Court of Appeals of Texas, Fifth District, DallasApr 14, 2005
No. 05-04-01240-CR (Tex. App. Apr. 14, 2005)

No. 05-04-01240-CR

Opinion Filed April 14, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the 195th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F03-56510-PN.


Before Justices MORRIS, FRANCIS, and LANG-MIERS.


Opinion By Justice FRANCIS.

After a bench trial, the trial court found Clarence Wright guilty of unlawful possession of cocaine in the amount of one gram or more but less than four grams and assessed punishment, enhanced by two prior felony convictions, at twenty-five years in prison. In two points of error, appellant contends the trial court abused its discretion by failing to suppress evidence obtained as a result of an illegal arrest. We affirm the trial court's judgment. Dallas police officer Daniel Green testified at trial that he and his partner, A. Bartholomew, were dispatched to a "drug house call" in southeast Dallas. The caller complained that a black male, wearing a white t-shirt and black pants, was selling drugs. Green testified he had made numerous drug arrests at the location previously. When they arrived at the location, Green saw a man wearing a white t-shirt and black pants, standing in the street flagging down cars. The man was identified as appellant. Green testified he and his partner approached appellant to investigate the call, but appellant walked away. Appellant was holding what appeared to be a crack pipe. Bartholomew got out of the police car and called to appellant, who came over to the police vehicle. When Green got out of the car to cover Bartholomew, appellant pushed Bartholomew in the chest, knocking him off balance. Appellant then took off running. Bartholomew chased appellant on foot, while Green pursued him in the police vehicle. When Green caught up to Bartholomew and appellant, they were wrestling on the ground. Green attempted to help Bartholomew, ultimately using pepper spray on appellant to subdue him. The police transported appellant to jail. During book-in processing, the police found crack cocaine in appellant's sock and charged him with drug possession. Appellant disputed some of the facts presented by the State's witnesses at trial. He claimed that when police arrived, he was in a business parking lot approximately 100 to 150 yards from the address to which police were dispatched. Appellant denied selling drugs or possessing a crack pipe. Additionally, he denied having any drugs in his socks. At trial, appellant timely objected to the admission of the crack cocaine evidence, arguing it resulted from an improper initial detention of appellant by the police officers. The trial court overruled appellant's objection and admitted the evidence. On appeal, appellant argues the trial court erred in denying his suppression motion because Green and Bartholomew did not have probable cause to arrest him. Appellant argues his arrest was made without a warrant or probable cause in violation of his federal and state constitutional rights. Appellant also argues that the trial judge erred because the arresting officers did not have reasonable suspicion to stop him initially. We review a trial judge's ruling on a motion to suppress evidence for an abuse of discretion, giving almost total deference to the trial judge's determination of historical facts but reviewing search and seizure law de novo. Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App. 2002); Guzman v. State, 955 S.W.2d 85, 88-89 (Tex.Crim.App. 1997). If the issue involves the credibility of a witness, making the evaluation of that witness's demeanor important, we defer to the trial judge's determination of the facts. Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000); Guzman, 955 S.W.2d at 89. An officer may conduct a brief investigative detention, or "Terry stop," when he has a reasonable suspicion to believe that an individual is involved in criminal activity. Balentine, 71 S.W.3d at 768 (citing Terry v. Ohio, 392 U.S. 1, 21 (1968)); Carmouche, 10 S.W.3d at 329. 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. Balentine, 71 S.W. 3d at 768; Woods v. State, 956 S.W.2d 33, 38 (Tex.Crim.App. 1997). The police responded to a call about a man selling drugs. When they arrived at the location, the police saw appellant, who fit the description of the suspect, flagging down cars at the location. Officer Green testified that based on his experience as a police officer, appellant's actions were consistent with selling drugs. The officers called appellant over, at which time appellant shoved one of the officers and fled. Assuming these facts constitute a "Terry stop," we conclude the officers articulated facts indicating appellant was involved in criminal activity sufficient to justify an investigatory detention. Once appellant shoved one officer and fled, the police had probable cause to arrest appellant for assaulting a police officer and evading arrest. Contrary to appellant's assertion on appeal, neither his federal nor state constitutional rights were violated by his arrest. We overrule appellant's first and second points of error.

We affirm the trial court's judgment.