Terry Anthony Wilson v. State ( 2004 )

NO. 07-02-0515-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
APRIL 15, 2004
______________________________
TERRY ANTHONY WILSON,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 181ST DISTRICT COURT OF POTTER COUNTY;
NO. 45,476-B; HON. JOHN B. BOARD, PRESIDING
_______________________________
Opinion
_______________________________
Before QUINN and REAVIS, JJ., and BOYD, S.J.1
Terry Anthony Wilson (appellant) appeals his conviction for possession of a
controlled substance. Through two issues, he contends 1) that his original appellate
counsel was ineffective because he filed a defective notice of appeal and 2) the trial court
erred by failing to grant his motion to suppress evidence. We affirm the judgment.
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John T. Boyd, Chief Justice (Re t.), Seventh C ourt of Appeals, sitting by assignment. Tex. Gov’t Code
Ann. §75.00 2(a)(1) (V erno n Su pp. 2004 ).
Issue One – Ineffective Assistance of Appellate Counsel
Appellant initially argues that his first counsel was ineffective because he failed to
properly perfect the appeal. Furthermore, the default was exemplified by counsel’s filing
of a general notice of appeal though his conviction resulted from a plea bargain. To the
extent that the circumstances required appellant to perfect his appeal by filing a notice that
comported with Texas Rule of Appellate Procedure 25.2(b)(3), that was and has been
done. An amended notice comporting with that rule was delivered to this court before
appellant submitted his brief. TEX . R. APP. P. 25.2(d) (stating that an amended notice of
appeal correcting a defect or omission in an earlier filed notice may be filed in the appellate
court at any time before the appellant’s brief is filed). Thus, the default alluded to by
appellant has been corrected, and his first issue is moot.
Issue Two – Motion to Suppress
Next, appellant posits that the trial court erred in denying his motion to suppress.
This is purportedly so because the officer arresting him lacked reasonable suspicion to
stop and subsequently frisk him. It was during the frisk that the officer discovered a plastic
baggie containing rocks of crack cocaine in the pocket of appellant’s windbreaker. We
overrule the issue.
The stop occurred after three police officers, i.e. Rolan, Martinez and Vanover,
conducted surveillance of a local bar. The group of officers conducted their surveillance
from the back yard of an empty house across from the bar. Indeed, according to the
testimony, it appeared as though the area was rife with empty or abandoned buildings.
And, what caused the officer to take surveillance were several indicia. One involved
Martinez having driven by the establishment around 11:30 p.m. and seeing an individual
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in a yellow jacket standing in front of the bar during each pass. Another involved the “no
loitering” signs posted on the walls of the bar. Over the course of six years, the owner of
the establishment had personally asked Rolan to enforce the signs approximately 25 times,
so Rolan testified.
Next, one or more of the officers knew that the bar was located in an area noted for
its large quantum of drug trafficking. So too did they know that drugs actually had been
sold from and drug-related arrests were previously made at the site being watched.
Furthermore, the modus operandi utilized by the traffickers, according to Rolan, consisted
of their waiting in front of the bar. Potential buyers would approach the bar environs and
“make contact with” the seller. Or, the seller would walk to and make contact with
individuals arriving at the site. And, irrespective of how it occurred, the encounters
generally were fleeting.
Rolan further testified that police had appeared at the bar in response to disturbance
calls. Some of those calls involved individuals discharging firearms in the street. Others
encompassed large fights. As summarized by Rolan: “just an array of disorderly type
calls.”
On the night in question, and after Martinez had watched the man in the yellow jacket
for approximately one-half hour, the officers noticed appellant appear at the front of the
bar. He wore a dark colored light-weight windbreaker and “loitered” outside the front of the
bar for 20 to 25 minutes. That appellant and the other fellow simply “loitered” outside the
front of the bar “surprised” Rolan because it was late January and cold that night. Indeed,
he remarked about how it was “not common” for anybody to “just stand outside and
freeze[].” Yet, in addition to loitering, appellant and the man in the yellow jacket stood next
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to each other and appeared to converse, though the substance of any conversation could
not be heard. Furthermore, the yellow-jacketed man would also approach and make brief
contact with individuals who approached or left the bar.
Eventually another person joined the two individuals outside the bar. Thereafter,
the officers decided to approach them. They did so from the side of the bar. When Rolan
came into view, appellant “walked hastily off the sidewalk into the . . . north parking
lot . . . .” He “wasn’t going towards any type vehicle, because it was just a vacant spot that
he started walking into, as if he were surprised by our presence.” At that point, Rolan
“detained” appellant, “brought him back up to the sidewalk to speak to him, and identify
him.” Then, “because of the past weapons calls here, for my own personal safety,” the
officer “decided to conduct a pat down.” As he did so, he saw the end of a plastic baggie
protruding from an open pocket in appellant’s windbreaker. That crack cocaine was often
packaged in such baggies was known to the officer. As he told the trial court, “[f]rom my
six years of working down here . . . I made numerous arrests . . . [a] majority of all the
arrests . . . I made involved crack cocaine being contained within the plastic baggies.”
Thus, seeing the baggie, Rolan pressed against the outside of the pocket and felt “hard
small rock-like objects.” Based upon “all [his] years of experience,” he immediately
recognized the items he felt to be “crack cocaine.” The baggie was then “retrieved” and
appellant arrested.
So too did the man in the yellow jacket attempt to leave when approached by
Martinez. The latter, however, detained him and also discovered cocaine on his person
after conducting a search.
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As previously mentioned, appellant believes that Rolan had neither reasonable
suspicion to stop or search him. Thus, the trial court erred in denying the motion to
suppress, in his view.
The standard of review applicable is one of abused discretion, as described in
Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997), Benitez v. State, 5 S.W.3d
915, 921 (Tex. App.–Amarillo 1999, pet. ref’d), and LaSalle v. State, 923 S.W.2d 819, 823
(Tex. App.–Amarillo 1996, pet. ref’d). Furthermore, when no findings of fact are executed,
as here, we must view the evidence in a light favorable to the trial court’s ruling. State v.
Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).
Next, one may be temporarily detained when an officer has specific and articulable
facts that, when combined with rational inferences from those facts, would lead the officer
to reasonably suspect the detainee has engaged or is (or soon will be) engaging in criminal
activity. Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001). In other words, there
must be some indication that an unordinary activity is or has occurred, that the suspect is
linked to the unusual activity, and that the activity is related to crime. Gurrola v. State, 877
S.W.2d 300, 302 (Tex. Crim. App. 1994). Because this standard is an objective one, the
officer’s subjective intent is irrelevant. Garcia v. State, 43 S.W.3d at 530. And, when
applying it, we must consider the totality of the circumstances. Id.
Finally, once a person is detained, an officer may frisk the detainee when he
reasonably suspects he is dealing with an armed individual. Davis v. State, 61 S.W.3d 94,
97 (Tex. App.–Amarillo 2001, no pet); Maldonado v. State, 853 S.W.2d 746, 748 (Tex.
App.–Houston [1st Dist.] 1993, no pet.) (citing Terry v. Ohio, 392 U.S. 1, 27, 88 S. Ct. 1868,
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1883, 20 L. Ed. 2d 889 (1968)). This does not mean that the officer must be absolutely
certain that the individual is armed; nor does the officer have to have probable cause to
arrest. Davis v. State, 61 S.W.3d at 97. Rather, the issue is whether a reasonably prudent
officer in the same circumstances would be warranted in believing that his safety or that
of others is in danger. Id.; Carmouche v. State, 10 S.W.3d 323, 329 (Tex. Crim. App.
2000) (stating that the officer must have before him specific and articulable facts
reasonably leading him to conclude that the suspect might possess a weapon). Moreover,
that weapons and violence are associated with the drug trade is rather settled. Carmouche
v. State, 10 S.W.3d at 330. Thus, encountering one who is reasonably suspected of
engaging in drug activity can justify a brief and minimally intrusive frisk of his person. Id.
And, so long as the officer had legitimate basis to frisk for weapons it matters not that the
officer also may have thought to search for narcotics. Again, the subjective intent of the
officer is irrelevant. Garcia v. State, 43 S.W.3d at 530.
In viewing the evidence and inferences therefrom in a light most favorable to the trial
court’s decision, we conclude that the trial court reasonably could have inferred that the
officers were doing more than simply attempting to enforce the bar owner’s admonition
against loitering.2 Instead, it could deduce that the officers were looking for and thought
they spied potential drug traffickers in appellant and the man in the yellow jacket. Indeed,
the very factors rendering suspect the proposition that the police were simply watching for
loiterers are some of the very factors permitting one to infer that those lingering in front of
2
Ad m itted ly, two officers sa id that they app roac hed app ellant and the m an in th e yellow ja ck et to
inform them abo ut their loitering. Ye t, it seems som ewhat specious to suggest that three reasonable police
officers would spend substantial periods of time hiding in a backyard of an abandoned house during a cold
winter’s nigh t solely for the purpo se o f app rehe nding loiterers ap pea ring in the m iddle of a dru g zon e.
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the bar were dealing in drugs. For instance, the area was not only a known drug zone but
it was known that drugs were actually sold from the environs of the bar itself. Furthermore,
appellant and his companion were standing around outside the building much like the
trafficker mentioned in Rolan’s description to the trial court about how drugs were sold from
the locale. So too did both converse with each other while the man in the yellow jacket
approached those attempting to enter and exit the bar (also much like the trafficker in
Rolan’s description about how drugs were sold). More importantly, and as professed by
Rolan, it was surprising to see people standing outside in the cold and wee hours of the
night for an extended period simply to socialize. Given that at least one court has opined
that loitering outside a known drug house “speaks for itself” and is indicative of “an intent
to buy or sell drugs,” see Lucky v. State, No. 05-02-0108-CR, 2003 Tex. App. LEXIS 11
(Tex. App.–Dallas January 6, 2003, no pet.) (not designated for publication), it seems
appropriate to recognize that a reasonable officer could also view the activity of appellant
and the man in the yellow jacket at the time and place as indicia of illegal conduct.
To this we add the evidence that as the three officers approached and were spied
by appellant and his companion, both tried to leave. If presented at trial, evidence of an
attempt to escape in the face of police presence can be interpreted by the factfinder as a
consciousness of guilt. Thus, there is no reason to assign it less weight when offered
during a pretrial hearing to determine whether an officer had legitimate basis to stop a
suspect. We caution, however, that here we have more than just effort to depart. If this
were not so and if the officers did not have before them other indicia leading them to
reasonably suspect that crime was afoot as they approached their quarry, the latter’s
decision to leave would not be enough to create reasonable suspicion. Gurrola v. State,
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877 S.W.2d 300, 303 (Tex. Crim. App. 1994); Davis v. State, 61 S.W.3d 94, 97 n.1 (Tex.
App.–Amarillo 2001, no pet.). This is so because one retains the freedom to depart from
a consensual encounter with the police. Id.
In short, and given the area’s reputation, the reputation of the bar for being a place
where drugs were sold, the time of day and year, the cold weather conditions, the length
of time appellant and the man in the yellow jacket stood in front of the bar, and the
similarity between their conduct and that of previous drug traffickers at the location, the trial
court had sufficient basis to conclude that a prudent officer could reasonably suspect that
appellant and the man in the yellow jacket were engaging in unusual activity related to
criminal activity, i.e. drug trafficking. Furthermore, once the officers had basis to detain
them, the latter’s effort to leave further enhanced the articulable facts justifying detention.
Next, because the Texas Court of Criminal Appeals recognizes that weapons,
violence and drugs go hand in hand, see Carmouche v. State, 10 S.W.3d at 330, a prudent
officer could reasonably suspect that appellant, a suspected drug trafficker, could pose a
physical danger. So, the trial court had basis upon which to approve of the pat-down for
weapons of appellant’s outer clothing. And, it was during the pat-down that Rolan spied
the plastic baggie (reminiscent of those used by drug traffickers) protruding from the open
pocket of the windbreaker. This caused him to continue the frisk of the outer portion of the
pocket with his open hand, which act immediately verified his suspicion about the nature
of the object within the pocket. And, having basis to reasonably conclude that the object
was drugs, the officer was not obligated to ignore it. Again, the object of the pat-down is
self-preservation or the protection of others. Yet, once basis exists that warrants a frisk for
weapons, the officer is not required by law to close his eyes to other contraband that he
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may immediately recognize during the minimally intrusive search. Carmouche v. State, 10
S.W.3d at 330.
Contrary to appellant’s suggestion, this case is not controlled by our decision in
Davis v. State, 61 S.W.3d 94 (Tex. App.–Amarillo 2001, no pet.). There, we remarked
about the absence of evidence indicating that drug arrests had ever been made at the
scene. Here, Rolan testified not only that drugs had previously been sold from the exact
locale under surveillance but also that he personally had made numerous arrests there
“primarily [for] narcotics.” Nor did the record in Davis include testimony from an officer that
it was unordinary for someone to be standing outside at that time of night and during the
“dead of winter.” Similarly lacking in Davis was evidence explaining the method by which
drugs were previously sold from the locale and against which the officers and trial court
could compare appellant’s conduct and that of his compatriot on the street.
Also distinguishable from the case before us are two other opinions cited by
appellant. We acknowledge that in Gurrola v. State, the Court of Criminal Appeals
recognized that a person has a right to walk away from an officer if the latter has no
legitimate basis to detain him. So too did it say that the detainee’s presence in a high
crime area was not enough to create reasonable suspicion justifying detention. Yet, the
court was careful to note that it was not unordinary for several men to be conversing in a
parking lot in the late afternoon. And, because it was not, the officer lacked basis upon
which to make the stop. Here, we not only have a high crime area but prior drug activity
at the very site of the stop. So too do we have testimony allowing the trial court to find
comparable the conduct of the suspects (both appellant and the man in the yellow jacket)
at bar with the modus operandi of prior drug dealers at the site. Nor can we forget Rolan’s
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testimony, the general tenor of which indicated that it was quite surprising to see those
suspects loitering for an extended period of time outdoors at a place from which drugs
were known to be sold late on a cold winter’s night. These very circumstances also
distinguish our situation from that before the court of appeals in Gamble v. State, 8 S.W.3d
452 (Tex. App.–Houston [1st Dist.] 1999, no pet.), the second case relied upon by
appellant.
In sum, the trial court had before it sufficient evidence upon which to conclude that
there existed reasonable suspicion to stop and frisk appellant. Because it did, its decision
to overrule the motion to suppress did not evince an instance of abused discretion. Thus,
we affirm the judgment of conviction.
Brian Quinn
Justice
Publish.
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