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Herrera v. State

Court of Appeals of Texas, Seventh District, Amarillo

April 2, 2018

ANTHONY HERRERA, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE

          On Appeal from the 154th District Court Lamb County, Texas Trial Court No. DCR-5383-15; Honorable Felix Klein, Presiding

          Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

          OPINION\

          Patrick A. Pirtle, Justice.

         Appellant, Anthony Herrera, was convicted following a jury trial of the felony offense of burglary of a habitation, enhanced by a prior felony conviction.[1] He was sentenced to twenty years confinement and assessed a fine of $5, 000. In a single issue, Appellant asserts the trial court erred by denying his motion to suppress all evidence stemming from an illegal traffic stop. We modify the trial court's judgment to correct a typographical error and affirm the judgment as modified.

         Background

         In December 2015, an indictment issued alleging that, on September 22, 2015, Appellant did "intentionally or knowingly enter a habitation, without the effective consent of Kevin and Jacqueline Skinner, the owner [sic] thereof, and attempted to commit or committed theft of property, to wit: electronics, jewelry, and a purse, owned by Kevin and Jaqueline Skinner." In January 2016, Appellant filed a motion to suppress all evidence based on an illegal traffic stop. Appellant's motion was denied. He re-urged an objection at trial and it was overruled.

         The State's evidence established that on the morning of September 22, 2015, Linda Posada walked out into her front yard to check on two pit bull puppies when she noticed a vehicle parked in front of her house for an extended period of time. She identified the vehicle as a red Monte Carlo being driven by a bald Hispanic male, with multiple tattoos, wearing a white shirt. She had never seen the vehicle in her neighborhood and the driver was looking at the puppies. She became concerned because she believed it was not uncommon for pit bull puppies to be stolen. When she called to her son to take the puppies inside the house, the vehicle drove away and turned at the corner. Posada subsequently saw the vehicle drive down her street several times that day. In the afternoon, she went to the grocery store, and on her return, she observed the same vehicle exiting the alley behind her house with two persons in the vehicle.

         Being suspicious of criminal activity, she called the police department because she kept seeing the vehicle in her neighborhood and was concerned for her puppies. When she spoke to the dispatcher, she provided her name and phone number. She told the dispatcher there was a suspicious vehicle driving around her neighborhood as if the occupants were "casing" properties. More particularly, she was concerned because the vehicle was driving around her house.

         At that time, Officer Geremiah Rodriguez was on patrol duty and received the dispatch. He learned that Posada had called, identified herself, provided contact information, and was concerned about the "casing" activity of a specific vehicle. She had described the suspicious vehicle and indicated that it was occupied by two persons. The vehicle had been seen driving around the neighborhood streets and alleys throughout the day for extended periods of time. The vehicle was described as a red Monte Carlo being driven by a Hispanic male with multiple tattoos and wearing a white shirt.

         When Officer Rodriguez arrived in the area described by Posada, he saw a red Monte Carlo traveling toward him. He believed Posada's information was credible when he observed that the vehicle and the driver matched the description provided by the dispatcher. He made a U-turn, intending to temporarily detain the vehicle's occupants because he had a reasonable suspicion that a crime had been or was about to be committed, and activated his overhead lights. When the driver did not stop, he turned on his siren. The driver finally stopped and jumped from the vehicle. Thereafter, the driver, later identified as Appellant, was arrested when stolen property was discovered in his vehicle.

         In the Court's Charge on Guilt and Innocence, the trial court instructed the jury that no evidence obtained or derived by an officer from an unlawful stop and detention is admissible in evidence against the accused. The jury was further instructed that an officer is permitted to make a temporary investigative detention of a motorist if the officer has specific articulable facts, which, taken together with rational inferences from those facts, lead him to conclude that the person being detained actually was, has been, or soon would be engaged in criminal activity. The jury charge continued to instruct as follows:

Now, bearing in mind if you find from the evidence that on the occasion in question that Officer Rodriguez did not have specific articulable facts, which taken together with rational inferences from those facts, led the officer to believe that [Appellant] was, has been or soon would be engaged in criminal activity, then such stopping of the accused would be illegal and, if you find the facts so to be, or if you have a reasonable doubt thereof, you will disregard the testimony of the officer relative to his stopping the Defendant, his conclusions drawn, and any evidence obtained as a result thereof, including statements written or otherwise from the Defendant or any other person and you will not consider such evidence for any purpose whatsoever.

         Thereafter, the jury found Appellant guilty of burglary of a habitation with a prior felony conviction. The trial court sentenced Appellant to twenty years confinement and assessed a fine of $5, 000.

         On appeal, Appellant asserts that the traffic stop was illegal because Officer Rodriguez lacked a reasonable suspicion that a crime had been or soon would be committed. He contends that the information conveyed by the dispatcher to Officer Rodriguez contained no contextual factors that reasonably connected him to any unusual or criminal activity. Appellant contends that the only information known ...


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