Joseph DeFreeze v. State ( 1994 )

DeFreeze v. State IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN









NO. 3-93-104-CR





JOSEPH DEFREEZE,

APPELLANT

vs.





THE STATE OF TEXAS,

APPELLEE

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT

NO. 92-4458, HONORABLE JON N. WISSER, JUDGE PRESIDING

Over a plea of not guilty, the trial court found appellant Joseph DeFreeze guilty of possession of a controlled substance, to wit: cocaine. See Tex. Health & Safety Code Ann. § 481.002(38) (West 1992) and Controlled Substances Act, 71st Leg., R.S., ch. 678, sec. 1, § 481.115(a), 1989 Tex. Gen. Laws 2230, 2936 (Tex. Health & Safety Code Ann. § 481.115(a), since amended). The trial court sentenced DeFreeze to five-years imprisonment. He appeals. We will affirm the conviction.

THE CONTROVERSY

On August 12, 1992, appellant Joseph DeFreeze was standing on a sidewalk in an area notorious for drug trafficking. Three uniformed police officers, Derrick Galloway, Don Mayes and M. Turner, were cruising the area in an unmarked car. The officers saw DeFreeze approach a car stopped by a curb, duck quickly into the car's passenger window, then step back from the car as it was driven away. The officers, thinking DeFreeze's actions indicated a street-drug sale, drove toward him.

As the officers approached DeFreeze, another car appeared, slowing as it approached DeFreeze. Noticing the approaching police car, DeFreeze waved the slowing car forward, turned his back to the police car and began to walk away. The police pulled to the curb. Officer Galloway stepped from the car and, without speaking to DeFreeze, began to move toward him. DeFreeze continued walking, his left hand clenched and held to his side. DeFreeze swung his left arm across his body, away from the street and toward the grassy area next to the sidewalk. As discussed below, Officers Galloway and Mayes described the gesture as a "throwing or pitching" motion. When DeFreeze brought his arm back to its original position resting against his side, his hand was no longer balled into a fist. Galloway thought DeFreeze was tossing away illegal drugs. Galloway ran to DeFreeze, handcuffed him and searched the area near where DeFreeze made the gesture. After a search of less than a minute, Officer Galloway came across two small "rocks" of cocaine (a total of 17 mg.). DeFreeze was indicted, tried and convicted for possession of cocaine.

POLICE MISCONDUCT

DeFreeze, in his first four points of error, argues the police acted improperly, and if indeed the cocaine was abandoned, it was abandoned as a result of police misconduct and therefore not properly admissible into evidence.

The standard for reviewing abandonment is: 1) a defendant must intend to abandon property, and 2) a defendant must freely decide to abandon the property; the decision must not be merely the product of police misconduct. Hawkins v. State, 758 S.W.2d 255, 257-58 (Tex. Crim. App. 1988). Accordingly, we must review the conduct of the police to determine if they acted outside their authority.

DeFreeze argues the police officers constructively arrested him when they stopped by the curb and left their car--this behavior telegraphed to DeFreeze that he was the focus of an impending seizure. Once DeFreeze realized seizure was imminent, he was legally and effectively in police custody. No evidence exists which supports the premise that appellant's actions were prompted by his fear of arrest; DeFreeze did not testify. We will consider the argument nevertheless.

To make a warrantless arrest and seizure, police must have probable cause. Vasquez v. State, 739 S.W.2d 37, 44 (Tex. Crim. App. 1987). The standard for determining probable cause for a warrantless arrest is whether "the knowledge of the arresting officer is based upon reasonably trustworthy information that would warrant a reasonable and prudent person in believing that a particular person has committed or is committing a crime." Id. In this case, Officer Galloway, by testifying that he approached appellant in the hope of developing probable cause, essentially admitted that no probable cause existed. Therefore, should we determine that an arrest was made, the lack of probable cause would render that arrest invalid.

Appellant makes his argument solely under article I, section 9 of the Texas Constitution. He makes no arguments at all under the mirroring provisions found in the Fourth Amendment of the U.S. Constitution. Texas courts, when analyzing and interpreting the search and seizure provision of the Texas Constitution, will not be restricted by the United States Supreme Court decisions addressing comparable Fourth Amendment issues. Heitman v. State, 815 S.W.2d 681 (Tex. Crim. App. 1991). Presumably, this means that Texas courts may apply a different analysis to article I, section 9, than that employed by the Supreme Court to the Fourth Amendment. But see Matthew W. Paul & Jeffrey L. Van Horn, Heitman v. State: The Question Left Unanswered, 23 St. Mary's L.J. 929 (1992) (arguing that framers of the Texas Constitution did not envision a different analysis and did not intend to provide more stringent search and seizure protections than those in the U.S. Constitution).

The court of criminal appeals has provided very little guidance as to how the Texas courts are to proceed with this independent analysis. See Heitman, 815 S.W.2d at 691 (McCormick, P.J., dissenting); Paul & Van Horn, supra. The court of criminal appeals has indicated that it will show great deference to the United States Supreme Court. See Johnson v. State, 825 S.W.2d 126 (Tex. Crim. App. 1992). In Johnson, a search and seizure case, the court of criminal appeals vacated the judgment of the Dallas court of appeals, and remanded the cause with instructions for the Dallas court to reconsider its opinion in light of the United States Supreme Court's decision in California v. Hodari D., 499 U.S. 621 (1991). In Hodari D., the Supreme Court held that a show of authority disregarded does not constitute a seizure; one is seized when (1) he is subjected to a show of authority and yields, or (2) law enforcement officers apply physical force to limit a citizen's movements. Id. at 626.

On remand, the Dallas court of appeals, in an attempt to determine how to apply article I, section 9 in light of Hodari D. in particular and Supreme Court holdings in general, engaged in a lengthy analysis of that article's historical application. Johnson v. State, 864 S.W.2d 708 (Tex. App.--Dallas 1993, pet. granted). In its analysis, the Johnson court found no case in which the court of criminal appeals held a search and seizure to be valid under the Fourth Amendment, but invalid under Article I, Section 9. Id. at 718. The Dallas court, after analysis of article I, section 9, determined that the conclusion reached by the Supreme Court in Hodari D. was consistent with Texas public policy and Texas decisions involving investigatory detentions. Accordingly, the Johnson court adopted the Hodari D. analysis.

We have conducted our own inquiry, and have found only one instance when the court of criminal appeals has departed from traditional Fourth Amendment analysis. Richardson v. State, 865 S.W.2d 944 (Tex. Crim. App. 1993). In Richardson, the court determined that use of a pen register (a device which records the numbers of outgoing phone calls) constitutes a search and seizure under article I, section 9. This decision differs from that reached by the United States Supreme Court. Smith v. Maryland, 442 U.S. 735 (1979) (installation of pen register is not a search).

We have also surveyed the other courts of appeals in our state, and find no instance when they have departed from traditional Fourth Amendment principles. Indeed, we cannot find any instance when another court of appeals has interpreted article I, section 9 in a manner different from the analysis usually applied to the Fourth Amendment. Finally, several appellate courts have held that article I, section 9 should be interpreted in a manner consistent with the Fourth Amendment, and have explicitly recognized and adopted the standards promulgated in Hodari D. See Aitch v. State, No. C14-92-00264-CR, slip op. (Tex. App.--Houston [14th Dist.] May 12, 1994); State v. Rose, 844 S.W.2d 911 (Tex. App.--Tyler 1992, no pet.).

Based upon the foregoing, we agree with the Dallas court's analysis. We believe article I, section 9 of the Texas Constitution should be interpreted in a manner consistent with the Fourth Amendment. Furthermore, we adopt the Hodari D. standard as the appropriate method for determining the point of arrest. Therefore, a seizure has occurred if (1) the police officer makes a show of authority which would lead a reasonable innocent person to believe that he was not free to leave, and (2) the show of authority has a coercive effect; that is, the suspect must stop and not flee the scene. No seizure occurs where the suspect does not comply with the assertion of authority by police.

Applying the first part of the test, we find the police made no show of authority which would lead a reasonable innocent person to believe he was not free to leave. The officers merely pulled to the curb and left their vehicle as the defendant walked away. The officers did not call to DeFreeze and order him to stop; they did not attempt to detain him physically. DeFreeze continued on his way without interference. Consequently, we hold DeFreeze was not seized before his abandonment of the contraband. Because we find the police made no show of authority, we need not discuss the second part of the test.

We overrule DeFreeze's first four points of error.

AFFIRMATIVE LINK ANALYSIS

In his fifth point of error, appellant argues the necessary affirmative links connecting DeFreeze to the cocaine are not shown by sufficient evidence. We disagree.

In reviewing the sufficiency of the evidence supporting a conviction, the relevant question is whether, after reviewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the criminal offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Fuller v. State, 827 S.W.2d 919, 931 (Tex. Crim. App. 1992); Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991). If there is evidence that establishes guilt beyond a reasonable doubt, and the trier of fact believes the evidence, this Court cannot reverse the judgment on sufficiency-of-evidence grounds. Gilbert v. State, 874 S.W.2d 290 (Tex. Crim. App. 1994); Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988).

In order to establish the offense of unlawful possession of a controlled substance, the State must show (1) the accused exercised care, control and management over the contraband; and (2) he knew what he possessed was contraband. Gilbert v. State, 874 S.W.2d 290 (Tex. Crim. App. 1994); Martin v. State, 753 S.W.2d 384, 387 (Tex. Crim. App. 1988). When the accused is not in exclusive possession of the place where the substance is found, knowledge and control can be established by independent facts and circumstances which affirmatively link the accused to the contraband. Deshong v. State, 625 S.W.2d 327, 329 (Tex. Crim. App. 1981).

This Court has collected the factors identified by the court of criminal appeals as tending to establish affirmative links between an accused and contraband. See Whitworth v. State, 808 S.W.2d 566, 569 (Tex. App.--Austin 1991, pet. ref'd); Trejo v. State, 766 S.W.2d 381, 384-85 (Tex. App.--Austin 1989, no pet.). From our review of those factors, we conclude sufficient affirmative links were shown in the evidence to permit the court's finding.

The relevant and undisputed factors reflected in this record include: (1) Officers observed DeFreeze ducking into a car in an area notorious for drug trafficking. As Officer Galloway testified, drug exchanges are usually made quickly, with the person on the street leaning into the car, exchanging the drugs for cash, and stepping away from the car; (2) Upon noticing the police, DeFreeze waved away a second approaching car; (3) Police saw DeFreeze throw something; (4) two "rocks" of crack cocaine were found on the ground where DeFreeze made the tossing motion; (5) the contraband was in plain view; (6) DeFreeze was the only person in the area. The number of factors present is less important than the logical force of those factors, alone or in combination, in establishing the elements of the offense. Whitworth, 808 S.W.2d at 569; Trejo, 766 S.W.2d at 385.

We find the evidence sufficient. Appellant's fifth point of error is overruled.

EVIDENCE OF TAMPERING

In his sixth point of error, appellant argues the crack cocaine admitted into evidence bore signs of tampering. The standard of review is abuse of discretion. Simmons v. State, 622 S.W.2d 111 (Tex. Crim. App. 1981). We find no merit to the appellant's claim.

The police confiscated two "rocks" of cocaine; at trial however, the cocaine the State introduced consisted not of two "rocks" but of several smaller "rocks" as well as some powdered cocaine. Appellant contends that this discrepancy between the confiscated cocaine and the cocaine introduced at trial implies tampering. We disagree.

It is reasonable to conclude that the fragmentation of the cocaine resulted from the testing procedures the police employed to determine if the substance was in fact cocaine. Officer Galloway testified that the standard method for testing for cocaine requires that the tester break off a piece of the substance. The police tested twice the substance abandoned by DeFreeze: once in the field upon confiscation, and once in the police laboratory. Such repeated testing requires the fragmenting of the cocaine and explains the splintering of the two "rocks." We find no evidence of tampering, and consequently, we overrule appellant's sixth point of error.

IMPERMISSIBLE OPINIONS

In his final point of error, appellant asserts that the trial court erred by allowing Officers Galloway and Mayes to testify they believed DeFreeze's ambiguous arm gesture was a "throwing or pitching" motion. Appellant argues that admission of this testimony violates Texas Rule of Evidence 701. Admission of the testimony depends upon the discretion of the trial judge.

"A police officer may give an opinion concerning physical facts he has observed which are within his experience." Smith v. State, 683 S.W.2d 393 (Tex. Crim. App. 1984). Officer Galloway had been a police officer involved in narcotics work for over five years; Officer Mayes for over eleven years. Both have seen drug-traffickers throw down narcotics for fear of seizure. Testifying that DeFreeze's arm motion looked like a "throwing or pitching" motion was shown to be within the realm of the officers' experience. In consequence, the trial court did not err when it allowed the opinions to be introduced. We overrule appellant's seventh and final point of error.

Finding no error, we affirm the trial court's judgment.

John Powers, Justice

Before Justices Powers, Jones and Aboussie

Affirmed

Filed: September 14, 1994

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