Page 30 - TPA Journal March - April 2018

545.058(a)(5) allows a driver to drive on an DRUG CONSPIRACY - ELEMENTS
improved shoulder to allow another vehicle trav- A jury convicted Paul Suarez for his involvement
eling faster to pass, and since it appeared that the in a drug trafficking conspiracy and for firearms
Trooper was intending to pass Cortezs vehicle on offenses. Suarez appeals contending that the con-
the left, Cortez was statutorily permitted to drive victions were not supported by sufficient evi-
on the improved shoulder during that very brief dence. (ed. note: Suarez also contested the sen-
period of time. Regarding the second offense tencing which is omitted from this report.) The
observed by the Trooper, the dash cam video evidence was sufficient to sustain each of Suarezs
shows Cortez driving steadily in the right hand convictions, and they are affirmed.
lane on the highway, turning on his right turn sig-
nal to exit the highway. By the time that there was After discovering methamphetamine in Timothy
any type of contact between Cortezs right tires Sharps truck during the course of a traffic stop,
and the white fog line, Cortez was at the end of the Cooke County Police obtained a warrant to search
exit ramp, almost to the access road, and he was the residence of Erica Gutierrez, from whom
still signaling a right turn. Because section Sharp said he purchased the drugs. When police
545.058(a)(3) allows a driver to drive on an searched Gutierrezs home, they found her and
improved shoulder to decelerate before making a Paul Suarezwho, according to Sharp, acted as
right turn, and since it was clear that Cortez was consul or overseer for Gutierrezs drug deals
intending to exit the highway and turn right, in the master bedroom. Also found in that room
Cortez was statutorily permitted to drive on the were a distributable amount of methamphetamine,
improved shoulder for that brief period of time. baggies, scales, security cameras, a .380 caliber
The trial courts findingsthat Cortezs driving Davis pistol, shotgun shells, body armor, and a .20
on the improved shoulder was authorized by gauge Winchester sawed-off shotgun that, though
Transportation Code sections 545.058(a)(3) and disassembled, had ammunition in its chamber.
(a)(5)are supported by the record. Police also found a .20 gauge Ithaca sawed-off
shotgun underneath a mattress in a second bed-
We hold that the record supports the trial courts room. During the search, officers answered a call
finding that, under the totality of the circum- to Gutierrezs cell phone from Travis Puckett,
stances, the Trooper did not have an objectively who wanted to buy methamphetamine. Puckett
reasonable basis to stop Cortezs vehicle. Because agreed to meet at a local hotel, and he was arrest-
the trial court initially suppressed the search, and ed when he arrived there to consummate the trans-
the court of appeals twice unanimously upheld action.
that decision, we conclude that, under these facts,
the officer was not objectively reasonable in his Gutierrez and Puckett were witnesses at Suarezs
belief that a violation of the law had been com- trial. Gutierrez testified that Suarez distributed
mitted by Cortez. methamphetamine and split the profits with her,
We affirm the judgment of the court of appeals. had stayed at the house the previous night, gave
her the pistol, and knew about the Winchester but
State v. Cortez, Tex. Court of Crim. Appeals, not the Ithaca. Puckett testified that Suarez was
No. PD-0228-17, Jan. 24th, 2018. often present when he bought methamphetamine
from Gutierrez and that Suarez made the sale if
Gutierrez was unavailable. Puckett also testified
that the Ithaca, which he identified by the tape on
its handle, was always in the master bedroom

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