Dezmone Pinkston v. State ( 2015 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00041-CR
DEZMONE PINKSTON APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY
TRIAL COURT NO. 1329761D
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MEMORANDUM OPINION1
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I. INTRODUCTION
In two issues, appellant Dezmone Pinkston appeals his conviction for
possession of cocaine in an amount of less than one gram. See Tex. Health &
Safety Code Ann. § 481.115(b) (West 2010). Because we hold that the trial court
erred by denying Pinkston’s motion to suppress, we reverse the trial court’s
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See Tex. R. App. P. 47.4.
judgment and remand the cause for further proceedings consistent with this
opinion.
II. BACKGROUND
After the State charged Pinkston with possession of cocaine, he filed a
motion to suppress. At the suppression hearing, the State stipulated that the
officers in this case did not have a warrant to arrest or detain Pinkston prior to
searching his person and discovering cocaine.
Fort Worth Police Officer Barrett Galbraith testified that on June 7, 2013,
he and fellow officers conducted a walk-through of the Regency Oaks
Apartments, an area that, according to Galbraith, is “very problematic” and
known as an area where “violent crimes [and] narcotics crimes” occur with
frequency. Galbraith also said that the area is known as a place where domestic
and violent family crimes occur. Galbraith did not state at what time he and
fellow officers conducted their walk-through, but he did testify that his shift that
night was from 8:00 p.m. until 6:00 a.m. and that his encounter with Pinkston
occurred while it was “dark”; and the parties’ agreed-to proposed findings of fact
and conclusions of law reflect that Galbraith’s encounter with Pinkston occurred
“at approximately midnight.” There is, however, no evidence that the trial court
adopted these proposed findings and conclusions.
By Galbraith’s account, he and fellow officers had been at the apartment
complex for more than twenty minutes and most of the people around had begun
to “go inside because they saw [the police] walking around” when he heard
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“arguing . . . to the north” of his location. Galbraith testified that although he
could not see who was arguing, the arguing was loud enough that he could hear
it despite the location of the argument occurring a building over from where he
was. Galbraith said that in his report from that night he described the argument
as “yelling and screaming.” According to Galbraith, the tenor of the argument led
him to believe that he needed to investigate “an assault [or] something of that
nature.” He also described the argument as being consistent with “a domestic
assault.” Galbraith averred that as he approached the area where the argument
was occurring, he witnessed Pinkston and a female arguing but that once the
couple saw him, “they stopped arguing and began to walk away.”
Galbraith said that the couple’s conduct of ceasing their argument and
walking away led him to believe that “they were trying to get away from [him] so
that they didn’t have to talk to [him].” Galbraith stated to the couple that they
should come back and talk to him, but as the couple continued their retreat,
Galbraith declared, “Stop, police.” At that moment, the female stopped, but
Pinkston continued walking away. From there, Galbraith and his fellow officers
chased down Pinkston and arrested him for “[e]vading arrest or detention.” After
patting down Pinkston, Galbraith found “an off white rock-like substance” on
Pinkston’s person that Galbraith believed to be crack cocaine.
The trial court denied Pinkston’s suppression motion, and he later entered
into a plea bargain with the State whereby he pleaded guilty to possession of
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less than one gram of cocaine. The State recommended sixty days’ jail time.
The trial court entered judgment accordingly, and this appeal followed.
III. DISCUSSION
In two issues, citing both state and federal principles of search and
seizure, Pinkston argues that the trial court abused its discretion by denying his
motion to suppress because Galbraith lacked reasonable suspicion to detain him
at the moment Galbraith announced, “Stop, police.” In support of his position,
Pinkston cites the court of criminal appeals’s decision in Gurrola v. State. 877
S.W.2d 300, 303 (Tex. Crim. App. 1994). The State argues that this case is
distinguishable from Gurrola. Furthermore, the State argues that Gurrola “seems
to be simply outdated” as a touchstone for determining reasonable suspicion.
We agree with Pinkston.
A. Standard of Review
We review a trial court’s ruling on a motion to suppress evidence under a
bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex.
Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).
In reviewing the trial court’s decision, we do not engage in our own factual
review. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Best v.
State, 118 S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, no pet.). The trial
judge is the sole trier of fact and judge of the credibility of the witnesses and the
weight to be given their testimony. Wiede v. State, 214 S.W.3d 17, 24–25 (Tex.
Crim. App. 2007); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000),
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modified on other grounds by State v. Cullen, 195 S.W.3d 696 (Tex. Crim. App.
2006). Therefore, we give almost total deference to the trial court’s rulings on
(1) questions of historical fact, even if the trial court’s determination of those facts
was not based on an evaluation of credibility and demeanor, and (2) application-
of-law-to-fact questions that turn on an evaluation of credibility and demeanor.
Amador, 221 S.W.3d at 673; Montanez v. State, 195 S.W.3d 101, 108–09 (Tex.
Crim. App. 2006); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App.
2002). But when application-of-law-to-fact questions do not turn on the credibility
and demeanor of the witnesses, we review the trial court’s rulings on those
questions de novo. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d
604, 607 (Tex. Crim. App. 2005); Johnson, 68 S.W.3d at 652–53.
Stated another way, when reviewing the trial court’s ruling on a motion to
suppress, we must view the evidence in the light most favorable to the trial
court’s ruling. Wiede, 214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808, 818
(Tex. Crim. App. 2006).
B. No Reasonable Suspicion to Detain Pinkston
The Fourth Amendment, and its corresponding state principles codified in
the Texas Code of Criminal Procedure, protects against evidence being used at
trial when it was obtained through unreasonable searches and seizures by
government officials. U.S. Const. amend. IV; Tex. Code Crim. Proc. Ann. art.
38.23 (West 2005); Wiede, 214 S.W.3d at 24. To suppress evidence because of
an alleged Fourth Amendment violation, the defendant bears the initial burden of
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producing evidence that rebuts the presumption of proper police conduct.
Amador, 221 S.W.3d at 672; see Young v. State, 283 S.W.3d 854, 872 (Tex.
Crim. App.), cert. denied, 558 U.S. 1093 (2009). A defendant satisfies this
burden by establishing that a search or seizure occurred without a warrant.
Amador, 221 S.W.3d at 672. Once the defendant has made this showing, the
burden of proof shifts to the State, which is then required to establish that the
search or seizure was conducted pursuant to a warrant or was reasonable. Id. at
672–73; Torres v. State, 182 S.W.3d 899, 902 (Tex. Crim. App. 2005); Ford v.
State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005).
A detention, as opposed to an arrest, may be justified on less than
probable cause if a person is reasonably suspected of criminal activity based on
specific, articulable facts. Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880
(1968); Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000). An
officer conducts a lawful temporary detention when he has reasonable suspicion
to believe that an individual is violating the law. Crain v. State, 315 S.W.3d 43,
52 (Tex. Crim. App. 2010); Ford, 158 S.W.3d at 492. Reasonable suspicion
exists when, based on the totality of the circumstances, the officer has specific,
articulable facts that when combined with rational inferences from those facts,
would lead him to reasonably conclude that a particular person is, has been, or
soon will be engaged in criminal activity. Ford, 158 S.W.3d at 492. This is an
objective standard that disregards any subjective intent of the detaining officer
and looks solely to whether an objective basis for the detention exists. Id.
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Here, the circumstances that Galbraith testified about that gave him
reasonable suspicion to detain Pinkston were that Pinkston’s argument with his
female companion was of such volume and nature that he believed that “a
possible offense” in the nature of an “assault” was transpiring. Galbraith also
testified that this argument occurred in an area known for domestic violence and
that this all transpired while it was “dark” outside. And, according to Galbraith’s
testimony, because Pinkston and the female stopped arguing and began to walk
away upon seeing the police, the totality of this conduct provided him with
reasonable suspicion that a crime had been committed.
We agree with Pinkston that the Court’s decision in Gurrola is instructive in
this case. 877 S.W.2d at 304. In Gurrola, during the afternoon, an unknown
man reported to a patrol officer that there was a disturbance at a nearby
apartment complex. Id. at 301. The officer knew the apartment complex to be
“an unsafe location that had incurred several complaints of disturbances from
area residents.” Id. The officer drove over to the parking lot of the complex and
saw three men and a woman engaged in what appeared to be an argument. Id.
The officer approached the individuals to find out “what was going on,” but as he
did so, they all began to leave. Id. After the individuals began to disperse, the
officer ordered them to stop and the officer then conducted a pat-down search
and discovered cocaine on Gurrola’s person. Id. The Court held that the officer
lacked reasonable suspicion to detain Gurrola even though the officer had
received an uncorroborated complaint of a disturbance; the argument the officer
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witnessed occurred in a “high-crime” area; and the individuals involved in the
argument dispersed upon seeing the officer. Id. at 303, 305.
Here, Galbraith lacked even more articulable facts than the officer in
Gurrola. In this case, like in Gurrola, the argument Galbraith witnessed occurred
in a high-crime area and the participants of the argument dispersed upon seeing
the police. But unlike in Gurrola, the officers in this case had not received an
uncorroborated complaint of a disturbance. The only distinction that this court
can detect that differs in this case from Gurrola is that in Gurrola the argument
occurred during the day, and in this case, the argument occurred while it was
“dark.” But time of night alone is not sufficient to rise to the level of reasonable
suspicion. See Crain, 315 S.W.3d at 53 (“Neither time of day nor level of criminal
activity in an area are suspicious in and of themselves.”).
Furthermore, we are unpersuaded by the State’s argument that Gurrola is
no longer good law. First, it is not this court’s prerogative to refuse to follow the
court of criminal appeals’s decisions. See Wiley v. State, 112 S.W.3d 173, 175
(Tex. App.—Fort Worth 2003, pet. ref’d) (“It is axiomatic that a Court of Appeals
has no power to ‘overrule or circumvent [the] decisions, or disobey [the]
mandates,’ of the Court of Criminal Appeals.”). Moreover, the court of criminal
appeals has recently cited Gurrola in its analysis of what constitutes reasonable
suspicion to detain an individual. Crain, 315 S.W.3d at 49, n.16. Crain is also
instructive to this case. In Crain, the Court held that an officer lacked reasonable
suspicion to detain Crain even though Crain was walking at night in a residential
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area known for night-time burglaries and Crain had exhibited the “suspicious”
conduct of “grabb[ing] at his waist” upon seeing a police officer. Id. at 53. Like in
Crain, in this case, the circumstances of an argument at night in an area known
for crime coupled with Pinkston’s constitutional right to walk away from police
also do not rise to the level of reasonable suspicion. See Zone v. State, 84
S.W.3d 733, 738–39 (Tex. App.—Houston [1st Dist.] 2002), aff’d, 118 S.W.3d
776 (Tex. Crim. App. 2003) (“An individual has the right to refuse to answer a
police officer’s questions and walk away unless the officer has reasonable
suspicion to detain that person.”). We hold that Galbraith lacked reasonable
suspicion to detain Pinkston. Thus, we hold that the trial court erred by denying
Pinkston’s motion to suppress the evidence found on his person after Galbraith
detained him, and we sustain both of Pinkston’s issues on appeal.
C. Was the Denial of Pinkston’s Motion to Suppress Harmful?
Galbraith’s unlawful stop of Pinkston violated his Fourth Amendment
rights, and thus the cocaine discovered from that detention should have been
suppressed. Because the trial court committed constitutional error by denying
Pinkston’s motion to suppress, we must reverse his conviction unless we
determine beyond a reasonable doubt that the error did not contribute to his
conviction. See Tex. R. App. P. 44.2(a). We hold that the trial court’s denial of
Pinkston’s motion to suppress was harmful error because it “undoubtedly
contributed in some measure to the State’s leverage in the plea bargaining
process and may well have contributed to [Pinkston’s] decision to relinquish [his]
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constitutional rights of trial and confrontation in exchange for a favorable
punishment recommendation.” See Castleberry v. State, 100 S.W.3d 400, 404
(Tex. App.—San Antonio 2002, no pet.) (citing McKenna v. State, 780 S.W.2d
797, 799 (Tex. Crim. App. 1989)). Indeed, the cocaine found on Pinkston during
Galbraith’s illegal detention is the only evidence that Pinkston possessed
cocaine.
IV. CONCLUSION
Having sustained both of Pinkston’s issues on appeal, we reverse the trial
court’s judgment and remand this cause for further proceedings consistent with
this opinion.
/s/ Bill Meier
BILL MEIER
JUSTICE
PANEL: LIVINGSTON, C.J.; MEIER and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: March 19, 2015
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