Opinion
No. 05-08-00139-CR
Filed February 12, 2009. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 336th District Court, Grayson County, Texas, Trial Court Cause No. 056457-336.
Before Justices MOSELEY, FITZGERALD, and Lang-MIERS.
MEMORANDUM OPINION
Raymond Joseph Smith appeals his conviction for possession of less than one gram of methamphetamine. After the trial court denied appellant's motion to suppress, appellant pleaded guilty to the offense. Pursuant to a plea agreement, the trial court sentenced appellant to two years' confinement in state jail and a $1500 fine, suspended execution of the sentence of confinement, and placed appellant on community supervision for four years. Appellant brings two points of error on appeal asserting the trial court erred in denying the motion to suppress evidence of the arresting officer's seizure of a black case from appellant because (1) the arresting officer's testimony that his search of appellant's case was a "weapons search" was refuted by the officer's written incident report and (2) the officer lacked probable cause to search the case or reasonable suspicion to support a search under Terry v. Ohio, 392 U.S. 1 (1968). We modify the trial court's judgment to correct a clerical error and affirm the trial court's judgment as modified.
BACKGROUND
At the hearing on appellant's motion to suppress, the only witness was Grayson County Deputy Sheriff Joseph Shires. Shires testified that at about midnight on July 27, 2007, he was on patrol near the Denison Dam on the Oklahoma border. Shires saw two people, appellant and Joshua Kimbrell, walking back and forth repeatedly while carrying items between a public restroom and a pickup truck. This public restroom had shower facilities. The restroom was often used by campers and fishermen, but Shires did not see any camping or fishing equipment in the vehicle. Shires knew that the public restrooms in that area were sometimes used for illegal activities, such as drug transactions, manufacturing methamphetamine, or for theft. Shires was concerned the people were conducting illegal activities, and he approached them at the vehicle. Shires separated them and asked each of them what they were doing. Kimbrell said they had been camping on the Oklahoma side and they stopped to take a shower before going home to Pottsboro. Appellant told Shires they had been staying at a nearby house and came to the restroom to take a shower before returning home to Cartwright. Both men acted extremely nervous. Shires checked their identification with the dispatcher, and he learned that Kimbrell had been "handled for narcotics" and appellant had been "handled for weapons." Shires asked for consent to search the pickup truck, and the men agreed. Inside the truck, Shires found rolling papers, and Kimbrell admitted the papers were used with marijuana. Shires did not find any marijuana or other illegal substance. Shires asked appellant if he could search his pockets, and appellant agreed. Shires then approached appellant, who turned away, put his hands under his shirt, and appeared to be trying to conceal a small black case under his shirt. Shires knew appellant had been previously "handled for weapons," and Shires testified he was concerned appellant had a weapon under his shirt. Without appellant's consent, Shires grabbed the item away from appellant and opened it. Inside, Shires found cellophane bags containing methamphetamine and some pills. In preparing the arrest report, Shires did not mention his suspicions that the black case might have been a weapon or contained a weapon. At the conclusion of the hearing on the motion to suppress, the trial court denied the motion. Appellant then entered his guilty plea pursuant to the plea agreement.MOTION TO SUPPRESS
In his two issues on appeal, appellant contends the trial court erred in denying his motion to suppress. We review a trial court's ruling on a motion to suppress evidence under a bifurcated standard of review. St. George v. State, 237 S.W.3d 720, 725 (Tex.Crim.App. 2007). We give almost total deference to the trial court's determination of historical facts, and we review de novo the trial court's application of law to facts not turning on credibility and demeanor. Ford v. State, 158 S.W.3d 488, 493 (Tex.Crim.App. 2005); Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). We do not engage in our own factual review; instead, the trial judge is the sole trier of fact and judge of credibility of the witnesses and the weight to be given to their testimony. St. George, 237 S.W.3d at 725; Guzman, 955 S.W.2d at 89. We review the record to determine whether the trial court's ruling is supported by the record and is correct under some theory of law applicable to the case. St. George, 237 S.W.3d at 725. In his first issue, appellant asserts the trial court erred in denying the motion to suppress because Shires's testimony that he seized the case and looked inside out of concern that it might be or contain a weapon was not believable because that basis for the search and seizure was not contained in Shires's written report. Appellant argues, "the trial court clearly abused its discretion in believing Shires' testimony." As discussed above, the trial court is the sole judge of the credibility of the witnesses and the weight to be given their testimony. St. George, 237 S.W.3d at 725. Appellant cites no case supporting the theory that an appellate court may find a trial court abused its discretion by choosing to believe the only witness testifying at a hearing. Appellant has not shown the trial court abused its discretion by believing Shires's testimony. We overrule appellant's first issue. In his second issue, appellant asserts the trial court erred in denying the motion to suppress because Shires lacked probable cause to search the case and lacked reasonable suspicion to conduct a Terry search of the case. Under these facts, there are two parts to this analysis. First, we must determine whether Shires had grounds to seize the case; then we must determine whether he could lawfully search inside it. In Terry v. Ohio, the Supreme Court held,where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. Such a search is a reasonable search under the Fourth Amendment, and any weapons seized may properly be introduced in evidence against the person from whom they were taken.Terry, 392 U.S. at 30-31; see Brown v. State, 830 S.W.2d 171, 174 (Tex.App.-Dallas 1992, pet. ref'd) (holding Terry analysis applies under Tex. Const. art. I, § 9). In this case, Shires observed appellant and Kimbrell repeatedly walking back and forth between the truck and a public bathroom at midnight, and Shires knew that public bathrooms were sometimes used for illegal purposes. Shires's suspicions grew when the men gave conflicting statements about where they had been and where they were going. During the consensual search of the truck, Shires found rolling papers, which Kimbrell admitted were to be used with marijuana although they had no marijuana at that time. Shires also learned that both men had been "handled" previously for criminal activity, Kimbrell for drugs and appellant for weapons. Observing that appellant was acting nervously, Shires asked to search his pockets, and appellant consented. Shires testified that when he saw appellant was trying to hide something under his shirt, Shires thought it might be a weapon. Given the totality of the circumstances, Shires had reasonable suspicions that criminal activity was afoot and that appellant might be armed and dangerous. Appellant cites Davis v. State, 61 S.W.3d 94 (Tex.App.-Amarillo 2001, no pet.), in support of his argument that the trial court erred in determining the search of appellant and seizure of the black case was permissible under Terry. In that case, officers on patrol at midnight stopped at a house in a known drug area where they saw several people, including the defendant, standing in front of the house. Id. at 96. The defendant appeared nervous and walked from the group of people toward the house and then turned around and walked back. One of the officers had previously encountered the defendant on "`some domestic calls' and when [the defendant] `climb[ed] in the window to the next door before that house burned.'" Id. The officer approached the defendant and asked him for identification, and the defendant proffered his wallet. The officer testified that because the defendant appeared nervous, the officer, for his safety, patted down the defendant and found a crack pipe. Id. The officer then arrested the defendant, searched him more thoroughly, and found the cocaine in the defendant's pocket for which the defendant was prosecuted. Id. The Amarillo court of appeals held the trial court erred in admitting the evidence of the cocaine because the initial search and arrest of the defendant were improper. Id. at 98. The court observed there was no testimony suggesting any criminal activity was afoot, that the defendant dealt with controlled substances, that he made any furtive gestures, that he tried to flee, or that he had a propensity for violence. Id. at 97-98. The Amarillo court stated that the totality of the evidence consisted of nothing more than a gathering of several individuals at midnight in a yard in an area known for drug use and one of the individuals walked back and forth and appeared nervous. Id. at 98. The court of appeals concluded these circumstances did not give rise to reasonable suspicion. Id. This case is distinguishable from Davis for several reasons. First, unlike in Davis, there was suspicious activity: Kimbrell's and appellant's walking back and forth at midnight between a public bathroom and a pickup truck. The bathroom was usually used by fishermen or campers, but the pickup had no camping or fishing equipment, and Shires knew that the public bathrooms in the area were used for illegal purposes. Second, Kimbrell and appellant provided conflicting statements about where they had been and where they were going; in Davis, there were no conflicting statements. Next, unlike the officers in Davis, who did not testify to any prior dangerous behavior by the defendant, Shires knew appellant had been "handled" previously for weapons. Finally, unlike the defendant in Davis, who did not agree to be searched and made no furtive gestures, appellant agreed to let Shires search his pockets and then made a furtive gesture by trying to hide the black case under his shirt. Davis is distinguishable. We conclude the trial court did not err in determining that Shires's seizure of the black case was permissible under Terry. The next issue is whether Shires's search of the black case after he seized it was reasonable. Appellant asserts it was not and relies on Davis v. State, 829 S.W.2d 218 (Tex.Crim.App. 1992). In that case, two police officers stopped three men who tried to flee as the officers entered an apartment complex. Although it was a warm day, the defendant wore a trench coat. The officers searched the defendant for weapons and felt a mass solid enough to be a weapon. One of the officers reached into the defendant's pocket and removed keys, papers, and a matchbox. The officer opened the matchbox and found cocaine. Id. at 219. The officer testified he opened the matchbox because he was looking for a razor blade or any weapon that could hurt him. Id. at 221. The court of criminal appeals explained the scope of a search for weapons under Terry: " Terry permits a search for only those weapons that could reasonably harm the police officer. `If in the course of a pat-down frisk the officer satisfies himself that the suspect has no [such] weapons, the officer has no valid reason to further invade the suspect's right to be free of police intrusion absent probable cause to arrest.'" Id. (quoting Lippert v. State, 664 S.W.2d 712, 721 (Tex.Crim.App. 1984)). The court of criminal appeals held the search of the matchbox was illegal and that the lower court erred by affirming the trial court's denial of the defendant's motion to suppress. The court stated, "Here, the facts did not justify a further search for weapons. We conclude that it is unreasonable for two armed police officers to fear a razor blade that might be contained in a matchbox." Id. Appellant cites other cases where police searches of matchboxes and 35-millimeter film canisters have been outside the scope of a search for weapons based on reasonable suspicion. See Campbell v. State, 864 S.W.2d 223, 226 (Tex.App.-Waco 1993, pet. ref'd) (film canister); Moore v. State, 855 S.W.2d 123, 128 (Tex.App.-Tyler 1993, no pet.) (matchbox); Carey v. State, 855 S.W.2d 85, 88 (Tex.App.-Houston [14th Dist.] 1993, pet. ref'd) (matchbox). In each of those cases, the officers had no justifiable concern the objects might contain weapons that could harm them. Courts have upheld searches of closed objects held by the suspect when the officer could not reasonably determine from an external examination whether the object contained a weapon. In Worthey v. State, 805 S.W.2d 435 (Tex.Crim.App. 1991), the defendant, with her purse over her shoulder, approached police officers who were executing a search warrant at a residence. The officers told the defendant to keep her hands where they were. The defendant then clutched the purse and turned to her side so that the purse and her right hand were away from the officer. Thinking the defendant might have a weapon inside the purse, the officer took the purse away from the defendant and conducted a patdown of the purse to feel for weapons, but he was unable to ascertain whether the purse contained a weapon. Id. at 437. The officer testified the purse was not so soft that he could be certain from feeling the outside of it that it did not contain a weapon. Id. at 438. The officer then opened the purse to search the interior and found contraband. Id. at 437. The court of criminal appeals held the officer's search of the handbag was justified. Id. at 439. Thus, the issue in this case is whether Shires articulated a reasonable suspicion that the black case might contain a weapon that could harm him. Shires answered defense counsel's questions on this issue as follows:
Q. Now detail, if you would, why you think you might have had probable cause to look in that container?
A. Given the situation, when he determined he decided to conceal it, it raised a question that he may have weapons, considering he had been handled for weapons before, especially when I see him concealing it, actively trying to conceal it, turn away from me so I don't see it. When I grab it, he pulls away from me, and it's large enough to either be a weapon or contain a weapon, because that case can easily contain a knife or small pistol.
Q. How big was the case?
A. Roughly about like this (indicating).
Q. About?
A. Give or take. It's been a while since I seen [sic] it.
Q. Maybe four by six?
A. Maybe. I would have to-it's hard to actually show it by hand.
Q. Was it hard shell or soft shell?
A. No, I believe it was soft shell.
Q. When you grabbed it away from him, were you able to-could you get an idea what the contents were by feeling-by feeling the case?
A. No, it wasn't that soft.
Q. Just based on the feel, you couldn't tell if there was gun in there or knife, or anything else?
A. No.
Q. So it was your opinion that you had probable cause based on him trying to keep you from looking in the bag in the first place?
A. By laws of Terry-frisk, I'm allowed to check for weapons if I believe there is a risk to my safety.This case is similar to Worthey and not Davis. In Davis, the officers had no reason to believe the matchbox might contain a weapon that could pose a risk to their safety. In Worthey, however, the defendant's furtive gestures with her purse permitted the reasonable suspicion it might contain a weapon. When the officer was unable to determine from feeling the outside of the purse whether or not it contained a weapon, he was justified in opening the purse and searching inside it for a weapon. In this case, appellant made a furtive gesture with the black case by turning away from Shires while trying to hide the case under his shirt. Shires testified that when he took the case away from appellant, he was unable to determine from feeling the outside of it whether or not it contained a weapon. Thus, as in Worthey, Shires's opening of the black case was a lawful search for weapons that could threaten Shires's safety. Appellant argues Shires's testimony that he could not tell whether the case contained a handgun was unreasonable because it is common sense that a soft-shelled case containing a heavy, solid, metal handgun would feel considerably different from a soft-shelled case containing a few cellophane-wrapped pieces of methamphetamine and a pill. However, Shires testified he was concerned about the possibility of not only a handgun but also of a knife. The black case was not offered into evidence during the hearing. Thus, the trial court had only Shires's testimony about whether the presence or absence of a weapon was discernible from examining the outside of the case. As in Worthey, Shires testified the case was not so soft that he could determine whether or not it concealed a weapon. The trial court is the sole judge of the credibility of the witnesses, and the court chose to believe Shires's testimony. We conclude the record does not show the trial court erred in denying appellant's motion to suppress. We overrule appellant's second issue.