Donald Ray Johnson, Jr. v. State ( 2004 )

    NUMBER 13-03-686-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

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  DONALD RAY JOHNSON, JR.,                                                   Appellant,

v.

THE STATE OF TEXAS,                                                                Appellee.  

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    On appeal from the 329th District Court

of Wharton County, Texas.

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   M E MO R A N D U M O P I N I O N

Before Chief Justice Valdez and Justices Hinojosa and Castillo

Memorandum Opinion by Chief Justice Valdez

          Appellant, Donald Ray Johnson, Jr., was charged with possession of a controlled substance with intent to deliver in a drug-free zone. The trial court denied appellant’s motion to suppress, and he was subsequently tried and convicted. A jury assessed appellant’s punishment at life imprisonment and a $10,000 fine.

         Appellant asserts that his arrest was unlawful and that evidence seized from his car should have been suppressed at trial. We affirm the judgment of the trial court.

I. Facts

         On September 7, 2002, Wharton County Detective Sergeant Grady Smith obtained a search warrant for a residence in Wharton County. Smith received information from a cooperating individual that there was drug activity at this residence. A second cooperating individual informed Smith that appellant was dealing drugs, particularly crack cocaine, from this residence.

         Before executing the search warrant, Smith and Police Chief Tim Guin conducted surveillance on the residence from a car in a nearby parking lot. During the surveillance they observed appellant exit the front door of the residence accompanied by his mother, Clara Grissom. Smith recognized appellant instantly because Smith had previously investigated cases involving appellant and knew appellant to be a drug dealer.

         Smith and Guin observed appellant carrying a blue plastic Wal-Mart bag cupped in his hand in front of his body. Smith testified that, through his binoculars, he saw a cookie of crack cocaine in the bag. Smith explained a cookie of crack cocaine takes it shape from the manner in which the drug dealer cooks the cocaine. Smith also testified the method of cooking cocaine that results in a cookie of crack cocaine is the method the local drug dealers use.

         Appellant placed the bag in the trunk of the car and left the residence with Grissom in the car. Smith and Guin followed the car and called for a patrol unit. The patrol unit arrived and stopped the car. Smith and Guin joined in the stop. Smith handcuffed appellant, searched the trunk, and found the blue Wal-Mart bag containing cocaine. While handcuffed, appellant grabbed the cookie of crack cocaine and ate some of it. Guin was able to wrest it away from him and preserve the cocaine as evidence. Subsequent analysis of the cocaine showed 146 grams of cocaine were recovered.

II. Standard of Review

         A trial court’s ruling on a motion to suppress is generally reviewed for abuse of discretion. Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999); Ford v. State, 26 S.W.3d 669, 672 (Tex. App.–Corpus Christi 2000, no pet.). We must afford almost total deference to a trial court’s express or implied determinations of fact and review de novo the court’s application of the law of search and seizure to those facts. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). The trial court is the sole fact finder at a hearing on a motion to suppress evidence and may choose to believe or disbelieve any or all of the witnesses’ testimony. Johnson v. State, 803 S.W.2d 272, 287 (Tex. Crim. App. 1990). We are not at liberty to disturb any finding by the trial court that is supported by the record. Id.

III. Analysis

         In appellant’s sole issue he contends that he was unlawfully arrested because the officers lacked probable cause as required by chapter 14 of the code of criminal procedure and that the fruits of his arrest should have been suppressed pursuant to article 38.23 of the code of criminal procedure. Tex. Code Crim. Proc. Ann. arts. 14.01-14.06 (Vernon 1977 & Supp. 2004), 38.23 (Vernon Supp. 2004). Appellant challenges both the reasonable suspicion to detain and lack of probable cause to arrest him and search the car. Specifically, he argues that the blue Wal-Mart bag was opaque and not translucent and that Smith was too far away from the residence to be able to identify the contents of the blue bag as cocaine, thus making appellant’s subsequent detention and arrest illegal.  

A. Detention  

         An officer with a reasonable suspicion to believe that an individual is involved in criminal activity may conduct a brief investigative detention. Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002). The reasonableness of a temporary detention must be examined in terms of the totality of the circumstances and will be justified when the detaining officer has specific, articulable facts that, taken together with rational inferences from those facts, lead to the conclusion that the person detained actually is, has been, or soon will be engaged in criminal activity. Id.

         The record evidence supports a finding that Smith had reasonable suspicion to detain appellant. Smith was acting upon the following specific, articulable facts: (1) Smith knew appellant was a drug dealer and had previously investigated cases involving appellant; (2) Smith had recently obtained a search warrant for this residence based on information provided by a cooperating individual that appellant and others were dealing drugs from this residence; (3) Smith observed appellant carrying a blue bag as if it contained something valuable; and (4) Smith recognized the contents of the bag as a cookie of crack cocaine.

         Appellant argues that the blue Wal-Mart bag was opaque, not translucent, and that Smith could not see through it. The trial court believed Smith’s and Guin’s testimony that the bag was fairly translucent and Smith’s testimony that he could see through it without difficulty. Moreover, the State, in questioning Smith about the bag, used a Walmart bag Smith said was similar to the one he saw appellant carrying. Appellant also argues that Smith was too far away to identify the contents of the blue bag, but Smith had a pair of binoculars as well as specialized training as a narcotics detective to aid him in identifying the cocaine. Smith also testified that, based on his knowledge and experience, he was able to identify the contents of the bag appellant was carrying as a cookie of crack cocaine. Giving total deference to the trial court’s determinations of fact, we find that Smith had reasonable suspicion to detain appellant.

B. Arrest

         Appellant argues that his arrest was illegal because the police lacked probable cause to arrest him contrary to chapter 14 of the code of criminal procedure. State law governs the legality of an arrest so long as that law does not violate federal constitutional protections against unreasonable searches and seizures. Amores v. State, 816 S.W.2d 407, 413 (Tex. Crim. App. 1991). In Texas, warrantless arrests are authorized only in limited circumstances and are governed primarily by chapter 14 of the code of criminal procedure. Id.

         In reviewing a warrantless arrest to determine the existence of probable cause, we look to the facts known to the officer at the time of the arrest. Id. at 415. An officer has probable cause to make an arrest when the facts and circumstances within the officer’s knowledge, and of which the officer has reasonably trustworthy information, are sufficient themselves to warrant a person of reasonable caution in the belief that a particular person has committed or is committing an offense. Id. at 413. The court of criminal appeals has upheld arrests when officers personally observed behavior, although not overtly criminal, that was, when coupled with the officers’ prior knowledge, sufficient to establish probable cause that an offense was occurring. Beverly v. State, 792 S.W.2d 103, 105 (Tex. Crim. App. 1990); Stull v.State, 772 S.W.2d 449, 452 (Tex. Crim. App. 1989).

         Smith was at the residence conducting surveillance because he had a search warrant for the residence based on reliable information from a cooperating individual that appellant was dealing drugs, particularly crack cocaine, out of this residence. Smith observed appellant leaving this residence holding the blue plastic bag cupped in his hand in front of his body, and, before appellant placed it in the trunk, Smith recognized its contents as a cookie of crack cocaine. Smith testified the method of cooking cocaine that results in a cookie is the method used by the local drug dealers. Giving due deference to the trial court’s determinations of fact, we conclude that Smith, who was acting upon his personal knowledge and observations, had probable cause to arrest appellant for possession of cocaine. Cf. Miller v. State, 667 S.W.2d 773, 776-77 (Tex. Crim. App. 1984) (probable cause to believe substance in plastic baggies was illicit substance based on officer’s suspicion that substance was narcotic coupled with surrounding circumstances); Gonzales v. State, 648 S.W.2d 684, 687 (Tex. Crim. App. 1983) (officers’ observation of defendant’s attempt to conceal balloons in his mouth coupled with their knowledge of use of balloons to carry heroin sufficient to authorize arrest and seizure).

C. Search

         Appellant contends the police lacked probable cause to search the trunk of his car. A warrantless search or seizure is presumptively unreasonable, subject to a few well- defined and limited exceptions. United States v. Karo, 468 U.S. 705, 717 (1984). One recognized exception is the “automobile exception.” Carroll v. United States, 267 U.S. 132, 153 (1925). When a police officer possesses probable cause that a motor vehicle contains contraband or instrumentalities of a crime, a valid search can be conducted in the area of the vehicle where facts justify the officer’s belief that such evidence is concealed there. Delgado v. State, 718 S.W.2d 718, 722 (Tex. Crim. App. 1986). Smith observed appellant place a bag containing what Smith believed was a cocaine cookie in the trunk of the car. Therefore, we find he had probable cause to believe a crime had been committed and that there was contraband in the trunk of the car.

IV. Conclusion

         Giving almost total deference to the trial court’s determinations of fact and reviewing de novo the trial court’s application of the law of search and seizure to these facts, we conclude that the trial court did not abuse its discretion in denying appellant’s motion to suppress. See Ford, 26 S.W.3d at 672. Accordingly, the judgment of the trial court is affirmed.

                                                                        Rogelio Valdez,

                                                                        Chief Justice

Do not publish.

Tex. R. App. P. 47.2(b).  

Memorandum Opinion delivered and filed

this 27^th day of August, 2004.