Androd Keon Stewart v. State ( 2015 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
§
ANDROD KEON STEWART, No. 08-14-00114-CR
§
Appellant, Appeal from
§
v. 396th District Court
§
THE STATE OF TEXAS, of Tarrant County, Texas
§
Appellee. (TC # 1294906D)
§
OPINION
Androd Keon Steward appeals his conviction of possessing more than four grams but less
than 200 grams of heroin, enhanced by two prior felony convictions. A jury found Appellant
guilty, and the trial court found both enhancement paragraphs true and assessed Appellant’s
punishment at imprisonment for a term of 35 years in the Institutional Division of the Texas
Department of Criminal Justice. We affirm.
VALIDITY OF THE STOP
In his sole issue, Appellant asserts that the trial court erred in denying his motion to
suppress because the officers lacked reasonable suspicion for the stop.
Factual Summary
The trial court conducted a pretrial hearing on Appellant’s motion to suppress, but the
parties re-litigated the suppression issue during trial on the merits. Consequently, our analysis
will be based upon the evidence introduced at both the suppression hearing and trial. See
Gutierrez v. State, 221 S.W.3d 680, 687 (Tex.Crim.App. 2007); Rachal v. State, 917 S.W.2d
799, 809 (Tex.Crim.App. 1996).
Jeffrey Jones is employed by the Tarrant County Sheriff’s Office as a narcotics
investigator. Jones received a telephone call from an informant who stated that an individual
known as “Black” was distributing heroin in the area. Jones knew the identity of the informant
but he did not reveal the name in his testimony and he did not specify whether the informant had
given reliable information in the past.1 According to the informant, a person could call Black
and say he needed to meet him, and Black would tell him where to meet one of his “runners” or
employees to buy heroin. The informant also provided Jones with Black’s telephone number.
On July 12, 2012, Jones called the number he had been given by the informant and told Black
that he needed to meet. Jones identified himself using the name of a person who had previously
purchased drugs from Black, and Black acted as though he knew him. Black told Jones to go to
Loop 820 and Sun Valley. The phone disconnected before they finished the call. Black called
Jones back and told him to go to the A & W restaurant located at Loop 820 and Sun Valley and
look for a black car. During this call, Jones did not explicitly ask to purchase heroin, but he
knew from the tip that Black was selling heroin, and he understood that by asking to meet he was
using the code for buying heroin. Deputy Jones, Lieutenant Kevin Turner, and two other
investigators went to the A & W restaurant to locate the car. They arrived about ten minutes
after Jones spoke with Black and saw a black 2006 Chevy Cobalt in the parking lot. It was the
only black car present at the A & W when the officers arrived. Turner went to the west side of
Loop 820 where he could keep an eye on the vehicle. On two different occasions, Turner
watched an individual drive into the parking lot, get out of the car, and approach the Cobalt. In
each instance, the individual leaned on the open window, engaged in a hand-to-hand transaction
1
There is evidence in the record that the officers did not want to reveal the identity of the informant.
2
with the occupants of the car, and immediately left the area without going to the drive-through or
into the restaurant. Turner could not see what was being exchanged, but each transaction lasted
five seconds or less. He testified that this type of activity is consistent with narcotics sales. The
Cobalt left the parking lot and law enforcement officers maintained visual contact with the
vehicle until Deputy Charles Wiesman stopped it. Wiesman walked up to the driver’s side and
made contact with the driver, Appellant. He immediately smelled the odor of marihuana coming
out of the open driver’s window. Officers searched the vehicle and found thirteen individually
wrapped baggies of heroin and a small quantity of marihuana in the console.
Standard of Review
We review a trial court’s ruling on a motion to suppress under a bifurcated standard of
review. Amador v. State, 221 S.W.3d 666, 673 (Tex.Crim.App. 2007). We must give almost
total deference to the trial court’s resolution of questions of historical fact and of mixed
questions of law and fact that turn on the weight or credibility of the evidence. Derichsweiler v.
State, 348 S.W.3d 906, 913 (Tex.Crim.App. 2011); Arguellez v. State, 409 S.W.3d 657, 662
(Tex.Crim.App. 2013). Appellate courts review de novo mixed questions of law and fact that do
not turn on credibility and demeanor. Amador, 221 S.W.3d at 673; Arguellez, 409 S.W.3d at
662; Wade v. State, 422 S.W.3d 661, 667 (Tex.Crim.App. 2013)(“We review de novo a trial
judge’s application of the law of search and seizure to the facts.”). We review de novo whether
the totality of the circumstances is sufficient to support an officer’s reasonable suspicion of
criminal activity. Arguellez, 409 S.W.3d at 663.
Reasonable Suspicion
An officer making an investigatory stop does not need to have probable cause to believe
the suspect has engaged in criminal behavior because the Fourth Amendment demands only that
3
the officer have a reasonable suspicion, based on objective facts, that the individual is involved
in criminal activity. Brown v. Texas, 443 U.S. 47, 51, 99 S. Ct. 2637, 2641, 61 L. Ed. 2d 357
(1979); Young v. State, 420 S.W.3d 139, 142 (Tex.App.--Texarkana 2012, no pet.). A police
officer has reasonable suspicion to detain if he has specific, articulable facts that, combined with
rational inferences from those facts, would lead him reasonably to conclude that the person
detained is, has been, or soon will be engaged in criminal activity. Derichsweiler, 348 S.W.3d at
914. Reasonableness is measured in objective terms by examining the totality of the
circumstances. Young, 420 S.W.3d at 142. Consequently, the actual subjective intent of the
arresting officer is disregarded, and the reviewing court considers whether there was an
objectively justifiable basis for the detention. Derichsweiler, 348 S.W.3d at 914. Even though
the circumstances may seem innocent when considered in isolation, if they combine to
reasonably suggest the imminence of criminal conduct, an investigative detention is justified. Id.
In assessing reasonable suspicion, a reviewing court looks to the totality of objective information
known collectively to the cooperating officers. Derichsweiler, 348 S.W.3d at 915; Arguellez,
409 S.W.3d at 663.
A confidential informant can provide the requisite reasonable suspicion to justify an
investigative detention so long as additional facts are present to demonstrate the informant’s
reliability. Smith v. State, 58 S.W.3d 784, 790 (Tex.App.--Houston [14th Dist.] 2001, pet. ref’d).
In this regard, “the informant’s veracity, reliability, and basis of knowledge are highly relevant.”
State v. Sailo, 910 S.W.2d 184, 188-89 (Tex.App.--Fort Worth 1995, pet. ref’d). In a case
involving the use of an informant, the court must consider the informant’s reliability in analyzing
the totality of the circumstances. Smith, 58 S.W.3d at 789. An informant’s reliability can be
established through evidence that the informant is known to the police and has provided credible
4
information in the past. See Carmouche v. State, 10 S.W.3d 323, 326 (Tex.Crim.App. 2000);
Smith, 58 S.W.3d at 790; see also Adams v. Williams, 407 U.S. 143, 146-47, 92 S. Ct. 1921, 32
L. Ed. 2d 612 (1972)(explaining that information obtained from informant who has been used
before is stronger than anonymous tip). Additionally, reliability can be established by the
presence of details relating not only to easily obtainable facts and conditions existing at the time
of the tip, but also to future actions of third parties not easily predicted. See Illinois v. Gates, 462
U.S. 213, 241-46, 103 S. Ct. 2317, 2333-36, 76 L. Ed. 2d 527 (1983); Alabama v. White, 496 U.S.
325, 329-30, 110 S. Ct. 2412, 2416, 110 L. Ed. 2d 301 (1990).
Appellant’s Arguments
Appellant contends that the officers did not have reasonable suspicion to stop his car
because the phone call to “Black” amounted to nothing more than an unsubstantiated anonymous
tip and the activity observed by the officers at the A & W was “otherwise lawful activity.” There
is no evidence in the record to support an inference or finding that the person known as Black
was making an anonymous tip regarding criminal activity to the policy. To the contrary, all of
the evidence in the record reflects that the police were investigating Black for distributing heroin.
This investigation began when a confidential informant told Investigator Jones that a man
known as “Black” was distributing heroin in the area. The informant also gave him Black’s
phone number. Jones called that number and spoke to Black while identifying himself using the
name of someone who had previously purchased drugs from Black. Black acted as though he
knew Jones. Jones told him only that he needed to meet, which Jones understood from the
informant to be code for buying heroin from Black, and Black told him to go to a specific
location and to look for a black car. Jones and other officers went to the A & W and they found
one black car in the parking lot. The officers watched the black car for a while and observed
5
what they believed, based upon their training and experience, to be two separate drug
transactions involving the occupants in the black car.
The record before us contains evidence demonstrating that the officers corroborated
important details of the tip indicating criminal activity on the part of the occupants of
Appellant’s black Cobalt. Significantly, the tipster accurately predicted that Black would give
Deputy Jones a location where he could purchase heroin from Black’s runners or employees.
The officers corroborated that aspect of the tip by traveling to the location and observed what
they believed based upon their training and experience to be drug transactions. Thus, the officers
independently corroborated the tip with respect to future actions by third parties. Based upon the
totality of the circumstances, we conclude that the combination of the corroborated tip and the
officers’ observations of what they believed to be drug transactions established reasonable
suspicion for the investigative detention of Appellant’s vehicle and its occupants. See Sailo, 910
S.W.2d at 189-90; see also White, 496 U.S. at 331-32, 110 S.Ct. at 2417 (where police received
anonymous tip that woman was carrying cocaine, reasonable suspicion existed where police
independently corroborated details of the anonymous tip, including the description of the
woman, the timeframe in which the tipster predicted she would leave the apartment building, the
car she would be driving, and the hotel where the woman would go); Glenn v. State, 967 S.W.2d
467 (Tex.App.--Amarillo 1998), pet. dism’d, 988 S.W.2d 769 (Tex.Crim.App. 1999)(reasonable
suspicion existed where anonymous informant told police he had seen drugs in defendant’s car
and predicted defendant would leave his apartment in vehicle within a couple of hours,
informant’s information was consistent with other information known to officers about defendant
from other informants and another police officer, and officers corroborated every aspect of tip
except presence of drugs before detaining defendant). We overrule the sole issue on appeal and
6
affirm the judgment of the trial court.
September 16, 2015
ANN CRAWFORD McCLURE, Chief Justice
Before McClure, C.J., Rodriguez, and Hughes, JJ.
(Do Not Publish)
7