Opinion issued August 27, 2013.




                                       In The

                               Court of Appeals
                                      For The

                           First District of Texas
                            ————————————
                              NOS. 01-12-00624-CR
                                   01-12-00625-CR
                                   01-12-00626-CR
                            ———————————
                      DARRION J. GARDNER, Appellant
                                          V.
                       THE STATE OF TEXAS, Appellee


                  On Appeal from the 396th District Court
                           Tarrant County, Texas
         Trial Court Case Nos. 1109055W, 1109056W, and 1109058W


                          MEMORANDUM OPINION
      In 2008, a Tarrant County grand jury charged Darrion Gardner with three

felony offenses of burglary of a habitation. 1 In accordance with Gardner’s plea

1
      Pursuant to its docket equalization authority, the Texas Supreme Court transferred
      this appeal from the Fort Worth Court of Appeals to this Court. See TEX. GOV’T
agreement with the State, the trial court deferred entering findings of guilt in each

case and placed Gardner on five years’ community supervision. In February 2012,

the State petitioned to adjudicate Gardner’s guilt. The trial court adjudicated

Gardner’s guilt and sentenced him to twelve years’ confinement and payment of

restitution. Gardner challenges the evidentiary basis for the revocation and further

contends that the trial court erred in denying his motion to suppress certain

evidence. Finding no error, we affirm.

                                       Background

      The petition to adjudicate guilt enumerated several violations of the terms

and conditions of Gardner’s community supervision. Following an administrative

hearing on the petition, the trial court found that Gardner had violated two of the

conditions listed in the State’s petition by: (1) committing aggravated robbery and

(2) failing to attend a scheduled visitation with his community supervision officer.

Gardner’s community supervision was subject to the following terms and

conditions:

      • Commit no offense against the laws of this State.
      • Abstain from the illegal use of controlled substances, marijuana,
         cannabinoids, or excessive consumption of any alcoholic beverage.



      CODE ANN. § 73.001 (West 2013) (“The supreme court may order cases
      transferred from one court of appeals to another at any time that, in the opinion of
      the supreme court, there is good cause for the transfer.”).
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      • Permit the community supervision officer to visit you at your home or
         elsewhere at any time.
      • Work faithfully at suitable, full time employment, and furnish proof of
         your employment to your supervision officer.
      • Own or possess no firearms.

The trial court supplemented Gardner’s conditions of community supervision in

October 2008 to add conditions prohibiting Gardner from carrying or possessing a

firearm or other dangerous or deadly weapons. The supplemental conditions also

required Gardner to voluntarily submit to search and seizure by a peace officer

investigating an offense that involves a firearm or narcotics. Gardner signed the

supplemental conditions form, acknowledging that he received his conditions of

community supervision. In December 2011, the court imposed additional

conditions on Gardner’s community supervision, requiring him to observe a curfew

and prohibiting him from using, possessing, or consuming any alcoholic beverage.

      In its petition to adjudicate Gardner’s guilt, the State charged that Gardner

violated the terms and conditions of his community supervision by, among other

things, committing a new criminal offense, namely, aggravated robbery. At the

revocation hearing, Sandra Rodriguez testified that, as she arranged shopping carts

near the end of her shift at a Tarrant County Walgreens, Gardner entered the store.

Gardner wore a black and gray hooded jacket with the hood pulled up, a wig with

long, shiny black hair, and a black ski mask over his face. Gardner approached

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Rodriguez, and pointed a gun directly at her face. Gardner ordered Rodriguez to

take him to the safe. Rodriguez went to a door at the back of the store that opened

into a vestibule in front of the manager’s office door. Rodriguez entered the code

on the keypad to unlock it. Rodriguez tried to slip in and close the door quickly,

but Gardner managed to get his head inside before it closed. Rodriguez pulled off

Gardner’s ski mask. He quickly covered his face, ducked down, and fled. After

Gardner left the store, Rodriguez knocked on the store manager’s office door. He

responded, and Rodriguez told him that someone was trying to rob the store. He

ran out into the store, telling Rodriguez to stay in the office. Rodriguez used the

telephone to call 911. She reported the robbery and described the suspect to police.

At the revocation hearing, Rodriguez confirmed that she had reviewed the

Walgreens surveillance video. It depicted the events as she remembered them.

        The trial court also heard testimony from Detective B. Jones of the Arlington

Police Department. In January 2011, he was working as a patrol officer during the

midnight-to-7:00 A.M. shift when he received an emergency call reporting an

armed robbery in progress at the Walgreens. When Detective Jones arrived at the

address, he noticed a vehicle parked at the carwash next to the Walgreens. Its hood

was raised, and Gardner was standing in front of the car and looking inside the

hood.




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         Another police officer, Officer Vo, detained Gardner, and Detective Jones

went inside the Walgreens, viewed the surveillance video, and spoke with

Rodriguez about the incident. He returned outside to speak with Gardner. Gardner

explained that his car had broken down at a nearby intersection, but he managed to

get it to the car wash. Gardner signed a form consenting to the officers’ search of

his car. Detective Jones discovered a loaded handgun and a black curly wig in the

trunk.

         Because the suspect had been wearing the wig, his face had been covered,

and he held a gun to Rodriguez’s face, she was uncertain that Gardner was the

suspect. But she confirmed that the wig and the gun retrieved from Gardner’s car

trunk were the ones used during the robbery.

                        Revocation of Community Supervision

I.       Standard of review

         A community supervision revocation proceeding is neither criminal nor civil

in nature—rather, it is an administrative proceeding. Cobb v. State, 851 S.W.2d

871, 873 (Tex. Crim. App. 1993); Canseco v. State, 199 S.W.3d 437, 438 (Tex.

App.—Houston [1st Dist.] 2006, pet. ref’d). At a revocation hearing, the State

must prove by a preponderance of the evidence that the defendant has violated a

condition of his community supervision. Rickels v. State, 202 S.W.3d 759, 763–64

(Tex. Crim. App. 2006) (quoting Scamardo v. State, 517 S.W.2d 293, 298 (Tex.

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Crim. App. 1974)); Canseco, 199 S.W.3d at 438. Showing “a single violation is

sufficient to support a revocation.” Canseco, 199 S.W.3d at 439.

         Our review of an order adjudicating guilt and revoking community

supervision is limited to determining whether the trial court abused its discretion in

ruling that the defendant violated the terms of his community supervision; in other

words, if the greater weight of the credible evidence would create a reasonable

belief that the defendant has violated a condition of his community supervision.

Rickels, 202 S.W.3d at 763 (quoting Cardona v. State, 665 S.W.2d 492, 493 (Tex.

Crim. App. 1984)); Duncan v. State, 321 S.W.3d 53, 56–57 (Tex. App.—Houston

[1st Dist.] 2010, pet. ref’d). We examine the evidence in the light most favorable to

the trial court’s order. Duncan, 321 S.W.3d at 57; Canseco, 199 S.W.3d at 439.

“The trial court is the exclusive judge of the credibility of the witnesses and

determines if the allegations in the motion are sufficiently demonstrated.” See id.;

Galvan v. State, 846 S.W.2d 161, 162 (Tex. App.—Houston [1st Dist.] 1993, no

pet.).

II.      Evidentiary complaints

         A. Admission of statement

         Gardner contends that the trial court should have suppressed his statement to

police that he was having car trouble because he made the statement during a

custodial interrogation before he was read his Miranda rights. We evaluate a trial

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court’s ruling on a motion to suppress under a bifurcated standard of review. Ford

v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005). The trial judge is the sole

trier of fact and judge of the weight and credibility of the evidence and testimony.

Weide v. State, 214 S.W.3d 17, 24–25 (Tex. Crim. App. 2007). Accordingly, we

defer to the trial court’s determination of historical facts if the record supports

them. Ford, 158 S.W.3d at 493. We review de novo the trial court’s application of

the law to those facts. Id. “[T]he prevailing party is entitled to ‘the strongest

legitimate view of the evidence and all reasonable inferences that may be drawn

from that evidence.’” State v. Castleberry, 332 S.W.3d 460, 465 (Tex. Crim. App.

2011) (quoting State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App.

2008)). A trial court’s ruling will be sustained if it is “reasonably supported by the

record and correct on any theory of law applicable to the case.” Laney v. State, 117

S.W.3d 854, 857 (Tex. Crim. App. 2003) (citing Willover v. State, 70 S.W.3d 841,

845 (Tex. Crim. App. 2002)).

      A person’s Fifth Amendment rights do not come into play before an

investigation reaches a custodial stage. Melton v. State, 790 S.W.2d 322, 326 (Tex.

Crim. App. 1990).      Miranda’s required warnings arise when a person being

questioned by law enforcement officials has been “taken into custody or otherwise

deprived of his freedom of action in any significant way.” Miranda, 384 U.S. at

444; Herrera v. State, 241 S.W.3d 520, 525 (Tex. Crim. App. 2007). In

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determining whether an individual was in custody, we examine the circumstances

surrounding the interrogation to determine whether the law enforcement official

had formally arrested the individual, or had otherwise restrained his freedom of

movement “to the degree associated with a formal arrest.” Stansbury v. California,

511 U.S. 318, 322 (1994). We also consider the questions the officer poses,

because not all statements are products of interrogation. See Innis, 446 U.S. at 303;

Jones v. State, 795 S.W.2d 171, 174 n.3 (Tex. Crim. App. 1999). General and

routine questions do not constitute interrogation. Ruth v. State, 167 S.W.3d 560,

571 (Tex. App.—Houston [14th Dist.] 2005, pet. denied).

      Detective Jones asked Gardner what he was doing at the car wash.

Responses to this type of preliminary question by police at the scene of the crime

while police are assessing and securing the scene are not testimonial. Id. at 568–69;

see also Jones, 795 S.W.2d at 174 n.3 (“For example, routine inquiries, questions

incident to booking, broad general question such as ‘what happened’ upon arrival

at the scene of a crime, and questions mandated by public safety concerns[,] e.g.

‘where did you hide the weapon’ when the weapon has just been hidden in the

immediate vicinity.”). The trial court did not err in admitting Gardner’s

explanation for his presence at the car wash.

      Gardner complains that the State failed to offer evidence that justifies a

detention, beyond determining the reason that the car was parked at the car wash.

                                         8
But Gardner neglects to consider other contemporaneous circumstances that gave

rise to the officer’s reasonable suspicion—namely, that the officers had just arrived

at the location in response to an emergency call about an armed robbery in

progress at the Walgreen’s next door, Gardner was the only person in the area, and

Gardner’s explanation about how he pushed his stalled car, without any assistance,

from a nearby intersection into the carwash bay—the bay closest to the

Walgreen’s—did not make sense. “The propriety of the stop’s duration is judged

by assessing whether the police diligently pursued a means of investigation that

was likely to dispel or confirm their suspicions quickly.” Sims v. State, 98 S.W.3d

292, 295 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). We hold that these

circumstances authorized the officers present to prolong Gardner’s detention.

      B. Admission of evidence found in Gardner’s car

      Gardner complains that the trial court should have excluded the handgun and

wig found in the trunk of his car, because he did not validly consent to the officers’

search of his car. We disagree. As a term of his community supervision, Gardner

agreed to submit to search and seizure by any peace officer investigating any

offense involving a firearm. As a result, he waived his right to invoke his

constitutional protection against unreasonable search and seizure. Cf. Grubbs v.

State, 177 S.W.3d 313, 318–19 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d)

(by residing in college dormitory, defendant agreed to adhere to university policies,

                                          9
including the provision allowing university officials and staff to “enter rooms to

fulfill their daily duties, in cases of emergencies, or in cases of reasonable

suspicion of activity endangering the individual or the community,” and thereby

waived his right to challenge university’s inspection of his room after resident

assistant detected marijuana odor emanating from room). If Gardner had refused to

consent to the search, he would have violated a condition of his community

supervision. Whether he felt coerced into consenting to the search, therefore, does

not affect the outcome of his case. See Canseco, 199 S.W.3d at 439.

III.   Support for finding that Gardner violated the terms of his community
       supervision by committing the robbery

       Gardner challenges the evidence in support of the trial court’s findings of

true with respect to the State’s allegations of violations of his community

supervision. Relying on Moore v. State, 640 S.W.2d 300 (Tex. Crim. App. 1982),

Gardner complains that the finding that he committed the robbery is flawed,

because the circumstantial evidence adduced at trial did not exclude the possibility

that another person was involved or committed the robbery. Moore, however, is no

longer the rule in Texas. See Geesa v. State, 820 S.W.2d 154, 158 (Tex. Crim.

App. 1991), overruled on other grounds by Paulson v. State, 28 S.W.3d 570, 573

(Tex. Crim. App. 2000); see also Laster v. State, 275 S.W.3d 512, 521 (Tex. Crim.

App. 2009) (explaining that “[c]ourts and juries no longer face the difficult task of

excluding every reasonable hypothesis other than the defendant’s guilt,” and
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observing that circumstantial evidence is reviewed under the same standard as

direct evidence).

      The charge against Gardner alleges that he, “on or about the 22[nd] day of

January 2012, in the County of Tarrant and State of Texas, did then and there

intentionally or knowingly, while in the course of committing theft of property and

with intent to obtain or maintain control of said property, threaten or place Sandra

Rodriguez in fear of imminent bodily injury or death, and the defendant used or

exhibited a deadly weapon, to wit: a firearm.” This charge accurately tracks the

first-degree felony offense of aggravated robbery set forth in the Texas Penal

Code. See TEX. PENAL CODE ANN. § 29.03 (West 2011).

      The evidence before the trial court shows that Gardner held Rodriguez at

gunpoint, demanded that she open the safe, and fled the store only after she

uncovered his head, in an apparent effort to escape detection. The police found him

near the Walgreens and found the loaded gun and the wig he used to disguise

himself in the trunk of his car. Rodriguez identified the wig and the gun as having

been used in the robbery and accurately described the robber’s height and his

clothing. The trial court did not abuse its discretion in concluding that the greater

weight of the credible evidence created a reasonable belief that Gardner violated a

condition of his community supervision by committing aggravated robbery.




                                         11
IV.    Support for finding that Gardner violated the terms of his community
       supervision by failing to be present for the supervisory officer’s home visit
       Gardner further contends that the evidence that he violated the home visit

condition of his probation is ambiguous and, therefore, insufficient to support the

trial court’s finding. Officer J. Durand, who had served as Gardner’s probation

officer, testified that the field officers were required to visit the probationers at

their home at least once a month. He explained that the visits could be scheduled

or random. The probation records demonstrated that a field officer attempted to

meet with Gardner at his home on November 30, 2011, but Gardner was not

present. Gardner complains that the officer was scheduled to arrive at 4:00 P.M.,

but did not arrive until almost two hours later. Gardner did not answer the door to

permit the visit. He complains that the evidence was not clear whether the officer

had scheduled the appointment for 4:00 P.M. or whether he instructed Gardner to

be available sometime after 4:00 P.M. Because we have already determined that

the trial court reasonably could have concluded that Gardner violated the terms of

his community supervision by committing a robbery, we need not address

Gardner’s argument with respect to the home visit. See Canseco, 199 S.W.3d at

439.




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                                    Conclusion

       We hold that the trial court acted within its discretion in adjudicating

Gardner’s guilt based on the evidence presented. We therefore affirm the judgment

of the trial court.




                                                Jane Bland
                                                Justice

Panel consists of Justices Keyes, Higley, and Bland.

Do not publish. TEX. R. APP. P. 47.2(b).




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