                          NUMBER 13-13-00026-CR

                          COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG

JOE ANTHONY SAENZ,                                                     Appellant,

                                        v.

THE STATE OF TEXAS,                                                     Appellee.


                   On appeal from the 36th District Court
                      of San Patricio County, Texas.


                      MEMORANDUM OPINION
          Before Justices Rodriguez, Benavides, and Longoria
              Memorandum Opinion by Justice Benavides

      Appellant Joe Anthony Saenz was convicted of evading arrest and sentenced to

180 days in the Texas Department of Criminal Justice State Jail Division.   See TEX.

PENAL CODE ANN. § 38.04 (West Supp. 2011). By one issue, Saenz argues that the trial

court abused its discretion when it denied his motion to suppress and upheld Saenz’s
arrest. We affirm.

                                              I. BACKGROUND

         On August 21, 2012, the apartment manager of Shady Oaks Apartments in

Aransas Pass, Texas called the Aransas Pass Police Department to complain about

non-residents loitering at the apartments. The manager believed these non-residents

might be involved in gang activity, drug possession, and/or prostitution.                  Officer

Stephen Phipps, a five-year certified peace officer, arrived to investigate the complaint.

Officer Phipps testified that the police department checked the Shady Oaks Apartments

“on a daily or routine[] basis” because of the prevalence of past criminal activity there.

         Officer Phipps first confronted a tall, Hispanic male with tattoos (Male One).

Before engaging in a conversation with Male One, however, Officer Phipps noticed the

following:

         I heard a conversation going on upstairs where a male had knocked on a
         door, the female had answered and asked him what he wanted and he had
         asked for a certain person and she said, “That person don’t live here, I
         don’t want you knocking on my door.”

         Officer Phipps observed that the male upstairs was another Hispanic male with

tattoos and that the woman looked scared. This man was later identified as Saenz, and

the woman was identified as Morgan Jones.                 Officer Phipps returned his attention to

Male One and noted that Male One’s tattoos looked like Texas Syndicate markings.1

He asked Male One if he was a resident and Male One responded that he was a visitor.

Jones then came out of her apartment and told Officer Phipps that Male One was her

guest.       The building manager stated that she wanted all of Jones’s guests served with a


         1
             The Texas Syndicate is a criminal gang in Texas.


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criminal trespass warning, so Officer Phipps returned to his vehicle to retrieve the

appropriate paperwork. Before he left, Officer Phipps told Jones that he wanted to

speak to the male he saw knock on her door upstairs.

       When Officer Phipps returned to the apartment complex, he proceeded to issue a

criminal trespass warning to Male One.             Jones then brought another male to Officer

Phipps’s attention (Male Two), but Officer Phipps stated that it was not the man who had

been harassing her previously.         Officer Phipps told Jones to bring him Saenz, the male

that was knocking on her door. Jones left with Male Two.

       Officer Phipps finalized his issuance of the criminal trespass warning to Male One

and then went in search of Jones. Officer Phipps found Jones and noticed that she was

now walking with Saenz.        Officer Phipps then yelled at Jones and Saenz to stop walking

because he wanted to question Saenz about whether he was a resident of the apartment

complex. The officer testified that, at that time, he had “a reasonable belief or suspicion

that [Saenz] had committed the offense of criminal trespass.”

       Jones and Saenz turned and looked at the officer.                  Officer Phipps repeated,

“Yeah, you, the one that just looked at me.” Saenz immediately left running.               Officer

Phipps began to chase him and yelled out to Saenz that he would be tased if he did not

stop running.      Saenz stopped.       The entire event was recorded on Officer Phipps’s

taser camera, a copy of which was admitted into evidence.2

       After chasing Saenz, Officer Phipps discovered that Saenz had outstanding

warrants.    He was arrested. After a bench trial, the trial court convicted Saenz of

evading arrest and sentenced him to 180 days in the Texas Department of Criminal

       2
           The DVD of this recording was not made part of the appellate record.


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Justice—State Jail Division.        See TEX. PENAL CODE ANN. § 38.04. Saenz subsequently

filed this appeal.3

                                           II. APPLICABLE LAW

        The Texas Penal Code provides that a person is guilty of evading arrest or

detention “if he intentionally flees from a person he knows is a peace officer attempting

lawfully to arrest or detain him.”        Id.    Here, the threshold question is whether Officer

Phipps was attempting to arrest or detain Saenz lawfully.

        “In the landmark decision of Terry v. Ohio, the United States Supreme Court held

that a police officer can stop and briefly detain a person for investigative purposes if the

officer has a reasonable suspicion supported by articulable facts that criminal activity

‘may be afoot,’ even if the officer lacks probable cause.”             Woods v. State, 956 S.W.2d

22, 35 (Tex. Crim. App. 1997) (citing Terry v. Ohio, 392 U.S. 1, 29 (1968)).                 “The Terry

court recognized the precarious balance between a citizen's right to privacy and law

enforcement's personal safety interests.”                Id.   “To discourage police harassment

carried out indiscriminately based on social stereotypes, race, gender or other irrelevant

personal characteristics, the Court explained that the officer must be able to point to

specific articulable facts which, taken together with rational inferences from those facts,

reasonably warrant the detention.”              Id. (citing Terry, 392 U.S. at 21).       "These facts

must amount to something more than an inchoate and unparticularized suspicion or

hunch."     Terry, 392 U.S. at 21.




        3
           We deny Appellant’s “Motion for Court to Treat State’s Failure to File Brief as a Confession of
Error,” which was carried with the case, as moot. The State filed its brief on May 16, 2013.

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                                III.    STANDARD OF REVIEW

       We review a trial court's ruling on a motion to suppress for abuse of discretion,

and we review the record of the hearing on the motion in the light most favorable to the

trial court's ruling.   Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002);

Villarreal v. State, 935 S.W.2 d 134, 138 (Tex. Crim. App. 1996).      Ruling on a motion to

suppress lies within the sound discretion of the trial court.   Villarreal, 935 S.W.2d at 138.

“When the trial court does not file findings of fact concerning its ruling on a motion to

suppress, we assume that the court made implicit findings that support its ruling,

provided those implied findings are supported by the record.” Maxwell v. State, 73

S.W.3d 278, 281 (Tex. Crim. App. 2002).

                                           IV.       ANALYSIS

       By his only issue, Saenz contends that the trial court abused its discretion when it

denied his motion to suppress and deemed Officer Phipps’s arrest of him lawful.        Saenz

contends that Officer Phipps’s running chase, threat to tase, and yell to him was

“unsupported by and without reasonable suspicion or probable cause” that Saenz was,

had been, or was about to be engaged in criminal activity. We disagree.

       The trial court heard evidence that the Aransas Pass Police Department routinely

checked on the Shady Oaks Apartments because of past criminal activity.                Officer

Phipps testified that the apartment building manager believed that Jones’s visitors,

including Saenz, Male One, and Male Two, were engaged in gang activity, drug

possession, and/or prostitution.       Officer Phipps reported that the building manager

wanted criminal trespass warrants issued to all of Jones’s visitors.              The officer

witnessed Saenz “being persistent” in searching for someone, and also noted that Jones


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seemed “scared” when he knocked on her door.         Officer Phipps also stated that some

of the visitors were sporting Texas Syndicate gang tattoos and admitted that, in his

opinion and experience as a five-year certified peace officer, “individuals who are

congregating together sporting gang tattoos” can be an “indicator of gang activity.”

Although Officer Phipps noted that he had no warrant, he explained that he wanted to

talk to Saenz because the building manager claimed he was a trespasser.

       The trial court had a similar take on the issue:

       The officer testified . . . he intended to—was there to identify the defendant
       to ensure that he was not previously been served [sic] and, if he had not
       been served, to serve him with a criminal trespass warning as stated on the
       videotape.

       We hold that the trial court did not abuse its discretion when it concluded that

Officer Phipps was able to demonstrate “specific articulable facts which, taken together

with rational inferences from those facts,” reasonably warranted Saenz’s detention and

ultimate arrest.   See Woods, 956 S.W.2d at 35 (citing Terry, 392 U.S. at 21). We

overrule Saenz’s only issue.

                                       V. CONCLUSION

       Having overruled Saenz’s sole issue, we affirm the trial court’s judgment.




                                                          __________________________
                                                          GINA M. BENAVIDES,
                                                          Justice

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

Delivered and filed the
8th day of August, 2013.


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