Kenneth Wayne Celestine v. State ( 2007 )

Affirmed and Memorandum Opinion filed February 15, 2007

Affirmed and Memorandum Opinion filed February 15, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-05-01043-CR

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KENNETH WAYNE CELESTINE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 337^th District Court

Harris County, Texas

Trial Court Cause No. 1028921

M E M O R A N D U M   O P I N I O N

Kenneth Wayne Celestine appeals his conviction for the felony offense of possession of a controlled substance weighing more than one gram and less than four grams by aggregate weight, including any adulterants and dilutants.  The case was enhanced by two prior felony convictions for drug offenses.  After hearing the evidence, the jury found appellant guilty.  The jury subsequently found both enhancement allegations to be Atrue@ and assessed appellant=s punishment at confinement in the state penitentiary for a term of 60 years.  In four points of error, appellant contends the trial court erred in denying his objection to the introduction of the controlled substance because it was obtained in violation of his rights guaranteed by (1) the Fourth Amendment to the United States Constitution;^[1] (2) Article I, '9 of the Texas Constitution;^[2] and (3) Article 38.23 of the Texas Code of Criminal Procedure.^[3] In a final point of error, appellant contends the trial court erred in sustaining the State=s relevancy objection to appellant=s in-court demonstration.  We affirm.

On May 31, 2005, the Houston Police Department assigned a tactical unit to the 2600 block of Nagle in response to citizens= complaints about narcotics activity in the area.  Officer  Dunn observed appellant and another man make what appeared to be a hand-to-hand narcotics transaction.  At that point, he radioed Officer Richard and Officer Helton to stop and detain both men.  Richard and Helton drove their marked patrol car onto Nagle and stopped behind appellant and the other man.  While he patted down the other man, Richard observed appellant walk away from Helton and toss a white cigarette package to the ground.  Helton stopped and handcuffed appellant, picked up the discarded package, did a pat down of appellant, and then placed him into the patrol car.  After running an outstanding warrants check on the other man, the officers allowed him to leave. 

Richard and Helton opened the cigarette package and saw what they believed were nine small zip-lock packets of illegal drugs.  They radioed Dunn about the arrest, and contacted Officer Bearden of the Narcotics Division to meet them at the substation.  The substance field tested positive for heroin.  Bearden sent the evidence to the crime lab.  Criminalist Dennis Green weighed the substance, which totaled 1.5 grams.^[4] Green ran several tests and determined the substance was, in fact, heroin.

In his first point of error, appellant contends he was illegally seized by the officers, causing the heroin to be involuntarily abandoned and, thus, under the Fourth Amendment, inadmissible at trial.  An appellate court will reverse a trial court's decision to admit evidence only for an abuse of discretion.  Green v. State, 191 S.W.3d 888, 895 (Tex. App.CHouston [14th Dist.] 2006, pet. ref'd).  The abuse of discretion standard requires an appellate court to uphold a trial court's admissibility decision when that decision is within the zone of reasonable disagreement.  Robbins v. State, 88 S.W.3d 256, 260 (Tex. Crim. App. 2002). 

When the police take possession of abandoned property, there is no seizure under the Fourth Amendment.  Clapp v. State, 639 S.W.2d 949, 953 (Tex. Crim. App. 1982).  However, the property must be freely and voluntarily abandoned, not abandoned in response to any illegal police activity.  Comer v. State, 754 S.W.2d 656, 658B59 (Tex. Crim. App. 1986) (op. on reh=g).  If a police officer observes an individual breaking the law, the officer may stop or arrest the individual without a warrant.  Tex. Code Crim. Proc. Ann. art. 14.01(b) (Vernon 2005).  Texas law requires a person to walk on a sidewalk where one is available.  Tex. Transp. Code Ann. ' 552.006 (Vernon Supp. 2006).  Littering also violates Texas law.  Tex. Health & Safety Code Ann. ' 365.012 (Vernon Supp. 2006). 

Here, Officers Richard and Helton observed appellant walking down the middle of the street where there was a sidewalk available.  As appellant walked past the patrol car, he threw a cigarette package down in the street, violating the anti-littering laws.  Richard and Helton stopped appellant and  recovered the cigarette package containing heroin.  Regardless of any subjective motives the officers might have had, the police are free to stop individuals who are violating laws.  Magic v. State, 878 S.W.2d 309, 313 (Tex. App.CHouston [1st Dist.] 1994, pet. ref=d).  The officers observed appellant violate at least two statutes, therefore, the officers could legally detain or arrest him.

Appellant relies on three Texas Court of Criminal Appeals cases in support of his theory of involuntary abandonment.  See, Comer, 754 S.W.2d at 656; Hawkins v. State, 758 S.W.2d 255 (Tex. Crim. App. 1988); and Salcido v. State, 758 S.W.2d 261 (Tex. Crim. App. 1988). However, in all three cases, the defendants abandoned the contraband after being illegally detained.  An arrest requires physical force or submission to the assertion of authority.  California v. Hodari D., 499 U.S. 621, 626 (1991).  Here, there was no temporary detention or seizure until after appellant had abandoned the cigarette package.  If a suspect has not been Aseized@ within the meaning of the Fourth Amendment before he drops the contraband, then the contraband may be lawfully recovered by the police and offered as evidence against the accused.  Id. at 624; see also, Johnson v. State, 912 S.W.2d 227, 235B36 (Tex. Crim. App. 1995) (holding appellant not seized until he yielded to a show of authority by law enforcement officers).  The record reflects appellant ignored Helton=s order to stop and then threw the cigarette package away.  Helton=s command is of no consequence.  A verbal order to stop, unaccompanied by submission or actual force, does not constitute a seizure.  Hodari D., 499 U.S. at 627; Crawford v. State, 932 S.W.2d 672, 674 (Tex. App.CHouston [14th Dist.] 1996, pet. ref=d).  We find there was no seizure of appellant prior to his abandoning the cigarette package and, thus, the abandonment was voluntary, and the evidence was admissible.  We overrule appellant=s first point of error.

In his second point of error, appellant presents the same argument, but seeks relief under the Texas Constitution.  An appellant claiming relief under both the federal and state constitutions must Aanalyze, argue, or provide authority to establish that his protection under the Texas Constitution exceeds or differs from that provided to him by the Federal Constitution.@  Arnold v. State, 873 S.W.2d 27, 33 (Tex. Crim. App. 1993).  If the appellant does not provide sufficient distinctions between the state and federal grounds, the reviewing court need not address appellant=s state constitutional argument.  Chilman v. State, 22 S.W.3d 50, 54 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d).  Here, appellant does not analyze, argue, or provide authority to establish his protection under the Texas Constitution exceeds or differs from the protection provided to him by the United States Constitution.  Accordingly, we overrule appellant=s second point of error.

In his third point of error, appellant argues the trial court erred in overruling his objection to the introduction of the controlled substance because his rights were violated under Article 38.23 of the Code of Criminal Procedure.  The exclusionary language of article 38.23 (a)^[5] applies only if an officer or other person obtains evidence in violation of either the constitutions or the laws of the United States or the State of Texas.  Owens v. State, 861 S.W.2d 419, 421 (Tex. App.CDallas 1993, no pet.).  Having found the police acted lawfully and did not violate the United States Constitution or any laws, we find article 38.23 (a) does not apply, and we overrule appellant=s third point of error.

In his fourth point of error, appellant argues the trial court erred in sustaining the State=s relevancy objection to his in-court demonstration and excluding it from evidence.  Case law generally focuses on whether the demonstration is substantially similar to the event.  Wright v. State, 178 S.W.3d 905, 919 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d). The proponent of the demonstration must show the conditions under which the demonstration is conducted are sufficiently similar to the event in question.  Id.  It is not essential that the conditions of the demonstration be identical; dissimilarities go to weight and not to admissibility.  Id.  All parts of the demonstration must be supported by the evidence or testimony.  Id. 

Here, appellant attempted to do an in-court demonstration, using a scale to weigh the packets of heroin, presumably to show a discrepancy in the official weight calculation and the weight at trial.  Appellant asked the State=s witness, criminalist Green, if the scale was the same type as used in the crime lab.  Green never answered.  He only stated it was a Ohaus Ranger scale made in Germany.  Green further testified he was not familiar with that type of scale; thus, the court could infer this was not the type of scale Green used in the lab.  Green also testified he did not know if the scale worked because it would not turn off and it measured in pounds, not grams.  He also stated he had no record of its calibration.

Our review of the trial court=s exclusion of experiments is limited to whether the court abused its discretion in denying the demonstration.  Ginther v. State, 706 S.W.2d 115, 119 (Tex. App.CHouston [1st Dist.] 1986, pet. ref=d).  Review of trial court rulings on demonstrations depends on the facts of the case.  Wright, 178 S.W.3d at 920.  We find the trial court did not abuse its discretion in excluding the in-court demonstration because appellant failed to show the conditions or the equipment were substantially similar to what was used by Green in the crime lab. Even if appellant is correct in his assertion that the scale was Aa good brand,@ he failed to prove by evidence or testimony that the scale was calibrated correctly and weighed accurately.  Therefore, we overrule appellant=s fourth point of error.

The judgment of the trial court is affirmed.

/s/      J. Harvey Hudson

Justice

Judgment rendered and Memorandum Opinion filed February 15, 2007.

Panel consists of Justices Anderson, Hudson, and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  U.S. Const. amend. IV.

^[2]  Tex. Const. art. I, ' 9.

In the trial below, defense counsel objected to the seizure, citing Article I, '10 of the Texas Constitution.  Tex. Const. art. I, ' 10.  Because appellant=s issues relate to seizures, we presume appellant=s  objection and the reference in the brief were intended to be to Article I ' 9.

^[3]  Tex. Code Crim. Proc. Ann. art. 38.23 (Vernon 2005).

^[4]  Green weighed the packets together, then emptied one packet and weighed the single empty packet.  He multiplied the weight of the empty packet by nine and subtracted it from the total weight of the heroin and packets, leaving 1.5 grams of substance.

^[5]   Article 38.23 in the pertinent part reads:

   (a) No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case. 

   In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.

Tex. Code Crim. Proc. Ann. art. 38.23 (a)