                        NUMBER 13-13-00339-CR

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG

RICKY ESQUIVEL,                                                            Appellant,

                                          v.

THE STATE OF TEXAS,                                                        Appellee.


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


                        MEMORANDUM OPINION
              Before Justices Rodriguez, Garza, and Perkes
                Memorandum Opinion by Justice Perkes
      Appellant Ricky Esquivel appeals his conviction of possession of heroin with intent

to deliver, a first-degree felony. See TEX. HEALTH & SAFETY CODE ANN. § 481.112(d)

(West, Westlaw through 2013 3d C.S.). Appellant pleaded guilty pursuant to a plea

agreement, and the trial court assessed punishment at five years’ confinement in the
Texas Department of Criminal Justice. By a single issue, appellant contends the trial

court should have granted his motion to suppress. We affirm.

                                         I. BACKGROUND

        At appellant’s suppression hearing, Corpus Christi police officers Robert LaRock

and Steven Richard Day testified that they began following appellant’s vehicle after they

observed him interact with a person at a house under their surveillance. Officer LaRock

testified the house was known for drug and gang activity and that they were conducting

surveillance on it because a “certified informant” told them that someone in a “SUV-type

vehicle” planned to deliver heroin at the house that day. Both officers testified they saw

appellant arrive in a Nissan Murano, which Officer LaRock described as “a mid-size SUV.”

Officer LaRock noted that appellant parked illegally—“facing the flow of traffic.” The

officers observed someone1 exit the house and approach appellant’s vehicle. Officer

LaRock testified that the person made a “hand exchange” with appellant, and then

appellant left in his vehicle.

        The officers followed appellant’s vehicle until he made a second stop near an

apartment complex. En route, the officers observed appellant fail to properly signal a

lane change. The officers contacted a nearby marked patrol unit2 to initiate a traffic stop,

but appellant stopped at the apartment complex before the other unit arrived. When

appellant arrived at the apartment complex, Officer LaRock noted that he parked more

than eighteen inches away from the curb and facing the wrong direction.                      Appellant


          1 Officer LaRock testified he did not recall whether the person was a man or woman. Officer Day

testified the person was a female.
          2 During cross-examination, Officer LaRock testified he and Officer Day were in an unmarked

vehicle.
                                                   2
exited the vehicle, leaving it running with the door ajar, and walked quickly towards the

apartment complex, which caused both officers to believe appellant knew they were

following him.

       As appellant approached the apartment complex, Officer LaRock identified himself

as a police officer, and Officer Day frisked appellant. At the suppression hearing, Officer

Day explained that he frisked appellant because he thought appellant was a drug courier

and that he may have had a weapon. During the frisk, Officer Day felt a hard object in

appellant’s front pocket. When asked what the object was, appellant said it was a scale

and heroin. Officer Day then placed appellant under arrest. After the appellant was

placed into handcuffs, both officers peered into the Murano through the open door and

observed what they recognized from their experience to be black tar heroin packaged in

plastic baggies and sitting in plain view near the center console.

                                  II. STANDARD OF REVIEW

        In reviewing a trial court’s ruling on a motion to suppress, we view all of the

evidence in the light most favorable to the trial court’s ruling. State v. Garcia-Cantu, 253

S.W.3d 236, 241 (Tex. Crim. App. 2008). The trial court is the sole trier of fact and judge

of the credibility of the witnesses and the weight to be given their testimony. Wiede v.

State, 214 S.W.3d 17, 24–25 (Tex. Crim. App. 2008); State v. Ross, 32 S.W.3d 853, 855

(Tex. Crim. App. 2000) (en banc). “This is so because it is the trial court that observes

firsthand the demeanor and appearance of a witness, as opposed to an appellate court

which can only read an impersonal record.” Ross, 32 S.W.3d at 855; see Wiede, 214

S.W.3d at 24. We afford “almost total deference” to the trial court’s determination of


                                             3
historical facts that the record supports, “especially when the trial court’s findings are

based on an evaluation of credibility and demeanor.” Ross, 32 S.W.3d at 856 (quoting

Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997) (en banc)); see Wiede, 214

S.W.3d at 25. We grant the same amount of deference to the trial court’s rulings on

mixed questions of law and fact that turn on credibility and demeanor. Wiede, 214

S.W.3d at 25; Ross, 32 S.W.3d at 856.

       When a trial court makes no explicit fact findings, as here, we infer the necessary

fact findings that would support the ruling if the record evidence (viewed in the light most

favorable to the trial court’s ruling) supports the implied fact findings. Garcia-Cantu, 253

S.W.3d at 241; Wiede, 214 S.W.3d at 25. We review the trial court’s legal rulings de

novo unless its supported-by-the-record explicit fact findings are dispositive of the legal

ruling. State v. Kelley, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006).

                                     III. DISCUSSION

       By his sole issue, appellant argues the police officers lacked probable cause to

follow his vehicle and to thereafter arrest him. Appellant contends that the information

the officers received from an informant’s tip and gleaned from their personal observations

was insufficient to justify following him. Appellant does not dispute that he committed

multiple traffic violations. On appeal, the State justifies the search on, among other

grounds, the ground that the search was incident to arrest for the traffic violations. We

agree with the State.

       An officer may search an arrestee’s person incident to lawful arrest. See, e.g.,

State v. Gray, 158 S.W.3d 465, 469–70 (Tex. Crim. App. 2005). It is irrelevant whether


                                             4
the arrest occurs immediately before or after the search, as long as probable cause to

arrest precedes the search. See Rawlings v. Kentucky, 448 U.S. 98, 111 (1980); see

also State v. Ballard, 987 S.W.2d 889, 892 (Tex. Crim. App. 1999). An otherwise valid

search incident to arrest will be upheld, even if the initial offense is not the actual reason

for the officer’s arrest. State v. Morales, 322 S.W.3d 297, 300 (Tex. App.—Dallas 2010,

no pet.); see Williams v. State, 726 S.W.2d 99, 101 (Tex. Crim. App. 1986) (en banc)

(holding a search of a defendant’s person valid because the arresting officer possessed

probable cause to arrest defendant on a previously observed parking violation); see also

Johnson v. State, No. 13-11-00363-CR, 2013 WL 784518, at *2 (Tex. App.—Corpus

Christi Feb. 28, 2013, no pet.) (mem. op., not designated for publication).

       By the time the officers searched appellant, the officers had probable cause to

arrest him for various traffic violations he committed in their presence. See TEX. TRANSP.

CODE ANN. § 543.001 (West, Westlaw through 2013 3d C.S.); see also Williams, 726

S.W.2d at 101; Johnson, 2013 WL 784518 at *3. Although appellant argues the officers

needed probable cause to follow and observe him in the first place, that is not required

under the law; police officers may “observe circumstances and evidence that are in ‘plain

view’ to the public.” Hamilton v. State, 590 S.W.2d 503, 504 (Tex. Crim. App. [Panel

Op.] 1979) (citing United States v. Lee, 274 U.S. 559 (1927); Hester v. United States, 265

U.S. 57 (1924)); see Metoyer v. State, 860 S.W.2d 673, 678 (Tex. App.—Fort Worth 1993,

pet. ref’d) (“[N]either probable cause nor reasonable suspicion are necessary to authorize

a surveillance.”); Town of South Padre Island v. Jacobs, 736 S.W.2d 134, 139 (Tex.

App.—Corpus Christi 1986, pet. denied) (same); see also State v. Hunt, No. 12-11-


                                              5
00186-CR, 2012 WL 3986243, at *3 (Tex. App.—Tyler Sept. 12, 2012, no pet.) (mem.

op., not designated for publication) (same). Moreover, the officers did not arbitrarily

follow appellant; their interest began after they observed him arrive at a known drug and

gang house in a vehicle similar to one that a confidential informant stated would deliver

heroin to the house and after he made a “hand exchange” with someone there.

         Appellant was not under arrest when the officers searched him, but the law only

requires that probable cause to arrest precede a search incident to arrest. 3                          See

Rawlings 448 U.S. at 111; Ballard, 987 S.W.2d at 892. The officers did not arrest

appellant for the traffic violations; they arrested him for possessing heroin, which they

discovered during the search. We nevertheless uphold the search because the officers

had probable cause to arrest appellant for the traffic violations, and it is irrelevant that the

actual reason for the arrest was for appellant’s illegal possession of heroin.                         See

Williams, 726 S.W.2d at 101; Morales, 322 S.W.3d at 300.

         We conclude the search was lawful as one incident to lawful arrest. See Williams,

726 S.W.2d at 101; Morales, 322 S.W.3d at 300. Having held that the search was valid

under that theory, we need not address the State’s alternative theories supporting the

search nor appellant’s argument that the informant’s information was insufficient to create

probable cause to search appellant. See TEX. R. APP. P. 47.1. We overrule appellant’s

issue.




        3 The record reflects that the officers frisked appellant for weapons pursuant to Terry v. Ohio, 392

U.S. 1, 27 (1968). Because we hold the search was valid as incident to arrest, we need not address the
State’s Terry argument. See TEX. R. APP. P. 47.1.
                                                     6
                                       IV. CONCLUSION

       We affirm the trial court’s judgment.



                                                   GREGORY T. PERKES
                                                   Justice

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

Delivered and filed the
3rd day of July, 2014.




                                               7
