                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-09-186-CR


ORONDAE LAVON MALONE                                             APPELLANT

                                        V.

THE STATE OF TEXAS                                                     STATE

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            FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY

                                    ------------

                         MEMORANDUM OPINION 1

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      Appellant Orondae Lavon Malone was indicted on three counts of

aggravated robbery. However, a jury convicted Appellant of the lesser included

offense of robbery for all three counts and assessed his punishment at twenty

years’ confinement for each count. The trial court sentenced him accordingly,

with the sentences to run concurrently. In one issue, Appellant contends that




      1
          … See Tex. R. App. P. 47.4.
the trial court erred by denying his motions to suppress. Because we hold that

the trial court did not err, we affirm the trial court’s judgment.

Background Facts

      On March 15, 2006, Kyun Hansboro, whose last name was then Randle,

Michael Hansboro, and Kyun’s son were asleep when the front door of their

house was kicked down and someone yelled, “Police. Police.” Three men then

entered the bedroom where Kyun, Michael, and the baby were sleeping, turned

on the light, and demanded money. Kyun testified that she saw two guns.

Kyun stated that the men took some of Michael’s shoes during the robbery.

Based on information provided by Michael and Kyun, the police suspected

Appellant as one of the robbers.

      On March 17, 2006, Greg Burt, who was an investigator with the Wichita

Falls Police Department at the time of Appellant’s arrest, testified that he went

to the local Wal-Mart after hearing a dispatch call about a disturbance in which

Appellant was involved.     Investigator Burt was involved in the March 15

robbery investigation. He stated that it took him “[j]ust a few minutes” to get

to the Wal-Mart. Investigator Burt stated that when he arrived at the Wal-Mart,

Sergeant Leland Wright and other patrol officers were already present.

Investigator Burt said that Appellant was detained when he arrived at the Wal-

Mart. He testified that while the officers were “sorting out the events of the

                                        2
disturbance,” Officer LeeAnn Haldane called Sergeant Wright and told him that

a warrant had been signed for Appellant’s arrest for the March 15 robbery.

Investigator Burt stated that he received notice of the arrest warrant after

Appellant was detained. He further stated that Michael, one of the robbery

complainants, told officers at the Wal-Mart that Appellant was wearing

Michael’s shoes, and thus, Appellant was in possession of stolen property.

      Officer Haldane testified that on March 17, 2006, she was in a judge’s

office getting a warrant signed for Appellant’s arrest for the March 15 robbery

when she received a phone call from Sergeant Wright. Sergeant Wright told her

that Appellant was involved in a disturbance at the Wal-Mart. Officer Haldane

stated that she had already handed the judge the arrest warrant when she

received the phone call. She stated that she told Sergeant Wright that the

judge was reading the warrant and that she would notify him when it had been

signed.   After the judge signed the arrest warrant, Officer Haldane called

Sergeant Wright and told him that the arrest warrant had been signed. Officer

Haldane testified that approximately a minute or two minutes elapsed between

the time that she received Sergeant Wright’s phone call and when she told

Sergeant Wright that the arrest warrant had been signed.

      Officer Haldane further testified that she believed that the responding

officers were justified in detaining Appellant and the other individuals involved

                                       3
in the disturbance. She stated that it would take “quite some time” for the

officers to sort out all of the information from the various reporting people to

determine what had actually happened. She stated that it would be “common

and necessary to detain as many people out there as [the officers] could to

determine what actually happened at [the] Wal-Mart.”

      Appellant filed three separate motions to suppress: (1) a motion to

suppress the evidence, (2) a motion to suppress the identification, and (3) a

motion to suppress Appellant’s statements. The trial court denied all three.

Standard of Review

      We review a trial court’s ruling on a motion to suppress evidence under

a bifurcated standard of review.2 In reviewing the trial court’s decision, we do

not engage in our own factual review.3 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.4   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


      2
     … 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).
      3
       … 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.).
      4
      … 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).

                                         4
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.5 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.6

      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.7 When the trial court makes explicit fact findings, we determine

whether the evidence, when viewed in the light most favorable to the trial

court’s ruling, supports those fact findings.8 We then review the trial court’s

legal ruling de novo unless its explicit fact findings that are supported by the

record are also dispositive of the legal ruling.9



      5
       … 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).
      6
       … Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607
(Tex. Crim. App. 2005); Johnson, 68 S.W.3d at 652–53.


      7
      … Wiede, 214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808, 818 (Tex.
Crim. App. 2006).
      8
          … Kelly, 204 S.W.3d at 818–19.
      9
          … Id. at 818.

                                        5
      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.10 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.11

      We must uphold the trial court’s ruling if it is supported by the record and

correct under any theory of law applicable to the case even if the trial court

gave the wrong reason for its ruling.12

Fourth Amendment Searches and Seizures

      In his sole issue, Appellant contends that the trial court erred by denying

his motions to suppress because when the officers determined that he was not

involved in any criminal activity at the Wal-Mart, he should have been released.




      10
       … State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App.
2008); see Wiede, 214 S.W.3d at 25.
      11
           … Kelly, 204 S.W.3d at 819.
      12
        … State v. Stevens, 235 S.W.3d 736, 740 (Tex. Crim. App. 2007);
Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003), cert.
denied, 541 U.S. 974 (2004).

                                          6
Instead, Appellant argues, the officers detained him until an arrest warrant

could be obtained.

      The Fourth Amendment protects against unreasonable searches and

seizures by government officials.13 To suppress evidence because of an alleged

Fourth Amendment violation, the defendant bears the initial burden of producing

evidence that rebuts the presumption of proper police conduct.14 A defendant

satisfies this burden by establishing that a search or seizure occurred without

a warrant.15 Once the defendant has made this showing, the burden of proof

shifts to the State, which is then required to establish that the search or seizure

was conducted pursuant to a warrant or was reasonable.16

Appellant’s Detention Not Based on Arrest Warrant

      The State argues that the trial court did not err by denying the motion to

suppress because Investigator Burt knew that there were valid warrants for

Appellant’s arrest at the time of Appellant’s detention. During the trial and

outside the presence of the jury, Investigator Burt stated that there was at least


      13
           … U.S. Const. amend. IV; Wiede, 214 S.W.3d at 24.
      14
       … Amador, 221 S.W.3d at 672; see Young v. State, 283 S.W.3d 854,
872 (Tex. Crim. App. 2009).
      15
           … Amador, 221 S.W.3d at 672.
      16
       … Id. at 672–73; Torres v. State, 182 S.W.3d 899, 902 (Tex. Crim.
App. 2005); Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005).

                                        7
one warrant pending for Appellant’s arrest. The State, citing Rachal v. State, 17

argues that Investigator Burt’s statement can be considered when determining

whether the trial court properly denied Appellant’s motion to suppress.

      In Rachal, the Texas Court of Criminal Appeals held that if the State

raised an issue previously litigated in a suppression hearing at trial, either

without objection or with subsequent participation in the inquiry by the defense,

the defendant is deemed to have elected to re-open the evidence, and the

reviewing court may consider the relevant trial testimony in its review.18

      Here, after the State questioned Investigator Burt about other arrest

warrants for Appellant, the following exchange took place,

      [DEFENSE COUNSEL]: Judge, I thought the evidence was closed
      on the Motion to Suppress. It’s been ruled on and heard. It was
      denied. It’s my recollection. I don’t know if you want to try to
      reopen the evidence.

      [PROSECUTOR]: Your Honor, there was just some further
      questioning a while ago with him . . . about the warrant and when
      it was issued and that . . . brought this back up. And again, I . . .
      knew it wasn’t proper to do it at the time because of the Jury
      being present.




      17
       … 917 S.W.2d 799, 809 (Tex. Crim. App.), cert. denied, 519 U.S.
1043 (1996).
      18
           … Id.

                                       8
      THE COURT: Well, the Court made the ruling prior to hearing this
      other testimony, so . . . I’m not changing the Ruling. I mean
      what—

      [DEFENSE COUNSEL]: Well, I understand, Your Honor, and you
      know, if they’d like to offer—to reopen the suppression, I mean, I
      think it’s untimely at this point and if they would like to offer some
      warrants that he had, I mean, we met our burden of proof in the
      suppression hearing by showing that there wasn’t a warrant that
      he knew of and if they know of a warrant, they should have
      brought it up at that time, but that time’s come and gone.

      After reviewing the record, we do not agree with the State that the

suppression hearing was “clearly reopened.”        Immediately after the State

questioned Investigator Burt about his awareness of an arrest warrant,

Appellant objected to the questioning and stated that the motion to suppress

evidence had been closed. Additionally, the trial court stated that it had denied

the motion to suppress prior to hearing the new testimony. Because Appellant

objected to the testimony and did not question Investigator Burt about his

statement, we hold that the suppression hearing was not reopened.

      Because there was no evidence at the suppression hearing that the

officers were aware of an outstanding arrest warrant at the time that Appellant

was detained at the Wal-Mart, we hold that Appellant’s detention was not

based on an arrest warrant.     We must now determine whether there was




                                        9
evidence at the suppression hearing to show that Appellant’s seizure was

reasonable.19

Appellant’s Detention Was Based on Reasonable Suspicion

      A detention, as opposed to an arrest, may be justified on less than

probable cause if a person is reasonably suspected of criminal activity based on

specific, articulable facts.20 An officer conducts a lawful temporary detention

when he or she has reasonable suspicion to believe that an individual is

violating the law.21 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.22 This is an objective standard that disregards any

subjective intent of the officer making the stop and looks solely to whether an

objective basis for the stop exists.23



      19
           … Amador, 221 S.W.3d at 672–73.
      20
      … Terry v. Ohio, 392 U.S. 1, 22, 88 S. Ct. 1868, 1880 (1968);
Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000).
      21
           … Ford, 158 S.W.3d at 492.
      22
           … Id. at 492.
      23
           … Id.

                                         10
      Because the trial court did not file findings of fact and conclusions of law,

we must determine whether the evidence, viewed in the light most favorable

to the trial court’s decision to deny the motions to suppress, supports implied

findings supporting that decision.24        In other words, we must determine

whether Investigator Burt and Officer Haldane testified to specific, articulable

facts justifying Appellant’s detention.25

      Investigator Burt testified that he received a dispatch call that Appellant

was at the Wal-Mart with Michael, one of the complainants in the March 15

robbery. Investigator Burt stated that Appellant was detained while the officers

attempted to sort out the events of the disturbance. Additionally, he said that

“when people are involved in a disturbance and there’s not many people to go

around, it’s kind of standard procedure. You separate people, you detain them

until you find out what was going on and any charges that were arising out of

the current situation or not.” Investigator Burt further stated that while the

officers were sorting out the events of the disturbance, Sergeant Wright

received a phone call that a warrant had been signed for Appellant’s arrest in

the robbery case.



      24
           … See Kelly, 204 S.W.3d at 819.
      25
           … See id.

                                       11
      Additionally, Officer Haldane testified that it would take the officers

“quite some time” to sort out the events of the disturbance because of the

number of people that reported the disturbance. She further stated that the

disturbance was first reported as an incident involving a “subject with a knife,”

but it was later upgraded to a disturbance involving a person with a gun and

that the parties involved in the disturbance were “chasing each other through

[the] Wal-Mart.”

      It is apparent from the record that Appellant’s detention was justified

because the officers were trying to determine what happened at the Wal-Mart.

According to both Investigator Burt and Officer Haldane, several people

reported the incident, and the police had to follow up on the reports.

Additionally, there were reports of a knife or gun being involved.

      Appellant further complains that the length of his detention was

unreasonable and that he was only being detained so that an arrest warrant

could be signed. Appellant argues that he should have been released after the

officers determined that he was not involved in any criminal activity. To begin

with, we note that neither Investigator Burt nor Officer Haldane testified that

Appellant was detained after it was determined that he was not involved in

criminal activity at the Wal-Mart.    Additionally, both Investigator Burt and

Officer Haldane testified that Officer Haldane was already at the judge’s office

                                       12
getting the arrest warrant signed when she received the phone call that

Appellant was involved in a disturbance at the Wal-Mart. Officer Haldane

stated that it took approximately a minute to two minutes from the time that

she received the phone call advising her that Appellant was involved in a

disturbance to the time that she called Sergeant Wright and told him that the

warrant had been signed.

     Finally, during Appellant’s cross-examination, Investigator Burt stated that

the police officers on the scene were still sorting out the events of the

disturbance when they received the phone call that the warrant had been

signed.   Thus, Appellant elicited the testimony that the officers were still

investigating the Wal-Mart incident when the robbery arrest warrant was

signed.

     Consequently, we hold that the trial court did not err by denying

Appellant’s motion to suppress because the officers were in the process of

investigating the Wal-Mart disturbance when Sergeant Wright received the

phone call that an arrest warrant had been signed for the March 15 robbery.

Additionally, there is nothing in the record to support Appellant’s contention

that he was detained longer than necessary for the purpose of obtaining an

arrest warrant. Although the responding officer did not testify as to when

Appellant’s detention began, such evidence was unnecessary because

                                      13
Investigator Burt testified that the officers were still sorting out the events of

the disturbance when they were notified that the robbery arrest warrant had

been signed.

Appellant’s Arrest Also Lawful Under the Plain View Exception

      Alternatively, Appellant could have been lawfully arrested when the

officers realized that he was wearing stolen property. Article 14.01(b) of the

Texas Code of Criminal Procedure provides that “[a] peace officer may arrest

an offender without a warrant for any offense committed in his presence or

within his view. 2 6   The test for probable cause for a warrantless arrest 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.” 27 Investigator Burt testified that

while the officers were investigating the disturbance at the Wal-Mart, Michael

stated that Appellant was wearing Michael’s shoes that had been stolen during

the March 15 robbery. A person commits the offense of theft by possession



      26
       … Tex. Code Crim. Proc. Ann. art. 14.01(b) (Vernon 2005); see also
Miles v. State, 241 S.W.3d 28, 39–40 (Tex. Crim. App. 2007); State v.
Steelman, 93 S.W.3d 102, 107 (Tex. Crim. App. 2002).
      27
       … Steelman, 93 S.W.3d at 107 (quoting Beverly v. State, 792 S.W.2d
103, 105 (Tex. Crim. App. 1990)).

                                       14
of stolen property when the person “unlawfully appropriates property with

intent to deprive the owner of the property . . . [and] without the owner’s

effective consent.” 28 Accordingly, the officers had probable cause to arrest

Appellant for theft after Michael identified the shoes that Appellant was

wearing were stolen in the robbery and the officers saw the shoes.29

      We hold that the trial court did not err by denying Appellant’s motion to

suppress because the officers’ detention of Appellant was reasonable and

justified.    The officers received reports of a weapon being involved in a

disturbance, and during their investigation, they were notified that a warrant

had been signed for Appellant’s arrest in connection to the March 15 robbery.

Alternatively, when it was brought to the attention of the officers that

Appellant was wearing stolen property, the officers could have properly arrested

Appellant without a warrant. Thus, we overrule Appellant’s sole issue.




      28
           … Tex. Penal Code Ann. § 31.03(a), (b) (Vernon 2008).
      29
           … See id.

                                       15
Conclusion

     Having overruled Appellant’s sole issue, we affirm the trial court’s

judgment.




                                            LEE ANN DAUPHINOT
                                            JUSTICE

PANEL: DAUPHINOT, MCCOY, and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: August 31, 2010




                                  16
