Leslie Wallace v. State ( 2011 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NOS. 02-10-00267-CR
02-10-00268-CR
02-10-00269-CR
LESLIE WALLACE APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 362ND DISTRICT COURT OF DENTON COUNTY
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MEMORANDUM OPINION1
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I. Introduction
In two points, Appellant Leslie Wallace appeals the trial court‘s denial of
his motion to suppress in his convictions for assault against a public servant,
tampering with physical evidence, and possession of a controlled substance, and
1
See Tex. R. App. P. 47.4.
he challenges the sufficiency of the evidence to support his assault against a
public servant conviction. We affirm.
II. Factual and Procedural Background
The State charged Wallace with assault against a public servant,
possession of a controlled substance (cocaine) of less than one gram, and
tampering with physical evidence (cocaine). Wallace moved to suppress all of
the evidence discovered after a traffic stop, and the trial court denied the motion,
found Wallace guilty of all three charges, and sentenced him to seven years‘
confinement each for the tampering and assault convictions and to twenty
months‘ confinement for the possession conviction, to be served concurrently.
Wallace requested that the trial court make findings of fact and conclusions
of law. In response, the trial court made the following findings of fact:
1. On or about February 16, 2008, at around 6:00 a.m.[,] Officer
Olson and Officer Collins both of the Denton Police Department
were dispatched to 239 Mockingbird Lane, Denton, Texas. Officer
Olson and Officer Collins made contact with Laurie McClung at this
address. Laurie McClung and her daughter [K.M.] both resided at
this address. Officer Olson and Officer Collins both testified at the
suppression hearing. Officer Collins and Officer Olson testified that
they were told that the Defendant had touched [K.M.] in a sexual
manner inside this residence during the early morning hours of
February 16, 2008. Officer Collins testified that after speaking to
Laurie McClung that he believed there was reasonable suspicion to
believe that the Defendant had committed the offense of Indecency
with a Child. Officer Collins testified that he was told by Laurie
McClung that the Defendant had touched [K.M.‘s] ―butt‖ that
evening. Officer Collins also testified that [K.M.] told him that the
Defendant touched her and that she saw the Defendant use the
restroom.
2
2. Officer Collins also spoke to C.J. Batiste. At the time, Mr.
Batiste was Laurie McClung‘s boyfriend and he also resided in the
residence. While speaking with Mr. Batiste and Laurie McClung,
Officer Collins was given a description of the Defendant‘s vehicle.
Officer Collins was under the belief that the Defendant would be
driving back to the location of the residence, because Mr. Batiste
had called the Defendant after the Defendant left the residence and
asked the Defendant to return. Based on the information that Officer
Olson and Officer Collins obtained, Officer Olson gave the Denton
Police Department dispatch unit the description of the Defendant‘s
vehicle, told dispatch that the Defendant was driving the vehicle, and
the area in which the Defendant would be located.
3. The Court finds the testimony of Officer Olson to be credible
and convincing. The Court finds the testimony of Officer Collins to
be credible and convincing.
4. Officer Cose of the Denton Police Department also testified at
the suppression hearing. Officer Cose was working patrol during
this time, and he was driving a Denton Police Department patrol
vehicle. Denton Police Officer Sween[e]y was riding in the patrol
vehicle with Officer Cose. Officer Cose was informed by dispatch
that the Defendant‘s vehicle would be in the area of 239 Mockingbird
Lane. Shortly after hearing the dispatch information, Officer Cose
saw the Defendant‘s vehicle near the intersection of East McKinney
St. and Mockingbird Ln. This location is near and in the area of 239
Mockingbird. Officer Sweeney also testified that the Defendant‘s
vehicle was headed back in the direction that dispatch informed it
would be heading. Officer Cose initiated a traffic stop of the
Defendant‘s vehicle. During the traffic stop, Officer Cose made
contact with the Defendant. The Defendant told Officer Cose that he
did not have his driver‘s license with him. Therefore, the Defendant
did not provide Officer Cose with his driver‘s license. Officer Cose
also noticed that the motor vehicle inspection sticker on the
Defendant‘s vehicle had expired. Officer Cose arrested the
Defendant for failure to display a driver‘s license and for an expired
motor vehicle inspection [sticker]. The Defendant was then driven to
the Denton City Jail.
5. The Court finds the testimony of Officer Cose to be credible
and convincing. The Court also finds the testimony of Officer
Sweeney to be credible and convincing.
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6. While at the Denton City Jail during the arrest and book-in
process, the Defendant was searched by Detention Officer
Stevenson. During the search of the Defendant[,] a crack rock-like
substance fell out of the pocket of the clothing that the Defendant
was wearing. This occurred in the presence of Officer Stevenson
and Officer Sweeney. Officer Sweeney placed the ―crack rock‖ in a
plastic bag on the counter. Moments later[,] the Defendant grabbed
the plastic bag and attempted to swallow it while running away from
the officers. Officer Sweeney and Officer Stevenson took the
Defendant to the ground. Officer Sweeney was wearing gloves, and
he attempted to get the Defendant to spit the bag out. Officer
Sweeney‘s finger was in the Defendant‘s mouth at some point during
this incident, and the Defendant bit Officer Sweeney‘s finger. Officer
Sweeney and Officer Stevenson and several other Denton Police
Officers finally restrained the Defendant. Officer Keith Martin of the
Denton Police Department ran into the jail upon hearing a call for
help. Officer Martin testified that the Defendant was so combative
that Officer Martin had to use his ―taser‖ and apply a ―drive stun‖ to
the Defendant in order to get the Defendant under control. The
Defendant was brought under control and was then placed in a
―detox‖ cell in the jail. The bag with the ―crack rock‖ was not
recovered at this point. Several minutes later, Denton Police Officer
Deweber walked by the Defendant‘s cell and saw the Defendant with
what looked like a bloody paper towel in his hand. Officer Deweber
testified that once the Defendant saw that Deweber was looking at
him, that the Defendant pushed the ―paper towel‖ back into his
mouth. Officers Deweber and Sweeney along with other officers
entered the Defendant‘s cell and restrained the Defendant. Officer
Deweber was yelling at the Defendant to spit the bag out. Officer
Deweber testified that the Defendant was combative. Officer
Sweeney testified that the Defendant attempted to bite him. During
this struggle in the cell, Officer Deweber used his taser gun to apply
a drive stun to the Defendant. Officer Deweber testified that the
Defendant began choking, and that as a result that an officer
performed the Heimlich maneuver on the Defendant. The
Defendant was then taken to Denton Regional Medical Center.
7. The Court finds the testimony of Officers Stevenson, Martin[,]
and Deweber to be credible and convincing.
8. Officer Deweber rode with the Defendant in an ambulance to
Denton Regional Medical Center. Officer Deweber testified that
while the Defendant was lying down at Denton Regional Medical
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Center that the Defendant spit out of his mouth a bloody plastic bag
along with blood onto the floor. The Defendant spit the bloody
plastic bag along with blood onto the floor completely on his own.
No force was used against the Defendant at Denton Regional
Medical Center. A nurse put the plastic bag into another plastic bag
and handed it to Officer Deweber. The contents of the bloody bag
were later tested, and it was confirmed that the contents of the
bloody bag were cocaine.
9. At no time did anyone attempt to place any instruments into
the defendant‘s mouth. No one ever put anything deep into the
defendant‘s mouth or down his throat. The police did nothing more
than attempt to grab the bag out of the defendant‘s mouth.
The trial court made the following conclusions of law:
1. The Court finds that Officer Cose had reasonable suspicion to
initiate the traffic stop of the Defendant‘s vehicle based on the
information that had been provided to Officer Olson and Officer
Collins and relayed by the officers.
2. The Court finds that Officer Cose had probable cause to arrest
the Defendant for the offense of Failure to Display Inspection
Certificate. Tex. Transp. Code Ann. § 548.602. The Court also finds
that Officer Cose had probable cause to arrest the Defendant for
[the] offense of Failure to Display a Driver‘s License. Tex. Transp.
Code Ann. § 521.025.
3. The Court finds that none of the law enforcement officers
conducted or attempted to conduct any unreasonable search or
seizure. The Court further finds that the Defendant spit out the
bloody bag and its contents at Denton Regional Medical Center on
his own. The Court finds that Officer Deweber‘s gaining possession
of the bloody bag and its contents were not the result of any search.
These appeals followed.
III. Discussion
In his first point, Wallace complains that trial court erred by denying his
motion to suppress, arguing that the police officers had no reasonable suspicion
5
to initially stop and detain him so all evidence procured after the stop should
have been suppressed and that his subsequent search and seizure at the jail
was unreasonable and intrusive. In his second point, Wallace challenges the
sufficiency of the evidence to support his conviction of assault against a public
servant.
A. Preservation of Error
In part of his first point, Wallace contends that K.M.‘s outcry lacked a solid
identification of him as the perpetrator and was insufficient to originate the
―BOLO‖2 issued by Officer Olson and to stop him. The State responds that
Wallace did not preserve this argument because it does not comport with the one
he made in the trial court.
At trial, Wallace argued as follows after Officers Collins and Cose testified:
I would move to suppress all the evidence subsequent to the
traffic stop. It‘s an illegal detention. They didn‘t have enough
reasonable suspicion to make that stop even briefly.
They knew who the person was. That they didn‘t need for
identification purposes. They had already named the person. [C.J.]
had even actually called him on the phone. So there was no issue
about any flight.
They could have obtained a warrant based on the information
they had or on information that they could have investigated and
compiled. They didn‘t do that. Yet they arrested this man on the
street and didn‘t notice any violations until after his movement had
been ceased. He had been seized, arrested, not free to leave
according to the officer who pulled him over. It wasn‘t until after he
2
―BOLO‖ is an acronym for ―be on the lookout.‖ Amores v. State, 816
S.W.2d 407, 424 n.17 (Tex. Crim. App. 1991).
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did that that he discovered that he didn‘t have a driver‘s license or
any identification, and then it was subsequent— . . .
[H]e didn‘t realize that there was an expired motor vehicle
inspection until after he had pulled him over. And, Judge, I think we
have an illegal detention here, and I would ask for you to suppress
all the evidence subsequent to that. [Emphasis added.]
The State then responded that there was sufficient evidence to support
reasonable suspicion for the stop based on the information the officers gathered
from the seven-year-old child and her mother. At the close of evidence, with
regard to the initial stop, Wallace again argued, ―The officer at the time of the
stop didn‘t have reasonable suspicion or enough articulable facts to continue the
detention or to even detain him to begin with, to stop him initially. And I would
just ask you to reconsider your previous ruling on that issue.‖3
The complaint made on appeal must comport with the complaint made in
the trial court or the error is forfeited. Lovill v. State, 319 S.W.3d 687, 691–92
(Tex. Crim. App. 2009) (―A complaint will not be preserved if the legal basis of the
complaint raised on appeal varies from the complaint made at trial.‖); Pena v.
State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009) (―Whether a party‘s particular
complaint is preserved depends on whether the complaint on appeal comports
with the complaint made at trial.‖); see Tex. R. App. P. 33.1. To determine
whether the complaint on appeal comports with that made at trial, we consider
the context in which the complaint was made and the parties‘ shared
3
Wallace did not file a written motion to suppress.
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understanding at that time. Resendez v. State, 306 S.W.3d 308, 313 (Tex. Crim.
App. 2009); Pena, 285 S.W.3d at 464. A reviewing court should not address the
merits of an issue that has not been preserved for appeal. Wilson v. State, 311
S.W.3d 452, 473 (Tex. Crim. App. 2010) (op. on reh‘g).
Because Wallace‘s complaint on appeal about identification does not
comport with the one he raised at trial, we overrule this portion of his first point.4
B. The “Second” Search
Wallace also argues that the ―second‖ search—―the subsequent expulsion
of rock cocaine‖—was unreasonable because it was conducted in a very violent
manner in an unsanitary place when the officers ―wrestl[ed] around‖ with him in
the detox cell and then stunned him with a taser. The State responds that the
cocaine was obtained by a nurse after Wallace coughed it up at the hospital on
4
Further, based on the information known to the police officers at the time,
Officers Cose and Sweeney had reasonable suspicion to stop Wallace‘s vehicle.
Officer Olson issued the description of Wallace‘s vehicle to dispatch after he and
Officer Collins spoke with the complainant, her mother, and her mother‘s
boyfriend, who identified Wallace as the individual who touched the complainant
―on her butt‖ that day and described Wallace‘s vehicle. And Officers Cose and
Sweeney heard the dispatch about the suspect of the indecency with a child
offense and stopped Wallace‘s vehicle, which matched the description in the
dispatch, while he was on his way back to the scene. See Ford v. State, 158
S.W.3d 488, 492 (Tex. Crim. App. 2005) (stating that reasonable suspicion exists
when, based on the totality of the circumstances, the officer has specific,
articulable facts that when combined with rational inferences from those facts,
would lead him to reasonably conclude that a particular person has been
engaged in criminal activity); see also Derichsweiler v. State, 348 S.W.3d 906,
914 (Tex. Crim. App.), cert. denied, 132 S. Ct. 150 (2011) (stating that the
cumulative information known to the cooperating officers at the time of the stop is
to be considered in determining whether reasonable suspicion exists).
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his own, attenuating any taint from any alleged police misconduct. See Wong
Sun v. United States, 371 U.S. 471, 487–88, 83 S. Ct. 407, 417 (1963); see also
Crosby v. State, 750 S.W.2d 768, 780 (Tex. Crim. App. 1987) (―[E]ven assuming
the acquisition of the indirectly acquired evidence was illegal it should not be
excluded if it was obtained independent of the initial illegality.‖), cert. denied, 486
U.S. 1055 (1988). If there are satisfactory intervening events that attenuate the
taint of the initial illegality, then the indirectly obtained evidence will usually be
deemed admissible. Crosby, 750 S.W.2d at 780 (citing Miller v. State, 736
S.W.2d 643, 651 (Tex. Crim. App. 1987) (op. on reh‘g)).
The record, which supports the trial court‘s fact findings set out above,
reflects that during the book-in process, a detention officer was searching
Wallace when a white, rock-like substance fell from Wallace‘s sweatshirt pocket
onto the book-in counter. Officer Sweeney retrieved the substance, which he
believed to be crack cocaine based on its appearance,5 put it in an evidence bag,
and set the bag on the other side of the counter before starting to read Wallace
his Miranda warnings.
When Officer Sweeney paused to ask Wallace if he understood his rights,
Wallace reached over the counter, grabbed the bag, and tried to run away while
stuffing the bag into his mouth. Officer Sweeney grabbed Wallace but was
unsuccessful in trying to stop him from swallowing the bag. Officer Sweeney
5
The parties stipulated that the item contained a trace amount of cocaine.
9
said that swallowing crack cocaine could be fatal, as could choking on a plastic
bag; that Wallace was ―in a rage,‖ swinging his arms and trying to get away; and
that five or six officers were needed to subdue him. Officer Keith Martin
described Wallace as combative and out of control, and he stunned Wallace with
a taser after warning him several times that he would stun him if Wallace did not
put his arms behind his back. Wallace was stripped of his clothing, placed in a
detox cell, and given an orange cell suit. Officer Sweeney said that Wallace was
placed in a detox cell because of his combativeness. The rock was not
recovered at that time.
Officers subsequently saw Wallace holding something in the detox cell,
and when Wallace noticed this, he shoved the item in his mouth. Another
altercation ensued. Officer Deweber testified that Wallace tried to bite Officer
Sweeney during the struggle and that he had to tase Wallace three times.
Officer Sweeney said Wallace tried to bite him again. After Officer Deweber
stunned Wallace, Wallace began to choke, and Officer Cose performed the
Heimlich maneuver. The rock was not recovered at that time.
Officer Deweber accompanied Wallace to the hospital because Wallace
had been combative. Wallace started coughing as he was rolled into a hospital
room. Officer Deweber testified that Wallace ―threw up a big pile of blood, and in
the middle of the blood was a plastic bag,‖ which landed on the floor of the
hospital. A nurse bagged the item in a biohazard bag and gave it to Officer
Deweber.
10
As noted by the trial court, nothing in the record indicates that anyone ever
tried to place any instruments in Wallace‘s mouth or down his throat or that
anyone did anything more than attempt to get the bag out of Wallace‘s mouth,
both to keep him from choking and to preserve it as evidence. The trial court
concluded that none of the law enforcement officers conducted or attempted to
conduct any unreasonable search or seizure, that Wallace spit out the bloody
bag and its contents at the hospital on his own, and that Officer Deweber gained
possession of the bloody bag and its contents without a search. We agree
because it is clear from the record that the police officers‘ second failed attempt
to recover the evidence had ceased by the time Wallace left for the hospital, was
wheeled into a hospital room, and literally purged himself of the evidence; then, a
nurse wearing gloves picked up the evidence, bagged it, and handed it to Officer
Deweber. See Crosby, 750 S.W.2d at 780.
Because any alleged police misconduct had ceased by the time Wallace
reached the hospital, we reach the same conclusion that the trial court did: that
Officer Deweber‘s gaining possession of the evidence was not the result of any
search. Cf. Hereford v. State, 339 S.W.3d 111, 114, 123–25, 126 (Tex. Crim.
App. 2011) (noting that Officer Arp used excessive force when he deliberately
chose to administer numerous electrical shocks to appellant‘s groin area in his
attempt to make appellant relinquish the crack cocaine in his mouth long after the
initial arrest was made and when there was no ongoing attempt by appellant to
destroy the evidence, there was little concern of a drug overdose, and appellant
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was restrained in handcuffs behind his back); Davis v. State, No. 04-10-00632-
CR, 2011 WL 4088449, at *4–5 (Tex. App.—San Antonio Sept. 14, 2011, no pet.)
(mem. op., not designated for publication) (distinguishing Hereford and
concluding that officer‘s action in seizing cocaine was reasonable when officer
saw appellant place drugs in his mouth and grabbed appellant, applied pressure
to appellant‘s jaw while ordering him to open his mouth—in compliance with what
he was taught at the police academy—and, within moments of applying pressure,
successfully recovered one of the packages from appellant‘s mouth by scooping
it out with his pen). We overrule the remainder of Wallace‘s first point.
C. Sufficiency
Wallace argues that the evidence was insufficient to support his conviction
of assault against a public servant because he had already been arrested by the
time he bit Officer Sweeney. In our due-process review of the sufficiency of the
evidence to support a conviction, we view all of the evidence in the light most
favorable to the verdict to determine whether any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt. Jackson
v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Isassi v. State, 330
S.W.3d 633, 638 (Tex. Crim. App. 2010).
Wallace was charged with assaulting a public servant by intentionally,
knowingly, or recklessly causing bodily injury to Marc Sweeney, a person
Wallace knew to be a public servant, by biting him while he ―was then and there
lawfully discharging an official duty, to-wit: making an arrest.‖ See Tex. Penal
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Code Ann. § 22.01(a)(1), (b)(1) (West 2011) (stating that the offense is a third-
degree felony if the offense is committed against a person the actor knows is a
public servant while the public servant is lawfully discharging an official duty).
―[W]here the original arrest is lawful[,] the arresting officer is authorized to
make an additional arrest for any other offense unexpectedly discovered during
the course of investigation and incident to the newly discovered offense conduct
an additional search for physical evidence.‖ Byrd v. State, 447 S.W.2d 936, 937
(Tex. Crim. App. 1969). Further, within the context of the escape statute, the
court of criminal appeals has stated that an ―arrest‖
―is complete when a person‘s liberty of movement is successfully
restricted or restrained, whether this is achieved by an officer‘s
physical force or the suspect‘s submission to the officer‘s authority.
Furthermore, an arrest is complete only if ‗a reasonable person in
the suspect‘s position would have understood the situation to
constitute a restraint on freedom of movement of the degree which
the law associates with formal arrest.‘‖
Warner v. State, 257 S.W.3d 243, 247 (Tex. Crim. App. 2008) (emphasis added)
(quoting Medford v. State, 13 S.W.3d 769, 773 (Tex. Crim. App. 2000)); cf. Tex.
Code Crim. Proc. Ann. art. 15.22 (West 2005) (stating that a person is arrested
―when he has been actually placed under restraint or taken into custody by an
officer or person executing a warrant of arrest, or by an officer or person
arresting without a warrant‖). The terms ―arrest‖ and ―custody‖ are not
interchangeable; rather, ―arrest‖ is ―a subset of custody,‖ Warner, 257 S.W.3d at
247, and ―effecting an arrest‖ entails a process or transaction with a beginning
and an end. Lewis v. State, 30 S.W.3d 510, 512 (Tex. App.—Amarillo 2000, no
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pet.) (discussing sufficiency in the context of a resisting arrest conviction under
penal code section 38.03). An officer no longer effectuates an arrest once his
efforts to actually restrain or control the suspect are completed. Id. (citing Bruno
v. State, 922 S.W.2d 292, 294 (Tex. App.—Amarillo 1996, no pet.); Schrader v.
State, 753 S.W.2d 733, 735 (Tex. App.—Austin 1988, pet. ref‘d)). ―The
legislature intended the expression ‗effecting an arrest‘ to encompass the
reasonable actions or process of a peace officer bringing a person under the
officer‘s control for purposes of the law.‖ Latham v. State, 128 S.W.3d 325, 329
(Tex. App.—Tyler 2004, no pet.) (discussing penal code section 38.08).
Officer Cose testified that he arrested Wallace for failure to identify and for
having an expired inspection sticker, placed him in handcuffs, and took him to
jail. Officer Sweeney, who was with Officer Cose when he stopped Wallace,
agreed that Wallace was arrested at the scene for these offenses, and he agreed
during cross-examination that Officer Cose made the arrest by handcuffing
Wallace, putting Wallace in the patrol car, and making it obvious that Wallace
was not free to leave. Officer Sweeney also agreed that Wallace did not resist or
assault him at that point, that Wallace had already been arrested at the time he
resisted the officers‘ attempts to seize the evidence from him, and that Officer
Cose wrote the arrest report because he was the arresting officer. Therefore, it
is undisputed that Wallace had been arrested for not having a driver‘s license
and for having an expired inspection sticker by the time he was being booked-in
at the jail. See Warner, 257 S.W.3d at 246; Lewis, 30 S.W.3d at 512.
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However, at that point, Wallace had not yet been found to have committed
possession of a controlled substance, and he had not yet committed tampering
with evidence, so he could not have been under arrest or in custody for either of
these offenses. Rather, as set out above, Wallace was being booked-in under
the initial arrest when the crack rock was discovered and when he grabbed the
crack rock in its evidence bag and tried to swallow it while attempting to flee. He
became combative and out of control, and Officer Deweber said that when he
arrived to help subdue Wallace, officers were trying ―to place [Wallace] back into
handcuffs.‖
Wallace bit Officer Sweeney while Officer Sweeney attempted to re-
apprehend him and to stop him from swallowing the bag containing the crack
rock. That is, when the bite occurred, Officer Sweeney was trying to restrict or
restrain Wallace‘s liberty again, and he could do so within the context of the new
offenses that had been committed in his view. See Tex. Code Crim. Proc. Ann.
art. 14.01(b) (West 2005); Byrd, 447 S.W.2d at 937; see also Warner, 257
S.W.3d at 247 (noting statutory distinctions between the offenses of escape,
evading arrest, and resisting arrest, which are offenses a person commits when
an officer has not successfully restrained or restricted a suspect); Polk v. State,
170 S.W.3d 661, 664 (Tex. App.—Fort Worth 2005, pet. ref‘d) (noting that the
invocation of an appellant‘s right to remain silent is case-specific and related only
to the offenses for which he is arrested). Therefore, we conclude that Wallace bit
Officer Sweeney while he was making a second arrest for the offenses Wallace
15
committed at the police station and that the evidence is therefore sufficient to
support Wallace‘s conviction for assault against a public servant. We overrule
Wallace‘s second point.
IV. Conclusion
Having overruled both of Wallace‘s points, we affirm the trial court‘s
judgments.
PER CURIAM
PANEL: MCCOY, J.; LIVINGSTON, C.J.; and GABRIEL, J.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: December 15, 2011
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