                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-10-00471-CR


STEPHEN SMITH                                                       APPELLANT

                                         V.

THE STATE OF TEXAS                                                       STATE


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          FROM THE 367TH DISTRICT COURT OF DENTON COUNTY

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                        MEMORANDUM OPINION1
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                                I. INTRODUCTION

      Appellant Stephen Smith appeals his conviction for possession of a

controlled substance with intent to deliver. In two issues, Smith argues that the

trial court abused its discretion by denying his motion to suppress and by not

suppressing evidence obtained in violation of Miranda v. Arizona, 384 U.S. 436,

86 S. Ct. 1602 (1966). We will affirm.

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       See Tex. R. App. P. 47.4.
                    II. FACTUAL AND PROCEDURAL BACKGROUND

      The Denton County Sherriff‘s Office received information from a

confidential   informant   that   Smith       was   distributing   methamphetamine.

Investigator Bryan Wilkinson with the drug enforcement unit of the Denton

County Sherriff‘s Office began working with the informant and corroborated some

of the informant‘s information through surveillance and computer checks.

Investigator Wilkinson arranged for the informant to make a ―controlled buy‖ of

methamphetamine from Smith. Investigator Wilkinson met with the informant

around 4:00 p.m. on November 18, 2009, and after searching the informant and

his vehicle, Investigator Wilkinson gave him two one-hundred-dollar bills to

purchase approximately two grams of methamphetamine. Investigator Wilkinson

followed the informant to the apartment complex where Smith lived.             The

informant never left Investigator Wilkinson‘s presence except when the informant

went inside Smith‘s apartment to purchase the drugs.

      Narcotics Investigator Shawn Clary was conducting surveillance on

Smith‘s apartment, and he was there when Investigator Wilkinson and the

informant arrived. Investigators Clary and Wilkinson watched Smith meet with

the informant outside of Smith‘s apartment and then go inside the apartment.

Approximately ten minutes later, Smith and the informant exited the apartment,

walked to the parking lot, and talked for a few minutes before the informant got in

his car and left.




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      Investigator Wilkinson followed the informant to a prearranged location

about a mile away.          The informant gave Investigator Wilkinson the

methamphetamine he had just purchased from Smith, and Investigator Wilkinson

searched the informant and his vehicle one more time.          Investigator Clary

arrived, and the informant told both officers that he had seen $17,000 in cash

and a gun in Smith‘s apartment. Investigator Wilkinson called Lieutenant William

David Scott and told him about the controlled buy. They decided to get an arrest

and search warrant for Smith and his apartment. Investigator Wilkinson began

drafting the search warrant to take to a judge for his signature, and Investigator

Clary took the methamphetamine to the evidence room at the sheriff‘s office.

      Lieutenant Scott drove to Smith‘s apartment complex to maintain

surveillance, arriving between 5:45 and 6:00 p.m.        After Investigator Clary

delivered the drugs to the sheriff‘s office, he also drove to Smith‘s apartment

complex to maintain surveillance, arriving around 6:00 p.m. At approximately

7:00 p.m., Smith exited his apartment carrying a car stereo. Lieutenant Scott and

Investigator Clary got out of their vehicles and approached Smith in front of his

car as he was walking up to it. It was dark outside, and Lieutenant Scott drew his

taser, which has a flashlight on the end, and pointed the flashlight at Smith.

Lieutenant Scott told Smith to ―get on the ground.‖        Smith complied, and

Investigator Clary handcuffed him.    Investigator Clary asked Smith if he was

armed or had ―any weapons, any sharp objects, any needles that‘s going to poke

me.‖ Smith responded that ―what [they] were looking for was in his right front


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pocket.‖ Investigator Clary felt Smith‘s pockets and could tell something was

inside one of them. Investigator Clary asked Smith if he could reach into Smith‘s

pocket to get it, and Smith agreed. Investigator Clary pulled out an eyeglass

case that contained three baggies of methamphetamine. The officers also found

$4,600 in cash in Smith‘s wallet.

      After Smith‘s arrest, Lieutenant Scott spoke with Investigator Wilkinson,

who said that he was on his way to the judge‘s house to get the arrest and

search warrant signed.      The judge signed the warrant at 7:29 p.m., and

Investigator Wilkinson took it to Smith‘s apartment.          The officers found

paraphernalia indicative of drug distribution inside the apartment, but they did not

find any drugs, any guns, or the $17,000 in cash that the informant had said he

saw in the apartment.

      Smith entered an open plea of guilty to possession of a controlled

substance with intent to deliver and pleaded true to two enhancement

paragraphs. After a hearing, the trial court denied Smith‘s motion to suppress.

The trial court sentenced him to life imprisonment.

                             III. MOTION TO SUPPRESS

      In his first issue, Smith argues that the trial court abused its discretion by

denying his motion to suppress evidence obtained from a warrantless arrest.

The State responds that the warrantless arrest was authorized under article

14.01 of the code of criminal procedure. See Tex. Code Crim. Proc. Ann. art.

14.01 (West 2005).


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                              A. Standard of Review

      We review a trial court‘s ruling on a motion to suppress evidence for an

abuse of discretion under a bifurcated standard of review. Martinez v. State, PD-

1238-10, 2011 WL 2555712, at *2 (Tex. Crim. App. June 29, 2011); Amador v.

State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007); Guzman v. State, 955

S.W.2d 85, 89 (Tex. Crim. App. 1997). In reviewing the trial court‘s decision, we

do not engage in our own factual review. Romero v. State, 800 S.W.2d 539, 543

(Tex. Crim. App. 1990); Best v. State, 118 S.W.3d 857, 861 (Tex. App.—Fort

Worth 2003, no pet.). The trial judge 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. 2007); State v. Ross, 32 S.W.3d

853, 855 (Tex. Crim. App. 2000), modified on other grounds by State v. Cullen,

195 S.W.3d 696 (Tex. Crim. App. 2006).            Therefore, we give almost total

deference to the trial court‘s rulings on (1) questions of historical fact, even if the

trial court‘s determination of those facts was not based on an evaluation of

credibility and demeanor, and (2) application-of-law-to-fact questions that turn on

an evaluation of credibility and demeanor.          Amador, 221 S.W.3d at 673;

Montanez v. State, 195 S.W.3d 101, 108–09 (Tex. Crim. App. 2006); Johnson v.

State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002). But when application-of-

law-to-fact questions do not turn on the credibility and demeanor of the

witnesses, we review the trial court‘s rulings on those questions de novo.

Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim.


                                          5
App. 2005); Johnson, 68 S.W.3d at 652–53.             Stated another way, when

reviewing the trial court‘s ruling on a motion to suppress, we must view the

evidence in the light most favorable to the trial court‘s ruling. Wiede, 214 S.W.3d

at 24; State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006).

      When the record is silent on the reasons for the trial court‘s ruling, or when

there are no explicit fact findings and neither party timely requested findings and

conclusions from the trial court, we imply the necessary fact findings that would

support the trial court‘s ruling if the evidence, viewed in the light most favorable

to the trial court‘s ruling, supports those findings. State v. Garcia-Cantu, 253

S.W.3d 236, 241 (Tex. Crim. App. 2008); see Wiede, 214 S.W.3d at 25. We then

review the trial court‘s legal ruling de novo unless the implied fact findings

supported by the record are also dispositive of the legal ruling.        Kelly, 204

S.W.3d at 819.

                        B. Law on Warrantless Arrests

      All arrests without valid warrants are unreasonable unless shown to be

within one of the exceptions to the rule that an arrest or a search must rest upon

a valid warrant. Wilson v. State, 621 S.W.2d 799, 803–04 (Tex. Crim. App.

[Panel Op.] 1981). Texas law provides for warrantless arrests only in certain,

statutorily prescribed circumstances. Dyar v. State, 125 S.W.3d 460, 463 (Tex.

Crim. App. 2003). A police officer may arrest an individual without a warrant only

if probable cause exists with respect to the individual in question and the arrest

falls within one of the exceptions set out in the code of criminal procedure.


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Torres v. State, 182 S.W.3d 899, 901 (Tex. Crim. App. 2005); see Tex. Code

Crim. Proc. Ann. arts. 14.01–.04.

      Under article 14.01(b), ―[a] peace officer may arrest an offender without a

warrant for any offense committed in his presence or within his view.‖ Tex. Code

Crim. Proc. Ann. art. 14.01(b); State v. Steelman, 93 S.W.3d 102, 107 (Tex.

Crim. App. 2002). The test for probable cause for a warrantless arrest under

article 14.01(b) is ―‗whether at that moment the facts and circumstances within

the officer‘s knowledge and of which he had reasonably trustworthy information

were sufficient to warrant a prudent man in believing that the arrested person had

committed or was committing an offense.‘‖ Steelman, 93 S.W.3d at 107 (quoting

Beverly v. State, 792 S.W.2d 103, 105 (Tex. Crim. App. 1990)). In other words,

although the statute states that the offense must be one that is committed within

the officer‘s presence or view, an officer can make a warrantless arrest based on

an offense that was committed at an earlier time, and further, the officer does not

even have to personally see the offense committed before the warrantless arrest

is justified under article 14.01(b). Beverly, 792 S.W.2d at 105.

      An officer‘s knowledge and trustworthy information may come from facts

and circumstances obtained from lay citizens. Id.; Akins v. State, 202 S.W.3d

879, 889 (Tex. App.—Fort Worth 2006, pet. ref‘d). If an officer has reasonably

trustworthy information that, when coupled with the officer‘s personal

observations, establishes probable cause to believe that an offense is being or

has been committed, the warrant exception will apply. Akins, 202 S.W.3d at 889


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(citing Beverly, 792 S.W.2d at 104–05).              We look to the totality of the

circumstances to determine if probable cause existed based on an informant‘s

tip. See Illinois v. Gates, 462 U.S. 213, 250–54, 103 S. Ct. 2317, 2339–40

(1983); Adkins v. State, 764 S.W.2d 782, 785 (Tex. Crim. App. 1988); Akins, 202

S.W.3d at 889.

                 C. Article 14.01(b)’s Warrant Exception Applies

      Here, the evidence at the suppression hearing showed that Investigator

Wilkinson had been familiar with the confidential informant for three weeks

leading up to the controlled buy, that the investigator believed that the informant

was credible and reliable, that the informant had given information in the past

that lead to recovery of methamphetamine and persons involved in trafficking

methamphetamine, and that information the informant had provided to officers

about Smith had been corroborated by ―surveillance and computer checks finding

all information to be true and reliable.‖       The evidence also showed that the

informant completed a controlled buy of methamphetamine from Smith and that,

after the controlled buy took place and after Investigators Wilkinson and Clary

had obtained the purchased methamphetamine from the informant, Investigator

Wilkinson   relayed    to    Lieutenant   Scott     ―exactly   what    was   going   on.‖

Approximately one to two hours later, Lieutenant Scott and Investigator Clary

arrested Smith for the controlled buy when Smith left his apartment.

      Although     neither    arresting   officer   witnessed    the    controlled   buy,

Investigators Wilkinson and Clary were present outside of the apartment when


                                            8
the controlled buy took place, and they debriefed the informant about the details

of the buy immediately afterwards.        We hold that, based on the collective

information known by the officers from the confidential informant and the

corroboration of that information, the officers were justified in arresting Smith

without a warrant under article 14.01(b). See Tex. Code Crim. Proc. Ann. art.

14.01(b); Akins, 202 S.W.3d at 889 (upholding warrantless arrest based on

informant‘s tip when offense did not occur in officer‘s view); see also Woodward

v. State, 668 S.W.2d 337, 344 (Tex. Crim. App. 1982) (explaining that courts

review totality of information known by all officers who cooperated and

communicated during an investigation to determine whether probable cause

existed), cert. denied, 469 U.S. 1181 (1985). Thus, viewing the evidence in the

light most favorable to the trial court‘s ruling, we hold that the trial court did not

abuse its discretion by denying Smith‘s motion to suppress. See Wiede, 214

S.W.3d at 24; Kelly, 204 S.W.3d at 818.

                              IV. MIRANDA WARNINGS

      In his second issue, Smith argues that the trial court abused its discretion

by admitting evidence seized based on his statement that ―what [the officers]

were looking for was in his right front pocket‖ because he made that statement

after he was arrested but before he received any Miranda warnings. The State

argues that Smith failed to preserve this complaint for review.

      To preserve a complaint for our review, a party must have presented to the

trial court a timely request, objection, or motion that states the specific grounds


                                          9
for the desired ruling if they are not apparent from the context of the request,

objection, or motion. Tex. R. App. P. 33.1(a)(1); Layton v. State, 280 S.W.3d

235, 238–39 (Tex. Crim. App. 2009). Further, the trial court must have ruled on

the request, objection, or motion, either expressly or implicitly, or the complaining

party must have objected to the trial court‘s refusal to rule. Tex. R. App. P.

33.1(a)(2); Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004). A

reviewing court should not address the merits of an issue that has not been

preserved for appeal. Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim. App.

2009).

      In this case, Smith did not allege in his motion to suppress or at the

suppression hearing that his oral statement was obtained in violation of Miranda.

Smith complained only that his detention and arrest were illegal without a

warrant. Consequently, we hold that Smith did not preserve this issue for our

review. See Tex. R. App. P. 33.1(a)(1); Ranson v. State, 707 S.W.2d 96, 99

(Tex. Crim. App.) (holding that any error in admission of portions of defendant‘s

oral confession waived on appeal by failure to timely object), cert. denied, 479

U.S. 840 (1986). We overrule Smith‘s second issue.




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                                 V. CONCLUSION

      Having overruled Smith‘s two issues, we affirm the trial court‘s judgment.



                                                  SUE WALKER
                                                  JUSTICE

PANEL: GARDNER, WALKER, and MCCOY, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: October 27, 2011




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