NO. 07-11-00305-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
MAY 15, 2012
RONALD COLEMAN, SR., APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 242ND DISTRICT COURT OF HALE COUNTY;
NO. B18708-1102; HONORABLE EDWARD LEE SELF, JUDGE
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant, Ronald Coleman, Sr., was convicted of tampering with evidence1 and
sentenced to confinement in the Institutional Division of the Texas Department of
Criminal Justice (ID-TDCJ) for two years and fined $3,000. By one issue, appellant
contends that the trial court committed reversible error in overruling his motion to
suppress the evidence that resulted from his illegal detention. We will affirm.
1
See TEX. PENAL CODE ANN. § 37.09(a)(1) (West 2011).
Factual and Procedural Background
On January 24, 2011, appellant approached a house located near the
intersection of 10th Street and Austin Avenue in Plainview, Texas. Unknown to
appellant, this house was the subject of a request to watch the traffic coming and going
from the house that the detective in charge of drug enforcement for the Plainview Police
Department had relayed to all patrol officers. On this day, Sergeant Ernesto Amaya
was observing the house. Amaya testified that he watched appellant go to the front
door and then enter the house. Appellant was inside the house for approximately 30
seconds before he came out and headed away from the house. Amaya said he could
not see who opened the door for appellant nor what appellant did while inside the
house. As Amaya observed appellant walking across a vacant lot away from the house,
appellant put his right hand inside the right pocket of his “hoodie.” Amaya then walked
toward appellant. As Amaya approached appellant, he made eye contact with
appellant. According to Amaya, after he made eye contact with appellant, appellant put
his right hand back in the pocket of his “hoodie.” On direct examination at the hearing
on the motion to suppress, Amaya testified that appellant then withdrew his hand from
the right pocket of the “hoodie” in a cup-like motion, as if he was trying to conceal
something. At this time, Amaya asked appellant if he could speak to him. Appellant
stopped and, because Amaya had seen appellant bring his hand out of the “hoodie”
pocket as if to hide something, Amaya attempted to conduct a Terry2 frisk. As Amaya
was beginning to attempt the Terry frisk, appellant placed what was in his hand into his
mouth, chewed, and swallowed what was in his hand.
2
See Terry v. Ohio, 392 U.S.1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
2
During cross-examination, Amaya admitted that, prior to appellant making the
motion toward his mouth with his hands, he ordered appellant to place his hands on one
of the patrol cars there in the parking area. During cross-examination, Amaya admitted
that the information he received from the narcotics detective was several days old.
Further, Amaya did not have any idea how old the information was that the narcotics
detective received from the confidential informant.
At the conclusion of the hearing on the motion to suppress, the trial court took the
matter under advisement. Later, the trial court issued a short order denying the motion
to suppress. No findings of fact or conclusions of law were entered. Appellant was
subsequently tried and convicted of tampering with evidence and sentenced to serve
two years confinement in the ID-TDCJ and a fine of $3,000. Appellant appeals,
contending that the trial court’s denial of the motion to suppress was an abuse of
discretion. We will affirm.
Suppression Issue
Appellant’s single issue is that the trial court committed reversible error by
denying appellant’s motion to suppress based upon a lack of reasonable suspicion on
the part of the investigating officer. However, our review of the record leads us to
conclude that we do not need to address the legality of the officer’s detention to resolve
this matter.
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Analysis
Initially, we observe that a person who is stopped or detained illegally is not
immunized from prosecution for crimes committed during any period of detention. See
Bryant v. State, 253 S.W.3d 810, 812 (Tex.App.—Amarillo 2008, pet. ref’d) (citing
United States v. Garcia-Jordan, 860 F.2d 159, 160 (5th Cir. 1988)). In Bryant, appellant
had been detained while the police were investigating a disturbance call. Id. at 811.
During his detention, Bryant was able to destroy a glass meth pipe that police had found
in his possession. Id. at 812. Bryant was subsequently charged with tampering with
evidence. Id. Bryant filed a motion to suppress contending that the evidence found was
the result of an illegal detention. This court concluded that the tampering with evidence
charge was a new crime, and the exclusionary rule found in article 38.23 of the Code of
Criminal Procedure does not require suppression of such evidence. Id. at 813.
We are faced with the same situation. Here, appellant contends that he was
illegally detained by the police. This arose, according to appellant, because the officer
ordered appellant to place his hands on the hood of a patrol car after encountering
appellant. Appellant’s actions in placing the suspected item in his mouth, chewing, and
swallowing it occurred after appellant had been detained by the officer. The only
actions taken by appellant that lead to the charge is the placement of the item in his
mouth, chewing it, and swallowing. Thus the crime, tampering with evidence, was
completed after the detention. As such, the exclusionary rule and article 38.23 of the
Texas Code of Criminal Procedure do not require suppression of the officer’s testimony
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regarding the actions of appellant after the detention. Id. Accordingly, appellant’s
single issue is overruled.
Conclusion
Having overruled appellant’s single issue, we affirm the judgment of the trial
court.
Mackey K. Hancock
Justice
Do not publish.
Pirtle, J., dissenting.
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