detract from the officers’ ability to search the
vehicle. In Chambers v. Maroney, the United States Supreme Court “held that police
officers with probable cause to search an automobile at the scene where it was stopped
could constitutionally do so later at the station house without first obtaining a warrant.”
White v. State, 521 S.W.2d 255, 269 (Tex. Crim. App. 1975) (citing Chambers, 399 U.S.
at 51–52). In light of the “totality of circumstances” in this case, we agree with the trial
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court that probable cause existed. Estrada, 154 S.W.3d at 609. Accordingly, Officer
Schaelchlin’s warrantless search of Rodriguez’s vehicle was proper. Guzman, 959
S.W.2d at 634.
Because we have found one legal ground upon which to justify the warrantless
search of Rodriguez’s vehicle, we need not address Rodriguez’s argument that he
withdrew his consent to search. See TEX. R. APP. P. 47.1 (“the court of appeals must
hand down a written opinion that is as brief as practicable but that addresses every issue
raised and necessary to final disposition of the appeal.”).
IV. CONCLUSION
We affirm the trial court’s judgment.
__________________________
GINA M. BENAVIDES,
Justice
Do not publish.
TEX. R. APP. P. 47.2 (b).
Delivered and filed the
17th day of April, 2014.
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