TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-96-00429-CV
In the Matter of C. R.
NO. J-13,896, HONORABLE JOHN K. DEITZ, JUDGE PRESIDING
BACKGROUND
About 7:10 p.m., near sundown, (1) on March 18, 1996, Officers Richard Micheletti and Don Mayes and Sergeant Jerry Fearn of the Austin Police Department saw appellant walking away from a running vehicle stopped in the cul-de-sac on Bolles Circle near a subsidized housing project in east Austin. Appellant walked toward two other men standing on the sidewalk, and they huddled together as the vehicle backed out of the cul-de-sac. As Officer Micheletti stopped his unmarked police car, the three individuals looked at the officers and began walking away from them toward a nearby building. When Officer Micheletti stepped out of the vehicle wearing black pants and a t-shirt with "Austin Police Street Narcotics" in bright white letters on the front, the individuals began walking faster. They began running when he told them, "Stop, I want to talk to you." After a foot-chase, Office Micheletti caught and arrested appellant. Following an adjudication hearing, the trial court found appellant had engaged in delinquent conduct by committing the offense of evading arrest. See Tex. Fam. Code Ann. § 51.03(a)(1); Tex. Penal Code Ann, § 38.04 (a). The trial court ordered appellant committed to TYC; appellant appeals.
DISCUSSION
In his sole point of error, appellant challenges the trial court's determination that he evaded arrest. (2) Specifically, appellant argues the evidence is insufficient to show Officer Micheletti was attempting to lawfully arrest or detain appellant.
Absent a showing of an abuse of discretion, we will not disturb the juvenile court's findings. In re C.C., 930 S.W.2d 929, 930 (Tex. App.--Austin 1996, writ denied) (citing In re J.P.O., 904 S.W.2d 695, 698 (Tex. App.--Corpus Christi 1995, writ denied)). In deciding whether the evidence is legally sufficient, we view the evidence in the light most favorable to the finding and determine whether any rational trier of fact could have found the elements of the requirement proven beyond a reasonable doubt. In re M.S.,940 S.W.2d 789, 791-92 (Tex. App.--Austin 1997, no writ); see P.L.W. v. State, 851 S.W.2d 383, 387 (Tex. App.--San Antonio 1993, no writ).
A police officer must have a reasonable and articulable basis for suspecting criminal activity to justify an investigatory detention. Johnson v. State, 912 S.W.2d 227, 235 (Tex. Crim. App. 1995); Crockett v. State, 803 S.W.2d 308, 311 (Tex. Crim. App. 1991); Giossi v. State, 831 S.W.2d 887, 889 (Tex. App.--Austin 1992, pet. ref'd). The reasonable suspicion determination is based on the totality of the circumstances. U.S. v. Sokolow, 490 U.S. 1, 9 (1989); Holladay v. State, 805 S.W.2d 464, 473 (Tex. Crim. App. 1991). "Reasonable suspicion" is "something more than an inchoate and unparticularized suspicion or hunch," Holladay, 805 S.W.2d at 469 (quoting Sokolow, 490 U.S. at 7), but it requires less information than is constitutionally required for probable cause to arrest. Johnson, 912 S.W.2d at 235. The relevant inquiry is not whether particular conduct is innocent or guilty, but the degree of suspicion that attaches to particular types of noncriminal acts. Holladay, 805 S.W.2d at 469; see also Angulo v. State, 727 S.W.2d 276, 279 (Tex. Crim. App. 1987). At a minimum, the suspicious conduct must differ significantly from that of innocent people under the same circumstances. Howe v. State, 874 S.W.2d 895, 901 (Tex. App.--Austin 1994, no pet.). And when the events are as consistent with innocent activity as with criminal activity, a detention based on those events is unlawful. Johnson v. State, 658 S.W.2d 623, 626 (Tex. Crim. App. 1983); Howe, 874 S.W.2d at 901.
Officer Micheletti testified that the area of Austin where he encountered appellant was known as a "pretty high drug trafficking area." As he drove through the circle, he saw appellant, a black youth, talking to someone in a stopped vehicle, then observed him walk away from the vehicle as it drove away. He observed appellant walk toward two other black males standing on the sidewalk, and the group then huddled together. He testified that when appellant and the two men saw his car, "they had . . . an immediate reaction to it as being a police car" and began walking away toward a building. As Officer Micheletti stepped out of the car, appellant and the two men began walking faster.
Being in a high drug trafficking area, talking to persons in a vehicle near a housing complex, huddling in a group, and walking away from unidentified police officers does not set appellant's conduct apart from otherwise innocent conduct. See Gurrola v. State, 877 S.W.2d 300, 303 (Tex. Crim. App. 1994) (having an argument in a parking lot during the late afternoon in a high-crime area and then walking away from a law enforcement officer can not be characterized as flight and can not give rise to reasonable suspicion). Conduct that does not sufficiently set a person apart from innocent persons under the same circumstances does not, alone, create reasonable suspicion; an officer must have facts increasing the likelihood of criminal conduct. State v. Shamsie, 940 S.W.2d 223, 228 (Tex. App.--Austin 1997, no pet.). The officers saw nothing exchanged between appellant and the person in the vehicle; they saw nothing in appellant's hands or pockets; they saw no money out or anything thrown away; and Officer Micheletti testified that he did not recognize appellant as someone he had arrested before. Indeed, the record failed to reveal any evidence suggesting any illegal activity occurred. Considering the totality of the surrounding circumstances and even taking the facts in the light most favorable to the trial court's ruling, the record does not reflect that Officer Micheletti possessed sufficient articulable facts to warrant appellant's detention; appellant's actions were as consistent with innocent activity as criminal activity and there existed no specific articulable facts indicating appellant's activity was related to a crime. The trial court, therefore, abused its discretion in finding that Officer Micheletti was attempting to lawfully arrest or detain appellant.
Because there is insufficient evidence to support a finding that Officer Micheletti was attempting to lawfully detain or arrest appellant, the State failed to prove appellant intentionally fled from a person he knew was a peace officer attempting lawfully to arrest or detain him. See Tex. Penal Code Ann. § 38.04(a). The evidence is, therefore, insufficient to support a finding that appellant engaged in delinquent conduct by committing the offense of evading arrest or detention. We therefore sustain appellant's point of error and reverse the trial court's judgment and render judgment in favor of appellant.
Marilyn Aboussie, Justice
Before Chief Justice Carroll, Justices Aboussie and B. A. Smith
Reversed and Rendered
Filed: June 26, 1997
Do Not Publish
1. The record indicates that it was dark enough outside for the officers and the other vehicle to have headlights on.
2. A person commits the offense of evading arrest or detention if he "intentionally flees from a person he knows is a peace officer attempting lawfully to arrest or detain him." Tex. Penal Code Ann. § 38.04(a).
M>, 805 S.W.2d at 469 (