                                   NO. 07-06-0434-CR

                             IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                       PANEL D

                                     JULY 28, 2008

                          ______________________________


                             GABRIEL PEREZ, APPELLANT

                                           V.

                          THE STATE OF TEXAS, APPELLEE


                        _________________________________

              FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;

              NO. 2005-408,866; HONORABLE JIM BOB DARNELL, JUDGE

                          _______________________________


Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


                               MEMORANDUM OPINION


      Appellant, Gabriel Perez, pled guilty in open court to the felony offense of

possession of a controlled substance (cocaine) with intent to deliver,1 enhanced, and was



      1
          Tex. Health and Safety Code Ann., § 481.112(a) (Vernon 2003).
sentenced to sixty years confinement. He contends by two issues that the trial court erred

when it denied his motion to suppress all physical evidence and all statements made as

a result of an illegal search and arrest. We affirm.


                                       Background


       A Lubbock County Grand Jury returned an indictment charging Appellant with

possession of a controlled substance (to-wit: cocaine) with intent to deliver. Appellant

subsequently filed a motion to suppress all physical evidence and all his statements. At

the hearing, DPS Troopers Katrina Jones and Corina Gainey testified that on August 12,

2004, they were traveling east on the U.S. 87 frontage road at County Road 7200 when

they stopped a car because its registration had expired. As Jones approached the driver,

Gainey approached the passenger. Appellant was the passenger. Neither the driver nor

the passenger could produce a driver’s license and both appeared to be nervous. A

license check revealed that the driver had outstanding warrants. It was also determined

that the car belonged to a third party. The troopers arrested the driver, read him his

Miranda rights, and placed him in the front seat of the patrol car.


       At the troopers’ request, Appellant voluntarily stepped out of the car. Jones asked

Appellant if he had any weapons or narcotics in the car and he answered, “No.” When the

troopers frisked Appellant as a safety precaution, they noticed he had a white powdery

substance on his black pants. As he stood by the roadside, they searched the car incident

to the driver’s arrest. In the car, they discovered scales covered with a white residue in the

                                              2
glove compartment on the passenger side. They also noticed a similar white powdery

substance on the floorboard on the passenger side while the driver’s side floorboard was

clean. They believed the white substance was cocaine.


       Gainey asked Appellant to remove his shoes and he refused.             She advised

Appellant he was under arrest for possession of drug paraphernalia, handcuffed him, and

placed him in the backseat of the patrol car behind the driver. Appellant was read his

Miranda rights and he indicated that he understood those rights. The troopers then

resumed their search of the car.


       After completing their search, Jones returned to the patrol car and sat in the back

seat with Appellant. She noticed Appellant was very nervous and had removed a shoe.

After they arrived at the county jail, Gainey searched the patrol car and found six

individually-wrapped rocks of cocaine underneath the front passenger seat. The cocaine

rocks were in plastic baggies and appeared to have been kicked underneath the front seat

from the rear seat where Appellant had sat while being transported to the county jail.

Jones placed Appellant under arrest for possession of a controlled substance. She then

advised Appellant that, if he carried any controlled substance into the jail, the possession

charge would be bumped up to a higher charge because they had entered a controlled

facility with a controlled substance. Appellant responded that he had an additional rock of

cocaine in his sock. The troopers secured the additional narcotics and booked Appellant.

The rocks located under the front seat and the rock found in Appellant’s sock, which were


                                             3
similar to the white powdery substance found on the scales in the glove compartment and

floorboard on the passenger side of the vehicle, tested positive for cocaine.


       At the end of the hearing, without making a definitive ruling on the record, the trial

court expressed doubt as to whether its ruling would be any different from a ruling issued

in another criminal case involving the driver of the vehicle.2 Our review of the remaining

record reveals no additional indication that the trial court ever ruled on Appellant’s motion.

Furthermore, the record does not reflect the trial court’s ruling in the other criminal case,

nor whether the issues presented in either hearing were similar.


                                          Discussion


       Appellant contends his initial arrest for possession of drug paraphernalia lacked

probable cause because the car’s driver claimed ownership of the scales. Moreover, he

asserts the troopers did not have reasonably trustworthy information warranting a

reasonable person to believe Appellant had committed or was committing a crime when

he was arrested for possession of drug paraphernalia. As a result, Appellant contends all

physical evidence and his statements following the alleged illegal arrest should be

suppressed.


       2
        In his brief, Appellant cites only the following statement by the trial court in support
of his contention that a ruling was made on his motion to suppress:

       “Since this is set for trial on Monday, if you-all want to present anything to the
       Court on Monday morning at 8:30, you may do so. I doubt the Court’s ruling
       is going to be any different than it was in Mr. Erevia’s case, but –. “

                                               4
       Initially, Appellant failed to preserve his objections related to his arrest and

subsequent search for appeal because the record does not reflect an adverse ruling by the

trial court on his motion to suppress. Rule 33.1(a) of the Texas Rules of Appellate

Procedure requires, among other things, that the record show the trial court “ruled on the

request, objection, or motion, either expressly or implicitly . . . .” Tex. R. App. P.

33.1(a)(2)(A). See Gutierrez v. State, 36 S.W.3d 509, 511 (Tex.Crim.App. 2001). Further,

the trial court’s “Certification of Defendant’s Right of Appeal” states “a defendant may

appeal only . . . those matters that were raised by written motions filed and ruled on before

trial . . . .” Emphasis added.


       Here, the trial court neither explicitly nor implicitly ruled on Appellant’s motion to

suppress. “While the fact that the trial judge ultimately found [appellant] guilty is a factor

to be considered in determining whether the trial court ruled adversely on his motion to

suppress, it is not dispositive.” Montanez v. State, 195 S.W.3d 101, 105 (Tex.Crim.App.

2006) (a defendant can abandon a motion to suppress before entering a guilty plea).

Moreover, to constitute a ruling, the trial court’s explicit or implicit statements must do more

than just indicate that the trial court is leaning one way or the other. See Sauceda v. State,

129 S.W.3d 116, 124 n.6 (Tex.Crim.App. 2004). Here, we have no more than an indication

that the court is leaning toward issuing a ruling similar to a ruling in another criminal case.3



       3
         As previously stated, the record does not reflect the trial court’s ruling in the other
criminal case, nor can we determine whether the issues presented in each hearing was
similar.

                                               5
Accordingly, nothing before this Court was preserved below for review because the record

does not sufficiently show that Appellant’s motion to suppress was denied.


       That said, however, the trial court’s judgment would be affirmed even if error was

preserved. The initial traffic stop and subsequent frisk of Appellant’s person were proper.

It is generally accepted that law enforcement officers may lawfully stop and detain a

motorist who commits a traffic violation, Garcia v. State, 827 S.W.2d 937, 944

(Tex.Crim.App. 1992), and, once an officer has validly detained an individual, he or she

may conduct a limited protective search for weapons if he has a reasonable fear for his

safety. Morrison v. State, 132 S.W.3d 37, 45 (Tex.App.–Houston [14th Dist.] 2004, pet.

ref’d) (citing Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). The

uncontroverted testimony at the hearing was that the car was stopped for lack of

registration and Appellant was frisked for safety reasons.


       In addition, the troopers conducted a valid search of the car incident to the driver’s

arrest. See State v. Gray, 158 S.W.3d 465, 469-70 (Tex.Crim.App. 2005); Wiede v. State,

157 S.W.3d 87, 96-7 (Tex.App.–Austin 2005, pet. ref’d). The vehicle search incident to

arrest can include a search of the passenger compartment of the vehicle. New York v.

Belton, 453 U.S. 454, 460, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981); Welch v. State, 93

S.W.3d 50, 59 (Tex.Crim.App. 2002) (Womack, J., concurring). Furthermore, a vehicle

search can include the vehicle’s glove compartment. Satterwhite v. State, 726 S.W.2d 81,

86-7 (Tex.Crim.App. 1986), rev’d on other grounds, 486 U.S. 249, 250-51, 108 S.Ct. 1792,


                                             6
100 L.Ed.2d 284 (1988). See also Williams v. State, 726 S.W.2d 99, 100 (Tex.Crim.App.

1986); Moreno v. State, 124 S.W.3d 339, 350 (Tex.App.–Corpus Christi 2003, no pet.).

Thus, pursuant to a valid vehicle search incident to the driver’s arrest, the troopers

observed the white powdery substance on the floorboard on the passenger side of the

vehicle and discovered the scales covered with a white residue in the unlocked glove

compartment.


       Appellant’s demeanor, discovery of the residue-covered scales, the white powdery

substance on the passenger floorboard, and the fact that Appellant’s pants were covered

with a similar substance believed by the troopers to be cocaine supplied probable cause4

for the troopers to arrest Appellant for possession of the drug paraphernalia.5 The troopers

were not required to know that the scales were contraband; their reasonable belief that it

was contraband was sufficient. Texas v. Brown, 460 U.S. 730, 742-43, 103 S.Ct. 1535,

75 L.Ed.2d 502 (1983). Just because the driver may have also been implicated in

possession of the scales is not controlling for purposes of determining whether probable



       4
        “Probable cause deals with probabilities.” Guzman v. State, 955 S.W.2d 85, 87
(Tex.Crim.App. 1997). While it requires more than mere suspicion, it may be established
by far less evidence than that necessary to support a conviction or even a finding by a
preponderance of evidence. Id.
       5
        A person commits the offense of possession of drug paraphernalia if the person
knowingly uses or possesses with intent to use drug paraphernalia to process, pack, ingest
or inhale a controlled substance into the human body. Tex. Health & Safety Code Ann. §
481.125(a) (Vernon 2003). Scales may be classified as “drug paraphernalia.” See
Hargrove v. State, 211 S.W.3d 379, 386 (Tex.App.–San Antonio 2006, pet. ref’d), cert.
denied, ___ U.S. ___, 128 S.Ct. 134, 169 L.Ed.2d 93 (2007).

                                             7
cause existed for Appellant’s arrest.     See Gomez v. State, 365 S.W.2d 165, 166

(Tex.Crim.App. 1963) (citing Hargiss v. State, 172 Tex.Crim. 531, 360 S.W.2d 881, 882

(1962)).   Accordingly, Appellant’s arrest for possession of drug paraphernalia was

supported by probable cause and was, therefore, legal.


       Finally, Appellant’s subsequent statement at the county jail in response to the

Trooper Jones’s warning that, if any additional contraband was found inside the controlled

facility the penalty would be enhanced, came shortly after Appellant had received his

Miranda warnings and was voluntary.        See Jones v. State, 119 S.W.3d 766, 773

(Tex.Crim.App. 2003); Ex parte Bagley, 509 S.W.2d 332, 338 (Tex.Crim.App. 1974).

When the accused is advised of his rights, indicates he understands his rights, and

thereafter elects to talk with an arresting officer, the accused waives his Fifth Amendment

rights. Id. (citing United States v. Gaytan, 74 F.3d 545, 555 (5th Cir. 1996), cert. denied,

519 U.S. 821, 117 S.Ct. 77, 136 L.Ed.2d 36 (1996)). Having received his Miranda rights

at the time of his arrest, Appellant waived those rights when he elected to respond to the

trooper’s statement after being transported to the county jail. See Jones v. Fountain, 121

F.Supp. 571, 581 (E.D. Tex. 2000). Accordingly, we overrule both issues.




                                             8
                                      Conclusion


      The trial court’s judgment is affirmed.



                                                Patrick A. Pirtle
                                                     Justice
Do not publish.




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