COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00471-CR
STEPHEN SMITH APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 367TH DISTRICT COURT OF DENTON COUNTY
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MEMORANDUM OPINION1
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I. INTRODUCTION
Appellant Stephen Smith appeals his conviction for possession of a
controlled substance with intent to deliver. In two issues, Smith argues that the
trial court abused its discretion by denying his motion to suppress and by not
suppressing evidence obtained in violation of Miranda v. Arizona, 384 U.S. 436,
86 S. Ct. 1602 (1966). We will affirm.
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See Tex. R. App. P. 47.4.
II. FACTUAL AND PROCEDURAL BACKGROUND
The Denton County Sherriff‘s Office received information from a
confidential informant that Smith was distributing methamphetamine.
Investigator Bryan Wilkinson with the drug enforcement unit of the Denton
County Sherriff‘s Office began working with the informant and corroborated some
of the informant‘s information through surveillance and computer checks.
Investigator Wilkinson arranged for the informant to make a ―controlled buy‖ of
methamphetamine from Smith. Investigator Wilkinson met with the informant
around 4:00 p.m. on November 18, 2009, and after searching the informant and
his vehicle, Investigator Wilkinson gave him two one-hundred-dollar bills to
purchase approximately two grams of methamphetamine. Investigator Wilkinson
followed the informant to the apartment complex where Smith lived. The
informant never left Investigator Wilkinson‘s presence except when the informant
went inside Smith‘s apartment to purchase the drugs.
Narcotics Investigator Shawn Clary was conducting surveillance on
Smith‘s apartment, and he was there when Investigator Wilkinson and the
informant arrived. Investigators Clary and Wilkinson watched Smith meet with
the informant outside of Smith‘s apartment and then go inside the apartment.
Approximately ten minutes later, Smith and the informant exited the apartment,
walked to the parking lot, and talked for a few minutes before the informant got in
his car and left.
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Investigator Wilkinson followed the informant to a prearranged location
about a mile away. The informant gave Investigator Wilkinson the
methamphetamine he had just purchased from Smith, and Investigator Wilkinson
searched the informant and his vehicle one more time. Investigator Clary
arrived, and the informant told both officers that he had seen $17,000 in cash
and a gun in Smith‘s apartment. Investigator Wilkinson called Lieutenant William
David Scott and told him about the controlled buy. They decided to get an arrest
and search warrant for Smith and his apartment. Investigator Wilkinson began
drafting the search warrant to take to a judge for his signature, and Investigator
Clary took the methamphetamine to the evidence room at the sheriff‘s office.
Lieutenant Scott drove to Smith‘s apartment complex to maintain
surveillance, arriving between 5:45 and 6:00 p.m. After Investigator Clary
delivered the drugs to the sheriff‘s office, he also drove to Smith‘s apartment
complex to maintain surveillance, arriving around 6:00 p.m. At approximately
7:00 p.m., Smith exited his apartment carrying a car stereo. Lieutenant Scott and
Investigator Clary got out of their vehicles and approached Smith in front of his
car as he was walking up to it. It was dark outside, and Lieutenant Scott drew his
taser, which has a flashlight on the end, and pointed the flashlight at Smith.
Lieutenant Scott told Smith to ―get on the ground.‖ Smith complied, and
Investigator Clary handcuffed him. Investigator Clary asked Smith if he was
armed or had ―any weapons, any sharp objects, any needles that‘s going to poke
me.‖ Smith responded that ―what [they] were looking for was in his right front
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pocket.‖ Investigator Clary felt Smith‘s pockets and could tell something was
inside one of them. Investigator Clary asked Smith if he could reach into Smith‘s
pocket to get it, and Smith agreed. Investigator Clary pulled out an eyeglass
case that contained three baggies of methamphetamine. The officers also found
$4,600 in cash in Smith‘s wallet.
After Smith‘s arrest, Lieutenant Scott spoke with Investigator Wilkinson,
who said that he was on his way to the judge‘s house to get the arrest and
search warrant signed. The judge signed the warrant at 7:29 p.m., and
Investigator Wilkinson took it to Smith‘s apartment. The officers found
paraphernalia indicative of drug distribution inside the apartment, but they did not
find any drugs, any guns, or the $17,000 in cash that the informant had said he
saw in the apartment.
Smith entered an open plea of guilty to possession of a controlled
substance with intent to deliver and pleaded true to two enhancement
paragraphs. After a hearing, the trial court denied Smith‘s motion to suppress.
The trial court sentenced him to life imprisonment.
III. MOTION TO SUPPRESS
In his first issue, Smith argues that the trial court abused its discretion by
denying his motion to suppress evidence obtained from a warrantless arrest.
The State responds that the warrantless arrest was authorized under article
14.01 of the code of criminal procedure. See Tex. Code Crim. Proc. Ann. art.
14.01 (West 2005).
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A. Standard of Review
We review a trial court‘s ruling on a motion to suppress evidence for an
abuse of discretion under a bifurcated standard of review. Martinez v. State, PD-
1238-10, 2011 WL 2555712, at *2 (Tex. Crim. App. June 29, 2011); Amador v.
State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007); Guzman v. State, 955
S.W.2d 85, 89 (Tex. Crim. App. 1997). In reviewing the trial court‘s decision, we
do not engage in our own factual review. Romero v. State, 800 S.W.2d 539, 543
(Tex. Crim. App. 1990); Best v. State, 118 S.W.3d 857, 861 (Tex. App.—Fort
Worth 2003, no pet.). The trial judge is the sole trier of fact and judge of the
credibility of the witnesses and the weight to be given their testimony. Wiede v.
State, 214 S.W.3d 17, 24–25 (Tex. Crim. App. 2007); State v. Ross, 32 S.W.3d
853, 855 (Tex. Crim. App. 2000), modified on other grounds by State v. Cullen,
195 S.W.3d 696 (Tex. Crim. App. 2006). Therefore, we give almost total
deference to the trial court‘s rulings on (1) questions of historical fact, even if the
trial court‘s determination of those facts was not based on an evaluation of
credibility and demeanor, and (2) application-of-law-to-fact questions that turn on
an evaluation of credibility and demeanor. Amador, 221 S.W.3d at 673;
Montanez v. State, 195 S.W.3d 101, 108–09 (Tex. Crim. App. 2006); Johnson v.
State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002). But when application-of-
law-to-fact questions do not turn on the credibility and demeanor of the
witnesses, we review the trial court‘s rulings on those questions de novo.
Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim.
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App. 2005); Johnson, 68 S.W.3d at 652–53. Stated another way, when
reviewing the trial court‘s ruling on a motion to suppress, we must view the
evidence in the light most favorable to the trial court‘s ruling. Wiede, 214 S.W.3d
at 24; State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006).
When the record is silent on the reasons for the trial court‘s ruling, or when
there are no explicit fact findings and neither party timely requested findings and
conclusions from the trial court, we imply the necessary fact findings that would
support the trial court‘s ruling if the evidence, viewed in the light most favorable
to the trial court‘s ruling, supports those findings. State v. Garcia-Cantu, 253
S.W.3d 236, 241 (Tex. Crim. App. 2008); see Wiede, 214 S.W.3d at 25. We then
review the trial court‘s legal ruling de novo unless the implied fact findings
supported by the record are also dispositive of the legal ruling. Kelly, 204
S.W.3d at 819.
B. Law on Warrantless Arrests
All arrests without valid warrants are unreasonable unless shown to be
within one of the exceptions to the rule that an arrest or a search must rest upon
a valid warrant. Wilson v. State, 621 S.W.2d 799, 803–04 (Tex. Crim. App.
[Panel Op.] 1981). Texas law provides for warrantless arrests only in certain,
statutorily prescribed circumstances. Dyar v. State, 125 S.W.3d 460, 463 (Tex.
Crim. App. 2003). A police officer may arrest an individual without a warrant only
if probable cause exists with respect to the individual in question and the arrest
falls within one of the exceptions set out in the code of criminal procedure.
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Torres v. State, 182 S.W.3d 899, 901 (Tex. Crim. App. 2005); see Tex. Code
Crim. Proc. Ann. arts. 14.01–.04.
Under article 14.01(b), ―[a] peace officer may arrest an offender without a
warrant for any offense committed in his presence or within his view.‖ Tex. Code
Crim. Proc. Ann. art. 14.01(b); State v. Steelman, 93 S.W.3d 102, 107 (Tex.
Crim. App. 2002). The test for probable cause for a warrantless arrest under
article 14.01(b) is ―‗whether at that moment the facts and circumstances within
the officer‘s knowledge and of which he had reasonably trustworthy information
were sufficient to warrant a prudent man in believing that the arrested person had
committed or was committing an offense.‘‖ Steelman, 93 S.W.3d at 107 (quoting
Beverly v. State, 792 S.W.2d 103, 105 (Tex. Crim. App. 1990)). In other words,
although the statute states that the offense must be one that is committed within
the officer‘s presence or view, an officer can make a warrantless arrest based on
an offense that was committed at an earlier time, and further, the officer does not
even have to personally see the offense committed before the warrantless arrest
is justified under article 14.01(b). Beverly, 792 S.W.2d at 105.
An officer‘s knowledge and trustworthy information may come from facts
and circumstances obtained from lay citizens. Id.; Akins v. State, 202 S.W.3d
879, 889 (Tex. App.—Fort Worth 2006, pet. ref‘d). If an officer has reasonably
trustworthy information that, when coupled with the officer‘s personal
observations, establishes probable cause to believe that an offense is being or
has been committed, the warrant exception will apply. Akins, 202 S.W.3d at 889
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(citing Beverly, 792 S.W.2d at 104–05). We look to the totality of the
circumstances to determine if probable cause existed based on an informant‘s
tip. See Illinois v. Gates, 462 U.S. 213, 250–54, 103 S. Ct. 2317, 2339–40
(1983); Adkins v. State, 764 S.W.2d 782, 785 (Tex. Crim. App. 1988); Akins, 202
S.W.3d at 889.
C. Article 14.01(b)’s Warrant Exception Applies
Here, the evidence at the suppression hearing showed that Investigator
Wilkinson had been familiar with the confidential informant for three weeks
leading up to the controlled buy, that the investigator believed that the informant
was credible and reliable, that the informant had given information in the past
that lead to recovery of methamphetamine and persons involved in trafficking
methamphetamine, and that information the informant had provided to officers
about Smith had been corroborated by ―surveillance and computer checks finding
all information to be true and reliable.‖ The evidence also showed that the
informant completed a controlled buy of methamphetamine from Smith and that,
after the controlled buy took place and after Investigators Wilkinson and Clary
had obtained the purchased methamphetamine from the informant, Investigator
Wilkinson relayed to Lieutenant Scott ―exactly what was going on.‖
Approximately one to two hours later, Lieutenant Scott and Investigator Clary
arrested Smith for the controlled buy when Smith left his apartment.
Although neither arresting officer witnessed the controlled buy,
Investigators Wilkinson and Clary were present outside of the apartment when
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the controlled buy took place, and they debriefed the informant about the details
of the buy immediately afterwards. We hold that, based on the collective
information known by the officers from the confidential informant and the
corroboration of that information, the officers were justified in arresting Smith
without a warrant under article 14.01(b). See Tex. Code Crim. Proc. Ann. art.
14.01(b); Akins, 202 S.W.3d at 889 (upholding warrantless arrest based on
informant‘s tip when offense did not occur in officer‘s view); see also Woodward
v. State, 668 S.W.2d 337, 344 (Tex. Crim. App. 1982) (explaining that courts
review totality of information known by all officers who cooperated and
communicated during an investigation to determine whether probable cause
existed), cert. denied, 469 U.S. 1181 (1985). Thus, viewing the evidence in the
light most favorable to the trial court‘s ruling, we hold that the trial court did not
abuse its discretion by denying Smith‘s motion to suppress. See Wiede, 214
S.W.3d at 24; Kelly, 204 S.W.3d at 818.
IV. MIRANDA WARNINGS
In his second issue, Smith argues that the trial court abused its discretion
by admitting evidence seized based on his statement that ―what [the officers]
were looking for was in his right front pocket‖ because he made that statement
after he was arrested but before he received any Miranda warnings. The State
argues that Smith failed to preserve this complaint for review.
To preserve a complaint for our review, a party must have presented to the
trial court a timely request, objection, or motion that states the specific grounds
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for the desired ruling if they are not apparent from the context of the request,
objection, or motion. Tex. R. App. P. 33.1(a)(1); Layton v. State, 280 S.W.3d
235, 238–39 (Tex. Crim. App. 2009). Further, the trial court must have ruled on
the request, objection, or motion, either expressly or implicitly, or the complaining
party must have objected to the trial court‘s refusal to rule. Tex. R. App. P.
33.1(a)(2); Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004). A
reviewing court should not address the merits of an issue that has not been
preserved for appeal. Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim. App.
2009).
In this case, Smith did not allege in his motion to suppress or at the
suppression hearing that his oral statement was obtained in violation of Miranda.
Smith complained only that his detention and arrest were illegal without a
warrant. Consequently, we hold that Smith did not preserve this issue for our
review. See Tex. R. App. P. 33.1(a)(1); Ranson v. State, 707 S.W.2d 96, 99
(Tex. Crim. App.) (holding that any error in admission of portions of defendant‘s
oral confession waived on appeal by failure to timely object), cert. denied, 479
U.S. 840 (1986). We overrule Smith‘s second issue.
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V. CONCLUSION
Having overruled Smith‘s two issues, we affirm the trial court‘s judgment.
SUE WALKER
JUSTICE
PANEL: GARDNER, WALKER, and MCCOY, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: October 27, 2011
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