JaMichael Demon Henry v. State ( 2012 )

Affirmed and Memorandum Opinion filed June 21, 2012.
In The
Fourteenth Court of Appeals
NO. 14-11-00381-CR
JAMICHAEL DEMON HENRY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 180th District Court
Harris County, Texas
Trial Court Cause No. 1269585
MEMORANDUM OPINION
Appellant JaMichael Demon Henry appeals his conviction for possession of a
controlled substance with intent to deliver. In a single issue appellant challenges the trial
court’s denial of his motion to suppress evidence. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant was charged by indictment with the felony offense of possession of a
controlled substance with intent to deliver. The charge was enhanced by two prior felony
convictions. Appellant pleaded ―not guilty‖ to the charged offense.
Appellant filed a motion to suppress all evidence, including 34.1 grams of crack
cocaine found in his pants following a traffic stop and search. At the hearing on
appellant’s motion, several officers testified to being part of a tactical unit conducting a
narcotics investigation. As part of the investigation, an undercover narcotics officer,
Officer Zapata, was conducting surveillance in an apartment complex and had received
information from another undercover officer that a black male in a silver Dodge Stratus
automobile was possibly trafficking crack cocaine in the area. Officer Zapata, in an
unmarked patrol unit, spotted the vehicle, followed it, and observed that rather than
coming to a complete stop, the driver rolled through a stop sign at the intersection of
O’Meara and Main. Officer Zapata then instructed two other officers in a marked patrol
unit to initiate a traffic stop of the vehicle for the traffic law infraction.
Officer Zapata continued to follow the vehicle. The driver did not stop
immediately when the marked patrol unit activated emergency lights to initiate the traffic
stop but continued for over a mile. For this reason, Officer Zapata drove his unmarked
vehicle beside the target vehicle to see, for the officers’ safety, what was happening
inside the vehicle. He observed the male passenger leaning back in the seat, making
furtive gestures, moving around the vehicle, and ―stuffing‖ an item in the waistband of
his pants in an attempt to conceal something. Believing that the male passenger was
armed with a weapon, Officer Zapata reported his observations to the officers in the
marked patrol unit.
Officer Smith testified that he and another officer were driving in a marked patrol
unit and received the information from Officer Zapata that the driver of the vehicle had
committed a traffic violation by running the stop sign. These two officers initiated a
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traffic stop to investigate the traffic offense. With the knowledge that the male passenger
was making furtive movements in the vehicle before the stop and possibly had been
involved in trafficking narcotics, all of the officers believed that appellant could have
been hiding a weapon in his pants given their past experience that weapons are often
involved in narcotics transactions. On this basis, Officer Smith conducted a ―high risk‖
stop, in which the officers are to use caution in approaching the vehicle.
Once the vehicle stopped, one officer approached the driver’s side, and Officer
Smith approached the passenger side of the vehicle, where appellant was seated. After
appellant exited the vehicle, the officer conducted a pat-down in search for weapons and
felt an object in the groin area of appellant’s pants. According to the officer, he felt the
bulge, knew it was not normal or common, and believed it to be a weapon. Citing
concerns for the officers’ safety, Officer Smith placed appellant in handcuffs and
continued the pat-down for weapons. This time the officer felt plastic inside appellant’s
pants and felt a crumbling substance inside the plastic; the officer, upon hearing the
sound of the substance crumbling, believed, based on his experience, that the substance
was crack cocaine. The zipper on appellant's pants was partially pulled down before the
pat-down began. The officer pulled the partially unzipped zipper down a little more and
pulled the plastic bag through the opened zipper; the plastic bag contained ―cookies‖ of
crack cocaine. Appellant was arrested.
The driver of the vehicle, appellant’s girlfriend, testified at the suppression
hearing. According to the driver, she picked appellant up at a motel and then stopped at
an apartment complex, where appellant exited the vehicle and returned five minutes later.
She testified that she made a complete stop at the stop sign at the intersection of O’Meara
and Main. She testified that the officers took her from the vehicle at gunpoint and did not
tell her the reason for the stop; eventually, an officer told her they were conducting a
traffic stop. No traffic citation was issued to the driver during the traffic stop. The driver
testified that appellant wore ―warm-up‖ pants that had no zipper.
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The trial court denied appellant’s motion to suppress. Following a trial, the jury
found appellant guilty of the charged offense. Appellant pleaded ―true‖ to the
enhancement allegations and was sentenced to thirty-two years’ confinement.
ISSUE AND ANALYSIS
In a single issue, appellant asserts the trial court erred in denying the motion to
suppress because the evidence was obtained in violation of the Fourth Amendment of the
United States Constitution. Appellant asserts that officers initiated the traffic stop and
subsequent search based on information gathered from a confidential informant.
Appellant likens the flow of information from the informant to the arresting officer to the
childhood game of ―telephone‖ such that the information learned by the arresting officer
was not true and had changed as a result of being passed through several other people.
We review a trial court’s ruling on a motion to suppress evidence under a
bifurcated standard of review. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App.
1997). At a suppression hearing, the trial court is the sole finder of fact and is free to
believe or disbelieve any or all of the evidence presented. Weide v. State, 214 S.W.3d 17,
24 (Tex. Crim. App. 2007). We give almost total deference to the trial court’s
determination of historical facts that depend on credibility and demeanor, but we review
de novo the trial court’s application of the law to the facts as resolution of those ultimate
questions does not turn on the evaluation of credibility and demeanor. See Guzman, 955
S.W.2d at 89. When, as in this case, there are no written findings of fact in the record,
we uphold the ruling on any theory of law applicable to the case and presume the trial
court made implicit findings of fact in support of its ruling so long as those findings are
supported by the record. State v. Ross, 32 S.W.3d 853, 855–56 (Tex. Crim. App. 2000).
We view a trial court’s ruling on a motion to suppress in the light most favorable to the
trial court’s decision. Weide, 214 S.W.3d at 24. If supported by the record, a trial court’s
ruling on a motion to suppress will not be overturned. Mount v. State, 217 S.W.3d 716,
724 (Tex. App.—Houston [14th Dist.] 2007, no pet.).
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To establish grounds for suppression of evidence for alleged violations under the
Fourth Amendment, a defendant bears the initial burden to produce evidence that rebuts
the presumption of proper police conduct. Ford v. State, 158 S.W.3d 488, 492 (Tex.
Crim. App. 2005). This burden may be satisfied upon a showing that a search or seizure
occurred without a warrant. Id. The burden then shifts to the State to establish that the
search or seizure was conducted pursuant to a warrant or was reasonable. Id. In the case
under review it is undisputed that the officers did not have a warrant; therefore, the State
bore the burden of establishing the reasonableness of the warrantless detention. See id.
Appellant claims the officers had no specific, articulable facts to believe he was
engaged in criminal activity. An officer may stop and detain a person if the officer has
reasonable suspicion that a traffic violation was in progress or had been committed.
Garcia v. State, 827 S.W.2d 937, 944 (Tex. Crim. App. 1992); Kelly v. State, 331 S.W.3d
541, 549 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d). Reasonable suspicion
exists if the officer has articulable facts that, when combined with other rational
inferences taken from those facts and the officer’s training, would lead the officer to
believe that the person in the vehicle was engaging in, has been, or is about to engage in
criminal activity. Ford, 158 S.W.3d at 492. Reasonable suspicion is based on an
objective standard that disregards the subjective intent of the officer and looks entirely at
whether an objective basis for the detention exists. Garcia, 827 S.W.2d at 530. We
consider the totality of the circumstances when determining whether reasonable suspicion
exists. Ford, 158 S.W.3d at 492–93.
Under the Texas Transportation Code, a driver is required to stop at a stop sign in
the following manner: (1) if no crosswalk exists, the driver shall stop before entering the
crosswalk at a clearly marked stop line; (2) if no stop sign exists, the driver shall stop at a
clearly marked stop line; and (3) if no stop line exists, the driver shall stop ―at the place
nearest the intersecting roadway where the operator has a view of the approaching traffic
on the intersecting roadway.‖ See Tex. Transp. Code Ann. § 544.010(c) (West 2011).
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The record reflects Officer Zapata’s testimony that he observed the driver of the vehicle
commit a traffic violation by rolling through a stop sign at the intersection of O’Meara
and Main. Although appellant refers to testimony from the driver of the vehicle that she
came to a complete stop at the stop sign, as sole judge of the witnesses’ credibility at the
suppression hearing, the trial court could have decided to believe Officer Zapata’s
testimony and disbelieve the driver’s testimony. See Weide, 214 S.W.3d at 24.
Officer Zapata relayed his observations to the two officers in the marked patrol
unit, who then effectuated the stop of the vehicle. Reasonable suspicion can be based on
information relayed to one officer by other officers and the sum of the information known
to those officers cooperating with him. See Mount v. State, 217 S.W.3d 716, 728 (Tex.
App.—Houston [14th Dist.] 2007, no pet.). The trial court was free to consider the
officers’ failure to issue a traffic citation to the driver in determining the credibility of the
witnesses’ testimony; but, this evidence does not mean the officers lacked reasonable
suspicion as a matter of law. See Overshown v. State, 329 S.W.3d 201, 205– 06 (Tex.
App.—Houston [14th Dist.] 2010, no pet.). The trial court, as the finder of fact, resolved
the issue against appellant.
Appellant, referring to the officers’ testimony at the suppression hearing that they
were conducting a narcotics investigation, asserts that the traffic stop was pretextual.
Specifically, appellant asserts that the traffic stop was initiated based on information
gleaned from a confidential informant whose credibility and reliability appellant also
challenges. The record contains evidence that the traffic stop was related to a traffic
violation. An objectively valid traffic stop is not unlawful just because the detaining
officer has some ulterior motive for making the stop. Crittenden v. State, 899 S.W.2d
668, 674 (Tex. Crim. App. 1995). Considering the totality of the circumstances, the
record supports the trial court’s implied finding that Officer Smith was justified in
stopping the vehicle to investigate the traffic violation. See Garcia, 827 S.W.2d at 944;
Kelly, 331 S.W.3d at 549.
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Once a suspect has been lawfully detained, an officer may conduct a limited
search for weapons, or a ―protective frisk,‖ when a frisk is reasonably warranted for the
officer’s safety and for the safety of others. See Balentine v. State, 71 S.W.3d 763, 769
(Tex. Crim. App. 2002). A pat-down search for weapons or contraband without a
warrant is justified only when specific and articulable facts, when taken together with
rational inferences from those facts, reasonably could lead to the conclusion that the
suspect might possess a weapon. See Carmouche v. State, 10 S.W.3d 323, 329 (Tex.
Crim. App. 2000). The officer need not be absolutely certain that an individual is armed;
the issue is whether a reasonably prudent person justifiably would believe that he or
others were in danger. Balentine, 71 S.W.3d at 769.
Officer Zapata testified that he saw appellant making furtive movements inside the
vehicle as if to conceal items in the waistband of his pants. Armed with the knowledge
that appellant possibly was involved in trafficking narcotics and that weapons are often
associated with narcotics transactions, and based on appellant’s furtive movements within
the vehicle before the vehicle stopped, the officers believed appellant was armed,
warranting a ―high risk‖ stop of the vehicle. The officers all testified that they were
concerned for their safety when they developed the belief that appellant was armed. The
record supports the trial court’s implied finding that a reasonably prudent person in the
officer’s position would believe that he or others might be in danger and was justified in
conducting a pat down and restraint of appellant. See Balentine, 71 S.W.3d at 769;
Carmouche, 10 S.W.3d at 330 (noting that weapons and violence are associated with
narcotics transactions).
During the pat-down, when Officer Smith felt an unusual bulge in appellant’s
groin area, the officer placed appellant in handcuffs to ensure the officers’ continued
safety. An officer may handcuff an individual being detained when there is a reasonable
belief that such restraint is necessary for protection. See Mays v. State, 726 S.W.2d 937,
943–44 (Tex. Crim. App. 1986) (involving an officer who handcuffed two men during a
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frisk for the officer’s protection); Farmer v. State, 47 S.W.3d 187, 190, 193 (Tex. App.—
Texarkana 2001, pet. ref’d) (providing that an officer was justified in conducting a
protective search for weapons following a valid traffic stop and in handcuffing the
accused during the pat-down for officer safety before ultimately finding contraband in the
waistband of the accused’s pants). Appellant complains that Officer Smith exceeded the
scope of a reasonable search. If a protective search goes beyond what is necessary to
determine whether the person is armed, it is no longer valid. See Carmouche, 10 S.W.3d
at 330. Once Officer Smith’s initial pat-down revealed an object that the officer
reasonably believed was a weapon, the officer was justified in making a more intrusive
search for his own protection. See Farmer, 47 S.W.3d at 193. According to Officer
Smith, after placing appellant in handcuffs and then continuing the search again, he felt
plastic inside appellant’s pants and felt and heard a crumbling substance inside the plastic
bag, leading the officer to form an immediate belief that the substance was crack cocaine.
An officer may lawfully seize contraband discovered during a protective frisk if its
―contour or mass makes its identity immediately apparent‖ and the incriminating nature
of the item is apparent. Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S. Ct. 2130 124
L. Ed. 2d 334 (1993); see Baldwin v. State, 278 S.W.3d 367, 371–72 (Tex. Crim. App.
2009) (describing ―plain feel‖ doctrine created in Dickerson); McAllister v. State¸ 34
S.W.3d 346, 352 (Tex. App.—Texarkana 2000, pet. ref’d). When an officer is able to
ascertain the nature of an object through the sense of touch with sufficient reliability to
support a seizure, the seizure is reasonable and does not violate the Fourth Amendment.
Dickerson, 508 U.S. at 376, 113 S. Ct. 2130. As reflected in the record, the nature of the
contraband within appellant’s pants was so immediately apparent to Officer Smith that he
was able to determine from the sound and feel that the substance was crack cocaine
before removing it from appellant’s pants. See Griffin v. State, 215 S.W.3d 403, 410
(Tex. Crim. App. 2006). Under the circumstances, the officer was justified in retrieving
the plastic bag containing crack cocaine from appellant’s partially unzipped pants. See
id. (providing that officer was justified in removing tubes used for narcotics consumption
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from a suspect’s pocket during a protective search for weapons); Farmer, 47 S.W.3d at
193 (providing that because the officer reasonably believed that the large object he felt
was a weapon, the officer was justified in opening the front of the person’s pants during a
protective pat-down for weapons); McAllister, 34 S.W.3d at 353 (providing that narcotics
found in an accused’s pocket during a protective frisk did not exceed the search and the
officer’s actions were justified by the extension of the pat-down search resulting in the
discovery of the narcotics). Thus, the record supports the trial court’s implicit finding
that the seizure of the contraband was pursuant to the ―plain feel‖ doctrine‖ and that the
totality of the circumstances justified the extended pat-down search. See Griffin, 215
S.W.3d at 410 (Tex. Crim. App. 2006); Farmer, 47 S.W.3d at 193; McAllister, 34
S.W.3d at 353. The trial court did not abuse it discretion in denying appellant’s motion
to suppress. Accordingly, we overrule appellant’s sole issue.
The trial court’s judgment is affirmed.
/s/ Kem Thompson Frost
Justice
Panel consists of Justices Frost, Brown, and Christopher.
Do Not Publish — TEX. R. APP. P. 47.2(b).
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