## IN THE COURT O F CRIMINA L A PPEA LS OF TEXA S

N O
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J U A N J O S E G U E R R A , A p p e l l a n t

v . T H E S T A T E O F T E X A S

O N A P P E L L A N T ’ S P E T I T I O N F O R D I S C R E T I O N A R Y R E V I E W

F R O M T H E E L E V E N T H C O U R T O F A P P E A L S

M I D L A N D C O U N T Y

J O H N S O N , J . , d e l i v e r e d t h e o p i n i o n o f t h e C o u r t i n w h i c h K EL LE R , P . J . , W O M A C K , K E A S L E R , H E R V E Y , a n d A L C A L Á , J J . , j o i n e d . C O C H R A N , J . , c o n c u r r e d . M E Y E R S a n d P R IC E , J J . , d i s s e n t e d . O P I N I O N
A jury convicted appellant of the offe nse of unlawful use of a criminal instrument w ith the
intent to commit the offe nse of ag g rava ted kidnapping or ag g rava ted sex ual assault and assessed punishment of twenty y ea rs ’ co nfinement. The jury also found that appellant persona lly used or exhibi ted a deadly wea

pon, specific ally a firea

rm, during the commission of the offe nse. On direc t
appea l, appellant claimed that the trial court err ed when it denied his motions to suppress evidenc e that was obtained from the initial stop of his vehicle and his s u b s eq u ent detention. The court of
appea ls overr

uled that claim and ultimately aff irmed the judgme nt of the trial court. Guerra v. State ,2

396 S.W .3d 233 (Tex. App.–Eastland 2013). We g rante d appellant’ s petition for discretionar y revie w, and we now af

firm the judg ment of the c ourt of appe als.

I. Background During the evening hours of April 28, 2010, while returning from dinner, a husband, who was employ ed as a fede ral border -patrol ag ent, and his wife, who was employ ed by I mmigra tion and
Customs Enforc ement (I CE), observe d appellant driving slowly and then stopping near the fede ral
fac ility wher e th e wife worke d. There was testimony “that a fema le ag ent had rec ently been
followed afte r she had left the office .” Guerra v. State , 396 S.W .3d at 238. I n part beca use of that

rec ent event, the couple beca me suspicious of appellant. A c heer , dance , and g y mnastics building

was also in the are a, and appellant was seen “obser ving some children in the are a of” that building.
Id

. at 237. As the vehicle’ s sus p i ci o u s m ovements continued, the wife g ot out of their vehicle,
walked to the federa l fac ility , and sought the ass i s t an ce o f a federa l ag ent who was working late.
That ag ent, Stone, then g ot into his own vehicle, activate d his emer gency lights, and pursued appellant’ s vehicle afte r it left a near by parking lot. Id

. at 238. Appellant stopped his vehicle when
it rea ched the end of an alley

. Id

. Stone observe d the prong s of a stun g un sticking out of appellant’ s shirt pocket and questioned appe l l ant, who admitted to having a pocket knife and a g un on his
person. After Stone took c ustody of those we apons, he conducte d a pat-down sear ch of appellant, and appe llant then admitted that he had a second g un in his car. Id . at 238.
When Stone looked inside appellant’ s vehicle and found the second g un, he also saw a g roup of zip ties, zip ties joined to form a set of plastic handcuf fs, a jacke t w ith a holster for conce aling a
g un and with strips of duct tape stuck on it, and bung ee co rd s at tache d to cloth padding , which
appea red to be g ag s. He a lso found a plastic bag that contained persona l lubr icant, a condom, and3

a Viag ra- labeled pill bottle

. Id

. at 2 3 8 -39. Stone called for a Midland police office r beca use he suspected that a kidnapping , rape , or murder was about to be committed. Id

. He acknow ledg ed that
he was not a Texas peac e office r, he had not seen appellant commit either a felony or brea ch of the
peac e, and he did not secure a sea rch w arr ant bef

ore se arc hing a

ppellant’s vehic le. Id

. Appellant filed two pretria l motions to suppress evidenc e, the first of which was direc ted at evidenc e obtained afte r his initial detention. The trial court g rante d the first motion as to appellant’ s
statement g iven to an office r in the back of the police car and a portion of the video rec ording of appellant’ s statement given to the s ame officer at t he Mi dland P olice Department. The trial court denied that motion as to all other challeng ed evidenc e and statements taken on that day

. The second
motion to suppress was direc ted at evidenc e obtai n ed pursuant to a subsequent sear ch, with a

war rant, of appellant’ s apar

tment in Big Spring. The trial court denied t h e m o t i o n t o suppress evidenc e seized pursua

nt to that searc h war

rant. II. Court of App eals Opin ion
On direc t appea l, appellant asse rted that the trial court erre d when it denied his mot ions to
suppress evidenc e obtained from the initial stop of his vehicle and his subsequent detention. He
claimed that Stone had no basis for arre sting or temporarily detaining him. Appellant arg ued that
Stone was not a peac e office r as define d by Texas s t at u t o ry l aw , thus his authority to arr est was limit ed to “the law of this state as to felony offe nses only .” The state acknow ledg ed that Stone was not a Texas peac e off

icer

. Guerra v. State , 396 S.W .3d at 242. Appellant contende d that the rec ord did not support a finding that there was a rea sonable suspicion that he had eng ag ed in, or soon would be eng ag ing in, criminal activity that constituted a felony under the laws of this state. The stop of hi s v eh i cle was not supported by rea sonable4

suspicion involving a f

elony , and ther efor e all evide nce obta ined as a result of t hat s top should be suppressed. Appellant also challeng ed the evidenc e seized from his apar tment pursuant to a sear ch

war ran t , “t h e p robable cause for which was draw n from the events of the traff ic stop.” He
maintained that, “[b] ut for the illega l stop of his vehicle, the war rant would not have been obtained.” Construing Articles 2.122 and 14.03 toge ther, the cour t o f appea ls conclude d that Stone, 1 althoug h not a peac e office r, had the authority to arr est or temporar ily detain appellant if appellant

was found in suspicious circ umstances that rea sonably showed that he was g uilty of a felony , or
t h re at ened to commit, or was about to commit, a felony

. Id

. After considering the totality of t h e circ umstances surrounding the incident and the trial court’s extensive fac t finding s–which appellant
did not specific ally challeng e–the court of appea ls conclude d that the evidenc e constituted a sufficie nt basis for Stone to form a rea sonable belief that ap p el l an t was found in suspicious
circ umstances that showed he was threa tening or about to commit a felony offe nse. Id

. at 242-43. Thus, the court of appea ls held that Stone had the authority to arr est or temporar ily detain appellant
and over ruled a ppellant’s point of er

ror. Id . at 243. III. App ellant’s G round f or Re view
We g rante d appellant’ s sole g round for revie w, which asser ts that the court of appea ls err ed
i n upholding the trial court’s denial of appellant’ s suppression motion when it held that Articl es 2.122 and 14.03 can be construed toge ther, in direc t c ontrave ntion of the statutory lang uag e “shall

not be deeme d peac e office rs,” thus allowing Stone to stop and detain appellant. Thus, we are called
upon to revie w the court of appea ls’s decision t h at Stone, a fede ral ag ent and not a Texas peac e office r, wa s authorized to temporarily detain or a

rre st appellant.

U n l e s s o t h e r w i s e n o t e d , a l l r e f e r e n c e s t o a r t i c l e s a r e t o t h e T e x a s C o d e o f C r i m i n a l P r o c e d u r e
. 15

Appellant asser

ts Article 14.03 applies only to arr ests an d that neither Article 2.122 or Article 14.03, even construed toge ther, allow a fe dera l ag ent to stop and detain him; neither provision
authorizes a fede ral ag ent to detain a citizen, rathe r, “a fede ral ag ent only has the power to a rre st if
there is probable c ause, w hich the State conc edes w as lac king he re.” He a lso asserts that, eve n if 2 Article 2.122 pe rmits a detention, Stone did not have re asonable suspicion to detain him.
The state asser

ts that the court of appea ls corr ectly ruled that the trial court did not abuse its
discretion by deny i n g ap p el l ant’s suppression motions. I t arg ues that a specia l investiga tor, as define d under Article 2.122, shall have the power s of ar rest, sea rch, a nd seizure under state law as
to felonies and that S t o n e, a specia l ag ent for the United States I mmigra tion and Customs
Enforc ement, i.e., a specia l inve stiga tor, had authority pursuant to A rticle 2.122 to stop and detain appellant f

or an inve stiga tion and that rea sonable suspicion existed for the dete ntion. IV. Argum ent Appellant asser

ts that his detenti o n was not authorized under Article 14.03, which g ives
peac e off icer s authority

to “ar rest” citiz ens, not to “deta in” t hem. He c ontends that nothing in the lang uag e of that statute supports his temporar y detention, nor do es i t s u p p o rt an arrest based on a finding of less than probable cause
. He contends that there is no finding or arg ument that probable

cause exis ted for Stone to arr est him. Appellant points out tha t, a t the suppression hear ing, Stone 3
admitted that appellant had not committed a felony in h i s p re s en ce and that Stone is not a peac e office r as define d by Texas law–Ar ticle 2.122 specific ally excludes United States I mmigra tions and
Customs Enforc ement Offic ers from that cate g ory –and that the lang uag e of the statute is c lear and

W e n o t e t h a t t h e i s s u e h e r e i s r e a s o n a b l e s u s p i c i o n t o d e t a i n , n o t p r o b a b l e c a u s e t o a r r e s t

. 2

W e n o t e t h a t S t o n e o n l y d e t a i n e d a p p e l l a n t ; h e c a l l e d a M i d l a n d p o l i c e o f f i c e r t o a r r e s t h i m
. 36

unambig uo u s
. T h u s , courts should apply the plain meaning of its words. Appellant asser ts that
Article 2.122 did not authorize the temporar y detention of appellant by Stone, and that even if it did,
Stone lacked r easona

ble suspicion to stop and detain him. Appellant asse rts that he wa s harmed by the trial court’s denial of his suppression motions
beca use t he evidence that was obtained constitutes fruit of the poi sonous tree , t h e u s e o f which is
forbidden. He notes that the doctrine of fruit of the poisonous tree serve s to exclude both direc t and
indirect products of Four

th Amendment violations. He rea sons that, “[b] ut for the illega l stop of his vehicle, the war

rant would not have been obtained.” Appellant’s brief at 12-13. He c ontends that
there is no evidenc e aga inst him except for that derive d from the imprope r stop of his vehicle a nd
the resulting sear ch under war rant, and there fore it cannot be deter mined bey ond a rea sonable doubt
that the trial court’s ruling on h i s s u p p ression motions did not contribute to his conviction or punishment.
The state rec og nizes that Article 2

. 1 2 ’s d efinit ion of “pea ce office rs” does not include
criminal investiga tors employ ed by the United States. I t also acknowl ed ges that such criminal investiga tors include specia l ag ents of the United States I mmigra tion and Customs Enforc ement and that they are not de emed peac e office rs, “but shall have the power s of arr est, sear ch and se izure as

to felony offe nses only under the laws of the State of Texas.” T E X
. C O D E C R I M
. P R O C ., art. 2.122(a) (3) ( West 2010). The state a lso notes,
Acc ording l y , the Special I nvestig ators have the duties, power s and limit ations of peac e office rs. I t stands to rea son that a Special I nvestig ator shall not have unfetter ed authority of arr est, sear ch and seizure with reg ard to a felony offe nse. But will have to play by the s am e rul es and opera te with the same authority as a peac e office r acc ording to State law.
State’s brief

at 19-20.7

The state arg ues that a stop or detention is a lesser intrusion than an arr est, and that the state need not demonstrate that probable cause to arr est ex i s ted at the inception of a detention. I t also

n o tes that circ umstances short of probable cause for arr est may justify temporar y dete n t i o n fo r
purposes of investiga tion. The state also asser ts that, acc ording to state law, a criminal investiga tor
opera tes with the same authority as a peac e office r in reg ard to a felony and has the power s acc orded

to a Texas peac e office r to arr est without war rant as set forth in Article 14.03(a) , which includes the rig ht to arr est persons found in suspicious place s and under circ umstances which rea sonably show
that such persons have been g uilty of some felony , brea ch of th e p ea ce, disorderly conduct and
intox ication offe nses, or threa ten, or are about, to commit some offe nse ag ainst the laws. I t contends that, as construed toge ther, Articles 2.122 and 14.03 provide the authority to arr est or t empora rily
detain appellant if he was found in suspicious circ umstances that rea sonably showed he was g uilty
of some felony or threa tened, or was about, to commit some felony

. The fac ts known to Stone prior to the stop and detention justified such stop and de tention. V. Analysis Appellant’s sole g round for revie w challeng es the court of appea l s ’s d ec ision construing
Articles 2.122 and 14.03 toge ther and its conclusion that Stone “would have had the authority under
these provi s i ons to arr est or temporar ily detain [appellant] if he wer e found in suspicious
circ umstances that rea sonably showed that he was g uilty of some felony or t h re at en ed to or was about to commit some felony .” Guerra , 396 S.W .3d at 242.
At the time of appellant’ s April 2010 detention by Stone, t h e re l evant portions of Article
2.122 rea d: Special investig ators8

(a) The following named criminal investiga tors of the United States shall n ot be deeme d peac e off

icer s, but shall have the powe rs of a rre st, searc h and seizure as to felony offe nses only

under the laws of the State of Texas:
* * * (3) Spec ial Ag ents of the United States I mmigra tion and Customs Enforc ement[.]
T E X
. C O D E C R I M
. P R O C ., art. 2.122(a )(3) (West 2010).
I n the context of interrog ations, in Mosley v

. State , 983 S.W .2d 249, 257 (Tex. Crim. App. 1998), we discussed the lang uag e of A rticle 2.122 a nd made a

deter mination of its li mitations:
Whil e the statute contains the word “only ” afte r the phrase “shall have the power s of arr est, sear ch and seizure as to felony offe nses,” the word “only ” clea rly modifies “fe lony offe nses,” indicating that fede ral off i ce rs do not have the power s of arrest, sear ch, and se izure for misdemea nors. Thus, the d es i gnated fede ral office rs, even though not deeme d peac e office rs, have the power s of

arr est, sear ch, and seizure as to f elony , as opposed to misdemeanor, offe nses. We hold tha t Stone,

as such a fede ral office r, was not deeme d a peac e office r, but did “have the power s of arr est, sear ch
and seizure” as to felony

offe nses “unde r the law s of the State of Te x as.”
Article 14.03 authorizes peac e office rs to make arr ests wit h o u t wa rrant. But as acknow ledg ed by the state, Stone was not a Texas peac e office r, thus the provisions of Article 14.03
do not apply to his actions, and he was constraine d only by the provisions of Article 2.122. Fur ther, 4
Stone did not arr est appellant, he mere ly detained him, which he is authorized to do under Article
2.122.
Article I , Section 9, of the Texas Constit ution, al o n g wi t h t he Four th Amendment to the

W e a l s o o b s e r v e t h a t t h e E v a d i n g A r r e s t o r D e t e n t i o n s t a t u t e , T e x
. P e n a l C o d e § 3 8

. 0 4 ( a ) , p r o v i d e s , i n 4 t h e c i r c u m s t a n c e s p r e s e n t e d i n t h i s c a s e , t h a t a p e r s o n c o m m i t s a C l a s s A m i s d e m e a n o r o f f e n s e i f h e i n t e n t i o n a l l y f l e e s f r o m a p e r s o n h e k n o w s t o b e “ a p e a c e o f f i c e r o r f e d e r a l s p e c i a l i n v e s t i g a t o r ” a t t e m p t i n g t o l a w f u l l y a r r e s t o r d e t a i n h i m
.9

United S tates C onstitut ion, protec ts indivi d u als from unreasonable sear ches and seizures. State v. Betts , 397 S.W .3d 198, 203 (Tex. Crim. App. 2013). Article 1.06 of the Code of Criminal Procedur e provides that the people shall be secur e from al l u nrea sonable seizures or sear ches. Thus, under Texas law, sea

rche s and seizures must be re asonable

. Appellant asser

ts that Stone lacke d rea sonable suspicion to stop and detain him. “A law
enfor ceme nt office r’s rea sonable suspicion that a person may be invo lv e d in c r im in a l activity permits
the office r to stop the person for a brief time and take additional steps to investiga te further .” State

v. Kerwick , 393 S.W .3d 270, 273 (Tex. Crim. App. 2013), quoting Hiibel v. Sixth Judicial District
Court , 542 U.S. 177, 185 (2004). “An office r must have rea sonable suspicion that some crime was, or i s about t o be, commit ted before he may make a traff ic s top.” State v. Duran , 396 S.W .3d 563,
568 (Tex. Crim. App. 2013), citing Derichsweiler v. State , 348 S.W .3d 906, 914 (Tex. Crim. App. 2011). Thus a traff

ic stop based upon a rea sonable suspicion that some crime was, or is about to be,
committed does not violate Texas law.
Reasonable suspi cion that a felony offe nse under Texas law was, or was about to be,
committed would authorize Stone to conduct a traff ic stop of appellant. “The detaining office r need

not persona lly be awa

re of ever y fac t that objectively supports a rea sonable suspicion to detain; the
cumulative information known to the cooper ating office rs at the time of the stop is to be considere d
in making the rea sonable-suspicion deter mination.” Arguellez v. State , 409 S.W .3d 657, 663 (Tex. Crim. App. 2013), citing Derichsweiler v . State , 348 S.W .3d at 914.
The rec ord and the trial court’s finding s of fac t confirm t h at s u ch a rea sonable suspicion

ex isted at the time Stone stopped appellant and reve al that, at the time of the stop, the follo wi n g information was know n to Stone.10

During the evening hours, appellant was slowly driving a light-c olored Toy ota Camry , in an are a with closed businesses, and appellant, the sole occupa nt of that vehicle, was looking at children who wer e outside in the ar ea; Appellan t s u b s eq uently parke d his vehicle in a parking lot next to the I mmigra tion and Customs Enforc ement parking lot, fac ing and illumi nating the are a wher e the hus b an d an d wife office rs wer e; A fe male employ ee a

t that I CE fac ility

had bee n followed home;
The ve hicle wa s reg istered to a ma n in Big Spring;
I CE w a s in

v e s ti g a ti n g a d r u g - tr a fficking org anization that was distributing nar c o ti c s to p e o p le in Big Spring, and one of the individuals involved in a transfe r of narc otics was observe d in a lightcolore d Toy ota Camry ; S t one, as an I CE employ ee, had rec eived copies of notices addre ssed to local law enfor ceme nt that advised of the pote ntial dang er of g ang activity ;
I CE had rec eived an aler

t from a border -intellige nce cente r rec ommending that all suspicious individuals/vehicles near g overnme nt fac iliti es be repor ted and war

ning of an uncorr oborate d threa t of re taliation ag ain law- enfor ceme nt office rs. Reasonable suspicion is dete rm i n ed by considering the totality of the circ umstances. Delafuente v. State , 414 S.W .3d 173, 177 (Tex. Crim. App. 2013). Considering the totality of the
circ umstances includes consideration of specific, articulable facts and rea sonable inferenc es fr om those fac ts. Id

. at 178. We conclude t h at fa ct s known to Stone provided a rea sonable suspicion
sufficie nt to justify his initial stop and temporar y detention of appellant. I t is not nece ssary that the 5

T h e t w o c a s e s c i t e d b y a p p e l l a n t , C o m e r v
. S t a t e , 7 5 4 S

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. 2 d 6 5 6 ( T e x
. C r i m
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. 1 9 8 6 ) a n d T u n n e l l v
. 5 S t a t e , 5 5 4 S

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. 2 d 6 9 7 ( T e x
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. 1 9 7 7 ) , i n w h i c h w e h e l d t h a t t h e r e w a s a n i n s u f f i c i e n t b a s i s f

o r a n i n v e s t i g a t o r y s t o p i n e a c h c a s e , a r e n o t d e t e r m i n a t i v e b e c a u s e t h e i r s p e c i f i c f a c t s m a k e t h e m d i s t i n g u i s h a b l e f r o m t h i s c a s e
. R e a s o n a b l e s u s p i c i o n i s d e t e r m i n e d b a s e d u p o n t h e s p e c i f i c f a c t s o f e a c h s p e c i f

i c c a s e , a n d t h e a c t i v i t i e s o b s e r v e d b y o f

f i c e r s i n t h o s e c a s e s d i f

f e r e d f r o m t h e f

a c t s o f t h i s c a s e
. I n C o m e r , o f

f i c e r s o b s e r v e d t w o m e n s i t t i n g i n a v e h i c l e i n a r e s t a u r a n t ’ s p a r k i n g l o t w i t h t h e d o m e l i g h t o n a n d e n g a g i n g i n s o m e a c t i v i t y c o n c e n t r a t e d o n t h e s e a t b e t w e e n t h e m , b u t u p o n t h e o f f i c e r s e n t e r i n g t h e p a r k i n g l o t , t h e v e h i c l e b e g a n t o p u l l a w a y
. W e h e l d t h a t t h e o f f i c e r s h a d i n s u f

f i c i e n t r e a s o n a b l e s u s p i c i o n t o j u s t i f y t h e s u b s e q u e n t i n v e s t i g a t o r y s t o p o f t h e v e h i c l e w h i c h w a s n o t j u s t i f i e d b y t h e f

a c t s t h e r e i n
. C o m e r , 7 5 4 S

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. 2 d a t 6 5 7

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. A n d i n T

u n n e l l , a n o f

f i c e r s a w t h r e e m e n i n a v e h i c l e p a r k e d i n a h o s p i t a l p a r k i n g l o t i n t h e e a r l y m o r n i n g h o u r s , b u t w h o d r o v e a w a y a s t h e o f f i c e r d r o v e i n t o t h e p a r k i n g l o t

. B a s e d u p o n t h e s u r r o u n d i n g f a c t s , w e h e l d t h e i n v e s t i g a t i v e d e t e n t i o n w a s u n r e a s o n a b l e a n d i n v i o l a t i o n o f t h e l a w
. T u n n e l l , 5 5 4 S

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. 2 d a t 6 9 8

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.11

rea sonable suspicion rela te to a specific criminal offe nse. De r ichsweiler , 348 S.W .3d at 916-17.
Fa cts known to Stone raised a potential for drug activity or criminal acts ag ainst ch i l d re n o r l aw enfor ceme nt–felony offe nses under Texas law–thus Stone, as a specia l investiga tor, had the power s of ar rest, sea rch, a nd seizure as to such f

elony offe nses. VI. Conclusion
We conclude that, based upon Article 2.122’s statutory investment of desig nated fede ral investiga tors with the power of arr est, sear ch, and seizure in reg ard to felonies, Stone was authorized

t o s top and temporar ily detain appellant. Ba sed on our revie w of the evidenc e, Stone’s stop an d
detention of appellant was lawful, and the court of appea ls proper ly aff irmed the trial court’s denial
of appellant’ s suppression m o t ions. Acc ording ly , we overr ule appellant’ s g round for revie w and
aff irm the judg ment of the c ourt of appe als.

Deliver ed: J une 18, 2014 Publis h