                                  NO. 07-11-00305-CR

                             IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL A

                                      MAY 15, 2012


                        RONALD COLEMAN, SR., APPELLANT

                                            v.

                          THE STATE OF TEXAS, APPELLEE


               FROM THE 242ND DISTRICT COURT OF HALE COUNTY;

             NO. B18708-1102; HONORABLE EDWARD LEE SELF, JUDGE


Before CAMPBELL and HANCOCK and PIRTLE, JJ.

                               MEMORANDUM OPINION

      Appellant, Ronald Coleman, Sr., was convicted of tampering with evidence1 and

sentenced to confinement in the Institutional Division of the Texas Department of

Criminal Justice (ID-TDCJ) for two years and fined $3,000. By one issue, appellant

contends that the trial court committed reversible error in overruling his motion to

suppress the evidence that resulted from his illegal detention. We will affirm.




      1
          See TEX. PENAL CODE ANN. § 37.09(a)(1) (West 2011).
                           Factual and Procedural Background


      On January 24, 2011, appellant approached a house located near the

intersection of 10th Street and Austin Avenue in Plainview, Texas.          Unknown to

appellant, this house was the subject of a request to watch the traffic coming and going

from the house that the detective in charge of drug enforcement for the Plainview Police

Department had relayed to all patrol officers. On this day, Sergeant Ernesto Amaya

was observing the house. Amaya testified that he watched appellant go to the front

door and then enter the house. Appellant was inside the house for approximately 30

seconds before he came out and headed away from the house. Amaya said he could

not see who opened the door for appellant nor what appellant did while inside the

house. As Amaya observed appellant walking across a vacant lot away from the house,

appellant put his right hand inside the right pocket of his “hoodie.” Amaya then walked

toward appellant.      As Amaya approached appellant, he made eye contact with

appellant. According to Amaya, after he made eye contact with appellant, appellant put

his right hand back in the pocket of his “hoodie.” On direct examination at the hearing

on the motion to suppress, Amaya testified that appellant then withdrew his hand from

the right pocket of the “hoodie” in a cup-like motion, as if he was trying to conceal

something. At this time, Amaya asked appellant if he could speak to him. Appellant

stopped and, because Amaya had seen appellant bring his hand out of the “hoodie”

pocket as if to hide something, Amaya attempted to conduct a Terry2 frisk. As Amaya

was beginning to attempt the Terry frisk, appellant placed what was in his hand into his

mouth, chewed, and swallowed what was in his hand.

      2
          See Terry v. Ohio, 392 U.S.1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
                                            2
       During cross-examination, Amaya admitted that, prior to appellant making the

motion toward his mouth with his hands, he ordered appellant to place his hands on one

of the patrol cars there in the parking area. During cross-examination, Amaya admitted

that the information he received from the narcotics detective was several days old.

Further, Amaya did not have any idea how old the information was that the narcotics

detective received from the confidential informant.


       At the conclusion of the hearing on the motion to suppress, the trial court took the

matter under advisement. Later, the trial court issued a short order denying the motion

to suppress. No findings of fact or conclusions of law were entered. Appellant was

subsequently tried and convicted of tampering with evidence and sentenced to serve

two years confinement in the ID-TDCJ and a fine of $3,000.             Appellant appeals,

contending that the trial court’s denial of the motion to suppress was an abuse of

discretion. We will affirm.


                                   Suppression Issue


       Appellant’s single issue is that the trial court committed reversible error by

denying appellant’s motion to suppress based upon a lack of reasonable suspicion on

the part of the investigating officer. However, our review of the record leads us to

conclude that we do not need to address the legality of the officer’s detention to resolve

this matter.




                                            3
                                        Analysis


      Initially, we observe that a person who is stopped or detained illegally is not

immunized from prosecution for crimes committed during any period of detention. See

Bryant v. State, 253 S.W.3d 810, 812 (Tex.App.—Amarillo 2008, pet. ref’d) (citing

United States v. Garcia-Jordan, 860 F.2d 159, 160 (5th Cir. 1988)). In Bryant, appellant

had been detained while the police were investigating a disturbance call. Id. at 811.

During his detention, Bryant was able to destroy a glass meth pipe that police had found

in his possession. Id. at 812. Bryant was subsequently charged with tampering with

evidence. Id. Bryant filed a motion to suppress contending that the evidence found was

the result of an illegal detention. This court concluded that the tampering with evidence

charge was a new crime, and the exclusionary rule found in article 38.23 of the Code of

Criminal Procedure does not require suppression of such evidence. Id. at 813.


      We are faced with the same situation. Here, appellant contends that he was

illegally detained by the police. This arose, according to appellant, because the officer

ordered appellant to place his hands on the hood of a patrol car after encountering

appellant. Appellant’s actions in placing the suspected item in his mouth, chewing, and

swallowing it occurred after appellant had been detained by the officer.        The only

actions taken by appellant that lead to the charge is the placement of the item in his

mouth, chewing it, and swallowing.     Thus the crime, tampering with evidence, was

completed after the detention. As such, the exclusionary rule and article 38.23 of the

Texas Code of Criminal Procedure do not require suppression of the officer’s testimony




                                           4
regarding the actions of appellant after the detention. Id.    Accordingly, appellant’s

single issue is overruled.


                                       Conclusion


         Having overruled appellant’s single issue, we affirm the judgment of the trial

court.




                                                      Mackey K. Hancock
                                                           Justice

Do not publish.



Pirtle, J., dissenting.




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