Young, Norman v. State ( 2003 )

2) Caption, civil cases

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

NORMAN YOUNG, Appellant, v. THE STATE OF TEXAS, Appellee.

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No. 08-02-00066-CR Appeal from the 238th District Court of Midland County, Texas (TC# CR26746)

M E M O R A N D U M O P I N I O N  

Norman Young was indicted and convicted by a jury for possession of cocaine. His punishment was enhanced by two prior convictions. In his appeal, he raises two issues, contending that the trial court erred in admitting the evidence obtained from the pat down frisk and that the evidence is factually insufficient. We affirm.

I  

The testimony of Officer Jessie Ortiz of the Midland Police, was developed at trial. He testified that he spotted Appellant through his binoculars. ⁽¹⁾ Ortiz was located in the "Flats" in southeast Midland. At about 1:44 a.m., he observed a vehicle stop, the Appellant jumped out of the vehicle, went to a parking lot and went back to the vehicle. Appellant and a passenger (who also "jumped" out of the car), took some boxes out and left the officer's sight. They both put boxes into the backseat of the vehicle and drove away without headlights, without signaling and failing to stop at a stop sign. Ortiz paralleled the vehicle and then it turned toward the officer. Ortiz pulled the vehicle over and "As soon as he (Appellant) came to a stop he jumped out of the vehicle and started walking back towards me while I was still in my vehicle." The officer expressed concern that when someone comes toward you, they "get the advantage on top of you." As Appellant walked toward Ortiz, he put his hands in his pockets. Ortiz then "jumped" out of his car and ordered Appellant to take his hands out of his pockets. Ortiz asked for Appellant's driver's license and insurance. Ortiz then told Appellant to do him a favor and walk around to the other side of the vehicle. "That way I can go ahead and conduct my investigation, my pat down and so forth." At that point Appellant kept on putting his hands in his pockets, so Ortiz went ahead and pulled him to the side and patted him down for weapons, described to be standard procedure. Ortiz felt a pocket knife, went into his pocket to pull it out, and there was a cellophane wrapper. A trace amount of cocaine was found, amounting to 0.008 grams including adulterants.

Prior to trial, Appellant filed a motion to suppress, which the trial court ordered to be heard on affidavits. ⁽²⁾ The affidavit of Officer Ortiz was understated and unsupportive of the pat down, compared to his trial testimony. In the affidavit, he merely recited he was a Midland police officer, he stopped Appellant's car for not signaling and driving without headlamps, and when he asked Appellant for his driver's license and insurance, Appellant stated his license was expired and that he was going home. Appellant was already out of the car and Ortiz patted him down, feeling the pocket knife. He found the cellophane cigarette wrapper in Appellant's pant pocket. The contents field tested positive for cocaine, Appellant was handcuffed and transported to Central Detention Center. The record, including the docket sheet, does not reveal any ruling by the trial court, nor any further demand by trial defense counsel for a ruling.

II

We review a motion to suppress evidence by both an abuse of discretion and de novo standards. Guzman v. State, 955 S.W.2d 85, 87-91 (Tex. Crim. App. 1997). Purely factual questions, based upon evaluation of credibility and demeanor of witnesses, requires application of the abuse of discretion standard. Id. at 89. Mixed questions of law and fact, not dependent on credibility or demeanor, are reviewed de novo. Id. We examine the evidence in the light most favorable to the trial court's ruling. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). In a suppression hearing, the trial court is the sole finder of fact. Pace v. State, 986 S.W.2d 740, 744 (Tex. App.--El Paso 1999, pet. ref'd). The trial judge may believe or disbelieve any of the evidence presented. Id. at 744. The totality of circumstances is considered in determining whether the trial court's findings are supported by the record. In re D.A.R., 73 S.W.3d 505, 509 (Tex. App.--El Paso 2002) (citing Brewer v. State, 932 S.W.2d 161, 166 (Tex. App.--El Paso 1996, no pet.). Similarly, we use an abuse of discretion standard when reviewing the trial court's decision to admit evidence. Mendoza v. State, 69 S.W.3d 628, 631 (Tex. App.--Corpus Christi 2002, pet. denied) (citing Smith v. State, 683 S.W.2d 393, 404 (Tex. Crim. App. 1984).

III  

Appellant argues there was no outstanding warrant for his arrest. The police officer should be able to point to specific and articulable facts, which taken together with inferences form the facts, reasonably warrant an intrusion. He cites Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). A pat down cannot be justified as a routine police matter. Appellant was not behaving in a suspicious manner, and had no bulges in his pockets. He argues that the Flores case should control. See Flores v. State, 824 S.W.2d 704 (Tex. App.--Corpus Christi 1992 pet. ref'd.). There the majority of the court held: "From the initial intrusion, the officer was able to determine that Appellant did not possess any item which would have been a threat to his safety. Thus, even if it was reasonable for the officer to invade Appellant's person by exploring the inside of his pants pocket, the officer did not have any right to remove its contents once he discovered that Appellant possessed no threatening items." Id. at 706. We distinguish Flores, because it was the pat down that indicated to Ortiz, the presence of a knife. At that point, clearly Ortiz was acting reasonably in reaching in and removing the knife.

Appellant also argues the length of time Appellant was held was too long to effectuate its purpose. However, as the State notes, this Court cannot consider new legal theories of exclusion not presented to the trial court. State v. Mercado, 972 S.W.2d 75, 77 (Tex. Crim. App. 1998) (we have not afforded the courts of appeals latitude to reverse a trial court's decision on new theories of law not previously presented to that court for its consideration). Appellant did not include this basis in either his motion to suppress or his objections to the trial court. Accordingly this theory is waived.

The State argues the standard for a pat down frisk is an objective one, citing O'Hara v. State, 27 S.W.3d 548, 554-55, (Tex. Crim. App. 2000). According to the State, Ortiz had ample reason to fear for his safety. He was alone in a high crime area in the early morning hours. Appellant jumped out of his vehicle and proceeded toward the seated officer. This could suggest Appellant was trying to gain the advantage over the officer. Further Appellant put his hands in his pockets and although he took them out when ordered to do so, he put them back into his pockets once again.

Our analysis begins with the observation of the State that the area was stated to be a high crime area. The purpose of the pat down is to protect an officer's safety. O'Hara 27 S.W.3d at 554-55. Sometimes, even when an officer erroneously conducts the pat down as a matter of routine, the objective facts will nevertheless justify the pat down. Id. The Terry court observed that it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties. Terry, 392 U.S. 1 at 23. The Supreme Court has specifically recognized "the inordinate risk confronting an officer as he approaches a person seated in an automobile." Pennsylvania v. Mimms, 434 U.S. 106, 110, 98 S. Ct. 330, 54 L. Ed. 2d 331 (1977). Here however, Ortiz articulates another risk, that of a male jumping out of his vehicle, and proceeding to the officer's vehicle. While the officer's testimony articulating the need for the frisk standing alone is tenuous, the officer's concern for his safety when conducting the frisk was objectively reasonable in light of the circumstances. Carmouche v. State, 10 S.W.3d 323, 330 (Tex. Crim. App. 2000). The objective facts justifying ⁽³⁾ the pat down included Appellant's repeated action in placing his hands in his pockets, especially after being ordered not to, the high crime area, the fact Ortiz was alone, and Appellant's unorthodox approach to the police vehicle. See O'Hara 27 S.W.3d 554-55. Appellant's first issue is overruled.

IV Appellant next argues factual insufficiency. In determining the factual sufficiency of the elements of an offense, the reviewing court "'views all the evidence in a neutral light . . . and sets aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.'" Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000) (citing Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996)). The court reviews the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and compares it with the evidence that tends to disprove that fact. Id. We are authorized to disagree with the fact finder's determination. Id. (citing Clewis, 922 S.W.2d at 133). This review, however, must employ appropriate deference to prevent an appellate court from substituting its judgment for that of the fact finder, and any evaluation should not substantially intrude upon the fact finder's role as the sole judge of the weight and credibility given to witness testimony. Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996). The complete and correct standard a reviewing court must follow to conduct a Clewis factual sufficiency review of the elements of a criminal offense, asks whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson, 23 S.W.3d at 11.

Appellant argues that both Appellant and his passenger Raymon Galan testified that prior to the stop, Appellant was driving properly. However, Ortiz testified to the contrary. Appellant argues the inconsistencies of Ortiz's pre-trial affidavit. And we must agree that the Ortiz trial testimony was considerably expansive, compared to his affidavit. At trial, Ortiz admitted Appellant was not drunk. Appellant did not threaten the officer, and other than putting his hands in his pockets did nothing else to arouse suspicion. Appellant concludes the overwhelming weight of the evidence makes any verdict based upon a finding of probable cause or reasonable suspicion to stop clearly wrong and unjust.

The pertinent portion of the court's charge instructed the jury that before they consider the testimony of Ortiz, they must find beyond a reasonable doubt that Ortiz had probable cause to believe and did believe that Appellant committed a traffic violation. The traffic violations listed in the charge included: failure to signal his intent to turn, or failure to stop at a stop sign or failure to use headlights when they were required, or parking too close to an intersection. If the jury did not so find, they were instructed to disregard such testimony and evidence. The two defense witnesses said there were no traffic offenses. The police officer said there were traffic offenses. While the officer's testimony is clearly challenged, even by his own affidavit, a neutral review of all the evidence, both for and against the finding, does not demonstrate that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson, 23 S.W.3d at 11. Appellant's second issue is overruled.

The judgment of the court is affirmed.

November 21, 2003

DON WITTIG, Senior Justice

Before Panel No. 5

McClure, Chew, and Wittig, JJ.

(Wittig, J., sitting by assignment)

(Do Not Publish)

1. Ortiz stopped Appellant on at least one other occasion before trial.

2. Different judges were involved at various times of the proceedings.

3.

In contrast, compare the affidavit of Ortiz recited above. The affidavit did not set out objectively reasonable basis for the pat down in light of the circumstances.