Opinion
No. 05-16-00256-CR
03-08-2017
JERRY MITCHELL MORRIS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the County Court At Law No. 1 Kaufman County, Texas
Trial Court Cause No. 15-30283-CC-F
MEMORANDUM OPINION
Before Justices Bridges, Evans, and Schenck
Opinion by Justice Schenck
Jerry Mitchel Morris appeals his conviction for possession of controlled substance under one gram. He raises four issues on appeal. We affirm the trial court's judgment. Because all issues are settled in law, we issue this memorandum opinion. TEX. R. APP. P. 47.4.
FACTUAL AND PROCEDURAL BACKGROUND
Late in the evening of May 2, 2015, a woman working at a retail store noticed two vehicles that had been parked for about thirty minutes facing away from the store in which she worked. From that vantage point, she could see there were individuals sitting in the vehicles, though none of them ever entered the store. Several customers expressed to her their concerns for her safety as she was working alone. In accordance with her employer's policy, the woman called the police to investigate.
Officer David Crouch with the Kaufman Police Department responded to the 911 call about two suspicious vehicles, and when he approached the parking lot, he saw two vehicles matching the description from dispatch. He stopped his car and started his recording system. While exiting his vehicle, the officer observed one of the passengers of the two vehicles—later identified as appellant—make a furtive movement and reach down towards the backside of his chair into the interior area of the vehicle near the door. Concerned for his own safety because of these observed movements, which he believed could have been related to weapons or illegal narcotics, Officer Crouch instructed appellant to exit the vehicle. As appellant complied, Officer Crouch observed an object that resembled the bulb of a methamphetamine pipe resting between the cushion of the passenger seat and the plastic seat frame, the same location the officer had earlier seen appellant making furtive movements towards.
Officer Crouch then performed a pat down search for his own safety and that of appellant's. He asked appellant if he had anything that might poke, stick, or stab the officer inside of appellant's pockets. Appellant at first responded negatively, but then he admitted he had a small pocket knife in his right front pocket. When Officer Crouch reached into appellant's pocket to confiscate the knife, he noticed appellant had several items, including a clear plastic baggie that the officer believed to contain marijuana. Appellant immediately stated that he had forgotten the marijuana was in his pocket. Officer Crouch seized the glass bulb, which was still warm to the touch.
Appellant was charged by indictment with possession of a controlled substance, methamphetamine, in an amount less than one gram. He filed a motion to suppress the marijuana and the glass pipe containing the methamphetamine. After conducting a hearing which included Officer Crouch's live testimony, the trial court signed an order denying appellant's motion to suppress and making supportive findings of fact and conclusions of law. The case proceeded to trial before a jury. The jury convicted appellant of the offense as alleged and assessed his punishment at two years in state jail.
DENIAL OF APPELLANT'S MOTION TO SUPPRESS
In his first issue, appellant argues the trial court abused its discretion by denying his motion to suppress because the State failed to meet its burden to show Officer Crouch had the authority or reasonable suspicion to detain appellant. Appellant argues the officer was without authority to conduct an investigation because the store and its parking lot were located beyond Kaufman's city limits and thus beyond his jurisdictional limits. I. Standard of Review
We review a trial court's ruling on a motion to suppress under a bifurcated standard of review. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). First, we afford almost total deference to a trial judge's determination of historical facts. Id. The trial judge is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. Id. The judge is entitled to believe or disbelieve all or part of the witness's testimony—even if that testimony is uncontroverted—because he has the opportunity to observe the witness's demeanor and appearance. Id. If the trial judge makes express findings of fact, we view the evidence in the light most favorable to his ruling and determine whether the evidence supports these factual findings. Id. Second, we review a trial court's application of the law of search and seizure to the facts de novo. Id. We will sustain the trial court's ruling if that ruling is reasonably supported by the record and is correct on any theory of law applicable to the case. Id. II. Applicable Law
Article 14.03(g)(2) of the code of criminal procedure provides:
A peace officer . . . who . . . is outside of [his] jurisdiction may arrest without a warrant a person who commits any offense within the officer's presence or view,
except that an officer . . . who is outside of [his] jurisdiction may arrest a person for a violation of Subtitle C, Title 7, Transportation Code, only if the offense is committed in the county or counties in which the municipality employing the peace officer is located.TEX. CODE CRIM. PROC. ANN. art. 14.03(g)(2) (West 2016). An "arrest" under article 14.03 is not limited to a formal, custodial arrest. State v. Purdy, 244 S.W.3d 591, 593 (Tex. App.—Dallas 2008, pet. ref'd). Thus, the provisions of article 14.03 also apply when an officer temporarily detains a person based on reasonable suspicion. Id. Under the Fourth Amendment, "reasonable suspicion" exists when an officer is aware of "specific articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably suspect that a particular person has engaged or is (or soon will be) engaging in criminal activity." York v. State, 342 S.W.3d 528, 536 (Tex. Crim. App. 2011). In the context of article 14.03(g), the officer's reasonable suspicion must be limited to whether the suspect is committing, or had committed, an offense in the officer's presence or view. Id. at 535-36. This standard is objective; the subjective intent of the officer conducting the detention is irrelevant. Id. at 536. In addition, reasonable suspicion does not depend on the "most likely explanation" for a suspect's conduct, and reasonable suspicion can exist even if the conduct is "as consistent with innocent activity as with criminal activity." Id.
Further, the standard looks to the totality of the circumstances. Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011). The relevant inquiry is not whether particular conduct is innocent or criminal, but the degree of suspicion that attaches to particular non-criminal acts. Id. Moreover, the detaining officer need not be personally aware of every fact that objectively supports a reasonable suspicion to detain; rather, the cumulative information known to the cooperating officers at the time of the stop is to be considered in determining whether reasonable suspicion exists. Id. III. Application of Law to Facts
Assuming without deciding the store and its parking lot were located outside Officer Crouch's jurisdiction, we will proceed to determine if he had the requisite reasonable suspicion to conduct an investigative detention of appellant. During the hearing conducted on appellant's motion to suppress, Officer Crouch testified he received a dispatch to check two vehicles that were parked in a store's parking lot for an excessive amount of time late at night. He knew the woman who called 911 was the only employee working in the store that night and that she had called in close to the store's closing time. He also was aware that the store in question was part of a group of businesses that would report suspicious vehicles or suspicious activities to the police department. Given the amount of time the individuals remained in their parked vehicles, the location, and the time of night, Office Crouch suspected the vehicles could have been involved in a planned theft or assault. Further, Officer Crouch testified that when he arrived at the store's parking lot, he had no trouble in ascertaining which vehicles the store's employee had called about. See Brother v. State, 166 S.W.3d 255, 259 (Tex. Crim. App. 2005) (holding a stop based on facts supplied by a citizen eyewitness, which are adequately corroborated by the arresting officer, will not run afoul of the Fourth Amendment).
In support of his denial of the motion to suppress, the trial judge made, among others, the following findings of fact: a female employee working alone at a store called 911 to report individuals sitting in two suspicious vehicles parked in front of the store for approximately 30 minutes; the store was located in a remote area of the city; Officer Crouch was aware of the reputation of the area as a place where drug use and crime are common; upon his arrival, Officer Crouch observed two vehicles matching the description provided by dispatch. The evidence detailed above supports the foregoing findings of fact. See Valtierra, 310 S.W.3d at 447. We now decide whether the trial court's ruling is reasonably supported by the record and is correct on any theory of law applicable to the case. See id.
We conclude the cumulative information known to Officer Crouch, the facts from the 911 call he corroborated, and the totality of the circumstances—viewed objectively and in the aggregate—would lead him to reasonably suspect that the individuals in the vehicles at the store's parking lot were engaging in or had engaged in criminal activity when he arrived. See York, 342 S.W.3d at 535-36. Thus, the trial court did not err in denying appellant's motion to suppress. We overrule appellant's first issue.
EVIDENTIARY OBJECTIONS
I. Standard of Review
We review a trial court's determination of admissibility of evidence for abuse of discretion. Saavedra v. State, 297 S.W.3d 342, 349 (Tex. Crim. App. 2009). As long as the trial court's ruling is within the zone of reasonable disagreement, there can be no abuse of discretion, and the trial court's ruling will be upheld. Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011). A trial court's 404(b) ruling admitting evidence is generally within its discretion if there is evidence supporting that an extraneous transaction is relevant to a material, non-propensity issue. Id. If the trial court's evidentiary ruling is correct on any theory of law applicable to that ruling, it will not be disturbed, even if the trial judge gave the wrong reason for his correct ruling. Id. II. Discussion
A. Contemporaneous Presentation of Evidence
In his second issue, appellant contends the trial court erred by allowing the jury to hear evidence of his possession of marijuana contemporaneously with his possession of a controlled substance. Defense counsel objected to several portions of a video presented to the jury in which police officers and appellant refer to appellant's possession and use of marijuana, arguing the probative value of such statements was substantially outweighed by their prejudicial effect and that they should be excluded as irrelevant. He objected again during Officer Crouch's testimony that he had found what he believed to be marijuana in appellant's pocket during a pat down search, citing to rule 404(b) of the rules of evidence. TEX. R. EVID. 404(b).
Generally, evidence of extraneous offenses or prior wrongful acts is inadmissible as evidence of a person's character. TEX. R. EVID. 404(b). However, evidence of extraneous offenses or other wrongful acts may be admissible to prove identity, intent, preparation, plan, or knowledge or to rebut a particular defensive theory. Id. Under rule 404(b), such evidence is admissible if it is material to a contested issue of the case. Wingfield v. State, 197 S.W.3d 922, 925 (Tex. App.—Dallas 2006, no pet.)
A person commits the offense of possession of a controlled substance if he knowingly or intentionally possesses a controlled substance. See TEX. HEALTH & SAFETY CODE ANN. § 481.115 (West 2010). Proof of intent or wrongful knowledge is an essential element of the offense. See id. Texas courts have recognized that evidence the defendant was in possession of other contraband when arrested is an "affirmative link" to establish that a defendant's connection with the controlled substance was more than fortuitous. See Evans v. State, 202 S.W.3d 158, 161, 161 n.12 (Tex. Crim. App. 2006).
Here, appellant denied the glass pipe containing methamphetamine belonged to him. At trial, his defense counsel questioned Officer Crouch as to whether the furtive gestures appellant made could have been something other than hiding the glass pipe. Thus, evidence that appellant possessed marijuana was an affirmative link to establish his intentional possession of the methamphetamine and was admissible to rebut his defensive theory that the glass pipe did not belong to him. See Wingfield, 197 S.W.3d at 925 (holding trial court did not abuse its discretion in admitting appellant's testimony of prior drug use because such evidence was admissible to rebut appellant's defensive theory she lacked the requisite knowledge or intent to possess marijuana). We overrule appellant's second issue.
B. Hearsay Evidence from Unavailable Witness
In his third issue, appellant contends the trial court abused its discretion in admitting hearsay from Officer Crouch's patrol video. In particular, appellant complains about statements made by Sherman Eugene Miller, the driver of the vehicle appellant was in, that indicated Miller had no knowledge of the methamphetamine found in the glass pipe. However, while appellant objected to the video, his defense counsel questioned Officer Crouch about Miller's statements that "no one was using drugs in his truck" and that he "didn't know anything about [appellant] having any drugs on him." As the court of criminal appeals has repeatedly held, to preserve error in admitting evidence, a party must object each time the inadmissible evidence is offered or obtain a running objection. Lane v. State, 151 S.W.3d 188, 193 (Tex. Crim. App. 2004). Any error in admitting hearsay statements from the patrol video was waived when the same evidence came in through the cross-examination of Officer Crouch without objection. See id. Thus, these circumstances present no reversible error. See id. We overrule appellant's third issue.
C. Exclusion of Sworn Statement
In his fourth and final issue, appellant argues the trial court abused its discretion in excluding a statement signed by "Eugene Miller" that stated "I Eugene Miller a witness of [unintelligible] that the pipe found in the passenger side door was not his, was there prior before being pulled over." The State objected, arguing the statement was inadmissible hearsay. Appellant urges that the statement was admissible as made against the penal interest of the declarant. The trial court sustained the State's hearsay objection.
Rule 803(24) of the rules of evidence provides that statements against interest are not excluded by the hearsay rule. TEX. R. EVID. 803(24). The rule sets out a two-step foundation requirement for admissibility. Walter v. State, 267 S.W.3d 883, 890 (Tex. Crim. App. 2008). First, the trial court must determine whether the statement, considering all the circumstances, subjects the declarant to criminal liability and whether the declarant realized this when he made that statement. Id. at 890-91. Second, the court must determine whether there are sufficient corroborating circumstances that clearly indicate the trustworthiness of the statement. Id. at 891. Here, the statement in question does not, as appellant argues, directly implicate Miller; instead, it could be interpreted to mean Miller later learned the glass pipe was in the truck before appellant's arrest. We cannot conclude this statement subjected Miller to criminal liability and therefore need not consider whether there are sufficient corroborating circumstances that clearly indicate the trustworthiness of the statement. See Walter, 267 S.W.3d at 891. We overrule appellant's fourth issue.
CONCLUSION
We affirm the trial court's judgment.
/David J. Schenck/
DAVID J. SCHENCK
JUSTICE DO NOT PUBLISH
TEX. R. APP. P. 47 160256F.U05
JUDGMENT
On Appeal from the County Court At Law No. 1, Kaufman County, Texas
Trial Court Cause No. 15-30283-CC-F.
Opinion delivered by Justice Schenck, Justices Bridges and Evans participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 8th day of March, 2017.