No. 05-02-01091-CR.
Opinion Issued April 10, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.
Appeal from the Criminal District Court No. 3, Dallas County, Texas, Trial Court Cause No. F01-51651-WJ. Affirmed.
Before Justices JAMES, BRIDGES, and RICHTER.
Opinion By Justice JAMES
Jerry Lewis Richardson appeals his conviction for possession of cocaine, less than one gram. A jury found him guilty, and the court assessed punishment at confinement for twelve years and a fine of $1000. In four issues, appellant contends: (1) the court erred in denying his motion to suppress; (2) the evidence was legally and factually insufficient to support the conviction; and (3) the prosecutor's argument was outside the record. We affirm the trial court's judgment.
Background
On April 18, 2001, around 10:30 p.m., Officer Stephen Baugh of the Dallas Police Department responded to a complaint of drug activity at an apartment complex. After being told the location of where the suspected drug activity was occurring by another officer, Officer Baugh approached that area on foot. He passed through a breeze way and saw three persons standing together. Although it was after 10:00 p.m., and the lighting was not good, Officer Baugh could see without a flashlight because there was some light present. As Officer Baugh began to approach the group, the two facing Officer Baugh began to back away. Appellant, however, was facing the other direction. Officer Baugh, within arm's reach of appellant, shined his flashlight on him. Officer Baugh saw baggies in appellant's hand containing what Officer Baugh believed to be crack cocaine. After Officer Baugh saw the baggies, he grabbed appellant. Appellant dropped the baggies on the ground. Officer Baugh told appellant to get on the concrete. Appellant initially complied, but he then pulled away and ran. Officer Baugh immediately secured the baggies-ten small baggies containing what was later confirmed to be cocaine, total weight being less than one gram. He radioed Officer Samuel McDonnold and other nearby officers, informing them of appellant's flight and providing a description of appellant and his clothing. Officer McDonnold received Officer's Baugh radioed description. He ran towards where he thought Officer Baugh to be and saw a man, appellant, who fit the description Officer Baugh had given on the radio. Officer McDonnold saw appellant run into a nearby store, followed him inside, and detained him once inside, placing him in custody after other officers arrived to assist. Officer Baugh arrived at the store and identified appellant as the person who fled from him. Motion to Suppress
In his first point of error, appellant contends the trial court erred by denying his motion to suppress the evidence-the baggies of cocaine. In his motion, appellant listed three grounds: (1) the arrest and apprehension of appellant were without warrant; (2) appellant's statements were the product of illegal search and illegal arrest; and (3) search of appellant or of appellant's possession was without probable cause and without exigent circumstances. On appeal, appellant complains of evidence used in trial that resulted from an "illegal warrantless arrest." Appellant states there was no warrant to effect a search incident to arrest or any form of search of appellant. Appellant also states there was insufficient reliable evidence of reasonable suspicion to warrant Officer Baugh's immediate contact, and he contends the contact resulted in an illegal search and seizure. In reviewing a court's ruling on a motion to suppress evidence, we give almost total deference to the court's determination of any historical facts and review de novo the court's application of the law of search and seizure. See Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000); Guzman v. State, 955 S.W.2d 85, 88-89 (Tex.Crim.App. 1997). If the issue involves the credibility of a witness, we defer to the court's application of law to the facts. Carmouche, 10 S.W.3d at 327; State v. Terrazas, 4 S.W.3d 720, 725 (Tex.Crim. App. 1999); Guzman, 955 S.W.2d at 87. If the issue is application of the law to undisputed facts, we review the court's determination de novo on appeal. Guzman, 955 S.W.2d at 87; see also Ornelas v. United States, 517 U.S. 690, 699 (1996) (reviewing court determines de novo whether police had reasonable suspicion or probable cause to justify stop or arrest). Absent an abuse of discretion, we may not disturb the court's findings. See Guardiola v. State, 20 S.W.3d 216, 223 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd). In this case, Officer Baugh was the sole witness who testified concerning what occurred when he first detained appellant. Because the dispositive facts were uncontroverted and there is no indication the court did not believe the officer's testimony, this case presents an issue of the proper application of law to the facts, which we review de novo. See Ramirez v. State, 44 S.W.3d 107, 109 (Tex.App.-Austin 2001, no pet.). Both the United States and Texas Constitutions protect citizens from unreasonable searches and seizures. U.S. Const. amends. IV, XIV; Tex. Const. art. I, § 9. Article 38.23 of the code of criminal procedure codifies the state and federal constitutional bans on the admission of evidence obtained as a result of an illegal search or seizure. Tex.Crim. Proc. Code Ann. § 38.23 (Vernon Supp. 2003). In Texas, the courts interpret the provisions of the Texas Constitution to provide at least as much protection for the rights of its citizens as its federal counterpart. Heitman v. State, 815 S.W.2d 681, 690 (Tex.Crim. App. 1991). Consequently, we may address and dispose of appellant's claims under the Texas and United States Constitutions (and the code of criminal procedure) together. See Cook v. State, 832 S.W.2d 62, 65 (Tex.App.-Dallas 1992, no pet.). Assuming without deciding that Officer Baugh's grabbing of appellant at the apartment complex was an arrest, a warrant was not required under the circumstances. The code of criminal procedure provides for arrests of persons when an offense is committed within the presence of the officer. Tex. Code Crim. Proc. Ann. art. 14.01 (Vernon 1977). The test for probable cause for a warrantless arrest is whether the officer has reasonably trustworthy information sufficient to warrant a reasonable person to believe a particular person has committed or is committing an offense. Guzman, 955 S.W.2d at 90. It is not necessary, however, that the officer be certain that the offense was committed-as long as he has reasonably trustworthy information to warrant a prudent person in believing the suspect has committed the offense. See Beverly v. State, 792 S.W.2d 103, 105 (Tex.Crim.App. 1990); Joseph v. State, 3 S.W.3d 627, 634 (Tex.App.-Houston [14th Dist.] 1999, no pet.). Probable cause deals with probabilities; it requires more than mere suspicion but far less evidence than that needed to support a conviction or even that needed to support a finding by a preponderance of the evidence. Guzman, 955 S.W.2d at 87. Officer Baugh had received a complaint drug activity was taking place at the apartment complex. Another officer directed Officer Baugh to the area where the drug activity was thought to be occurring. Furthermore, before Officer Baugh ever grabbed appellant, he saw baggies in appellant's hand, and Officer Baugh testified he-when he saw the baggies-believed them to contain crack cocaine. Possession of cocaine is an offense. See Tex. Health Safety Code Ann §§ 481.102, 481.115 (Vernon Supp. 2003). Officer Baugh even stated, "I wouldn't have anything to arrest him for if I hadn't seen any crack in his hands." Officer Baugh testified he was familiar with what drug activity looked like and had experience in observing and recognizing drug activity. Under the circumstances, no warrant would have been necessary to detain or arrest appellant. We conclude Officer Baugh had reasonably trustworthy information sufficient to warrant a reasonable person to believe appellant was committing an offense. See Guzman, 955 S.W.2d at 90. Therefore, we hold the court did not err in denying appellant's motion to suppress. We overrule appellant's first point of error. Legal and Factual Sufficiency
In his second point of error, appellant states the evidence was legally insufficient to support the conviction. When we review a challenge to the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Green v. State, 893 S.W.2d 536, 538 (Tex.Crim.App. 1995). We determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Crim.App. 2002). We consider all of the evidence presented. Holberg v. State, 38 S.W.3d 137, 139 (Tex.Crim. App. 2000). This standard leaves to the fact finder the responsibility to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic to ultimate facts. See Dumas v. State, 812 S.W.2d 611, 615 (Tex.App.-Dallas 1991, pet. ref'd). The fact finder is the sole judge of the credibility of the witnesses and the weight given their testimony. Id. Thus, the fact finder is free to accept or reject any or all of a witness's testimony. Id.; see also Saxton v. State, 804 S.W.2d 910, 914 (Tex.Crim.App. 1991). If there is evidence establishing guilt beyond a reasonable doubt, and we see the fact finder believed that evidence, we will not reverse the judgment on legal sufficiency grounds. Wicker v. State, 667 S.W.2d 137, 143 (Tex.Crim.App. 1984). In his third point of error, appellant argues the evidence was factually insufficient to support his conviction. When conducting a factual sufficiency review, we must determine, after a review of all the evidence in a neutral light, if the proof of guilt is so obviously weak as to undermine confidence in the verdict or if the proof of guilt, otherwise adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). In conducting this review, we may not substitute our determination for that of the fact finder. Id.; Scott v. State, 934 S.W.2d 396, 399 (Tex.App.-Dallas 1996, no pet.). Resolution of conflicts in the evidence and credibility of witnesses lies within the fact finder's exclusive province. Johnson, 23 S.W.3d at 11. We may not "find" facts or substitute our judgment for that of the fact finder. Clewis v. State, 922 S.W.2d 126, 135 (Tex.Crim.App. 1996). We do review the fact finder's weighing of the evidence and are authorized to disagree with the fact finder's determination; however, it is not enough that we believe a different result is more reasonable. Id. To support a conviction for unlawful possession of a controlled substance, the State must prove that (1) the accused exercised care, control, or management over the contraband; and (2) the accused knew the matter possessed was contraband. See Humason v. State, 728 S.W.2d 363, 364 (Tex.Crim.App. 1987). However, appellant does not argue he did not know the substance in the baggies was cocaine. Instead, on appeal, appellant argues his mere presence at the scene-as opposed to his actual possession of the cocaine-does not support the conviction. There was no evidence indicating appellant was "merely present." To the contrary, the only evidence before the jury was appellant was holding the baggies of cocaine; Officer Baugh testified he saw appellant holding the baggies of cocaine. Appellant states his "mere presence" was his position at trial, but that position comes only by understanding appellant's closing argument-stating it would be illogical for appellant to drop the drugs and run-as evidence that appellant did not have the cocaine and was only present at the scene. But there was no evidence before the jury appellant did not have the cocaine, and Officer Baugh never wavered on his testimony. Furthermore, argument cannot be used to present evidence outside the record. See Jordan v. State, 646 S.W.2d 946, 948 (Tex.Crim.App. 1983); Geuder v. State, 76 S.W.3d 133, 138 (Tex.App.-Houston [14th Dist.] 2002, pet. filed). Even so, the jury was free to believe Officer's Baugh testimony and disregard any inferences appellant made through cross-examination. See Johnson, 23 S.W.3d at 11. Accordingly, viewing the evidence in the light most favorable to the verdict, we conclude a rational jury could have found appellant was in possession of the cocaine. Therefore, because we conclude the jury reached a rational conclusion, we likewise conclude the evidence is legally sufficient to sustain appellant's conviction. See Wicker, 667 S.W.2d at 143. Additionally, we cannot conclude the finding of guilt is so obviously weak as to undermine confidence in the verdict or that the proof of guilt, otherwise adequate if taken alone, is greatly outweighed by contrary proof; no contrary proof was offered. See Johnson, 23 S.W.3d at 11. Accordingly, having viewed all the evidence while giving deference to the jury's determination, we also conclude the evidence was factually sufficient. See Clewis, 922 S.W.2d at 129. We overrule appellant's second and third points of error. Jury Argument
In his fourth point of error, appellant contends the prosecutor argued outside the record. During closing, appellant made the following argument: "I asked Officer Baugh, did you take fingerprints of those little plastic things?" Appellant further stated, "If there were fingerprints on those, we probably wouldn't be in this court." During the State's closing argument, after appellant finished, the prosecutor stated, "And then this fingerprint issue . . . unfortunately, we don't have the resources to take fingerprints from every item." Appellant objected, complaining the statement was argument outside the record; the court told the jury to recall the evidence as they heard it and overruled the objection. Proper jury argument must encompass one of the following: (1) a summation of the evidence presented at trial; (2) a reasonable deduction drawn from that evidence; (3) an answer to the opposing counsel's argument; or (4) a plea for law enforcement. Shannon v. State, 942 S.W.2d 591, 597 (Tex.Crim.App. 1996); Hill v. State, 518 S.W.2d 810, 811-12 (Tex.Crim.App. 1975) (stating argument of defense counsel that there were no fingerprints in burglarized apartment invited prosecutor's argument that "good professional burglars" do not leave fingerprints and prosecutor's argument was proper as a "well-known fact"). Here, appellant brought up the issue of fingerprints. During his closing argument. We conclude the prosecutor's statement was in response to appellant's argument. Accordingly, we hold the court did not err in overruling appellant's objection. We overrule appellant's fourth point of error. We affirm the trial court's judgment. [5] Appellant cites a number of other cases as well, but none involve an officer identifying an illegal substance in the person's hand whom the officer detained. Furthermore, appellant fails to argue how the cases could apply to the present facts, presenting nothing for our review on appeal. See Tex. R. App. P. 38.1(h).