Howard v. State

Full title: KENNETH SHANE HOWARD, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fourteenth District, Houston

Date published: Mar 10, 2005

No. 14-04-00052-CR (Tex. App. Mar. 10, 2005)

Opinion

No. 14-04-00052-CR

Memorandum Opinion Filed March 10, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).

On Appeal from the 230th District Court, Harris County, Texas, Trial Court Cause No. 963,209. Affirmed.

Panel consists of Chief Justice HEDGES and Justices FOWLER and SEYMORE.

MEMORANDUM OPINION

WANDA McKEE FOWLER, Justice.

Appellant was sentenced to twenty-five years in the Texas Department of Criminal Justice, Institutional Division, for the felony offense of possession of cocaine with intent to deliver.¹ On appeal, appellant contends the trial court erred in denying his motion to suppress, and that the evidence was legally and factually insufficient to convict him. We affirm.

Factual and Procedural Background

In the early morning hours of September 29, 2003, Houston Police Officer Brandon Dorris saw a group of men standing together outside a nightclub. As Officer Dorris drove into the parking lot, another man warned the group of the officer's arrival by shouting, "The police are coming! The police are coming!" When the men heard this warning, they quickly left, and Officer Dorris saw three of the men get into a nearby car. Officer Dorris parked his car behind the men's car so that he could question them. Appellant was sitting in the front passenger seat, and, when Officer Dorris approached the car, appellant put his hand in his left pocket. After refusing Officer Dorris's request to take his hand out of his pocket, appellant got out of the car. Officer Dorris again asked appellant to take his hand out of his left pocket and get back into the car. Instead, appellant kept his hand in his left pocket and began to run away. As he was running, appellant's pants fell down, causing him to trip and fall. When appellant fell, money came out of his pants pocket. With the assistance of appellant's pants, Officer Dorris was able to arrest the appellant. Officer Dorris then searched appellant and discovered cocaine and $1,586.00 in cash. Appellant pleded not guilty to the felony charge of possession of cocaine with intent to deliver. Before trial, appellant filed a motion to suppress the evidence Officer Dorris discovered when he searched appellant. Appellant and the State stipulated that he was searched without a warrant. After hearing Officer Dorris's testimony, the trial court overruled appellant's motion to suppress. Appellant proceeded to trial before a jury and was convicted. On appeal, appellant raises seven points of error. In his first three points of error, appellant challenges the trial court's decision to deny his motion to suppress and admit the cocaine Officer Dorris found when he searched appellant. In his last four points of error, appellant challenges the legal and factual sufficiency of the evidence to support his conviction. For the reasons that follow, we find the trial court properly overruled the motion to suppress, and that the evidence was legally and factually sufficient to support appellant's conviction.

The Motion to Suppress

Appellant asserts, in three points of error, that the trial court erred by denying his motion to suppress because 1) Officer Dorris did not have probable cause to stop the vehicle, 2) Officer Dorris did not have reasonable suspicion to detain appellant, and 3) Officer Dorris did not have reasonable suspicion to search appellant for weapons. 1. Standard of Review We review a trial court's decision to deny a motion to suppress for an abuse of discretion. Villareal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App. 1996) (en banc); Ross v. State, No. 14-02-00413-CR, 2003 WL 1987848, *1 (Tex.App.-Houston [14th Dist.] May 1, 2003, no pet.) (not designated for publication). An appellate court must give great deference to the trial court's determination of historical facts supported by the record, especially when they are based on credibility and demeanor. Laney v. State, 117 S.W.3d 854, 857 (Tex.Crim.App. 2003) (en banc) (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997) (en banc)); Ross, 2003 WL 1987848 at *1. However, we review the trial court's determinations of probable cause and reasonable suspicion de novo because this requires the application of law to facts. Ornelas v. United States, 517 U.S. 690, 697 (1996); Laney, 117 S.W.3d at 857 (citing Guzman, 955 S.W.2d at 89). Because no explicit findings of fact were filed, we review the evidence in the light most favorable to the trial court's ruling. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000) (en banc); Ross, 2003 WL 1987848 at *2. We must uphold the ruling admitting the evidence if it is supported by any legal theory. Laney, 117 S.W.3d at 857 (citing Willover v. State, 70 S.W.3d 841, 845 (Tex.Crim.App. 2002)); Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App. 1990) (en banc); Ross, 2003 WL 1987848 at *2. 2. Probable cause was not required In his initial point of error, appellant urges this court to find the trial court improperly denied his motion to suppress because Officer Dorris did not have probable cause to stop the vehicle. Having reviewed the record, we believe the trial court could have properly concluded that Officer Dorris only temporarily detained the vehicle and its occupants, including appellant. To justify this temporary detention, Officer Dorris needed reasonable suspicion, and not probable cause, as appellant suggests. See Gurrola v. State, 877 S.W.2d 300, 302 (Tex.Crim.App. 1994) (en banc) (stating police officer must have reasonable suspicion to justify a temporary detention); Broadus v. State, No. 03-03-00189-CR, 2004 WL 34879, *2 (Tex.App.-Austin Jan. 8, 2004, no pet.) (not designated for publication) ("We first note that only reasonable suspicion of criminal activity, not probable cause, was necessary for the officers to detain [appellant] for investigatory purposes.") (citing Ornelas, 517 U.S. at 693; Terry v. Ohio, 392 U.S. 1, 27 (1968)). Because probable cause was not required, we decline to consider whether probable cause existed to justify the initial stop of the vehicle and overrule appellant's first point of error. 3. Officer Dorris properly detained and searched appellant In his second and third points of error, appellant contends the trial court erred in denying his motion to suppress because Officer Dorris lacked the necessary reasonable suspicion to detain appellant and to search him. Appellant and the State stipulated that appellant was stopped and searched without a warrant. Therefore, the burden was on the State to show that a warrant was not required. McGee v. State, 105 S.W.3d 609, 615 (Tex.Crim.App.) (en banc), cert. denied, McGee v. Texas, 540 U.S. 1004 (2003) (stating it is the State's burden to show the search falls within an exception to the warrant requirement). a. Officer Dorris properly detained appellant A warrant is not required when an officer temporarily detains someone, provided the officer has a reasonable suspicion for doing so. See Gurrola, 877 S.W.2d at 302 (stating a detention must be supported by the officer's reasonable suspicion); Rue v. State, 958 S.W.2d 915, 917 (Tex.App.-Houston [14th Dist.] 1997, no pet.) (same). We look to the totality of the circumstances to determine if Officer Dorris had specific articulable facts which, taken together with rational inferences from those facts, led him to conclude appellant was, had been, or soon would be, engaged in criminal activity. See Woods v. State, 956 S.W.2d 33, 38 (Tex.Crim.App. 1997) (en banc). In this case, Officer Dorris encountered appellant standing around with other men in the parking lot of a nightclub in the early morning hours. See Klare v. State, 76 S.W.3d 68, 73-74 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd) (holding time of day is a factor court may consider when determining whether officer's suspicion was reasonable). When Officer Dorris drove up to appellant and the other individuals, another man yelled that the police were coming. When appellant and his companions heard this information, they quickly got into a car as if to drive away. At that point, Officer Dorris was entitled to stop the vehicle temporarily in order to determine the identity of the people in the vehicle and maintain the status quo.² See Gurrola, 877 S.W.2d at 302 ("A police officer may briefly stop a suspicious individual in order to determine his identity or to maintain the status quo momentarily while obtaining more information.") (citing Hoag v. State, 728 S.W.2d 375, 380 (Tex.Crim.App. 1987) (en banc)). b. Officer Dorris properly searched appellant incident to arrest Appellant asserts, in his third point of error, that Officer Dorris lacked reasonable suspicion to search appellant for weapons. A warrantless search is permitted when, as here, it is incident to arrest. See McGee, 105 S.W.3d at 615 ("The Supreme Court has held that . . . search incident to arrest [is] among the exceptions [to the warrant requirement]."). Instead of complying with Officer Dorris's request to take his hand out of his left pocket, appellant got out of the car. He again refused Officer Dorris's requests to take his hand out of his pocket and get back into the car. Instead, appellant ran from the officer.³ A person commits an offense when he intentionally flees from a person he knows is a peace officer attempting to lawfully detain him. See TEX. CODE CRIM. PROC. art. 38.04(a). Officer Dorris was attempting to lawfully detain appellant when appellant ran away from him. Because this offense — evading detention — was committed in Officer Dorris's presence, the officer was entitled to arrest appellant without a warrant. TEX. CODE CRIM. PROC. art. 14.01(b); Ross, 2003 WL 1987848 at *3 ("[A] peace officer may arrest a person without a warrant if that person commits an offense in the presence or view of the officer."). Officer Dorris testified at the motion to suppress that he arrested appellant for evading detention; once appellant was arrested, Officer Dorris was entitled to search appellant incident to the arrest. See McGee, 105 S.W.3d at 615 (including a search incident to arrest as an exception to the warrant requirement); Ross, 2003 WL 1987848 at *3 ("Once a police officer has made a lawful arrest, a search incident to that arrest is also lawful.") (citing Chimel v. California, 395 U.S. 752, 762-63 (1969); Williams v. State, 726 S.W.2d 99, 101 (Tex.Crim.App. 1986)); compare Davis v. State, 576 S.W.2d 378, 381 (Tex.Crim.App. 1978) (finding the warrantless search was not permissible as incident to arrest without any showing in the record that an arrest was made). Because the trial court could have found appellant was properly searched incident to his arrest, we conclude it was not error to deny appellant's motion to suppress. See, e.g., Frazier v. State, 480 S.W.2d 375, 377-78 (Tex.Crim.App. 1972) (finding trial court properly denied motion to suppress because search of arrestee's coat was within permissible scope of a search incident to arrest); Rue, 958 S.W.2d at 919 (finding trial court did not abuse discretion in denying motion to suppress evidence obtained in search incident to arrest. Indeed, it is "beyond dispute that if a controlled substance is found as a result of a search incident to arrest, it is not suppressed." Ross, 2003 WL 1987848 at *3 (citing Oles v. State, 993 S.W.2d 103, 106 (Tex.Crim.App. 1999)). We overrule appellant's last point of error relating to the motion to suppress.

The Legal and Factual Sufficiency of the Evidence

In his remaining four points of error, appellant challenges the sufficiency of the evidence to support his conviction. To support appellant's conviction, the State must have proved beyond a reasonable doubt that appellant 1) knowingly 2) possessed 3) four or more but less than 200 grams of cocaine 4) with intent to distribute. See TEX. CODE CRIM. PROC. art. 481.112; McCarty v. State, No. 14-95-00977-CR, 1996 WL 887476, *2 (Tex.App.-Houston [14th Dist.] May 15, 1997, no pet.) (not designated for publication). In the next four points of error, appellant contends the evidence was insufficient, both as a matter of law and of fact,⁴ to prove the first two elements — his knowledge of the cocaine's illegal nature and his voluntary possession of it. 1. The evidence was legally and factually sufficient to establish appellant's knowledge of the unlawful nature of the cocaine In his fourth and fifth points of error, appellant urges us to find the State failed to establish appellant's knowledge of the unlawful nature of the cocaine. Specifically, appellant claims the evidence was legally and factually insufficient to show he was aware that the substance in his pocket was contraband. a. Legal sufficiency We employ a familiar standard of review in considering appellant's challenge to the evidence's legal sufficiency. We view the evidence in the light most favorable to the verdict to determine whether a rational fact-finder could have found each of the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). The following evidence supports the jury's verdict. When Officer Dorris approached appellant, another man yelled that the police were coming. Appellant then fled with two other men to a nearby car. Officer Dorris approached the car and saw appellant with his hand in his left pocket. When Officer Dorris' requested that appellant take his hand out of his left pocket, appellant refused. Instead, appellant got out of the car and ran away. When Officer Dorris arrested and searched appellant, he found the cocaine in appellant's left pocket — the same pocket appellant had his hand in earlier. "When contraband is found on clothing worn by an accused, the question of whether the accused knowingly possessed such contraband is a question of fact to be determined by the jury." Moss v. State, 850 S.W.2d 788, 794 (Tex.App.-Houston [14th Dist.] 1993, pet. ref'd) (citing Bucklin v. State, 634 S.W.2d 44, 47 (Tex.App.-Beaumont 1982, no pet.)). In addition to the fact that the cocaine was found in appellant's pocket, the jury also could have rationally considered appellant's flight as evidence that appellant knew the substance in his pocket was an illegal substance. The evidence also shows that appellant had over $1,500.00 in cash in his pocket when he was arrested, most of which was in small bills of various denominations. See McCarty, 1996 WL 887476 at *2 (stating intent to deliver a controlled substance may be proved by circumstantial evidence such as the presence of large amounts of money). We conclude a rational jury could have found beyond a reasonable doubt that appellant knowingly possessed cocaine and overrule appellant's fourth point of error. See, e.g., Wilborn v. State, No. 03-03-00186-CR, 2004 WL 34878, *2 (Tex.App.-Austin Jan. 8, 2004, no pet.) (not designated for publication) ("The court of criminal appeals has repeatedly held that the actual possession of the contraband, either in a person's clothing or hands, is sufficient evidence for a jury to find knowledge and control.") (citations omitted). b. Factual sufficiency Appellant also challenges the factual sufficiency of the evidence to show he knew the unlawful nature of the cocaine. When faced with a challenge to the evidence's factual sufficiency, we view the evidence in a neutral light. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). Viewed in this light, the evidence is factually insufficient if the evidence supporting the verdict is too weak to support the finding of guilt beyond a reasonable doubt. Id. at 484. The evidence will also be factually insufficient if the evidence contrary to the verdict is so strong that the-beyond-a-reasonable-doubt standard could not have been met. Id. at 485. We have already reviewed the evidence that supports the jury's verdict. Appellant points to no contrary evidence in the record. Instead, in this portion of his brief, appellant relies solely on the fact that there was no testimony that Officer Dorris saw appellant handle the cocaine or make a transaction with a buyer. We fail to see how this would establish appellant did not know the illegal nature of the cocaine. Nor are we persuaded by the fact that there was no testimony that appellant knew what the substance in his pocket was. See Frazier, 480 S.W.2d at 381 (finding the presence of contraband in clothing worn by the accused raises a fact question as to whether the accused knowingly possessed contraband); Moss, 850 S.W.2d at 794 (same); Broadus, 2004 WL 34879 at *3 (same). We conclude the evidence that supports the verdict is strong enough to support guilt beyond a reasonable doubt and that the contrary evidence is not so strong that the beyond-a-reasonable-doubt standard could not have been met. See Zuniga, 144 S.W.3d at 484-85. We overrule appellant's fifth point of error. Having found the evidence was legally and factually sufficient to prove appellant knew the unlawful nature of the cocaine, we now turn to appellant's remaining two points of error. 2. The evidence was legally and factually sufficient to establish appellant voluntarily possessed the cocaine. In his sixth and seventh points of error, appellant argues the evidence is legally and factually sufficient to show that he knowingly possessed the cocaine. To prove knowing possession, the State must prove appellant was aware of the illegal substance and maintained control of the illegal substance long enough to have terminated control. TEX. PENAL CODE § 6.01(b). Because we have already concluded the evidence was legally and factually sufficient to support a finding that appellant knew the illegal nature of the cocaine, we now focus on whether appellant had sufficient control over the cocaine to support a finding that he voluntarily possessed it. a. Legal sufficiency In his sixth point of error, appellant contends the evidence was legally insufficient to prove he voluntarily possessed the cocaine. Because this is a legal sufficiency challenge, we view the evidence in the light most favorable to the verdict to determine whether a rational fact-finder could have found each of the elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319. We have already reviewed much of the evidence that supports appellant's conviction and need not repeat it here, particularly in light of this guidance from Texas Court of Criminal Appeals: "Where, as here, the contraband is found in clothing being worn by the accused, a question of fact as to whether the accused knowingly possessed such contraband is presented for jury determination." Frazier, 480 S.W.2d at 381; see also Wilborn, 2004 WL 34878 at *2 (stating actual possession of contraband is sufficient evidence for a jury to find control) (citing Frazier, 480 S.W.2d at 381; Salinas v. State, 479 S.W.2d 913, 914-15 (Tex.Crim.App. 1972); Kwant v. State, 472 S.W.2d 781, 783 (Tex.Crim.App. 1971)). We are unpersuaded by appellant's suggestion that we find the evidence legally insufficient merely because there was no testimony about the precise amount of time appellant had control over the cocaine. We overrule appellant's sixth point of error. b. Factual insufficiency In his final point of error, appellant contends the evidence was factually insufficient to prove he knowingly possessed cocaine. We examine all of the evidence in a neutral light to determine whether it is factually sufficient to support appellant's conviction. Zuniga, 144 S.W.3d at 484. The evidence is factually insufficient if the evidence supporting the verdict is too weak to support a finding beyond a reasonable doubt, or if the contrary evidence is so strong that the beyond-a-reasonable-doubt standard could not have been met. Id. at 484-85. As with the sixth point of error, we focus on whether appellant had sufficient control over the cocaine to support a finding that he voluntarily possessed it. We have already reviewed the evidence that supports the verdict. Even when we view this evidence in a neutral light, we cannot conclude it is so weak that it does not support a finding beyond a reasonable doubt that appellant knowingly possessed the cocaine. And again, appellant has cited no contrary evidence in the record. Instead, appellant relies on the fact that the State did not introduce evidence of exactly how long appellant had the cocaine. We cannot conclude that this is such strong evidence that the beyond-a-reasonable-doubt standard could not have been met, particularly in light of appellant's "actual, exclusive, physical possession of the cocaine" at the time of his arrest. Wilborn, 2004 WL 34878 at *2; see also Frazier, 480 S.W.2d at 381 ("There being no question that [appellant] possessed the coat, the jury was warranted in finding that he ad actual care, control, or management of the contraband within the coat."); Broadus, 2004 WL 34879 at *3 (finding evidence factually sufficient when appellant was in actual, exclusive, physical possession of cocaine at time of arrest). We overrule appellant's seventh point of error.

Conclusion

The trial court's decision to deny appellant's motion to suppress and admit the cocaine seized during Officer Dorris's search of appellant after his arrest was not an abuse of discretion. Further, the evidence was legally and factually sufficient to support appellant's conviction. Having overruled all of appellant's points of error, we affirm.

1 Appellant was charged with possession of four or more, but less than 200, grams of cocaine with intent to deliver. See TEX. HEALTH SAFETY CODE §§ 481.102(3)(D), 481.112(d).

2 The State correctly points out that this court has previously held that it is not an investigative detention for an officer to temporary prevent a person from leaving by parking the patrol car behind the person's vehicle. See Hernandez v. State, No. 14-99-00915-CR, 2001 WL 253673, * 2 (Tex.App.-Houston [14th Dist.] Mar. 15, 2001, pet. ref'd) (not designated for publication) (finding that parking patrol car behind truck, which temporarily prevented truck from backing up and leaving, did not constitute an investigative detention within the purview of the Fourth Amendment).

3 Appellant was not detained until Officer Dorris was able to apprehend him. See Johnson v. State, 912 S.W.2d 227, 235 (Tex.Crim.App. 1995) (en banc) ("We hold appellant was not seized . . . until he yielded to a show of authority by law enforcement officers.").

4 Both appellant's legal and factual sufficiency challenges are properly addressed on appeal despite his failure to object at the trial court level. See Banks v. State, 124 S.W.3d 879, 882 n. 1 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd).