Ex Parte: Joseph Stewart, III

NO. 07-01-0399-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

NOVEMBER 26, 2001

______________________________

EX PARTE JOSEPH STEWART, III

_________________________________

Before BOYD, C.J., and REAVIS and JOHNSON, JJ.

Relator Joseph Stewart, III has appealed from the trial court's denial of his application for writ of habeas corpus. Before us now is relator's motion to have counsel appointed to represent him in his appeal of this matter because he is indigent and cannot afford to hire one. Relator filed his motion only after being notified that his brief was due to be filed with this court on December 5, 2001.

Although relator's pleading in the trial court was entitled "Application for Writ of Habeas Corpus Pursuant to Art. 11.01, 11.06," relator, who is incarcerated, does not complain therein of the conviction leading to his incarceration. Instead, he complains of the violation of his due process rights by his involuntary confinement in the psychiatric unit of the prison and the involuntary administration of anti-psychotic drugs to him. Relator indicates that he was afforded a hearing on this matter in the prison and has followed the prison grievance procedure with respect to his complaints. Although relator seeks release from the psychiatric unit of the prison, a favorable determination in this matter will not release relator from prison. Therefore, relator's action is essentially a civil rights action. See Carson v. Johnson, 112 F.3d 818, 820-21(5^th Cir. 1997).

Chapter 14 of the Civil Practice and Remedies Code describes certain procedures and requirements to be followed by inmates who file litigation in a district court along with an affidavit or unsworn declaration of inability to pay costs. ⁽¹⁾ However, the United States Constitution does not require the government to provide inmates with attorneys to represent them in their civil rights suits. See Mann v. Smith, 796 F.2d 79, 84 (5^th Cir. 1986). Therefore, relator is not entitled to the appointment of counsel to represent him in this matter.

For the reasons set forth, relator's motion is overruled.

Per Curiam

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1. Relator did not file an affidavit or unsworn declaration of inability to pay costs with the trial court.

ted for tampering with evidence. Appellant was later taken to the hospital as a precaution for any ill effects he might have suffered from ingesting the substance, but he refused treatment.

Issue 1 - Suppression of Evidence

Appellant argues in his first issue that the trial court erred in failing to suppress the evidence discovered during the officer's pat-down search of him because the search was illegal. We overrule the issue.

We review the trial court's ruling on a motion to suppress under the standard announced in Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997). Thus, we give almost total deference to the trial court's findings of historical fact and review de novo its application of the law to the facts. Id. at 89.

Appellant does not contest the initial detention of the vehicle and its occupants. Once a person is detained, a pat-down search is permissible when the police officer reasonably suspects he is dealing with an armed and dangerous individual. Davis v. State, 61 S.W.3d 94, 97 (Tex. App.--Amarillo 2001, no pet.); Maldonado v. State, 853 S.W.2d 746, 748 (Tex. App.--Houston [1^st Dist.] 1993, no pet.) (citing Terry v. Ohio, 392 U.S. 1, 27, 88 S. Ct. 1868, 1883, 20 L. Ed. 2d 889 (1968)). The officer neither has to be absolutely certain that the individual is armed nor have probable cause to arrest. Davis v. State, 61 S.W.3d at 97. The issue is whether a reasonably prudent person in the same circumstances would be warranted in believing that his safety or that of others is in danger. Carmouche v. State, 10 S.W.3d 323, 329 (Tex. Crim. App. 2000) (the officer must have specific and articulable facts reasonably leading him to conclude that the suspect might possess a weapon).

A pat-down was found to be justified in Strickland v. State, 923 S.W.2d 617, 620 (Tex. App.--Houston [1^st Dist.] 1995, no pet.) when the suspect repeatedly attempted to place his hands in his pockets despite being ordered to move them, there was a bulge in his pocket, and he appeared nervous. The facts known by the officer here were that appellant and the other two persons in the vehicle were known felons, with one of them having outstanding warrants, appellant acted nervous, the officer knew appellant's reputation in the community to not be that of a peaceful and law abiding person in that he had drug offenses, and appellant more than once put his hands in his pockets after being ordered by the officer to remove them. Thus, the officer did not rely solely on the fact that appellant appeared nervous, as appellant suggests. We find the facts similar to those in Strickland and that Deluna was reasonably warranted in believing that appellant might possess a weapon.

Moreover, prior to the officer actually conducting the pat-down search, he observed appellant with something in his left hand which he switched to his right upon the officer attempting to steady his left hand on the trunk of the car. The officer believed the object to be drugs or a weapon. Then appellant immediately placed the object in his mouth. At that point, Deluna pried open appellant's mouth. Once appellant put the contraband in his mouth, the officer had probable cause to seize appellant and attempt to prevent destruction of the contraband. Sanders v. State, 855 S.W.2d 151, 152 (Tex. App.--Houston [14^th Dist.] 1993, no pet.). We find no error in the trial court's denial of the motion to suppress.

Issue 2 - Sufficiency of the Evidence

In his second issue, appellant challenges the legal and factual sufficiency of the evidence to sustain his conviction. A person commits the offense of tampering with physical evidence if, knowing that an investigation is pending or in progress, he destroys or conceals anything with intent to impair its verity, legibility, or availability as evidence in the investigation. Tex. Pen. Code Ann. §37.09(a)(1) (Vernon 2003). Appellant argues that there is no evidence or insufficient evidence that he knew an investigation for narcotics was in progress.

The standards by which we review challenges to the sufficiency of the evidence are well established. In reviewing the legal sufficiency of the evidence, we must determine, after reviewing the evidence in the light most favorable to the verdict, whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). In reviewing the factual sufficiency, the reviewing court examines all the evidence without the prism of "the light most favorable to the prosecution" to determine whether the evidence is so weak as to undermine confidence in the jury's determination or the adverse finding is against the great weight and preponderance of the evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). Under both standards, the factfinder may reasonably infer facts from the evidence before it, credit the witnesses it cares to, disbelieve any or all of the testimony proffered, and weigh the evidence in the manner it chooses. Depauw v. State, 658 S.W.2d 628, 633-34 (Tex. App.--Amarillo 1983, pet. ref'd).

Appellant was indicted for concealing a controlled substance knowing "that an investigation was in progress" as opposed to merely pending. ⁽²⁾ An investigation for narcotics has been held not to be in progress when the officer approached a vehicle after a traffic stop and observed the driver ingesting a white substance. See Lumpkin v. State, 129 S.W.3d 659, 663 (Tex. App.--Houston [1^st Dist.] 2004, pet ref'd). However, at bar, the investigation had proceeded beyond one for a traffic violation at the time appellant swallowed the substance he put in his mouth. The officer already believed that appellant had either a weapon or narcotics in his hand. At the time he pried open appellant's mouth, he observed what he believed to be either methamphetamine or cocaine. The officer then ordered appellant to spit out the substance, but instead appellant swallowed it. We believed the jury could rationally infer beyond a reasonable doubt that appellant knew he was being investigated for drug possession at the time he swallowed the evidence. This finding is also not against the great weight and preponderance of the evidence. Accordingly, appellant's issue is overruled.

We affirm the judgment of the trial court.

John T. Boyd

Senior Justice

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1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't Code Ann. §75.002(a)(1) (Vernon 2005).

2. In Lumpkin v. State, 129 S.W.3d 659, 663 (Tex. App.--Houston [1^st Dist.] 2004, pet. ref'd), the court stated that "pending" means "impending, or about to take place."