Wesley Earl Burch v. State ( 2004 )

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-03-574 CR ____________________

WESLEY EARL BURCH, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 411th District Court Polk County, Texas Trial Cause No. 16,980

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OPINION  

A jury convicted appellant of Possession of Controlled Substance (cocaine), with an aggregate weight, including adulterants or dilutants, of four grams or more but less than 200 grams. Tex. Health & Safety Code Ann. § 481.115(a), (d) (Vernon 2003). Enhancement allegations included in the indictment raised appellant's punishment exposure to that of an habitual offender. The trial court assessed punishment at fifty years' confinement in the Texas Department of Criminal Justice - Correctional Institutions Division. A single appellate issue is presented for our consideration: "The trial court erred in denying appellant's motion to suppress evidence based on illegal search and seizure in that the contraband was seized as a result of an illegal arrest and unreasonable search and seizure without warrant and without probable cause in violation of the Fourth Amendment of the United States Constitution."

Initially, we note that the record does not contain a written motion to suppress the controlled substance in question. Nevertheless, a pretrial suppression hearing was held and concluded with the trial court denying appellant's "motion to suppress." At the pretrial hearing, appellant voiced the following objections to the admissibility of the contraband:  

[Trial Counsel]: Mr. - - Mr. Burch was clearly detained unlawfully at the time that the items were demanded. He produced them only in response to a show of authority. And we would ask the Court to suppress the seizure of the drugs in the medicine bottles as an unlawful seizure by Mr. Bogany.

. . . .

[Trial Counsel]: Yes, Your Honor. The - - at the most, the officer had, I think, the basis to do a Terry frisk if he needed to detain Mr. Burch. That would not include grabbing the bottle in his hand and the looking in it because, according to the officer's testimony, there was nothing inherent or suspicious about the towel or the bottle or the rattling. . . . And I believe that this seizure was therefore a fortuitous one and not according to law. I ask that it be suppressed.

The trial began a little over two months later. As in the pretrial suppression hearing, the lone fact-witness who testified about the events surrounding the discovery of the cocaine in question was Officer Ronnie Bogany of the City of Livingston Police Department. Appellant did not testify in either the pretrial suppression hearing or at trial on the merits. ⁽¹⁾

We review a trial court's ruling on a motion to suppress evidence for an abuse of discretion. Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002). In this review, we give almost total deference to the trial court's determination of historical facts and review the court's application of search and seizure law de novo. Guzman v. State, 955 S.W.2d 85, 88-89 (Tex. Crim. App. 1997). In the instant case, the trial court did not make explicit findings of historical facts, so we review the evidence in a light most favorable to the trial court's ruling and assume that the trial court made implicit findings of fact supported in the record. Carmouche v. State, 10 S.W.3d 323, 327-28 (Tex. Crim. App. 2000).

We have before us testimony from both the pretrial suppression hearing and from the trial itself regarding the events surrounding the discovery and confiscation of the cocaine and appellant's arrest. The general rule is that the reviewing court considers only evidence presented at the hearing on a motion to suppress and does not resort to testimony subsequently elicited at the trial because the trial court's ruling was based only on the hearing testimony. Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim. App. 1996); Hardesty v. State, 667 S.W.2d 130, 133 n.6 (Tex. Crim. App. 1984). But when the issue is consensually re-litigated by the parties at trial, consideration of the trial evidence is appropriate. Rachal, 917 S.W.2d at 809; Hardesty, 667 S.W.2d at 133 n.6. As appellant implicitly invites us to do so, we will synthesize the facts from both proceedings heard by the trial court in the light most favorable to the ruling.

Officer Ronnie Bogany of the Livingston Police Department testified that on July 21, 2002, a woman, F.L., came to the Livingston Police Department office and reported that appellant had sexually assaulted her fourteen-year-old daughter. Both F.L. and Officer Bogany then separately attempted to locate appellant. Officer Bogany was familiar with appellant and had known him for quite a few years prior to the events of July 21, 2002. Bogany was interested in questioning appellant concerning the allegations made by F.L. Eventually, Officer Bogany did locate appellant on Preston Street in an area known to Officer Bogany for drug activity.   

Officer Bogany first spotted appellant in the middle of Preston Street, a public street, between the hours of 10 p.m. and 11 p.m. At that location, Officer Bogany observed appellant talking with F.L. and F.L.'s husband in the middle of the street, and appellant appeared to have a white bath towel wrapped around his left hand. Bogany further observed the conversation between appellant and F.L. to become very heated and confrontational with appellant waving and flailing his arms and hands up in the air. Officer Bogany became concerned because appellant had become angry during the conversation with F.L. and Bogany did not know what, if anything, appellant possibly had in his hand that was concealed by the towel. As Bogany continued to observe the conversation between appellant and F.L., Bogany could hear "something rattling" inside the towel covering appellant's left hand. Shortly thereafter, F.L. apparently blurted out that appellant had "crack cocaine" on his person.

At that point, Officer Bogany, based upon his training and experience, had a suspicion that appellant may have been in possession of illegal drugs, and intended to detain appellant to investigate the situation. Also, based upon Bogany's training and experience as a police officer, he was aware that crack cocaine was rock-like in form and was typically carried in small bottles like aspirin bottles, which would account for the rattling sounds. Furthermore, Bogany knew appellant, had dealt with appellant "many times," and that evening was not the first time Bogany had dealt with appellant in connection with drugs. At that point, Officer Bogany had intended to detain appellant to discuss the sexual assault allegations as well as the crack cocaine allegation made by F.L. As Officer Bogany asked appellant what he had in the towel, appellant attempted to flee on foot. Officer Bogany managed to grab appellant before appellant was able to fully escape and a struggle ensued. Officer Bogany held appellant by the shirt and also called for a backup unit to be sent to the scene. Shortly thereafter, appellant stopped struggling and voluntarily turned over what he had in his possession which was hidden by the towel. Inside the towel, appellant was holding two small bottles which looked like "Tylenol" bottles. One bottle contained thirteen "off-colored-looking rocks," and the other bottle contained eighteen similar looking rocks, and all the rocks appeared to Bogany to be crack cocaine. It was only at this point that Officer Bogany placed appellant under arrest.   

Appellant contends that the cocaine was seized from appellant following what amounted to an illegal warrantless arrest. Appellant further argues that even if Bogany had reasonable suspicion and was permitted a "Terry frisk," the seizure of the cocaine was entirely outside the scope of a Terry protective search for weapons. While citing to a number of seminal cases on the law of search and seizure, appellant fails to fully appreciate the "totality of the circumstances" the trial court had before it when it overruled appellant's suppression request.

A police officer may approach a citizen without probable cause or reasonable suspicion to ask questions or even to request a search. Florida v. Royer, 460 U.S. 491, 497-98, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983), Johnson v. State, 912 S.W.2d 227, 235 (Tex. Crim. App. 1995). Therefore, the "encounter" by which Officer Bogany stood and observed the argument between appellant and F.L. was not unlawful at its initiation. An "encounter" may ripen into an investigative detention, or "Terry stop," however, when the officer forms a reasonable suspicion to believe that an individual is involved in criminal activity. Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). While "reasonable suspicion" is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence, the Fourth Amendment requires at least a minimal level of objective justification for making the detention. See United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 104 L. Ed. 2d 1 (1989). The officer must be able to articulate more than an "inchoate and unparticularized suspicion or 'hunch'" of criminal activity. Terry, 392 U.S. at 27, 88 S. Ct. 1868, 20 L. Ed. 2d 889.

In the instant case, Officer Bogany articulated suspicions about appellant from both personal observations and from information provided to Bogany by F.L. Generally, when information alleged to support reasonable suspicion comes from a totally anonymous source, something more than the anonymous tip is required to provide the reasonable suspicion necessary to make a valid detention. See Guevara v. State, 6 S.W.3d 759, 763 (Tex. App.--Houston [1st Dist.] 1999, pet. ref'd). Relying on information received from an informant is acceptable if the informant's statement is reasonably corroborated by other matters within the officer's knowledge. Id. F.L.'s "tip" that appellant was in possession of crack cocaine was made more reliable by Officer Bogany personally hearing the rattling sounds coming from inside appellant's towel-covered left hand as appellant excitedly gestured during the confrontation with F.L. See Florida v. J.L., 529 U.S. 266, 270-72, 120 S. Ct. 1375, 146 L. Ed. 2d 254 (2000) (Suitably corroborated, an anonymous tip may exhibit sufficient indicia of reliability in its assertion of illegal activity to provide reasonable suspicion to make an investigatory stop.). In addition, appellant's attempted flight in the face of F.L.'s cocaine-possession accusation not only provided further independent corroboration of the reliability of said accusation, but also provided Officer Bogany with justification for detaining appellant in itself, also considering the particular facts and circumstances present at that moment. As noted in Illinois v. Wardlow, 528 U.S. 119, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000):

Our cases have also recognized that nervous, evasive behavior is a pertinent factor in determining reasonable suspicion. Headlong flight - - wherever it occurs - - is the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such. In reviewing the propriety of an officer's conduct, courts do not have available empirical studies dealing with inferences drawn from suspicious behavior, and we cannot reasonably demand scientific certainty from judges or law enforcement officers where none exists. Thus, the determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior.

Id. at 124-25, 120 S. Ct. 673, 145 L.Ed.2d at 576-77. (internal citations omitted)

In the instant case, the evidence indicates that Officer Bogany had reasonable suspicion to detain appellant initially to question him regarding the sexual assault allegations made by F.L. Bogany was familiar with appellant and had dealt with him before concerning other criminal conduct involving drugs. Bogany was also suspicious with regard to appellant's left hand being wrapped in a bath towel and the rattling sounds being made when appellant raised and lowered his arm during his animated conversation with F.L. in the middle of the street, at night, in a place where drugs are sold. When F.L. then verbally accused appellant of being in possession of crack cocaine, events moved very quickly with appellant attempting to flee the scene and Officer Bogany reacting by grabbing him in order to investigate this apparent "tip" from F.L. All of this certainly provided Officer Bogany with "reasonable suspicion" to detain appellant so as to find out what he was concealing under the towel wrapped around his left hand. There was no arrest at that point. And until appellant decided to stop his attempted flight and submit to Officer Bogany's authority, no Terry frisk could take place for weapons. When appellant did end his attempt to flee, he simultaneously admitted his possession of the cocaine and voluntarily surrendered the contraband to Officer Bogany. Only at that point was an arrest made of appellant for the offense of possession of a controlled substance. See Tex. Code Crim. Proc. Ann. art. 14.01 (Vernon 1977) (permitting warrantless arrest when offense committed in officer's presence or within his view). Under the facts and circumstances contained in the record before us, we cannot say the trial court abused its discretion in denying the request for suppression by appellant of the contraband in question. There was no illegal arrest of appellant nor was there an unreasonable seizure of the contraband in violation of the Fourth Amendment. Appellant's issue is overruled. The judgment of the trial court is affirmed.

AFFIRMED.

PER CURIAM

Submitted on August 24, 2004

Opinion Delivered August 31, 2004

Do Not Publish

Before McKeithen, C.J., Burgess and Gaultney, JJ.

1. Actually, the record reflects that appellant was present during the voir dire and selection of the jury but he failed to appear four days later when the trial reconvened.

The trial court found that appellant voluntarily absented himself, and then proceeded with the trial as permitted under Tex. Code Crim. Proc. Ann. art. 33.03 (Vernon 1989) ("[W]hen the defendant voluntarily absents himself . . . after the jury has been selected . . . the trial may proceed to its conclusion.").