07-04-0504-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
MARCH 16, 2006
______________________________
DARRELL WAYNE MORRIS A/K/A B.C. MORRIS, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE _________________________________
FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;
NO. 48,747-E; HONORABLE ABE LOPEZ, JUDGE _______________________________
Before QUINN, C.J., and REAVIS and HANCOCK, JJ.
OPINIONAppellant, Darrell Wayne Morris, appeals his conviction for possession of a controlled substance (cocaine), in an amount of at least four grams but not over 200 grams, and the adjudication of his guilt for the offense of aggravated assault with a deadly weapon. Appellant further appeals the sentences of 12 years incarceration imposed for each conviction. We affirm.
Background
Based on a plea agreement, appellant pled guilty to a charge of aggravated assault in 1999. In accordance with the State's recommendation, adjudication was deferred for eight years.
On November 5, 2003, Officer Ponce of the Amarillo Police Department received information from a confidential informant that narcotics were being sold at a car wash owned by appellant. Another officer, Perez, had conducted surveillance on the car wash for the preceding two weeks and had observed activities that he concluded were consistent with drug transactions. Acting on this information, Ponce performed a surveillance of the car wash to confirm that drug transactions were occurring there. During Ponce's 15 minute "spot up," Ponce saw three vehicles pull into the car wash. None of these vehicles were washed. Each of these three vehicles were approached by a person who would briefly converse with the occupant, then he would go back to a "shed" area and would then return to the car. According to Ponce, these exchanges would last no more than two minutes. Ponce did not see drugs being sold, money exchanging hands, or weapons present, but he concluded that these three exchanges were, based on his training and experience, consistent with drug transactions. He also felt that his observations were sufficient to corroborate the information he had previously received from the confidential informant and the conclusion reached by Perez.
As a result, Ponce gave other officers the signal to perform a "jump out" at the car wash. As described by Ponce, a "jump out" is when officers pull into the parking lot, jump out of an unmarked van, secure everybody present by ordering them to get down on the ground, followed by a pat down search of those present. After those present are secured, the "jump out" officers question those detained about the possible sale of drugs at the location.
Officer Russell was specifically assigned the task of securing appellant during the "jump out." Russell was to make sure that appellant did not have a weapon and that he did not destroy or discard any evidence. When the "jump out" was executed, appellant complied with the officers' requests to get on the ground, but appellant tried to scoot under a nearby parked vehicle. Concerned that appellant was either trying to find a weapon or hide a weapon or evidence, Russell pulled appellant from under the car and handcuffed him. When Russell looked under the vehicle, he found a Skoal can. Within the can, Russell found plastic bags that appeared to contain crack cocaine. After making this discovery, Russell arrested appellant. Appellant was then searched incident to the arrest and $859 in cash was found on appellant.
Following appellant's arrest, he was indicted for possession of a controlled substance and the State filed a motion to proceed to adjudication on the aggravated assault charge alleging that he violated the terms of his community supervision based on his possession of a controlled substance.
Before the trials, appellant filed motions to suppress any evidence seized by officers during the "jump out" contending that the officers lacked reasonable suspicion to conduct a warrantless search and that any evidence obtained as a result of the detention and arrest was the "fruit of the poisonous tree." After holding a pre-trial hearing, the trial court continued its ruling. While the trial court never entered a formal ruling on appellant's motions, at the adjudication hearing, the trial court allowed evidence obtained during the "jump out" to be admitted over appellant's objections. The trial court found that appellant violated the terms of his community supervision by possessing a controlled substance, adjudicated appellant guilty for the aggravated assault, and sentenced appellant to 12 years incarceration.
Following the trial court's adjudication on the aggravated assault charge, appellant pled guilty to the possession charge subject to his right to appeal the denial of his suppression motion. The trial court accepted appellant's plea, found him guilty of the possession charge, and sentenced appellant to 12 years incarceration.
By two issues, appellant contends that the trial court erred in denying appellant's motions to suppress the cocaine because the police acted in violation of the Fourth Amendment of the United States Constitution and Article One, Section Nine of the Texas Constitution. (1) We will address appellant's issues in the context of each conviction separately.
Aggravated Assault
Appellant contends that, since the State's sole allegation in its motion to proceed to adjudication was the possession charge, the suppression of the cocaine would preclude the trial court's adjudication of appellant's guilt for the aggravated assault. However, we have no authority to review the trial court's determination to proceed to an adjudication of guilt. See Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp. 2005); Holder v. State, 618 S.W.2d 80, 81 (Tex.Crim.App. 1981) (appellate court has no authority to address whether evidence was obtained as a result of an illegal search or seizure, as this issue goes to the trial court's determination of whether to proceed to adjudication). Thus, we affirm the aggravated assault conviction.
Possession of a Controlled Substance
Appellant pled guilty to the possession of a controlled substance charge subject to his right to appeal the denial of his motion to suppress the cocaine. Appellant contends that he was illegally arrested during the "jump out" and that the cocaine should be suppressed as the "fruit of the poisonous tree." We conclude that, when the events involving appellant are viewed in chronological sequence, appellant was not illegally arrested.
We review a trial court's ruling on a motion to suppress by giving almost total deference to a trial court's determination of historical facts, while reviewing the court's application of the law to those facts de novo. See O'Hara v. State, 27 S.W.3d 548, 550 (Tex.Crim.App. 2000). When the trial court does not make explicit findings of historical facts, we review the evidence in the light most favorable to the trial court's ruling. Id.
Prior to the "jump out," Officer Perez had confirmed that activities consistent with drug transactions had occurred at the car wash during the two weeks preceding the raid, a reliable informant had informed the officers that drug transactions had occurred at the car wash on the day of the raid, and Officer Ponce was able to confirm that activities consistent with the sale of drugs were occurring at the car wash during the 15 minutes before the raid. Police may stop and briefly detain persons reasonably suspected of criminal activity, even if probable cause to arrest is not then present. See Terry v. Ohio, 392 U.S. 1, 22, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). The reasonableness of the detention must be examined in terms of the totality of the circumstances and is justified when the detaining officers have specific articulable facts leading to a reasonable conclusion that the person to be detained is, has been, or soon will be engaged in illegal activity. Woods v. State, 956 S.W.2d 33, 38 (Tex.Crim.App. 1997). Considering the facts known to the officers, we conclude that they were justified in detaining appellant.
Appellant contends that, when the officers jumped out of the unmarked van in "raid gear" with guns drawn and ordered everybody present to get down on the ground, he was under arrest. However, it cannot be said that whenever police draw weapons on a person that the resulting seizure must be an arrest rather than an investigatory detention. See Rhodes, 945 S.W.2d at 117. Similarly, ordering a suspect to the ground does not necessarily convert an investigatory detention into an arrest. See Nargi v. State, 895 S.W.2d 820, 822 (Tex.App.-Houston [14th Dist.] 1995), pet. dism'd, improvidently granted, 922 S.W.2d 180 (Tex.Crim.App. 1996). To effectuate a detention, police may use such force as is reasonably necessary to allow for investigation, to maintain the status quo, or for officer safety. Rhodes, 945 S.W.2d at 117.
A police officer's belief that a suspect is armed may be predicated on the nature of the suspected criminal activity. See Terry, 392 U.S. at 27-28. Because weapons are closely associated with drug dealing, a reasonable suspicion that a suspect is dealing drugs supports a reasonable inference that the suspect is armed. See Carmouche v. State, 10 S.W.3d 323, 330 (Tex.Crim.App. 2000). All of the officers testified that they ordered those present at the car wash to the ground out of concern for officer safety. While there were no weapons ultimately discovered, we conclude that the totality of the circumstances justified the police actions as reasonably necessary to protect the officers.
Immediately following the "jump out," appellant complied with the officers' requests to get down on the ground. However, appellant then attempted to crawl or scoot under a nearby vehicle. A seizure occurs only when (1) a reasonable person would believe he is not free to leave and (2) when that person has yielded to the officer's show of authority or has been physically forced to yield. See Crawford v. State, 932 S.W.2d 672, 673-74 (Tex.App.-Houston [14th Dist.] 1996, writ ref'd) (citing California v. Hodari D., 499 U.S. 621, 627, 111 S. Ct. 1547, 113 L. Ed. 2d 690 (1991)). Appellant's attempt to get under the vehicle evidences a failure to yield to the officers' show of authority and, as a result, we conclude that appellant was not seized at that time.
When the officers used force to pull appellant from under the vehicle, appellant was detained. However, because the officers could not ascertain appellant's purpose in attempting to get under the vehicle, their use of force to detain appellant was reasonable under the circumstances out of a concern for officer safety. Because there is no evidence that appellant had been patted down to determine if he had any weapons on his person before being handcuffed, we conclude that handcuffing appellant in these circumstances was reasonable and did not convert the detention into an arrest. See Rhodes, 945 S.W.2d at 117.
Once appellant had been secured, Officer Russell returned to the vehicle appellant had attempted to get under and discovered a Skoal can in the location appellant had been. Inside of the can, Russell discovered crack cocaine in multiple small bags. Voluntary abandonment of property occurs if the defendant intended to abandon the property and his decision to abandon the property was not the result of police misconduct. See Brimage v. State, 918 S.W.2d 466, 507 (Tex.Crim.App. 1996) (op. on reh'g). Since appellant was not detained prior to his abandonment of the can and as we have already determined that the police acted properly, appellant's rights against unreasonable search and seizure were not violated by the officers' recovery of the evidence that appellant voluntarily abandoned. See Crawford, 932 S.W.2d at 673-74.
Concluding that the evidence that appellant sought to have suppressed was not obtained as a result of an illegal search or seizure, we affirm appellant's conviction for possession of a controlled substance and overrule appellant's issues.
Conclusion
We affirm the appellant's convictions and sentences for aggravated assault and for possession of a controlled substance.
Mackey K. Hancock
Justice
Publish.
1. The Court of Criminal Appeals has held that the protections from unreasonable searches and seizures provided by the Texas Constitution are the same as the protections provided by the United States Constitution. See Rhodes v. State, 945 S.W.2d 115, 117 (Tex.Crim.App. 1997).
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NO. 07-10-0319-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
FEBRUARY 4, 2011
STANLEY EUGENE HOLLINGS, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 181ST DISTRICT COURT OF RANDALL COUNTY;
NO. 20,292-B; HONORABLE JOHN B. BOARD, JUDGE
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant, Stanley Eugene Hollings, was convicted following a jury trial of unauthorized use of a motor vehicle[1] enhanced and sentenced to twenty years confinement. In a single issue, Appellant asserts the State's evidence was legally insufficient in establishing that Appellant operated the same vehicle as that reported stolen. We affirm.
Background
On January 7, 2009, a Randall County Grand Jury returned an indictment alleging that, on or about November 5, 2008, Appellant intentionally and knowingly operated a motor-propelled vehicle, to-wit: a Toyota motor vehicle, without the effective consent of its owner, Jeri Cole. The indictment also contained an enhancement paragraph alleging two prior felony convictions for burglary of a vehicle and delivery of a simulated controlled substance.
In May 2010, a three day jury trial was held. The State's evidence established that Cole would sometimes loan Appellant her car, a silver Toyota RAV4, in return for drugs. When she came to believe Appellant was taking advantage of her, she denied him any further use of her car. After spending the night at Cole's house, Appellant left the next morning with Cole's car and her cell phone. Although Cole was later able to track Appellant down while he was driving her car, she was unable to convince him to return it to her. Appellant subsequently left Amarillo to purchase drugs in Ohio, and Cole called the police.
Officer Cory Jones, a Corporal with the Amarillo Police Department, was dispatched to Cole's house to take a complaint. After speaking with Cole, Officer Jones entered information describing her car into a national database[2] whereby, if an officer anywhere in the country came across Cole's car and ran the license number, the database would show the car was stolen. He also listed Appellant in the database as a suspect.
On November 11, 2008, Officer Jennifer Roar of the City of Circleville, Ohio Police Department was patrolling an area surrounding a house known as a source for narcotics and pills. On the front porch of the house, Officer Roar observed Dora Castillo and Rodney Evans, known narcotics abusers. She also spotted a car parked in front of the house with Texas license plates. She circled the block and, when she returned, Castillo was pulling the car out of the parking space. Castillo was accompanied by Evans and two passengers. The car was a silver Toyota RAV4. Officer Roar ran the license plate through the law enforcement automated data system and their communications center. She was advised that the Toyota RAV4 had been reported stolen and Appellant was a suspect in the car's theft. She executed a felony stop and arrested Appellant.
Cole testified that, when she discovered her car was missing and her cell phone gone, a friend who knew Appellant's whereabouts came and picked her up in order to help her retrieve her car. They subsequently observed Appellant driving the car with a female passenger. Both cars stopped and an argument ensued. When Cole's friend led her back to his car, Appellant drove away. When Appellant did not return her car as she had requested, she complained to APD. Subsequently, Cole was informed by her insurance company that her car had been located in Circleville, Ohio. The insurance company elected to repair damage to the car in Ohio and later shipped the car to her in Texas.
Appellant testified that, after the confrontation with Cole, he and Castillo left Amarillo, Texas, and drove to Circleville, Ohio, to purchase drugs where Castillo had connections. He testified Castillo assisted him with driving. When he was arrested in Ohio, Appellant told the officers that his girlfriend had lent the car to him. His plan was "[t]o bring the car and the drugs back" to Texas. He further testified he had permission to use Cole's car at the time of his arrest.
At the trial's conclusion, the jury convicted Appellant of unauthorized use of a motor vehicle, found the enhancements to be true, and sentenced him to twenty years confinement. This appeal followed.
Discussion
Appellant asserts the State's evidence at trial was legally insufficient because the State failed to prove that the car driven by Appellant in Ohio was Cole's car. Appellant contends that the only evidence on this issue was Cole's testimony that she reported a "Toyota Rav 4" stolen and Appellant was apprehended in Ohio as a passenger in a "silver RAV 4." Appellant asserts the outcome in this appeal is governed by Hooper v. State, 788 S.W.2d 24 (Tex.App.--Houston [1st Dist.] 1987, no pet.), wherein the court held that, where the only evidence at trial was that the victim's car was a Buick Regal and the defendant was apprehended in a Buick Regal, the State's evidence was legally insufficient to establish that the victim was the owner of the specific car being driven by the defendant. Id. at 25-26.
Standard of Review
The Texas Court of Criminal Appeals has recently held that the only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense the State is required to prove beyond a reasonable doubt is the standard set forth in Jackson v. Virginia, 443 U.S. 307, 33 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). See Brooks v. State, 323 S.W.3d 893, 912 (Tex.Crim.App. 2010)[3] Under that standard, in assessing the sufficiency of the evidence to support a criminal conviction, this Court considers all the evidence in the light most favorable to the verdict and determines whether, based on that evidence and reasonable inferences to be drawn therefrom, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d at 912. We measure the legal sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997). In our review, we must evaluate all of the evidence in the record, both direct and circumstantial, whether admissible or inadmissible. Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App. 1999), cert. denied, 529 U.S. 1131, 120 S. Ct. 2008, 146 L. Ed. 2d 958 (2000).
Unauthorized Use of a Motor Vehicle
A person commits the offense of unauthorized use of a motor vehicle when "he intentionally or knowingly operates another's boat, airplane, or motor-propelled vehicle without the effective consent of the owner." Tex. Penal Code Ann. § 31.07(a) (West 2003). At trial, the State was required to prove, beyond a reasonable doubt, every element of the crime with which Appellant was charged; Winn v. State, 828 S.W.2d 284, 285 (Tex.App.--Houston [14th Dist.] 1992, no pet.) (citing Butler v. State, 769 S.W.2d 234, 239 (Tex.Crim.App. 1989)), and an essential element of the offense of unauthorized use of a motor vehicle is that Appellant operated a car owned by Cole. Id. (citing Abran v. State, 788 S.W.2d 375, 376 (Tex.App.--Houston [1st Dist.] 1988, no pet.)).
Viewing the evidence in a light most favorable to the verdict, Officer Cory Jones's testimony established that he took Cole's complaint and entered information describing her car, a silver 2001 Toyota RAV4 with Texas license plate number 710 DLN, as stolen in a national database that could be referenced by any officer in the nation if the car was spotted. Appellant was also entered as a suspect in the database.
Appellant testified that, after a confrontation between himself and Cole, he left Amarillo, Texas, in Cole's car and drove to Circleville, Ohio, to purchase drugs. Officer Roar testified that she spotted Appellant in the company of narcotics abusers in front of a known drug house in a silver Toyota RAV4 with Texas license plates. Officer Roar followed the car and observed the driver, Appellant's passenger at the time of his confrontation with Cole in Amarillo--Castillo, driving erratically. When Officer Roar ran the license plate number through the law enforcement automated data system and her communications center, she was advised that the car was stolen and Appellant was a suspect in the car's theft. When he was arrested, Appellant testified he told Ohio police that his girlfriend had lent him the car and his plan was "[t]o bring the car and the drugs back" to Texas. Subsequently, Cole was informed by her insurance company that her car had been located in Circleville, Ohio. The car was repaired in Ohio by her insurance company and then shipped to her in Texas.
Thus, unlike Hooper where the only evidence was that the victim's car was a Buick Regal and the defendant was apprehended in a Buick Regal; 788 S.W.2d 25-26, here, we have evidence that Officer Jones entered the vehicle's color, make, model, and license plate number into a national database used by police officers to identify stolen cars and the car was subsequently identified by that information by Officer Roar at the time of Appellant's arrest in Ohio. In addition, Cole testified that, at the time of her confrontation with Appellant in Amarillo, Appellant was driving her car without her permission. Appellant subsequently testified that, following the confrontation, he and Castillo drove the car to Ohio to purchase drugs because Castillo had connections there. When he was arrested in Ohio, Appellant told police that Cole had lent him the car and his plan was to bring it back to Texas. Lastly, Cole testified that her insurance company informed her that her car was located in Circleville, Ohio. Based upon this evidence, we find that a rational trier of fact could have found sufficient evidence to establish beyond a reasonable doubt that Appellant operated a motor vehicle, owned by Cole, without her effective consent. Accordingly, Appellant's single issue is overruled.
Conclusion
The trial courts judgment is affirmed.
Patrick A. Pirtle
Justice
Do not publish.
[1]See Tex. Penal Code Ann. § 31.07(a) (West 2003).
[2]Officer Jones testified Cole reported a silver 2001 Toyota RAV4, Texas license plate number 710 DLN, as stolen.
[3]Judge Hervey delivered the opinion in Brooks, joined by Judges Keller, Keasler, and Cochran; and, Judge Cochran delivered a concurring opinion, joined by Judge Womack. Although we are not bound by a decision of four judges, Pearson v. State, 994 S.W.2d 176, 177 n.3 (Tex.Crim.App. 1999), we read the combined opinions of Judges Hervey and Cochran in Brooks as abandoning factual sufficiency as an evidentiary sufficiency standard of review distinct from legal sufficiency.