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Warden v. State

Court of Appeals of Texas, Fourth District, San Antonio

May 17, 2017

Robert Anthony WARDEN, Appellant
The STATE of Texas, Appellee

         From the 25th Judicial District Court, Guadalupe County, Texas Trial Court No. 14-0299-CR-C Honorable William Old, Judge Presiding

          Sitting: Rebeca C. Martinez, Justice Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice


          Patricia O. Alvarez, Justice

         A Guadalupe County jury found Appellant Robert Anthony Warden guilty of felony tampering with physical evidence. It also found two enhancement paragraphs true and sentenced Warden to twenty-five years' confinement in the Institutional Division of the Texas Department of Criminal Justice. On appeal, Warden contends the trial court erred in denying his motion to suppress evidence because Warden was detained before he was patted down and the officers did not have sufficiently particularized facts to reasonably suspect Warden of committing a crime. Because we conclude the encounter between Warden and the officers was consensual, we affirm the trial court's judgment.

         Factual and Procedural Background

         The only issue on appeal pertains to the trial court's ruling on the motion to suppress; we therefore limit our recitation of the facts to that portion of the testimony.

         On January 26, 2013, Guadalupe County Sheriff's Deputy Thomas Jones was en route to a disturbance call when he saw a red passenger car and a black SUV pulling a trailer "running through a field-well, driving through a field." Both vehicles were driving "[f]rom behind a house back around into a field coming back around like they were leaving from the backside of the house." The two vehicles changed directions when they saw law enforcement, and the vehicles returned to the house. Deputy Jones noted the behavior was suspicious, especially in light of his knowledge of several recent burglaries in the area and his familiarity with the property itself. The property belonged to Kenneth Lenz, a known drug-user who was recently released from the penitentiary.

         Deputy Jones testified that he pulled behind the two vehicles. The red passenger car was approximately ten to fifteen feet in front of him and stopped at a closed gate. Appellant Robert Warden exited the vehicle, "hopped over the fence into the yard, " and proceeded to walk to Lenz's residence. Simultaneously, Sergeant John Batey also pulled onto the property behind Deputy Jones's vehicle. Sergeant Batey also testified that he thought it was "odd for vehicles to be driving through a field midday, coming out from behind the brush line." The testimony was uncontroverted that it was daylight at the time of the incident, Warden was free to move around behind the gate, and the officers did not activate their vehicles' lights or sirens, did not draw their weapons, did not direct or order Warden's movements, and did not tell Warden to stop.

         Warden's girlfriend, Natasha Zelek, was in the front passenger seat of the red vehicle. She testified that the patrol vehicle was blocking the path that she and Warden intended to use to exit the property. Both officers, however, testified there was ample room for the red vehicle to back up and leave. In fact, Deputy Jones averred that nothing was blocking the red vehicle from driving "through the same field that it drove into, that it came from."

         The officers both described Warden walking to Lenz's residence and talking to Lenz for several minutes. Both Warden and Lenz then returned to speak to the officers. Neither officer told Warden he was not free to leave or that he had to talk to the officers. Both Warden and Lenz were on the other side of the fence from the officers during their conversation with officers Jones and Batey. The officers explained that they were investigating burglaries in the area and wanted to know what "they dumped" behind the house. Lenz explained that Warden and the others had permission to be on his property and to dump "whatever" on his property. Lenz then gave the officers permission to "go back there and look."

         Deputy Jones inquired whether someone would "show me how to get back there, " and Warden volunteered. Warden walked through the gate and over to Deputy Jones's patrol vehicle. Deputy Jones explained that when an individual is placed in an officer's vehicle, a pat-down search is conducted for officer safety reasons. Deputy Jones was conducting a pat-down search of Warden when the officer felt something in the front pocket of Warden's jacket. The officer "asked [Warden] what it was. [Warden] looked, he closed it, and then he went for it." Deputy Jones testified that Warden pulled out a "syringe with an orange tip on it" and "poked the lid and shot all the liquid on the [ground]." The officer further testified that Warden was holding the syringe in a fist "as he was coming at me. That's why I drew my duty weapon." Warden was restrained and placed under arrest for tampering with evidence.

         Warden was subsequently charged by indictment with tampering with physical evidence by intentionally and knowingly altering and destroying a syringe containing methamphetamine. The State filed notice of its intent to enhance Warden's punishment with two prior felony convictions. Warden filed a motion to suppress all physical evidence and oral statements obtained pursuant to what Warden alleged was an illegal detention. During the September 3, 2014 motion to suppress hearing, Deputy Jones, Sergeant Batey, and Zelek testified, and the trial court admitted two video-recordings: one taken from a camera on Sergeant Batey's body, and the other from a camera mounted on the dashboard of Deputy Jones's vehicle. At the conclusion of the testimony, and after argument of counsel, the trial court recessed the proceedings and took the matter under advisement. On February 13, 2015, the trial court entered findings of fact and the following conclusions of law:

1. Based on the foregoing facts, and in view of all the circumstances, the Court finds that during the investigation leading to Defendant's arrest, a reasonable person in Defendant's position would have believed that he was free to leave. United States v. Mendenhall, 446 U.S. 544, 554 (1980). Therefore, during the investigation Defendant was not detained. The encounter was therefore one of a voluntary nature until the moment when Defendant was placed under arrest.
2. Alternatively, in the event that during the investigation leading to his arrest Defendant was detained, the Court finds that the investigative detention was reasonable and based on adequate reasonable suspicion. Gurrola v. State, 877 S.W.2d 300, 302 (Tex. Cr. App. 1994). In other words, the detaining officers were able to provide sufficient articulable facts or rational inferences to support the detention in this case. Davis v. State, 947 S.W.2d 240, 242 (Tex. Cr. App. 1997). Furthermore, the investigative detention in ...

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