No. 12-05-00065-CR
Opinion delivered June 14, 2006. DO NOT PUBLISH.
Appeal from the 241st Judicial District Court Smith County, Texas.
Panel consisted of WORTHEN, C.J., GRIFFITH, J., and DeVASTO, J.
SAM GRIFFITH, Justice.
Appellant, Michael Castle, was convicted for possession of more than four grams but less than two hundred grams of a controlled substance, methamphetamine. The jury sentenced him to imprisonment for twenty years. In two issues, Appellant contends that the trial court erred in denying his motion to suppress evidence and in failing to include a jury instruction regarding certain evidence. We affirm.
BACKGROUND
Appellant was arrested and charged by indictment with possession of more than four grams but less than two hundred grams of methamphetamine. The evidence at trial showed that Tyler police received an anonymous call about a disturbance at an apartment. Tyler police officer Craig Shine and two other officers responded immediately. The officers met the apartment owner at the door, and he gave them permission to enter. Shine made a cursory walk through the one bedroom apartment to assess security and discovered a number of people in the apartment, including Appellant. The officers found no evidence of a disturbance, but they saw a pipe used to smoke methamphetamine sitting on the coffee table in the middle of the room. The officers also observed what Shine described as an "astonished look on everybody's face . . . like we had just walked into the middle of something . . . a look on their face as if you've interrupted something, and they know what it is and you don't." Shine described the situation as "a little bit unnerving." During their investigation, the officers spoke with each person in the apartment. Shine's attention was drawn to Appellant, who was "very nervous" and held his hands over his front pants pockets. Shine saw that the pockets were "bulging." Shine spoke with Appellant for a moment and then did a patdown of Appellant's outer clothing to determine whether he had a weapon. Shine detected an object in each of the pockets Appellant had attempted to cover. Appellant told Shine that the long, hard object in his right front pocket was his sunglasses case. He also told Shine that the soft bag in his left front pocket was a "doc kit" and that Shine could take it out of his pocket. Shine testified that he then removed an artificial leather pouch containing several items, including rolling papers that could be used for smoking marijuana. Shine continued "getting [Appellant's] information from him." As other officers arrived for backup, Shine asked Appellant to step outside because of the "confusion" between the officers and the other people in the living room. Shine and Appellant stepped outside the apartment to continue their discussion. Due to Appellant's continued nervousness, Shine asked Appellant if he possessed "anything illegal." Appellant said he had "speed," which Shine understood to mean methamphetamine, in his right front pants pocket. Shine opened the sunglasses case and found six plastic baggies, all of which contained a controlled substance. Subsequent testing established that the six baggies contained a total of 4.39 grams of methamphetamine. The jury found Appellant guilty of possession of a controlled substance as charged in the indictment. The jury sentenced Appellant to imprisonment for twenty years. This appeal followed. SUPPRESSION OF EVIDENCE
In his first issue, Appellant contends that the trial court erred in failing to suppress the methamphetamine found in his pants pocket. Specifically, Appellant argues that Shine's search of Appellant was the result of an illegal detention for which he lacked "reasonable suspicion" and that the anonymous tip failed to provide adequate justification for the detention. Appellant contends that, because the initial detention was illegal, the evidence discovered in the subsequent search should have been suppressed. Standard of Review A trial court's ruling on a motion to suppress evidence is reviewed under an abuse of discretion standard. Balentine v. State , 71 S.W.3d 763, 768 (Tex.Crim.App. 2002). In reviewing a trial court's ruling on a motion to suppress, a reviewing court must give "almost total deference to a trial court's determination of historical facts" and review de novo the court's application of the law of search and seizure. Guzman v. State , 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). Where a trial court does not make explicit findings of historical fact, the reviewing court examines the evidence in the light most favorable to the trial court's ruling and assumes the trial court made implicit findings of fact that are supported in the record. Balentine , 71 S.W.3d at 768. Applicable Law The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures. U.S. CONST. amend. IV. The Texas Constitution contains a similar prohibition. See TEX. CONST. art. I, § 9. It is well established, however, that a law enforcement officer may approach a citizen without reasonable suspicion or probable cause to ask questions and even to request a consent to search. Johnson v. State , 912 S.W.2d 227, 236 (Tex.Crim.App. 1995) (citing Florida v. Royer , 460 U.S. 491, 497-98, 103 S.Ct. 1319, 1323, 75 L.Ed.2d 229 (1983)). While an officer is free to approach a citizen and ask questions, the citizen is also free to not answer the questions. Johnson , 912 S.W.2d at 236. A police officer may also briefly stop a suspicious individual to determine his identity or to maintain the status quo momentarily while obtaining more information. Gurrola v. State , 877 S.W.2d 300, 302 (Tex.Crim.App. 1994). A temporary detention requires reasonable suspicion. See id. Such a detention may be reasonable if (1) the officer's action was justified at its inception and (2) the detention was reasonably related in scope to the circumstances that justified the interference in the first place. Terry v. Ohio , 392 U.S. 1, 19-20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968). To justify a temporary detention, the officer must have specific articulable facts that, in light of his experience and general knowledge, taken together with rational inferences from those facts, would reasonably warrant the intrusion on the citizen. Gurrola , 877 S.W.2d at 302. There must be a "reasonable suspicion" by the officer that some activity out of the ordinary is occurring or has occurred, some suggestion to connect the detained person with the unusual activity, and some indication that the activity is related to a crime. Id. The reasonable suspicion determination is made by considering the totality of the circumstances. Balentine , 71 S.W.3d at 769. Moreover, an officer who is justified in believing that an individual is armed and presently dangerous may conduct a patdown search to determine if the suspect is carrying a weapon. Terry , 392 U.S. at 27, 88 S.Ct. at 1883; see also Balentine , 71 S.W.3d at 769. Analysis In this case, the record shows that the police officers went to the apartment in response to an anonymous disturbance call, and the owner gave them permission to enter. Therefore, the officers were legally in the apartment. The officers discovered several people in the apartment, including Appellant. The officers were entitled to detain these people to determine whether there had been a disturbance in the apartment. The people in the apartment, including Appellant, were acting suspiciously. Additionally, the officers saw a pipe used to smoke methamphetamine sitting on the coffee table in the middle of the living room. Criminal possession of drug paraphernalia provided the police with articulable facts which supported a reasonable suspicion that some criminal act was occurring or had occurred and that the surprised people in the apartment might be connected to the crime. These facts provide further justification for the officers to detain the apartment's occupants. The arresting officer observed that Appellant was attempting to cover his bulging front pants pockets with his hands. This additional fact justified the officer's patdown search of Appellant. One of Appellant's front pants pockets contained a long, hard object. The officer's subsequent inquiry to Appellant about the nature of the object, which Appellant identified as a sunglasses case, was a legitimate question. Since Appellant was not under arrest, he could have declined to answer. Appellant's other front pants pocket contained what Appellant identified as a "doc kit," which he gave permission for the officer to remove and open. Therefore, that search was legal. After the officer found rolling papers in the "doc kit," he asked if Appellant possessed "anything illegal." In response, Appellant told the officer about the methamphetamine. This question was also legitimate, but Appellant could have declined to answer. Having volunteered the information that he had illegal drugs in his pants pocket, the officer's seizure of the drugs was legal. Because the initial detention and search were legal, the trial court did not err in failing to suppress the drugs seized. Appellants' first issue is overruled. FAILURE TO GIVE REQUESTED CHARGE
In his second issue, Appellant contends that the trial court erred in failing to include in the jury charge a requested jury instruction regarding the illegal search of Appellant's person. Applicable Law Article 38.23 of the Texas Code of Criminal Procedure prohibits the admission in a criminal trial of unlawfully obtained evidence. TEX. CODE CRIM. PROC. ANN. art. 38.23(a) (Vernon 2005). When a factual dispute arises about how evidence was obtained, the trial court must instruct the jury to disregard the evidence if it believes, or has a reasonable doubt, that the evidence was unlawfully obtained. Id. ; Balentine , 71 S.W.3d at 773. The evidence that raises the issue may be either strong, weak, contradicted, unimpeached, or unbelievable. Muniz v. State , 851 S.W.2d 238, 254 (Tex.Crim.App. 1993). However, there must be some evidence to raise the issue. Id. If there is no dispute about the facts, the legality of the search is a question of law for the court, not a question of fact for the jury. Lackey v. State , 638 S.W.2d 439, 454 (Tex.Crim.App. 1982). Analysis At the charge conference, Appellant read into the record his proposed jury charge, which included the instruction authorized by article 38.23. The trial court held an extensive hearing on the request. The court ruled that there was no factual issue raised by the evidence regarding the legality of the seizure of the methamphetamine and denied the requested instruction. Appellant contends that the search was unlawful because the officers were called to the apartment to investigate an anonymous disturbance call that "proved to be a total wild goose chase." However, the reliability of the anonymous tip is irrelevant to the seizure of Appellant's methamphetamine. The officers requested and obtained the permission of the apartment owner to enter and investigate the disturbance call. After seeing the methamphetamine pipe, the officers spoke to the occupants of the apartment. Further, Appellant admitted to the officer during their conversation that he possessed methamphetamine. Therefore, the methamphetamine was lawfully obtained. Despite Appellant's strong cross examination, no disputed facts were developed regarding the seizure of the methamphetamine. Therefore, we hold that the trial court did not err in denying the requested instruction. Appellant's second issue is overruled. INEFFECTIVE ASSISTANCE OF COUNSEL
Appellant's appellate counsel notes in Appellant's brief that Appellant wanted to contend on appeal that his trial counsel provided ineffective assistance. Counsel properly noted in Appellant's brief that the Supreme Court has established a two prong test for ineffective assistance of counsel. See Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). Under the first prong of the Strickland test, an appellant must show that counsel's performance was "deficient." Id. Under the second prong, an appellant must show that the "deficient performance prejudiced the defense." Id. Appellate counsel admits that Appellant cannot establish either prong of Strickland. We consider this issue in accordance with Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and Gainous v. State , 436 S.W.2d 137 (Tex.Crim.App. 1969). We have reviewed the record for reversible error related to ineffective assistance of counsel and have found none. Conclusion
Having overruled Appellant's two issues, we affirm the judgment of the trial court.