Darrell Wayne Posey v. State ( 2006 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-05-00141-CR

Darrell Wayne Posey,

                                                                      Appellant

 v.

The State of Texas,

                                                                      Appellee

From the 54th District Court

McLennan County, Texas

Trial Court No. 2004-1268-C

MEMORANDUM  Opinion

            Darrell Posey was charged with the offense of possession of a controlled substance (cocaine), tried by a jury, convicted, and sentenced by the court to two years in a state jail facility.  In a single issue, he complains that the court’s jury charge did not instruct the jury to disregard any evidence illegally obtained.  Finding no error, we will affirm the judgment.

          Article 38.23 of the Code of Criminal Procedure requires that the court instruct the jury to disregard illegally obtained evidence if the defendant raises a fact issue concerning the manner in which the evidence was obtained and requests the instruction.   Tex. Code Crim. Proc. Ann. art. 38.23(a) (Vernon 2005); Mendoza v. State, 88 S.W.3d 236, 239 (Tex. Crim. App. 2002).   Posey and the State agree that the evidence raising the issue may be “strong, weak, uncontradicted, unimpeached, or unbelievable.”   Mendoza, 88 S.W.3d at 239 (citing Muniz v. State, 851 S.W.2d 238, 254 (Tex. Crim. App. 1993)).

          The evidence shows that the arresting officer encountered Posey when he stopped at a home where the homeowner had previously complained of people gathering on her property without her consent. As the officer attempted to learn Posey’s identity, Posey ran.  The officer noticed, however, that he had something in his mouth, which the officer attributed to the possible concealment of drugs.  Posey was apprehended a few blocks away by another officer and found to be in possession of the controlled substance.

          We agree with the State that the record shows no dispute concerning the facts surrounding Posey’s arrest.  The officer attempted to detain him to learn his identity, but he ran. Coupled with the officer’s suspicion about the possible concealment of drugs, Posey’s flight made his later detention reasonable under the circumstances, and the cocaine was discovered during a routine pat-down during that detention.  See Smith v. State, 65 S.W.3d 332, 342-43 (Tex. App.—Waco 2001, no pet.) (a police officer may stop an individual if he has specific articulable facts which, in light of his experience and general knowledge, lead to the reasonable conclusion that criminal activity is afoot and the person detained is connected with the activity); see also Pool v. State, 157 S.W.3d 36, 42 n.2 (Tex. App.—Waco 2004, no pet. h.) (noting that officers may detain a person on the street and in the interest of safety perform a pat-down search for weapons when the officers have a reasonable suspicion that criminal activity is afoot, citing Terry v. Ohio, 392 U.S. 1, 24-25, 88 S. Ct. 1868, 1881-82, 20 L. Ed. 2d 889, 908 (1968)). 

          Finding that the court did not err in failing to instruct the jury under article 38.23, we overrule the issue and affirm the judgment.

BILL VANCE

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed February 15, 2006

Do not publish

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