In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-15-00155-CR
____________________
CHRISTOPHER LEE CUTTRELL, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 221st District Court
Montgomery County, Texas
Trial Cause No. 14-08-09341 CR
MEMORANDUM OPINION
Christopher Lee Cuttrell (Cuttrell or Appellant) pleaded guilty to the offense
of fraudulent possession of items of identifying information, a state jail felony. See
Tex. Penal Code Ann. § 32.51(c)(1) (West Supp. 2015). The court sentenced
Cuttrell to six months’ confinement in state jail. Cuttrell timely appealed, raising
two issues wherein he challenges the trial court’s denial of his motion to suppress
and the attorney’s fees assessed against him in the judgment. We affirm the trial
court’s judgment as modified.
1
BACKGROUND
Cuttrell was indicted on November 26, 2014, for one count of fraudulently
possessing items of identifying information—for possessing fewer than five pieces
of identifying information belonging to another, specifically a person’s social
security number. The initial complaint stated that a search by law enforcement of
Cuttrell’s vehicle on August 21, 2014, revealed Cuttrell was in possession of “50
or more” items of identifying information belonging to persons other than Cuttrell
or his family.1 On September 25, 2014, prior to trial, Cuttrell filed a Motion to
Suppress, asking the court to suppress the arrest, evidence obtained pursuant to the
search of his car, and any statements by Cuttrell because the search was
unconstitutional. On January 20, 2015, the trial court conducted a hearing on the
motion.
Deputy Theo Pternitis (Pternitis) testified at the suppression hearing that, on
August 21, 2014, he was “towards the back of” The Woodlands when he observed
an older model vehicle exit a parking lot and turn around, returning to “the exact,
same location they just turned off of.” Pternitis explained that
I waited for a minute because they didn’t go into a parking spot
and I noticed they didn’t go back out on Research Forest nor did they
1
Both the complaint as well as the indictment listed Cuttrell’s wife, Heather
Cuttrell, as a co-defendant. She is not a party to this appeal.
2
exit the vehicle doing business so I figured either they were having
vehicle problems or they were lost or needed some kind of assistance.
Pternitis agreed that his initial contact with the occupants was for a welfare check.
Pternitis said the car was occupied by Cuttrell, Cutrell’s wife, and two children – a
girl about sixteen years old and a boy about thirteen years old. According to
Pternitis, the occupants told him they were coming from League City, they were
“going to Dallas on a family trip[,]” and they were looking for a hotel. The deputy
said the family told him they got lost because the GPS on their phone was not
working. Pternitis explained that, at the time, he thought it was odd that the family
was looking for a hotel in that area of The Woodlands, which Pternitis described as
“about 20 minutes from Interstate 45 which is a straight shot from Houston up to
Dallas[,]”and that it also raised his suspicion that Cuttrell’s wife, who was in the
front passenger seat, and not Cuttrell, answered Pternitis’s questions.
Pternitis said he decided to notify dispatch that he “was going to be out on a
suspicious vehicle, not a traffic stop or anything but an investigative stop,” in order
to identify the driver and see if he had a valid driver’s license. Pternitis said that he
asked Cuttrell for his license, and Cuttrell responded that “[h]e didn’t have it on
him. It was in the trunk.” Pternitis stated he found this response “a little odd.”
According to the deputy, when Cuttrell asked if he could get his license from the
trunk, Pternitis agreed and Cuttrell’s wife “exited the vehicle with him as well and
3
she went to go open the trunk with a screwdriver.” Pternitis testified that Cuttrell
told Pternitis that his license was invalid or suspended. Pternitis then called
dispatch and gave Cuttrell’s name and date of birth to dispatch. Dispatch advised
that the license was invalid and suspended. Pternitis also testified that Cuttrell also
told him that he had previously been arrested for narcotics, and fraud or forgery,
and that he was currently on probation. According to Pternitis, the sixteen-year-old
occupant did not have a driver’s license, and dispatch advised that Cuttrell’s wife’s
license was also suspended.
Pternitis testified that the lock on the trunk of the car “looked punched. It
was disabled or something.” When Cuttrell’s wife opened the trunk with a
screwdriver, Pternitis could see the contents of the trunk. The deputy described the
contents of the trunk as follows:
Q. What about what was in the trunk raised your suspicion if
anything?
A. I found it odd that there was a laptop computer with a laser printer
in the trunk of his vehicle just sitting in a box loosely, not in a case,
but sitting in the trunk.
Q. What type of computer was it?
A. If I’m not mistaken it was an Alienware, which I was recently in
the market for a laptop and I know that an Alienware was one of the
higher end laptop, several thousand dollars for the laptop.
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Q. Why was the fact that such an expensive laptop being in the trunk
of a car odd?
A. I found it odd due to the fact that, yes, this was an older vehicle
and they advised several times that they did not have air conditioning
in the vehicle and having this expensive laptop, laser printer in the
vehicle where it could be bounced around and be jostled and not kept
in a safe, controlled environment up in the cab of the passenger’s seat.
....
Q. Did the defendant ever tell you what their purpose was for driving --
A. A family outing.
Q. A vacation?
A. Yes, sir. . . .
....
Q. Did anything about that trunk strike you as they were on vacation?
A. There wasn’t any luggage.
The deputy testified that whenever he looked inside the vehicle, “they
continually directed [his] attention to them at the back of the vehicle while
[Cuttrell’s wife] kept on constantly messing around with her cell phone at the front
of the vehicle.” Pternitis explained his thoughts at the time:
There was something they didn’t want me seeing inside the
vehicle or I didn’t know exactly what she was trying to do with her
cell phone. I had to ask her numerous times to leave the phone alone
at the time. If she was having problems with the battery, she needed to
just leave it plugged in. I wasn’t sure exactly what was going on.
5
Pternitis testified that he could not let the family drive away because none of
them had a valid license, and they could not leave their car in the parking lot for
liability reasons, because “[i]t was private property[,]” and it was in a fire lane,
which was a parking violation. Pternitis explained that he asked Cuttrell if they
knew someone that could pick them up and also pick up the vehicle for them.
Pternitis said he understood the family to tell him that someone who was possibly
an hour away could pick up the car.
Pternitis agreed that, in less than ten minutes after encountering the Cuttrells,
he felt he no longer had a welfare-check situation but rather a suspicious vehicle.
According to Pternitis, at some point his sergeant came onto the scene with him
and his sergeant asked to search the vehicle. Pternitis testified that he asked the
Cuttrells multiple times if they objected to him searching their vehicle. The deputy
explained Cuttrell’s response to this request:
A. They didn’t really see the point in it, and Mr. Cuttrell advised even
if he were to say no, we would search it anyway. He always ends up
in handcuffs going to jail when the police search his vehicle.
Q. Did that raise your suspicion at all?
A. Definitely.
Q. And what did you explain to Mr. Cuttrell?
6
A. I advised him if he didn’t want to search the vehicle it was his right
to refuse. I wasn’t going to search it if he didn’t want me to unless I
had probable cause to search the vehicle.
Pternitis explained that, at this point, he had been on the scene ten or fifteen
minutes. Pternitis said he did not order anyone out of the vehicle, but the family
asked him if they could step out of the car because it was hot and they did not have
air conditioning, and Pternitis agreed. According to Pternitis, the four family
members got out of the car “for comfort reasons[,]” and Pternitis asked for another
unit to come help him for safety reasons. Pternitis testified that he had taken the
extra-length screwdriver “for officer safety[]” and lowered the lid to the trunk but
did not close it because the lock did not work. On cross-examination, Pternitis
agreed that at that time, the situation was “investigative[]” and the Cuttrells were
being detained and they would not have been allowed to leave.
The deputy stated that, when the Cuttrells refused the request to search the
vehicle, he inquired as to whether a canine was available nearby to do a canine
search, explaining his suspicions as follows:
. . . I believe[d] there was something in the vehicle that they
didn’t want me to see due to them trying to divert my attention from it
constantly and, obviously, [Cuttrell] stated every time law
enforcement searches his vehicle he end [sic] up in handcuffs and
going to jail. So it led me to believe there was something in that
vehicle that didn’t belong.
....
7
I suspected, due [] to the fact that he said he’s always been
handled for narcotics, there may possibly be narcotics in the vehicle.
So I asked for a canine to come and sniff for the odor.
....
It was not only the fact that there could be a possibility of
narcotics, but, also, it would be a number of things. I also wanted to
check that laptop and make sure it wasn’t stolen.
....
Every time I would ask one person a question the other person
would try to answer for them or always come in and answer. It was
[Cuttrell’s wife] who kept on [answering] whenever I would ask Mr.
Cuttrell a question . . . .
He explained that the Cuttrells were not free to leave “after [he] checked out a
suspicious vehicle and [he] believe[d] there’s suspicious activity going
on[.]”According to Pternitis, it took about twenty minutes for the canine unit to
arrive, and he had to keep Cuttrell there because he “didn’t have a legal person to
drive the vehicle and was waiting to get the vehicle moved.” Pternitis said that, at
this point, he had been with the Cuttrells about forty-five minutes.
Pternitis agreed that at some point the Cuttrells asked to leave to “go buy
something or be a patron so they could get [the person] who was going to come
help them remove the vehicle” but the deputy did not allow them to leave. Pternitis
testified that Cuttrell’s “invalid driver’s license” was an “arrestable offense.”
However, he also testified that the Montgomery County jail does not accept anyone
8
arrested for an invalid driver’s license. The deputy explained in a situation where
no vehicle occupant has a valid license, the Department policy was to “Find [a]
licensed driver or tow the vehicle.” He also explained that the Cuttrells never asked
for his help in contacting someone for help, but rather they used their own phones
and that he was not able to take the family anywhere himself because he was on a
motorcycle. The deputy explained that he did not immediately call for a tow-truck
when he determined there was no licensed driver because Cuttrell’s wife “kept on
asking, ‘Please, can we find somebody?’”
According to Pternitis, when the canine unit arrived, the dog gave a positive
alert on the car and also made several attempts to go inside the vehicle. Pternitis
stated the officers found marijuana in the trunk of the vehicle and that
Inside the vehicle there was a box containing gift cards to
Social Security card [sic] that didn’t have a name matching anybody
in vehicle. There was laminating paper with numbers printed onto it
and then some gift cards that were altered with the other numbers
affixed to them.
No other witnesses testified at the hearing. A video recording of the
encounter was admitted into evidence. Pternitis testified that the recording was
made by a camera mounted on his chest, and that the policy of the Montgomery
County Sheriff is to record all contacts. The video recording includes video and
audio of Cuttrell telling Pternitis that the family was going to Dallas to visit his
9
father. Later, in the video, Cuttrell’s wife can be heard telling Pternitis that the
family was going to Austin and San Antonio and that they were looking for the
mall in The Woodlands. The video recording shows Cuttrell and his wife exit the
vehicle voluntarily, without a request by Pternitis, open the trunk and look for
Cuttrell’s driver’s license. According to the video, at the time of the dog sniff, the
windows to the car were open, at least two doors to the car had been left open by
family members, and the trunk of the car was open. The video recording also
shows that, after the dog gave a positive alert, officers searched and found
marijuana located in a tampon box inside Cuttrell’s wife’s purse which was found
in the trunk of the car. Cuttrell’s wife can be heard on the video telling the officers
that the marijuana belonged to her son. In the audio portion of the recording,
officers can be heard saying they also found gift cards and “papers with . . . stuff
cut up.”
On January 22, 2015, the trial court denied Cuttrell’s motion to suppress,
and on January 23, 2015, Cuttrell pleaded guilty. Cuttrell’s plea agreement did not
waive his right to appeal the court’s order denying his motion to suppress. The
court then sentenced Cuttrell to six months in state jail. On January 26, 2015,
Cuttrell filed a Request for Findings of Fact and Conclusions of Law, and the court
entered findings of fact and conclusions of law on February 5, 2015. Cuttrell
10
timely filed a notice of appeal challenging the denial of his motion to suppress. In
his appellate brief, he also argues that the trial court erred in assessing attorney’s
fees against him.
STANDARD OF REVIEW
We review a trial court’s ruling on a motion to suppress under a bifurcated
standard of review. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App.
2013). We review the trial court’s factual findings for an abuse of discretion. Id.
We give almost total deference to the trial court’s determination of historical facts,
particularly when the trial court’s fact findings are based on an evaluation of
credibility and demeanor. Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App.
2010). The same deference is afforded the trial court with respect to its rulings on
the application of the law to questions of fact and to mixed questions of law and
fact, if resolution of those questions depends on an evaluation of credibility and
demeanor. Id. For mixed questions of law and fact that do not fall within that
category, a reviewing court conducts a de novo review. Id.
At a suppression hearing, the trial court is the exclusive trier of fact and
judge of the credibility of the witnesses. Maxwell v. State, 73 S.W.3d 278, 281
(Tex. Crim. App. 2002). A trial court may choose to believe or to disbelieve all or
any part of a witness’s testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim.
11
App. 2000). We must uphold the trial court’s ruling on a motion to suppress if that
ruling was supported by the record and was correct under any theory of law
applicable to the case, even if the trial court gave the wrong reason for its ruling.
Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003), cert. denied,
541 U.S. 974 (2004). Our task is to determine whether the trial court could have
reasonably denied appellant’s motion to suppress given the evidence in the record
and applicable law. Id.
MOTION TO SUPPRESS
In his first issue, Cuttrell contends that the trial court erred in denying his
motion to suppress. Cuttrell argues that the warrantless search of Cuttrell’s car was
improper because the deputy did not have reasonable suspicion to detain Cuttrell.
The State responds arguing that: (1) the initial encounter between Cuttrell and
Pternitis was consensual and a reasonable person in Cuttrell’s shoes would have
felt free to leave or otherwise terminate the encounter; (2) the deputy had
reasonable suspicion to detain Cuttrell for investigatory purposes, considering the
totality of the circumstances ; and (3) the circumstances “raised more than enough
suspicion to justify continued detention for purposes of conducting a canine sweep
of the appellant’s vehicle.” The State also contends that, “when the canine alerted
12
on the appellant’s vehicle, the officers at the scene had probable cause to conduct a
warrantless search of the vehicle.”
The Fourth Amendment protects against unreasonable searches and seizures
by government officials. U.S. Const. amend. IV; State v. Rendon, 477 S.W.3d 805,
808 (Tex. Crim. App. 2015); Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App.
2007). To suppress evidence based on an alleged Fourth Amendment violation, the
defendant bears the initial burden of producing evidence that rebuts the
presumption of proper police conduct. Amador v. State, 221 S.W.3d 666, 672 (Tex.
Crim. App. 2007). A defendant satisfies this burden by establishing that a search or
seizure occurred without a warrant. Id. The State then has the burden to establish
that the search or seizure was conducted pursuant to a warrant or was reasonable
under the totality of the circumstances. Id. at 672-73.
An encounter takes place when an officer approaches a citizen in a public
place to ask questions, and the citizen is willing to listen and voluntarily answers.
Crain, 315 S.W.3d at 49. Consensual encounters between police and civilians
require no objective justification. See State v. Castleberry, 332 S.W.3d 460, 466
(Tex. Crim. App. 2011). A consensual interaction or encounter between a civilian
and police does not trigger Fourth Amendment protection, and the civilian is free
to terminate the encounter and to leave. Crain, 315 S.W.3d at 49. As part of an
13
officer’s community caretaking function and the duty to “serve and protect,” an
officer may stop an individual whom the officer reasonably believes is in need of
help. Corbin v. State, 85 S.W.3d 272, 276 (Tex. Crim. App. 2002).
By contrast, an investigative detention occurs when a person yields to a
police officer’s show of authority under a reasonable belief that he is not free to
leave. See Castleberry, 332 S.W.3d at 466-67. When the court determines whether
an interaction constituted an encounter or a detention, the court focuses on whether
the police officer conveyed a message that compliance with the officer’s request
was required or whether a reasonable person in the civilian’s position would have
felt free to decline the officer’s requests or otherwise terminate the encounter. Id.
Examples of circumstances that might indicate a detention has occurred, even
where the civilian did not attempt to leave, are “the threatening presence of several
officers, the display of a weapon by an officer, some physical touching of the
person of the citizen, or the use of language or tone of voice indicating that
compliance with the officer’s request might be compelled.” United States v.
Mendenhall, 446 U.S. 544, 554-55 (1980) (citing among other sources Terry v.
Ohio, 392 U.S. 1, 19 n.16 (1968)); Crain, 315 S.W.3d at 49-50.
Generally speaking, an officer is justified in briefly detaining an individual
on less than probable cause and without a warrant in order to investigate possible
14
criminal behavior where the officer can “‘point to specific and articulable facts,
which, taken together with rational inferences from those facts, reasonably warrant
[the] intrusion.’” Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000)
(quoting Terry, 392 U.S. at 21). “To support an investigatory detention, 1) the
officer’s actions must be justified at the inception of the detention, and 2) the
detention must be reasonably related in scope to the circumstances that justified the
interference in the first place.” Thomas v. State, 420 S.W.3d 195, 199 (Tex. App.—
Amarillo 2013, no pet.). When an officer has reasonable suspicion to believe that a
person is violating the law, the officer may temporarily detain the person for
investigation. State v. Sheppard, 271 S.W.3d 281, 287 (Tex. Crim. App. 2008)
(citing Terry, 392 U.S. at 21); Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim.
App. 2005). Reasonable suspicion exists when, based on the totality of the
circumstances, the officer has specific, articulable facts that, when combined with
rational inferences from those facts, would lead him to reasonably conclude that a
particular person is, has been, or soon will be engaged in criminal activity. Ford,
158 S.W.3d at 492-93. The officer must be able to articulate something more than
an “inchoate and unparticularized suspicion” or merely a “hunch.” Jaganathan v.
State, 479 S.W.3d 244, 247 (Tex. Crim. App. 2016); Foster v. State, 326 S.W.3d
609, 613 (Tex. Crim. App. 2010) (quoting Terry, 392 U.S. at 27).
15
An investigative stop can last no longer than necessary to effectuate the
purpose of the stop. Kothe v. State, 152 S.W.3d 54, 63 (Tex. Crim. App. 2004)
(citing Florida v. Royer, 460 U.S. 491, 500 (1983)); see also Rodriguez v. United
States, 135 S. Ct. 1609, 1611-12 (2015) (where the officer’s original mission is a
traffic stop, a dog sniff for criminal activity unrelated to the traffic mission requires
individualized reasonable suspicion). A temporary detention may continue for a
reasonable period of time until an officer has confirmed or dispelled his original
suspicion of criminal activity, and having a trained drug dog perform an “open air”
search by walking around a vehicle is one reasonable method of confirming or
dispelling a reasonable suspicion that a vehicle contains drugs. Matthews v. State,
431 S.W.3d 596, 603-04 (Tex. Crim. App. 2014). A positive alert by a certified
drug dog is usually enough, by itself, to give officers probable cause to search. See
id. (“If the dog alerts, the presence of drugs is confirmed, and police may make a
warrantless search.”); State v. Weaver, 349 S.W.3d 521, 527-28 (Tex. Crim. App.
2011).
In its findings of fact, the trial court expressly found Deputy Pternitis “was a
credible witness” and that “his testimony was true and accurate.” The trial court
also concluded that, once Pternitis determined that Cuttrell was driving with a
suspended license, the encounter became a detention for the purpose of
16
investigation because Pternitis then had reasonable suspicion to believe that
Cuttrell was violating the law. See Sheppard, 271 S.W.3d at 287 (an officer may
temporarily detain the person for investigation when the officer has reasonable
suspicion to believe that a person is violating the law).
Additionally, the evidence presented at the hearing established that Pternitis
could not allow the family to drive away as none of the occupants of the vehicle
had a valid driver’s license, and the Montgomery County Sheriff’s policy did not
permit the officer to take Cuttrell to jail for driving with a suspended license. The
trial court concluded that the detention was reasonable because Pternitis had not
yet concluded the initial investigation. See Matthews, 431 S.W.3d at 603 (a
temporary detention may continue for a reasonable period of time until an officer
has confirmed or dispelled his original suspicion of criminal activity).
During the detention, Pternitis observed the following: Cuttrell was unable
to explain why the family was in that part of The Woodlands if they were on their
way to Dallas; when Pternitis asked Cuttrell a question, Cuttrell’s wife answered;
whenever Pternitis attempted to look through the windows into the vehicle, the
family attempted to distract him and he thought something was in the car the
family did not want Pternitis to see; an unprotected expensive laptop and printer
were in the trunk of the car, but there was no luggage, even though the family was
17
on vacation; and Cuttrell was on probation for drug charges. The trial court
concluded that Pternitis had specific, articulable facts that, together with rational
inferences from those facts, could have led him to reasonably conclude that
Cuttrell was, had been, or soon would be engaged in criminal activity. According
to the testimony from Pternitis, based on his observations and experience, Pternitis
suspected that the family could be hiding something, specifically that narcotics
could be inside the vehicle. See Ford, 158 S.W.3d at 492-93.
The trial court found that, shortly after arriving at the scene, a trained canine
alerted to the presence of narcotics in the vehicle. The trial court also found that
the dog’s positive alert for narcotics established probable cause to search the entire
vehicle and any compartments or containers that could reasonably hold narcotics.
See Matthews, 431 S.W.3d at 604 (a positive alert by a trained drug dog confirms
the presence of drugs, after which the police may make a warrantless search of a
vehicle).
On this record, and deferring to the trial court’s findings of fact, the trial
court could have reasonably concluded that the warrantless search was reasonable
under the totality of circumstances. See Amador, 221 S.W.3d at 672-73 (Once a
defendant has proved the search was warrantless, the State has the burden to
establish that the search or seizure was reasonable under the totality of the
18
circumstances or conducted pursuant to a valid warrant.). We conclude that the
trial court’s ruling denying the motion to suppress was supported by the record and
was correct under the applicable law. The trial court did not err in denying
Cuttrell’s motion to suppress, and we overrule Cuttrell’s first issue on appeal.
ATTORNEY’S FEES
In his second issue, Cuttrell argues that after being found indigent, his status
did not change before he was sentenced. He contends that the trial court erred in
assessing $3,525 in attorney’s fees in the judgment. The State agrees.
A trial court may tax a defendant who was previously declared indigent with
attorney’s fees if there is a material change in the defendant’s ability to pay
attorney’s fees between the date the trial court initially determined the defendant to
be indigent and appointed trial counsel and the date of the final judgment. See Tex.
Code Crim. Proc. Ann. arts. 26.04(p), 26.05(g) (West Supp. 2015); see also
Roberts v. State, 327 S.W.3d 880, 884 (Tex. App.—Beaumont 2010, no pet.).
In this case, the record shows that the trial court found Cuttrell to be indigent
and appointed trial counsel before entry of the judgment. Following Cuttrell’s
sentencing, the trial court also appointed counsel to represent Cuttrell in his appeal.
The trial court made no findings regarding whether any material change occurred
in Cuttrell’s status as an indigent defendant. Furthermore, the appellate record does
19
not reflect that Cuttrell’s financial circumstances materially changed after he was
found indigent. See Tex. Code Crim. Proc. Ann. art. 26.04(p); Mayer v. State, 309
S.W.3d 552, 556 (Tex. Crim. App. 2010); Roberts, 327 S.W.3d at 884. Therefore,
we sustain issue two.
The Texas Rules of Appellate Procedure authorize this Court to render the
judgment the trial court should have rendered. See Tex. R. App. P. 43.2, 43.3.
Therefore, we modify the judgment of the trial court by deleting the award of
$3,525 in attorney’s fees. Otherwise, we affirm the trial court’s judgment as
modified.
AFFIRMED AS MODIFIED.
_________________________
LEANNE JOHNSON
Justice
Submitted on February 22, 2016
Opinion Delivered April 13, 2016
Do Not Publish
Before McKeithen, C.J., Horton and Johnson, JJ.
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