Opinion
No. 01-07-00865-CR
Opinion issued June 19, 2008. DO NOT PUBLISH. Tex. R. App. P. 47.2(b).
On Appeal from the 178th District Court, Harris County, Texas, Trial Court Cause No. 1102977.
Panel consists of Chief Justice RADACK and Justices KEYES and HIGLEY.
MEMORANDUM OPINION
A jury found appellant, Lee Darain Scott, guilty of possession of cocaine weighing between four and 200 grams, found two felony enhancements true, and assessed punishment at 45 years' confinement. In point of error one, appellant contends the trial court erred in overruling his motion to suppress. In points of error two and three, appellant contends the evidence is legally and factually insufficient to support his conviction. We affirm.
BACKGROUND
On February 3, 2007, Houston Police Officers Dexter and Walker were driving through an area known for a high amount of narcotics trafficking. Both officers had previously participated in multiple, narcotics-related arrests in the area. As the officers drove past a convenience store, they noticed appellant approach several cars. Believing that he was buying or selling drugs, the officers drove past, made a u-turn, and pulled into a nearby parking lot so that they could watch appellant further. As the officers watched, appellant approached two or three other cars. Officer Walker testified that, as he watched, he saw appellant put his hands in the pouch of a sweater he was wearing "going from there to there (indicating)," which made him think that appellant was "holding something or, you know, something is definitely going on there." Based on their observation of appellant, Walker and Dexter decided to approach him. As the officers approached, they saw appellant get an "oh, `S'" look on his face," like a "deer in the headlights," and then bolt inside the store. Appellant did not buy anything in the store, but came right back outside. Walker believed that appellant might have dropped something in the store, so he went inside to look while Dexter approached appellant. Dexter asked appellant for his identification. As Dexter was questioning appellant, appellant kept reaching towards the kangaroo pouch of his sweater and "trying to reach into it." Believing that appellant might have a weapon, Dexter performed a pat-down search of appellant. Dexter immediately felt a bulge in the pouch pocket of appellant's sweater that he could tell was a plastic bag tied with a knot containing numerous crunchy objects. Based on his training and experience, Dexter concluded that the baggie tied with a knot contained crack cocaine. Dexter removed the baggie just as Walker was coming out of the store. Dexter also found a razor blade in appellant's pocket. Both officers testified that, after the cocaine was discovered, appellant became "squirmy," so Walker handcuffed appellant and put him in the squad car. Dexter read appellant his statutory warnings, and the officers began driving appellant to the police station. As they were doing so, appellant said that "it was his first time in the area to sell, and that if [the officers] let him go, he'd never return."MOTION TO SUPPRESS
In his first point of error, appellant contends the trial court erred by overruling his motion to suppress evidence. Specifically, appellant contends that the officers did not have sufficient reasonable suspicion to justify his detention and the subsequent pat-down search.Standard of Review
Our standard for reviewing a trial court's ruling on a motion to suppress evidence is bifurcated; we give almost total deference to a trial court's determination of historical facts and review de novo the trial court's application of the law. Maxwell v. State, 73 S.W.3d 278, 281 (Tex.Crim.App. 2002). In reviewing a ruling on a question of the application of law to facts, we review the evidence in the light most favorable to the trial court's ruling. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). At a suppression hearing, the trial court is the sole and exclusive trier of fact and judge of the witnesses' credibility. Maxwell, 73 S.W.3d at 281. Accordingly, the trial court may choose to believe or to disbelieve all or any part of the witnesses' testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000).Initial Detention
A police officer may approach an individual in public and ask questions without any specific justification. State v. Perez, 85 S.W.3d 817, 819 (Tex.Crim.App. 2002); see Pennywell v. State, 127 S.W.3d 149, 152 (Tex.App.-Houston [1st Dist.] 2003, no pet.). During such an encounter, the individual is free to leave or to refuse to answer the officer's questions. See Pennywell, 127 S.W.3d at 152. However, an encounter may become a detention when the officer's actions would communicate to a reasonable person that he was not free to refuse the officer's requests or otherwise terminate the interaction. Id. An officer may conduct such a brief investigative detention, or " Terry stop," when he has a reasonable suspicion to believe that an individual is involved in criminal activity. Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App. 2002) (citing Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968)). The reasonableness of a temporary detention must be examined in terms of the totality of the circumstances and will be justified when the detaining officer has specific, articulable facts, which, taken together with rational inferences from those facts, lead him to conclude that the person detained actually is, has been, or soon will be engaged in criminal activity. Id.; Woods v. State, 956 S.W.2d 33, 35 (Tex.Crim.App. 1997). Here, Dexter testified that he had been a police officer for seven years, had frequently seen people selling drugs, and had frequently made drug-related arrests. When Dexter spotted appellant, appellant was in a high crime area known for narcotics transactions. See Illinois v. Wardlow, 528 U.S. 119, 124, 120 S. Ct. 673, 676 (2000) (noting that, while presence in high-crime area alone is not enough to support reasonable suspicion, fact that incident occurs in high crime area is relevant factor to be considered in reviewing totality of circumstances). The officers saw appellant repeatedly approach several, random cars. See Davis v. State, 905 S.W.2d 655, 661 (Tex.App.-Texarkana 1995, pet. ref'd) (noting that drug dealers often approach unfamiliar cars); McKinney v. State, 761 S.W.2d 549, 585 (Tex.App.-Corpus Christi 1988, no pet.) (noting that observance of repeated transactions would be relevant to determining reasonable suspicion). When the officers approached appellant, he turned and fled into the store. See McKinney, 761 S.W.2d at 552-53 (noting that turning away rapidly upon seeing officers would be factor in determining reasonable suspicion). Dexter testified that he had personally observed people buying and selling crack cocaine by going up to cars in this area in the past. See Id. (noting that evidence that drugs are normally exchanged in a manner similar to the transaction at issue would be factor in determining reasonable suspicion). Based on these circumstances, we decide that the record supports a finding that the police reasonably suspected, based on specific and articulable facts, that appellant was engaged or soon would be engaged in criminal activity.Pat-Down Search
We turn to whether Dexter could legally frisk appellant for weapons. In making this determination, we apply an objective standard, which is whether the facts available to Dexter at the time of the frisk would cause a reasonably cautious person to believe that the action taken was appropriate. See Griffin v. State, 215 S.W.3d 403, 409 (Tex.Crim.App. 2006). In Griffin, the court recognized that "it is objectively reasonable for a police officer to believe that persons involved in the drug business are armed and dangerous." Id. This belief is reasonable, especially when the suspect "moves his hand toward his pocket during the investigative detention." Id. We have already held that the officers had reasonable suspicion that appellant was, or would soon be engaged in criminal activity, i.e., a drug transaction. During the investigative detention, appellant repeatedly put his hands in the pouch of his sweater. Under these circumstances, it was objectively reasonable for Dexter to believe that appellant might be armed. Thus, the pat-down search of appellant was lawful."Plain Feel" Seizure
Next, we decide whether Dexter's removal of the plastic baggie containing the cocaine from the pouch of appellant's sweater was lawful. Under Minnesota v. Dickerson, 508 U.S. 366, 374-75, 113 S. Ct. 2130, 2136-37 (1993), a police officer may seize non-weapon contraband that he detects during a pat-down search under Terry when the contraband's "contour or mass makes its identity immediately apparent." This is often referred to as a "plain feel" exception to the warrant requirement. See Griffin, 215 S.W.3d at 405 n. 2. In Griffin, the police had information that the defendant was carrying cocaine in plastic tubes. Id. at 410. Because the identity of the tubes as contraband was immediately apparent to the officer during the pat-down, he was justified in seizing those tubes during the pat-down search. Id. In this case, Dexter testified as follows:[Prosecutor]: So you said that you patted him down and got his hand out of there. Can you describe to the jury what happened next?
[Dexter]: I immediately felt the — a bulge in that front area, which is — had the packaging of obvious crack cocaine in that area. It's quite common that that packaging is used, crack cocaine inside of a plastic bag with a knot tied on top of it.
Dexter further testified that rocks of crack cocaine have a distinctive feel because they are "crunchy," unlike regular rocks or other substances. Thus, the record supports a finding that Dexter, based on his knowledge and experience, immediately recognized the object in appellant's pouch as a baggie of crack cocaine. As such, the seizure of the crack cocaine was lawful.Accordingly, we overrule point of error one.