                         NUMBER 13-10-00626-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI—EDINBURG

____________________________________________________

LORA GARCIA
A/K/A LORA ANN GARCIA,                                                   Appellant,

                                          v.

THE STATE OF TEXAS,                                                      Appellee.


                   On appeal from the 214th District Court
                         of Nueces County, Texas
____________________________________________________

                         MEMORANDUM OPINION

                Before Justices Rodriguez, Vela, and Perkes
                 Memorandum Opinion by Justice Perkes

      Appellant, Lora Garcia, a/k/a Lora Ann Garcia, appeals her conviction for

possession of a controlled substance, methamphetamine, a state-jail felony.        TEX.

HEALTH & SAFETY CODE ANN. § 481.115(a), (b) (West 2010). In an open plea hearing,

the trial court accepted appellant’s confession and sentenced her to a term of two years
of confinement in the Texas Department of Criminal Justice, State Jail Division. By four

issues, appellant argues the trial court erred by:                (1) failing to require the State to

sustain its burden of proving “beyond a reasonable doubt” that appellant’s detention

was based upon reasonable suspicion; (2) failing to require the State to sustain its

burden of proving “beyond a reasonable doubt” that the location of the arrest was a high

crime area; (3) belatedly allowing the State to admit a police officer’s narrative instead

of requiring live testimony; and (4) compelling appellant to withdraw her present appeal

pursuant to a plea bargain in a subsequent criminal proceeding.1 We affirm.

                                             I. BACKGROUND

       Appellant filed a motion to suppress, arguing the detention, stop, arrest, search,

and seizure of evidence of methamphetamine was effected without a warrant, probable

cause, or reasonable suspicion. The police officers involved did not appear at the

suppression hearing. Rather, by agreement, the State presented and argued facts from

a police officer’s narrative. The narrative states that four police officers were dispatched

to George’s Restaurant with respect to a nighttime fight involving a knife. Upon their

arrival, the officers approached a person sitting in the passenger side of a car parked

behind the restaurant to inquire if she had been involved in or witnessed a fight.

Appellant came around the corner of the restaurant, heading for the driver’s side of the

vehicle. Upon seeing the officers, appellant looked down at her right hand, turned

around, and ran.

       While chasing appellant, the officer yelled more than once, “Stop! Police!”

Appellant ignored the officer’s orders to stop, clutched an item in her hand, and

continued to run, looking over her shoulder to see if the officer was following her. When


       1
           For convenience, we will address appellant’s issues in this order.
                                                      2
the officer ultimately caught up with appellant, she threw something to the ground,

causing it to shatter into several pieces. After arresting appellant for evading arrest, the

officer recovered the pieces of the broken item. He identified the item to be a glass

methamphetamine pipe, containing a white residue.

        Appellant’s vehicle was impounded at the scene because (1) no licensed driver

was available to drive the car; (2) appellant did not have proof of insurance; and

(3) prior acts of vehicle vandalism and theft had occurred in the area in the recent past.

Appellant stated that the two purses in the vehicle belonged to her. An inspection of the

purses revealed a plastic baggie containing “a quantity of whitish clear crystalline

substance,” which was “consistent with crystal methamphetamine or ‘Ice.’” Appellant

was charged with possession of a controlled substance and tampering with evidence.

        At the end of the suppression hearing, the trial court stated: “I’m going to

suppress the tampering with the fabricated [sic] evidence, but I do find that there is

sufficient on the possession.” Later that day, appellant pleaded guilty to possession of a

controlled substance. At a subsequent hearing on the State’s motion to amend, the

police officer’s narrative was admitted into evidence, without objection.

                                             II. ANALYSIS

A. Motion to Suppress

        In her second issue, appellant argues the trial court erred by not requiring the

State to sustain its burden of proving beyond a reasonable doubt2 that appellant’s

detention was based on reasonable suspicion. In her third issue, appellant argues the

        2
           In a motion to suppress setting, the propriety of an arrest or detention need not be proven
beyond a reasonable doubt. The State's standard of proof in establishing reasonable suspicion is the one
that applies to most constitutional suppression issues: preponderance of the evidence. York v. State, 342
S.W.3d 528, 543 (Tex. Crim. App. 2011) (citing Griffin v. State, 765 S.W.2d 422, 429–30 (Tex. Crim.
App.1989) (applying preponderance of the evidence standard of proof)).

                                                   3
trial court erred by not requiring the State to sustain its burden of proving beyond a

reasonable doubt that the location of the arrest was a high crime area.

       1. Preservation of Error

       As a preliminary matter, we address the State’s assertion that appellant did not

preserve her suppression issues for appellate review because she did not obtain a clear

ruling on her motion to suppress. Texas Rule of Appellate Procedure 33.1(a)(2)(A)

provides the trial court’s ruling may be made expressly or implicitly. See TEX. R. APP. P.

33.1(a)(2)(A); see Gutierrez v. State, 36 S.W.3d 509, 510–11 (Tex. Crim. App. 2001)

(remanding case to court of appeals to consider whether trial court’s ruling was made

implicitly); Flores v. State, 129 S.W.3d 169, 172 (Tex. App.—Corpus Christi 2004, no

pet) (holding trial court implicitly overruled motion to suppress when it revoked

community supervision).

       The record does not include a written order on appellant’s motion to suppress.

However, appellant’s motion to suppress asserts:

       the detention and arrest of Defendant and the evidence of
       methamphetamine was effected without warrant or probable cause or
       reasonable suspicion in violation of the Fourth and Fourteenth
       Amendments of the United States Constitution, and of Article I, section 9
       of the Texas Constitution, and Article 38.23 and Chapter 14 of the Texas
       Code of Criminal Procedure.

The trial court’s verbal ruling, in the context of the hearing, reflects the trial court’s denial

of appellant’s motion to suppress.         See TEX. R. APP. P. 33.1(a)(2)(A); see also

Gutierrez, 36 S.W.3d at 510–11; Flores, 129 S.W.3d at 172. In addition, the trial court

confirmed that a ruling was made on appellant’s motion to suppress, just prior to

accepting appellant’s guilty plea. We conclude appellant did not waive the right to

challenge her detention on appeal.


                                               4
       2. Standard of Review

       In reviewing a trial court's ruling on a motion to suppress, an appellate court must

apply a standard of abuse of discretion and overturn the trial court's ruling only if it is

outside the zone of reasonable disagreement. Martinez v. State, 348 S.W.3d 919, 922

(Tex. Crim. App. 2011); State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006).

The appropriate standard for reviewing a trial court's ruling on a motion to suppress is a

bifurcated standard of review, giving almost total deference to the trial court's

determination of historical facts and reviewing de novo the trial court's application of the

law. See Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002); Maestas v.

State, 987 S.W.2d 59, 62–63 (Tex. Crim. App. 1999).

       The trial court is the sole trier of fact and judge of the weight and credibility of the

evidence. See State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999). When,

as here, the trial court does not make explicit findings of fact, we view the evidence in

the light most favorable to the trial court's ruling and assume the trial court made implicit

findings of fact that support its ruling, so long as those findings are supported by the

record. See State v. Ross, 32 S.W.3d 853, 855–56 (Tex. Crim. App. 2000) (en banc).

If the decision is correct under any theory of law, the ruling will be sustained. See

Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Hernandez v. State, 190

S.W.3d 856, 861 (Tex. App.—Corpus Christi 2006, no pet.).

       3. Detention Was Based on Reasonable Suspicion

       A temporary detention is justified when the detaining officer has specific

articulable facts which, taken together with rational inferences from those facts, lead the

officer to conclude the person detained is, has been, or soon will be engaged in criminal

activity. See U.S. CONST. amend IV; TEX. CONST. art. I, § 9; see also Terry v. Ohio, 392

                                              5
U.S. 1, 21–22 (1968); Brother v. State, 166 S.W.3d 255, 257 (Tex. Crim. App. 2005).

These facts must amount to more than a mere hunch or suspicion.             Brother, 166

S.W.3d at 257; Davis v. State, 947 S.W.2d 240, 244 (Tex. Crim. App. 1997). The

reasonableness of a given detention will turn on the totality of the circumstances in that

particular case.   Woods v. State, 956 S.W.2d 33, 37–38 (Tex. Crim. App. 1997);

Gonzales v. State, 648 S.W.2d 684, 687 (Tex. Crim. App. 1983).

      "A person has not been seized until he or she has yielded to a law enforcement

officer's show of authority or when officers physically limit his movement." California v.

Hodari D., 499 U.S. 621, 625–26 (1991) (concluding that a police officer’s pursuit of

defendant on suspicion of narcotics transaction was a “show of authority” enjoining

defendant to halt; defendant was not “seized” until officer physically tackled him since

defendant did not comply with show of authority; cocaine abandoned by defendant while

he was running was not fruit of seizure and was not subject to exclusion); see also

Johnson v. State, 912 S.W.2d 227, 239 (Tex. Crim. App. 1995) (same); Prodhomme v.

State, 839 S.W.2d 494, 496–97 (Tex. App.—Corpus Christi 1992, no pet.) (same).

      A refusal to comply with a lawful order, knowing the order came from a police

officer, constitutes the offense of evading detention. TEX. PENAL CODE ANN. § 38.04(a)

(West 2010); Green v. State, 892 S.W.2d 217, 218 (Tex. App.—Texarkana 1995, pet.

ref'd). Evidence of a headlong flight after noticing the police is a pertinent factor in

determining reasonable suspicion.     See Illinois v. Wardlow, 528 U.S. 119, 124–25

(2000) (explaining that headlong flight, wherever it occurs, is the consummate act of

evasion; it is not necessarily indicative of wrongdoing, but it is certainly suggestive of

wrongdoing); see also Massey v. State, No. 13-06-435-CR, 2007 WL 1934758, at *6 fn.



                                            6
33 (Tex. App.—Corpus Christi July 5, 2007, no pet.) (mem. op., not designated for

publication).

       The officers were at the restaurant that night to investigate an alleged knife fight.

Appellant immediately ran when she saw the police officers near her car.             Before

running, she looked at something in her hand, furtively clutched it, and made a

headlong flight from the police. Appellant ignored the officer’s repeated orders to stop.

While fleeing, appellant took a grassy path instead of the easier paved path. Just

before the officer caught up with her, appellant threw something to the ground, which

was described as a glass methamphetamine pipe containing a white residue. It broke

into several pieces. The officer was aware that the restaurant’s owners had a history of

selling and using methamphetamines. The officer provided specific articulable facts

which led the officer to conclude appellant was engaged in criminal activity. See Terry,

392 U.S. at 21–22; Brother; 166 S.W.3d at 257.               Under the totality of these

circumstances, we hold that the trial court did not abuse its discretion in denying

appellant’s motion to suppress.

       Appellant also argues within her first issue that the State did not address

appellant’s claims that the evidence should be suppressed under Chapter 14 and Article

38.23 of the Texas Code of Criminal Procedure that was contained in her motion to

suppress. See TEX. CODE CRIM. PROC. art. 38.23. Appellant has made no specific

arguments and has not cited any authority to support these arguments for the

suppression of evidence under these provisions.          We conclude this sub-issue is

inadequately briefed and is waived. See TEX. R. APP. P. 38.1(i); see also Garza v.

State, 290 S.W.3d 489, 491 (Tex. App.—Corpus Christi 2009, pet. ref’d). We overrule

appellant’s second issue.

                                             7
       4. High Crime Area

       In her third issue, the appellant argues that the trial court erred by not requiring

the State to sustain its burden of proving beyond a reasonable doubt that the location of

the arrest was a “high crime area.” It does not appear that the State’s “high crime area”

allegation and evidence was relied upon by the trial court on the record before us.

Rather, the trial court challenged the State’s assertion that the location was a high crime

area and stated it could “take judicial knowledge of the fact that . . . it is not a high crime

rate area.” The trial court agreed with appellant. However, the fact that the stop did or

did not occur in a “high crime area” is merely one among many relevant contextual

considerations that can be considered in a Terry analysis. Terry, 392 U.S. at 21–22;

Wardlow, 528 U.S. at 124–25 (explaining that an officer identified additional articulable

facts which gave rise to a reasonable suspicion that the defendant had or was about to

be engaged in criminal activity); Brother, 166 S.W.3d at 257 (explaining that articulable

facts can be acquired from another person). In short, that issue alone, when considered

in the context of appellant’s other complaints about the trial court’s ruling, does not give

rise to a reversal of the trial court’s judgment. We overrule appellant’s third issue.

B. Subsequently Admitted Report

       In her fourth issue, appellant argues the trial court erred by allowing the State to

belatedly admit the police officer’s narrative instead of requiring the State to provide live

testimony at the suppression hearing.

       After the suppression hearing, the State filed a motion to amend the trial court’s

record to include the police officer’s narrative, which had not been introduced into

evidence during the suppression hearing. In the motion, the State asserted the police

officer was unavailable to testify and that the parties agreed the narrative could be used

                                              8
as stipulated evidence for the hearing. During the hearing on the State’s motion to

amend, appellant’s counsel confirmed that appellant agreed the narrative could be used

as stipulated testimony. Based upon that representation, the trial court admitted the

police officer’s narrative and signed an order amending the suppression record hearing

to include the narrative.

       To preserve error for appellate review, the complaining party must make a timely,

specific objection, and obtain an adverse ruling from the trial court. See TEX. R. APP. P.

33.1; Armstrong v. State, 718 S.W.2d 686, 699 (Tex. Crim. App. 1985); DeRusse v.

State, 579 S.W.2d 224, 235 (Tex. Crim. App. 1979). Appellant did not object to the trial

court’s consideration of the police officer’s narrative at the suppression hearing or at the

subsequent hearing on the State’s motion to amend and, therefore failed to preserve

this issue for review. We overrule appellant’s fourth issue.

C. Withdrawal of Appeal

       By her first issue, appellant argues the trial court erred by compelling her to

withdraw her present appeal pursuant to a plea bargain in a subsequent unrelated

criminal proceeding.

       We first note the present appeal is moving forward, such that no harm can be

presented. Further, our review of the record is limited to the evidence before the trial

court at the time it ruled. See Whitehead v. State, 130 S.W.3d 866, 872 (Tex. Crim.

App. 2004). We cannot review contentions that depend upon factual assertions that are

outside of the trial court’s record. Franklin v. State, 693 S.W.2d 420, 431 (Tex. Crim.

App.1985) (concluding that mere assertions in a brief not supported by evidence in the

record will not be considered on appeal); Davila v. State, 651 S.W.2d 797, 799 (Tex.



                                             9
Crim. App. 1983) (determining that assertions in appellate brief unsupported by

evidence cannot be accepted as fact).

      Appellant attached an uncertified copy of a docket sheet from an unrelated

criminal court proceeding. The docket sheet was not made a part of the record in the

present appeal, and the record is wholly silent regarding appellant’s contention.

Further, appellant has made blanket factual assertions in her brief without evidence in

the record to support it. In the absence of evidence in support of appellant's claim, we

cannot sustain her issue. See Janecka v. State, 937 S.W.2d 456, 476 (Tex. Crim. App.

1996). We overrule appellant’s first issue.

                                     III. CONCLUSION

      We affirm the judgment of the trial court.



                                                   ______________________________
                                                   Gregory T. Perkes
                                                   Justice


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

Delivered and filed the
15th day of March, 2012.




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