Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
appeal from the 139th District Court of Hidalgo County,
Justices Contreras, Benavides and Longoria
L. LONGORIA Justice
Rene Rolando Perez Garza was indicted on one count of
possession of a controlled substance (cocaine) in an amount
of four grams or more but less than 200 grams, a
second-degree felony. See Tex. Health & Safety
Code Ann. § 481.115(b) (West, Westlaw through 2015
R.S.). Garza filed a motion to suppress which was initially
denied; however, after granting a motion for reconsideration,
the trial court granted the motion to suppress. On appeal,
the State argues that the trial court erred in granting the
motion to suppress. We reverse and remand.
April of 2013, Officer Herbery Castellano, an officer with
the McAllen Police Department, observed a vehicle driving 57
miles per hour on a road with a speed limit of 45 miles per
hour. Officer Castellano testified that he pulled over the
vehicle, which was driven by Garza. As he approached the
truck, he claimed that he smelled a strong odor of burnt
marijuana. He testified that he asked Garza about the
marijuana odor, to which Garza replied that the odor was from
his son smoking marijuana in the truck. Officer Castellano
asked Garza to step outside his truck.
Castellano testified that he asked Garza for permission to
conduct a pat down search for safety purposes. He also claims
that Garza consented to this pat down. During the pat down,
Officer Castellano testified that he felt several bulges and
asked Garza about the bulges. Garza removed the first bulge
and revealed that it was a lump of cash equaling $3, 000.
Officer Castellano asserted that while removing the wad of
money, Garza relocated the second bulge to his front pocket.
When Officer Castellano asked him about the second bulge,
Garza removed the item from his pocket and revealed that it
was a white rock, which Officer Castellano field tested and
identified as cocaine. Garza was arrested.
January 20, 2014, Garza filed a motion to suppress the
evidence obtained as a result of the pat down. This motion
was originally heard by Judge Jaime Garza, and he denied the
motion in April of 2016. On June 27, 2016, Garza filed a
motion for reconsideration. Judge David Sanchez granted the
motion to reconsider. On reconsideration, Judge Sanchez held
that Officer Castellano did not articulate necessary facts to
justify a pat down and that no consent was given. Judge
Sanchez granted the motion to suppress on July 11, 2016. This
Motion to Suppress
sole issue, the State argues that the trial court erred in
granting Garza's motion to suppress.
Standard of Review and Applicable Law
reviewing a trial court's ruling on a motion to suppress,
we employ a bifurcated standard, giving almost total
deference to a trial court's determination of historic
facts and mixed questions of law and fact that rely upon the
credibility of a witness, but applying a de novo standard of
review to pure questions of law and mixed questions that do
not depend on credibility determinations. State v.
Kerwick, 393 S.W.3d 270, 273 (Tex. Crim. App. 2013). The
record is reviewed in the light most favorable to the trial
court's determination, and the judgment will be reversed
only if it is arbitrary, unreasonable, or "outside the
zone of reasonable disagreement." State v.
Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006).
Ordinarily, a police officer may not conduct a seizure and
search of a suspect without probable cause that a crime has
been committed. An exception to the requirement of probable
cause allows the police to make a Terry stop and
briefly detain a person for investigative purposes if the
officer has a reasonable suspicion supported by articulable
facts that criminal activity may be afoot, even if the
officer lacks probable cause. Reasonable suspicion is a less
demanding standard than probable cause, but the officer still
must be able to articulate something better than an inchoate
suspicion or hunch.
In re A.T.H., 106 S.W.3d 338, 343 (Tex. App.-Austin
2003, no pet.) (internal citations omitted) (internal
quotations omitted); see also Terry v. Ohio, ...