Opinion
No. 05-15-01300-CR
06-21-2017
RAKEEM PERKINS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 1 Dallas County, Texas
Trial Court Cause No. F-1475238-H
MEMORANDUM OPINION
Before Justices Bridges, Lang-Miers, and Whitehill
Opinion by Justice Bridges
Rakeem Perkins appeals his aggravated assault of a public servant conviction. A jury convicted appellant and sentenced him to twenty-three years' confinement. In three issues, appellant argues the trial court erred in limiting his cross-examination of the complaining witness and failing to sustain his objections to questioning regarding his right to possess a handgun and his right to refuse to answer questions asked by the police. We affirm appellant's conviction.
In April 2014, appellant was indicted on a charge of aggravated assault of a public servant with a deadly weapon. At trial, Clarissa Williams testified she and appellant "got into an altercation" on the morning of February 15, 2014 at an apartment complex where Williams was living with her mother. Williams had an "off and on" relationship with appellant, and when appellant came to her apartment that day, the relationship was "off." Appellant called and texted Williams asking her to "come outside," but she refused. Williams had planned to visit a friend, but she did not go because appellant was outside. Williams called police and came outside the apartment when police arrived. Williams saw two police officers approaching appellant's car, "heard shooting," and went back inside. As soon as Williams ran inside, "it was a gunshot," and her first-floor balcony "window was shot up."
Joshua Burns testified he was a Dallas police officer on February 15, 2014 when he was dispatched to Williams' apartment complex on a "major disturbance call." The call included a complaint that appellant was at the location "banging on the door and would not leave" and gave a description of appellant and his car. Burns and another officer, Salvador Varillas, followed each other in separate cars to the apartment complex. When Burns arrived, he got out of his car and saw appellant's car, which matched the dispatcher's description, parked in front of the building. As Burns and Varillas approached, appellant started his car and backed out of a parking spot before going forward to turn out of the parking lot. Appellant drove slowly towards Burns and Varillas, who told appellant to stop the vehicle. Burns had to step back because appellant did not stop at first, but appellant stopped when Varillas approached the halfway-open driver's side window. Varillas told appellant to turn off the car and said they needed to talk to him. Appellant, with the car still running, said he did not do anything, he was "just trying to leave," he did not want to go to jail, and he was about to run out of gas. Williams walked up, pointed at appellant, and said, "That's him. I'm the one that called." Burns told Williams to go back inside, and they would talk later.
Appellant's car lurched forward and immediately shut off. Burns assumed the car had run out of gas, but he and Varillas determined appellant had been trying to flee, so Varillas put his hand on appellant's door handle to open the car door. At the same time, Burns stepped to the rear of the driver's side door and heard Varillas "yell out a really loud 'No.'" Burns looked and saw a gun come out appellant's driver's side window and Varillas drop to the ground. The gun fired three inches above Varillas' head. Varillas crawled to the front of the car, and Burns drew his gun. Appellant leaned out the window and looked back at Burns and pointed his gun at Burns. When appellant saw Burns had his gun drawn, he ducked back quickly into the car, and Burns opened fire on the rear of the car. Burns shot at the rear windshield and moved sideways along the rear of the vehicle as he fired. Burns saw movement in the car at first, but he stopped firing when the movement stopped. Burns crouched down and pulled out another magazine to reload his gun. Before Burns could reload, appellant opened the passenger door, got out of the car, and began shooting Burns. Appellant shot Burns three times: in the shoulder, in the vest, and in the thigh. Burns was able to seat the magazine in his gun and return fire, and appellant stopped firing and ran away. Burns stood up and took a few steps after appellant. Burns fired his gun at appellant when appellant looked back at Burns and Burns saw appellant still had a gun in his right hand. Appellant "ran around the corner," and Varillas came to assist Burns.
Following Burns' testimony, the trial court conducted a hearing outside the presence of the jury regarding the admissibility of Burns' involvement in a 2009 officer-involved shooting and a lawsuit for police brutality. In response to questioning by defense counsel, Burns testified the 2009 shooting involved "someone on the front porch of a house and [the suspect] had just fled from a car chase" and "he lowered his gun towards police, and numerous officers opened fire." The suspect subsequently died of his injuries. Burns testified he fired his gun during the incident but "did not hit." Regarding the lawsuit, Burns testified he and other officers were listed as defendants. Burns testified "the person accusing said that there must have been more than the two that he knew of so when he saw the police report, he picked names off of the other people that were there." Defense counsel asked to be allowed to inquire into the shooting and lawsuit in front of the jury. Specifically, defense counsel argued Burns' involvement in a prior shooting in which "there was a perceived armed individual that was shot by officers" was "germane to show [Burns'] state of mind in coming into any type of situation and what his response is when he sees that a person has a weapon of some kind." Because Burns testified he saw appellant "pull out a weapon," defense counsel argued, the 2009 shooting was relevant. Defense counsel also argued the fact that Burns was named in a lawsuit was "also relevant in the presence of the jury." The prosecutor responded that the 2009 shooting and the lawsuit were not relevant "to any issue for this jury." The trial judge ruled that he would not allow "inquiry about those two events from this point." Defense counsel stated, "Note our exception."
Appellant testified that, on the night before the shooting he ate dinner with Williams at her apartment. Appellant and Williams argued, and appellant left the apartment and went to his car. The car would not start, so appellant spent the night sleeping in his car. The next morning, appellant knocked on Williams' door and asked for something to drink. Williams was "mad" at appellant, so she threw a bottle of lemonade out the door. Appellant testified he got the car running about twenty minutes before police arrived, and he had been texting Williams "trying to make up." Williams told appellant he "needed to leave." After starting his car, appellant did not leave immediately because it was out of gas, so it would idle, but when he tried to drive off it would "start messing up." Appellant was on the phone with his aunt asking her to bring him gas when he saw two police officers walking up. The car was still running, and appellant backed up as the police officers approached and then drove slowly toward them. Appellant testified he was not trying to run over a police officer. Appellant told the officers his name but, when the officers said they wanted to talk to him, appellant said he had done nothing wrong and that he was running out of gas. Williams came out of her apartment, and the officers "shifted that way." Appellant tried to leave, but when he gave the car gas it "jumped up a little bit, and then it stopped." Appellant turned the key to try to restart the car, and it "backfired, and [appellant] kind of heard one of the officers, he said something, and then [appellant] start[ed] hearing shooting." Appellant had a .45 handgun in the car, and he grabbed it when the shooting started. Appellant testified he pulled out the gun, the officers "started shooting," and appellant "thought the officers were like kind of behind me shooting" and he did not "want them to come up and get a clean shot on [him], so . . . [he] just fired like twice out the window."
Appellant "took a quick look" out the car window, saw an officer, and lay down in the car because both officers were shooting at the same time. At some point, the shooting stopped, and appellant tried to jump out of the passenger door. Appellant saw Burns standing outside, and Burns "started pointing his gun at [appellant]." Appellant pointed his gun and started to shoot. Appellant testified he did not know "what happened to Burns during all of those shots." Burns fell to the ground, and appellant "ran around him and kind of dove between the buildings." While appellant was running, he "kept hearing shooting behind [him], so when [he] turned, [he] saw the other officer." The other officer was in a "shooting position," so appellant "turned around and probably shot like twice." As appellant reached the area "towards [Williams'] apartment," he was shot in the leg. Appellant testified he did not shoot at the officers first, and he was trying to protect himself when he started shooting.
Appellant ran until he "got to some apartments" where he borrowed a man's phone to call his mother. Appellant's mother, her husband, and appellant's aunt came and picked up appellant. Appellant's family intended to turn appellant in to police, and appellant put his gun in the console of the car so the gun "wouldn't be in plain sight when [he] turned [himself] in." At police headquarters, officers handcuffed appellant and took him to the hospital where doctors treated his leg wound.
On cross-examination, appellant testified he had his great grandfather's fully-loaded .38 handgun, a fully-loaded .45 handgun, and two fully-loaded extra magazines for the .45 in the car. Appellant testified he tried to drive away when he saw the police officers approaching because Williams "said she was going to call the laws and stuff," and he was "trying to go ahead and move around."
The prosecutor asked appellant if he "wanted to leave and not be around the police because [he] had two loaded weapons in [his] car." Appellant's counsel objected that, if the prosecutor was "inferring that's illegal somehow, that's not what the law is." The trial judge overruled appellant's objection. The prosecutor asked if appellant was trying to leave because he had "two loaded weapons in your car out in front of [his] girlfriend's house." Appellant testified he was trying to leave because he had "seen the laws coming" and he did not want to "get into an altercation."
Appellant heard the officers tell him to stop and turn off his car, but he "chose to do neither of those things." The prosecutor asked if his refusal to stop and turn off his car was because he "felt like [he] could do what [he] wanted instead of listening to someone with the authority to tell [him] to do those things." Appellant's counsel objected that the prosecutor's question was "a misstatement of the law." The trial judge overruled appellant's objection. Appellant denied he "felt like [he] could just be above it and walk away from an officer telling [him] to stop." Appellant testified he had done nothing wrong, and there was no reason for the police to be talking to him, so he tried to leave.
Appellant tried to restart the car, and it backfired, and "that's when all of the commotion happened." Varillas "jumped back and, you know, there's gunfire." The prosecutor asked if appellant's contention was that the officers "began shooting at [him] when [his] car backfired," and he answered, "Yes." The prosecutor asked appellant "at what point in time did [he] fire into [Williams'] apartment." Appellant answered, "I can't tell you when, but I guess when I got shot." Appellant testified he "was kind of turning," and his "leg went stiff" when he got shot, and he "misfired the weapon." The jury convicted appellant of aggravated assault of a public servant, and this appeal followed.
In his first issue, appellant argues the trial court's limitation on his right of cross-examination of Burns "to show bias and interest was constitutional error." Specifically, appellant argues the Confrontation Clause gave him the right to explore Burns' potential biases or self-interest through cross-examination concerning the 2009 shooting and the lawsuit, and the inability to cross-examine Burns violated his right to present a complete defense.
To preserve error for appellate review, the Texas Rules of Appellate Procedure require that the record show that the objection "stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context." Tex. R. App. P. 33.1(a)(1)(A). The point of error on appeal must comport with the objection made at trial. Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012) (citing Thomas v. State, 723 S.W.2d 696, 700 (Tex. Crim. App. 1986)). Therefore, if a party fails to properly object to constitutional errors at trial, these errors can be forfeited. Id. (citing Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990)). While no "hyper-technical or formalistic use of words or phrases" is required in order for an objection to preserve an error, the objecting party must still "let the trial judge know what he wants, why he thinks he is entitled to it, and to do so clearly enough for the judge to understand him at a time when the judge is in the proper position to do something about it." Id. (citing Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009)). In determining whether a complaint on appeal comports with a complaint made at trial, we look to the context of the objection and the shared understanding of the parties at the time. Id.
Here, defense counsel argued Burns' involvement in a prior shooting in which "there was a perceived armed individual that was shot by officers" was "germane to show [Burns'] state of mind in coming into any type of situation and what his response is when he sees that a person has a weapon of some kind." Defense counsel argued that both the 2009 shooting and the lawsuit were "relevant." Defense counsel did not raise before the trial court the issue of whether preventing cross-examination of Burns regarding the 2009 shooting or the lawsuit violated his rights under the Confrontation Clause or prevented him from presenting a complete defense. Accordingly, we conclude appellant has failed to preserve these issues for our review. We need not further review appellant's first issue.
In his second issue, appellant argues the trial court should have sustained his objection to "a prosecutor's question insinuating that it was illegal for appellant to have a handgun in his car." Specifically, appellant complains of the prosecutor's question whether he "wanted to leave and not be around the police because you had two loaded weapons in the car?" Appellant's counsel objected to this question on the basis that, "if she's inferring that that's illegal somehow, that's not what the law is."
We review a trial judge's decision to admit or exclude evidence under an abuse of discretion standard. Henley v. State, 493 S.W.3d 77, 82-83 (Tex. Crim. App. 2016). A trial judge abuses her discretion when her decision falls outside the zone of reasonable disagreement. Id. at 83. Before a reviewing court may reverse the trial court's decision, it must find the trial court's ruling was so clearly wrong as to lie outside the zone within which reasonable people might disagree. Id.
Here, appellant testified he attempted to leave when he saw police coming because Williams said she was going to call police. The prosecutor did not directly question the legality of appellant's possession of the guns. In context, the prosecutor's question does not appear to be even an insinuation that it was illegal for appellant to possess a weapon. Instead, the question asked whether appellant wanted to avoid police discovering that he was not only refusing to leave the area outside Williams' apartment and behaving in a manner that prompted Williams to call police, he was doing so with two loaded guns. This characterization of the prosecutor's question is supported by the prosecutor's following question after appellant's objection was overruled: "You were trying to leave because you had two loaded weapons in your car out in front of your girlfriend's house?" Under these circumstances, we conclude the trial court did not abuse its discretion in overruling appellant's objection to this testimony. Id. at 82-83. We overrule appellant's second issue.
In his third issue, appellant raises a similar argument that the trial court erred in not sustaining his objection to "the prosecutor's question insinuating that Appellant did not have the right to walk away from a police officer." Specifically, appellant complains of the prosecutor's questioning about whether appellant heard the police officers tell him to stop and turn off his car. Appellant confirmed that he heard the officers but chose not to stop or turn off his car. The prosecutor then asked, "Because you felt like you could do what you wanted instead of listening to someone with the authority to tell you to do those things?" Appellant objected to the prosecutor's "insinuation, being as how it isn't required by law." The trial judge stated, "Legal objection is all I need," and appellant's counsel responded, "That's a misstatement of the law." The trial judge overruled the objection.
There are three distinct categories of interactions between police officers and citizens: (1) encounters, (2) investigative detentions, and (3) arrests. Crain v. State, 315 S.W.3d 43, 49 (Tex. Crim. App. 2010). Id. In determining which category an interaction falls into, courts look at the totality of the circumstances. Id. An encounter is a consensual interaction which the citizen is free to terminate at any time. Id. Unlike an investigative detention and an arrest, an encounter is not considered a seizure that would trigger Fourth Amendment protection. Id. An encounter takes place when an officer approaches a citizen in a public place to ask questions, and the citizen is willing to listen and voluntarily answers. Id.
On the other hand, an investigative detention occurs when a person yields to the police officer's show of authority under a reasonable belief that he is not free to leave. Id. When the court is conducting its determination of whether the interaction constituted an encounter or a detention, the court focuses on whether the officer conveyed a message that compliance with the officer's request was required. Id. The question is whether a reasonable person in the citizen's position would have felt free to decline the officer's requests or otherwise terminate the encounter. Id. In determining what factors may contribute to what a reasonable person might have perceived during a given interaction with an officer, the United States Supreme Court's opinion in U.S. v. Mendenhall, 446 U.S. 544, 554 (1980) is instructive:
Examples of circumstances that might indicate a seizure . . . would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled.Id. at 49-50.
For government officials to be able to conduct investigative detentions, they must have reasonable suspicion founded on specific, articulable facts which, when combined with rational inferences from those facts, would lead the officer to conclude that a particular person actually is, has been, or soon will be engaged in criminal activity. Id. at 52. Articulable facts must amount to "more than a mere inarticulate hunch, suspicion, or good faith suspicion that a crime was in progress." Id.
This standard is an objective one that disregards the actual subjective intent of the arresting officer and looks, instead, to whether there was an objectively justifiable basis for the detention. Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011). It also looks to the totality of the circumstances; those circumstances may all seem innocent enough in isolation, but if they combine to reasonably suggest the imminence of criminal conduct, an investigative detention is justified. Id. "[T]he relevant inquiry is not whether particular conduct is innocent or criminal, but the degree of suspicion that attaches to particular non-criminal acts." Id. (quoting Woods v. State, 956 S.W.2d 33, 38 (Tex. Crim. App. 1997). 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. (quoting Hoag v. State, 728 S.W.2d 375, 380 (Tex. Crim. App. 1987). A 911 police dispatcher is ordinarily regarded as a "cooperating officer" for purposes of making this determination. Id. A person commits an offense if he intentionally flees from a person he knows is a peace officer or federal special investigator attempting lawfully to arrest or detain him. TEX. PENAL CODE ANN. § 38.04(a) (West 2016). "'[F]leeing' is anything less than prompt compliance with an officer's direction to stop." Smith v. State, 483 S.W.3d 648, 653 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (quoting Horne v. State, 228 S.W.3d 442, 446 (Tex. App.—Texarkana 2007, no pet.)).
Here, Burns testified he was dispatched to Williams' apartment complex on a "major disturbance call," including a complaint that appellant was at the location "banging on the door and would not leave." The dispatcher gave Burns a description of appellant and his car. Burns and Varillas went to the apartment complex where Burns saw appellant's car, which matched the dispatcher's description, parked in front of the building. Burns and Varillas approached, and appellant started his car and backed out of a parking spot before going forward to turn out of the parking lot. Appellant drove slowly towards Burns and Varillas, who told appellant to stop the vehicle. Burns had to step back because appellant did not stop at first, but appellant stopped when Varillas approached the halfway-open driver's side window. Varillas told appellant to turn off the car and said they needed to talk to him. Williams walked up, pointed at appellant, and said, "That's him. I'm the one that called."
At this point, we conclude an investigative detention was underway: two officers approached appellant and commanded him to stop, turn off his car, and speak with them; the officers were called to a "major disturbance" at the apartment complex where appellant had been "banging on the door" and refusing to leave; and appellant started his car and began to drive away as officers approached. See Mendenhall, 446 U.S. at 554; Crain, 315 S.W.3d at 49. Based on the information reported by the dispatcher and their observations of appellant's behavior at the scene, Burns and Varillas had a reasonable suspicion that would lead them to conclude that appellant actually was, had been, or soon would be engaged in criminal activity. Crain, 315 S.W.3d at 52. Further, a reasonable person in appellant's position would not have felt free to decline the officer's requests or otherwise terminate the encounter. Id. at 49.
Even though an investigative detention was underway, appellant refused to turn off his car. Instead, appellant tried to leave. Varillas determined appellant had been trying to flee, so Varillas put his hand on appellant's door handle to open the car door. With his car disabled, appellant stuck his gun out the window and began firing at officers. Ultimately, appellant shot Burns three times before running away. We conclude that, following Varillas' command to stop and turn off his car, appellant attempted to flee from Burns and Varillas when he drove forward slowly; and refused to turn off his car. Appellant then started a gunfight during which he got out of the car and continued his flight. Appellant therefore acted in violation of section 38.04(a) of the penal code. TEX. PENAL CODE ANN. § 38.04(a) (West 2016). Thus, the prosecutor's question whether appellant thought he could "do what he wanted instead of listening to someone with the authority to tell" him to stop and turn off his car did not misstate the law. Burns and Varillas did have the authority to initiate and conduct an investigative detention, and appellant's choice to flee the detention violated section 38.04(a). Under these circumstances, the trial court did not abuse its discretion in overruling appellant's objection to this testimony. See Henley, 493 S.W.3d at 82-83. We overrule appellant's third issue.
We affirm the trial court's judgment.
/David L. Bridges/
DAVID L. BRIDGES
JUSTICE Do Not Publish
TEX. R. APP. P. 47.2(b) 151300F.U05
JUDGMENT
On Appeal from the Criminal District Court No. 1, Dallas County, Texas
Trial Court Cause No. F-1475238-H.
Opinion delivered by Justice Bridges. Justices Lang-Miers and Whitehill participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered June 21, 2017.