Joe Samuel Ervine, Jr. v. State of Texas

Opinien ﬁled January 31, 2013

(Eleventh @uurt at Qppeals

No. 11-1 1-00006—CR

JOE SAMUEL ERVINE, JR., Appellant
V.
STATE OF TEXAS, Appellee
W

0n Appeal from the 238th District Court
Midland County, Texas

Trial Court Cause N0. CR36172

MEMORANDUM OPINION
T he jury convicted Joe Samuel Ewine} Jr. 0f the felony offense 0f possession 0f cocaine
in an amcunt of we gram or more but less than four grams with the inith to deliver. See TEX.
HEALTH & SAFETY CODE ANN. § 48l.l 12 (West 2010)? After it found the enhancement
paragraph true, the trial court assessed Ervine’s punishment at conﬁnement for a term of ﬁfteen
years! and it sentenced him accordingly. Ewine appeals his conviction in one issue. He does not

challenge the sufﬁciency of the evidence. We afﬁrm.

In his sole issue on appeal. Ervine contends that the trial court erred when it admitted
evidence of the cocaine seized by Officer Jesus Primera Rohiedo lil from Ervineis person
because it was discovered and seized incident to an illegal arrest. Specifically, Ervine alleges
that Ofﬁcer Robledo falsely arrested him for violations of the Municipal Code of the City of
Midland and for a violation of the Texas Alcoholic Beverage Code (TABC) and, thus. that the
evidence should have been excluded. The trial court denied Ervine‘s pretrial motion to suppress
evidence of the cocaine. During trial, Ervine again objected to the admissibility of the cocaine
evidence, and the trial court overruled those objections and admitted the evidence. We will
construe Ervine’s argument on appeal broadly enough for us to review the trial court’s denial of
the motion to suppress as well as the trial court’s decision to overrule Ervine’s objections at trial
and its decision to admit the evidence.

We review a trial court’s decision to admit or exclude evidence under an abuse of
discretion standard. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on
reh’g). We will reverse a trial court’s ruling only if it is outside the “zone of reasonable
disagreement.” Id. We review a trial court’s ruling on a motion to suppress under a bifurcated
standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). We give
deference to the trial courtis rulings on mixed questions of law and fact when those rulings turn
on an evaluation of credibility and demeanor. Guzman v. State. 955 S.W.2d 85, 87 (Tex. Crim.
App. 1997). Where such rulings do not turn on an evaluation of credibility and demeanor, we
review the trial court’s actions de novo. Id. Because Officer Robledo testified about the
circumstances leading up to the search at both the suppression hearing and at trial, and because
the issue of whether Ofﬁcer Robledo had probable cause to arrest was submitted to the jury, we
will review the evidence adduced at both proceedings to determine whether the trial court erred
when it admitted the evidence. See Gutierrez: v. State. 221 S.W.3d 680, 687 (Tex. Crim. App.
2007) (“[W]hen the parties subsequently tea-litigate the suppression issue at the trial on the
merits, we consider all evidence. from both the pie-trial hearing and the trial, in our review of the
trial court’s determination”).

Ewine asserted in his motion to suppress that the evidence found on his person incident
to his arrest should be suppressed because there was no lawful warrant, probable cause, or other
lawful authority to detain him. At the suppression hearing, Ofﬁcer Robledo testiﬁed that he

routinely patrols the area of Midland known as “the Flats.” He described the Flats as a high

crime and high drug area where open hand-to—hand drug transactions occur throughout the day
and night. One evening at approximately 7:00 p.m., Officer Robledo was driving northbound on
Lamesa at approximately 30 miles per hour when he noticed a white female approach a black
male behind Dorothy‘s Place, a small bar in the Flats where alcohol and snacks are sold. Officer
Robledo testiﬁed that it was still daylight and that he saw the female take money from her
pocket, count the money, and then hand it to the male. The male, later identiﬁed by Officer
Robledo as Eryine, reached into his pocket and pulled out an item that Ofﬁcer Robledo could not
identify and gave it to the female. T he two individuals then “split ways.” Officer Robledo
testiﬁed that he observed the two individuals conducting what he believed to be a handuto-hand
transaction of narcotics.

The female left the area in a vehicle; Brvine remained at Dorothy’s Place. Officer
Robledo foliowed the female in hopes of conducting a trafﬁc stop, but ended his pursuit when
she left the Midland city limits. He called another ofﬁcer for backup and returned to Dorothy’s
Place to make contact with Ervine. When he arrived at Dorothy’s Place, he saw Ervine standing
below a “no loitering” sign drinking a beer. Ofﬁcer Robledo testified that be detained Ervine for
possibly selling narcotics, loitering in a no loitering area, illegally consuming alcohol on a
licensed premises, and for having an open container in public. He patted Ervine down for
protection, arrested him for loitering, and placed him in handcuffs.

Officer Bradley Alexander arrived to assist Ofﬁcer Robledo. The ofﬁcers conducted a
search of Ervine’s person incident to his arrest. Officer Robledo found five $20 bills in Ervine’s
left front pocket, and Officer Alexander found a prescription pill bottle that contained numerous
white rocks, later identified as twenty rocks of crack cocaine, in ErVine’s right front pocket.

On cross-examination, Ofﬁcer Robledo reviewed the municipal ordinances pertaining to
loitering, or trespassing, and consuming alcohol in public. He testified that, based on his review,
he did not believe that Ervine had violated either ordinance but that, at the time of the arrest, with
his initial understanding of the law, he believed that Errine had violated both municipal,
ordinances.

Defense counsel argued that there was no basis for the search under either ordinance and
that Officer Robledo could not have seen the details of a hand—to~hand drug transaction driving
down the street at 30 miles per hour. The trial court found that probable cause existed for the

detention, the arrest, and the subsequent seizure of the tangible evidence incident to the arrest.

The trial court denied the motion to suppress as to the drugs and money, and the case later

proceeded to trial.

At trial} Ofﬁcer Robledo’s testimony was generally consistent with his description of the
circumstances leading up to the search about which he testiﬁed at the suppression hearing. He
added that he observed the transaction from approximately 300 feet away and that he was driving
35 miles per hour. Ofﬁcer Robledo testiﬁed that: in his experience and training, the person
leaving the transaction is usually the person buying illegal drugs and that the person that stays in
the vicinity is usually the person selling those drugs. He also added that, when he conducted the
pat—doom of Ervine for his protection, he felt What he believed to be a pill bottle, which led him
to further believe that Ervine was in possession of some type of substance and had committed a
drug transaction. Ofﬁcer Robledo did not remove the pill bottle until after Ervine was under

31T€SL

During cross—examination, Ofﬁcer Robledo afﬁrmed that Ervine’s actions did not
constitute a Violation of the municipal ordinances. Ervine’s attorney pointed to what he believed
to be discrepancies between the ofﬁcer’s testimony and certain statements that the ofﬁcer had
made in an earlier afﬁdavit and police report. Ofﬁcer Robledo conﬁrmed that he wrote in his
afﬁdavit that he was traveling south on Lamesa, instead of north, and that he observed a black
male and a white male conduct What he believed to be a hand-to~hand drug transaction, instead
of a black male and a white female. He also admitted that he did not write in his afﬁdavit that he
found money on Ervine. In his police report, he wrote that the pill bottle was found in Ervine’s
left front pocket], instead of his right front pocket, and he failed to state that he felt the pill bottle
during the pat-down.

On redirect: Ofﬁcer Robledo testified that he was rushing to get back out on patrol and
that the discrepancies were honest mistakes. He further testiﬁed that he was one-hundred
percent positive that his testimony at trial was the correct version of events. Officer Robledo
also agreed that, looking back, he could have detained and searched appellant based on his
original observation of the hand—to-hand transaction if he had chosen to do so. Furthermore, he
believed that he had reasonable suspicion to stop the female based on his observation of the drug
transaction and that he did not need to wait for the opportunity to make a valid traffic stop in

order to make contact with her.

The trial court instructed the jury that, before it could consider Officer Robledo’s and
Officer Alexander’s testimony, it must first find beyond a reasonable doubt that Officer Robledo
had probable cause to believe and did believe that Ervine had committed or was committing an
offense. “[l’hobable cause” was defined as when “the facts and circumstances within the
officer’s knowledge, and of which he had reasonable trustworthy information, are sufficient by
themselves to warrant a man of reasonable caution to believe that an offense had been or is being
committed.” The trial court further instructed the jury that, if it did not believe that Ofﬁcer
Robledo had probable cause, it should disregard the officers’ testimony and any items of
evidence taken from Ervine. The jury convicted Ervine of possession with intent to deliver.

Ervine’s argument on appeal is that his arrest was illegal because Officer Robledo
admitted that Ervine did not commit a loitering violation and, thus, that the evidence should have
been excluded because the search was not incident to a valid arrest. The Court of Criminal
Appeals, however, has held that the subjective conclusion of a police officer as to the existence
of probable cause is not binding on an appellate court, which must independently determine the
existence of probable cause on the objective facts of the case. Voelkel v. State, 717 S.W.2d 314,
316 (Tex. Crim. App. 1986). Therefore, if we find that, based on the evidence, probable cause to
arrest existed, even if for different grounds than the ofﬁcer believed it existed, we will uphold the
arrest and subsequent search.

Probable cause to arrest exists when, at the moment of arrest, the facts and circumstances
within the arresting officerls knowledge were sufﬁcient to warrant a prudent man in believing
that the particular person had committed or was committing an offense. Beck v. Ohio, 379 US.
89, 91 (1964). Under the Texas Code of Criminal Procedure, an officer is authorized to arrest a
person without a warrant when the officer observes the person commit anyo ffense in his
presence or within his view. TEX. CODE Cam. PROC. § 14.0l(b) (West 2005). Here,
although Qfﬁcer Robledo arrested Ervine for loitering and admitted at the suppression hearing
and at trial that Ervine had not committed a loitering offense, Officer Robledo also testified to
specific facts that would lead a prudent man to believe that Ervine had committed a drug
transaction. Defense counsel attacked Officer Robledo’s credibility by pointing out the
discrepancies in his affidavit and police report as compared to his testimony and by arguing that
Officer Robledo could not have observed a drug transaction from 300 feet away driving 30 to 35

miles per hour. These attacks on Officer Robledo’s credibility were obviously rejected by both

the trial court and the jury when both found that Ofﬁcer Robledo had probable cause to believe
that Ervine had committed a criminal offense. We cannot second~guess the factﬁnder’s
credibility determination on appeal, but can only look as to whether the record supports the
tactﬁnder’s ﬁnding of probable cause. See Guzman, 955 S.W.2d at 87; 89.

We hold that the following facts, as testiﬁed to by Ofﬁcer Robledo, were sufﬁcient to
support a finding that probable cause existed to arrest Ervine: (l) he observed a female hand
Ervine money; (2) he observed Ervine hand the female an unidentiﬁed object in return; (3) the
individuals then immediately split ways? and the female left the area in a vehicle; and (4) the area
where the transaction occurred was a high crime area where open~air hand-to-hand drug
transactions regularly occurred. Based on Ofﬁcer Robledo’s training and experience, he testiﬁed
that this sequence of events was consistent with a hand-to~hand drug transaction. While we ﬁnd
these facts sufﬁcient to support an arrest, as well as a detention, we also note that, when Ofﬁcer
Robledo first made contact with Ervine and conducted an initial pat-down for weapons, he felt
what he believed to be a pill bottle in Ervine’s pocket. He testiﬁed that, based on his experience
and training, he believed such an object would probably contain some type of illegal substance,
which conﬁrmed his belief that Ervine was selling drugs. The trial court did not err when it
denied Ervine‘s motion to suppress or when it admitted the evidence of the drugs and money at
trial.

The State directs us to Alexander v. State, 879 S.W.2d 338; 343 (Tex. AppmHouston
[14th Dist] 1994, pet. refd), for the proposition that; when an ofﬁcer conducts a legitimate
Terry‘ search and discovers contraband other than weapons, the ofﬁcer clearly cannot ignore the
contraband, and the Fourth Amendment does not require its suppression in such circumstances.
The State argues that Officer Robledo had probable cause to arrest once he felt a container that
be believed contained illegal drugs. However, because we have found that Officer Robledo had
probable cause to arrest prior to conducting the pat-down search, we need not determine the
validity of the pat-down or whether feeling the pill bottle gave Officer Robledo probable cause to
arrest.

Ervine also argues that his arrest under the loitering ordinance was illegal because the
ordinance is unconstitutional. However, Ervine did not raise the constitutionality issue in the

trial court and: thus: has waived this issue for our review. See TEX. R. APP. P. 33.1. Even if

‘Terry v, om, 392 us. 1 (I968),

Eruine had not waivecl the issue, it would not be necessary for us to address the cunstitutionality
01° the municipal ordinance because we have found thai the search was lawﬁxl based on the
ofﬁcerls observation of the hand—tu~hand transection. See TEX. R. APP. P. 47.1. Ewine’s sale
issue 031 appeal is overruled.

The judgment of the trial court is afﬁrmed.

JIM R. WRIGHT
CHIEF JUSTICE

January 31, 2013
Do not publish. See TEX. R. APP. P. 472(1)).

Panel consists of: Wright, C.J.,
McCall, I} and Willson, J.