Marcus Gardner v. the State of Texas

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-20-00018-CR
___________________________
MARCUS GARDNER, Appellant
V.
THE STATE OF TEXAS
On Appeal from Criminal District Court No. 1
Tarrant County, Texas
Trial Court No. 1573103D
Before Womack and Wallach, JJ.; and Lee Ann Dauphinot (Senior Justice, Retired,
Sitting by Assignment)
Memorandum Opinion by Justice Dauphinot
MEMORANDUM OPINION
A jury convicted Appellant Marcus Gardner of possession with intent to
deliver one gram or more, but less than four grams, of heroin, a controlled substance.
The jury sentenced Appellant to thirty years’ confinement in the Institutional Division
of the Texas Department of Criminal Justice.
Appellant brings two points on appeal, arguing that the trial court reversibly
erred in denying his pretrial motion in limine challenging admission of a portion of
the video from the police camera mounted on a telephone pole and in denying his
motion to suppress the evidence found in the search of a Dodge truck. Appellant
specifically asked the trial court to carry his motion to suppress along with the trial
and to make a ruling before the close of the trial. The trial court granted Appellant’s
request. Because the trial court committed no reversible error, we affirm the trial
court’s judgment.
Brief Facts
In several areas of the City of Fort Worth are a series of cameras installed on
poles––usually telephone poles––that are mounted, maintained, operated, and
monitored by the Fort Worth Police Department. They are located primarily in high-
crime areas.
Fort Worth Police Officer Matthew Schroeder testified that, although he was
off duty the day of the alleged offense, he was monitoring the cameras in the East
Davis area from his cell phone and saw what appeared to him to be some hand-to-
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hand drug transactions involving a gray Dodge Ram pickup truck in the parking lot of
a convenience store. Officer Schroeder was able to watch the activity from two
different angles because there were two cameras on separate poles at that location.
He identified Appellant Marcus Gardner as the person associated with the Dodge
pickup that day and saw him making what appeared to be hand-to-hand transactions.
Officer Schroeder contacted Officer Rudd, who had control of the cameras at
that location, and asked him to zoom in on the activity he was watching. Officer
Schroeder testified he had reasonable suspicion he was watching Appellant participate
in drug sales. Officer Schroeder then called Officer Gray, a member of his team, and
asked him to move the rest of Officer Schroeder’s team as well as some marked units
into the area he had been watching on East Davis. The plan was to detain the people
involved in the hand-to-hand activity and to investigate any kind of narcotics
violation. Specifically, the officers were to detain Appellant.
Even though he was off duty, Officer Schroeder drove to the East Davis
location, still watching the video. The video from the two pole cameras that Officer
Schroeder was watching was admitted into evidence.
Officer Schroeder testified that the video showed that Appellant was sitting in
the front passenger seat of a black sedan. Officer Schroeder saw Appellant engaged
in what appeared to him to be hand-to-hand drug transactions. On the car’s
dashboard directly in front of Appellant were what Officer Schroeder believed to be
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“[a] pill bottle[;] a baggie with a green, plant-like substance[;] a baggie with some
white[-] and a darker brown-colored substance[;] . . . and a key.”
Officer Schroeder also testified that the key had a distinctive fob on it and that
Appellant had cash in his hand, typical of someone engaged in hand-to-hand drug
transactions. Officer Schroeder described Appellant as wearing a black jacket,
perhaps Nike brand; a gold watch on his left hand; and gold rings on his left ring
finger and “his left pinky.” He was wearing gold chains around his neck and a white
undershirt. There was a child visible in the back seat.
Officer Schroeder observed Appellant collect the items from the dashboard in
front of him, get out of the black sedan, and then get into the gray Dodge pickup
where he engaged in another drug transaction. Appellant also went into the
convenience store and spoke on his cell phone. While Appellant was inside the
convenience store, the uniformed police officers began to arrive and people in the
parking lot began to run. Appellant came out of the store and walked across the
parking lot toward the pickup, got into the pickup, and apparently drove off while the
officers were engaged in a foot chase.
After Officer Schroeder arrived at the convenience store parking lot, Officer
Gray of the tactical narcotics team notified him that the Dodge pickup had been
located. When Officer Schroeder reached the location where Officer Gray had
detained Appellant, Appellant was standing near the Dodge pickup and was dressed as
the person on the video had been dressed. Appellant asked Officer Schroeder why he
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was being detained, but Officer Schroeder claimed he did not know. Although
Officer Schroeder was wearing a body camera, he muted the audio so that we cannot
tell what else he said.
Ricky, a dog trained to detect narcotics, was called to perform a sniff around
the pickup; he first alerted on a basketball goal on the edge of the curb and then, after
being called off the basketball goal, appeared to alert on the pickup. The police called
the fire department to open the truck by forcing a door open. The officers searched
the pickup, found drugs, and wrote an arrest warrant for Appellant.
Officer Schroeder testified that Appellant denied owning the truck and denied
that he had a key for the truck. But after Officer Coleman drove Appellant
downtown to the police station, the officer found the key wedged out of sight behind
the back seat. He testified that Appellant had admitted to him that he had “stuffed it
in the backseat.” Officer Coleman testified it was the policy of the Fort Worth Police
Department to have the body camera, including the audio portion, on the entire time
an officer is having contact with someone in custody. To turn it off would violate
departmental policy. The State forwarded the video to a mute portion and played it.
Officer Coleman testified that during the time the video was muted, Appellant had
admitted to having and then hiding the key in the police car. Officer Coleman also
admitted that he always searched the back seat of his unit after transporting a
defendant. That search is also departmental policy. Officer Coleman explained that,
although departmental policy required that the video and audio equipment provided
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by the city be activated at all times when an officer was having contact with someone
in custody, officers mute their body cams when they are “just having a conversation
that’s not necessary for trial, or [when] we don’t want anyone else to hear what we’re
talking about.”
Officer Gray testified that he was a narcotics officer and that Officer
Schroeder, who was off duty the day Appellant was arrested, had called him and asked
him to assist by helping to follow a suspect until a uniformed officer could perform a
“takedown.” He learned Appellant had switched from a black sedan to a Dodge
pickup. Officer Gray located Appellant quickly. He saw Appellant outside the truck
by the passenger’s door, and, inside the truck, Officer Gray saw a scale he recognized
as an object often connected with the distribution of narcotics. None of the officers
had a key to the pickup, so they decided to wait for a K-9 officer’s dog to sniff the
vehicle. Although the dog initially alerted on the basketball goal, he ultimately alerted
on the passenger door, finally providing probable cause to search the pickup.
Inside the pickup’s console, the officers found 2.666 grams of heroin and a
baggie containing marijuana. Additionally, the officers located two scales that are
commonly used in narcotics distribution.
Denial of Motion in Limine
In his first point on appeal, Appellant challenges the trial court’s denial of his
pretrial motion in limine––the consideration of which included an express
admissibility ruling, as requested by Appellant––in which he requested prohibition of
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the evidence adduced from the telephone pole videos.1 Appellant argued that the
conduct recorded on the videos occurred at a different location than where he was
detained; that the conduct occurred approximately thirty minutes before Appellant
was detained; and that the suspected narcotics found in the Dodge truck do not
match the items seen on the pole-camera videos. Consequently, he argues, the
offenses recorded on the videos were extraneous to the charged offense and were not
contextual. He contends the videos also “had immense danger to unfairly prejudice
[him], confuse the issue of the actual charged conduct, and mislead the jury.”
Appellant contends on appeal that the videos introduce evidence of his prior
crimes, wrongs, or other acts for the purpose of showing his character and showing
that he acted in conformity with that character on a particular occasion, in violation of
the mandate of Texas Rule of Evidence 404(b), relying on Smith v. State, 5 S.W.3d 673,
678 (Tex. Crim. App. 1999). He argues that the “spatial, temporal, and evidentiary
differences between the extraneous evidence and the charged offense support that the
extraneous evidence was not contextual.”
We have closely examined all the videos contained in the record as well as the
testimony of all the witnesses and argument of counsel for both sides. The law is
1
See Tex. R. Evid. 103(b) (“When the court hears a party’s objections outside
the presence of the jury and rules that evidence is admissible, a party need not renew
an objection to preserve a claim of error for appeal.”); McDuff v. State, 939 S.W.2d 607,
618 (Tex. Crim. App. 1997) (“It is well-settled that the denial of a motion in limine is
not sufficient to preserve error for review, but rather there must be a proper objection
to the proffered evidence.”).
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well-established that “same transaction contextual evidence” is intrinsic to the offense;
it is not “an extraneous crime or bad act” to which Code of Criminal Procedure
Article 37.07, § 3(g), explicitly refers.2
The Court of Criminal Appeals has held that “[s]ame-transaction contextual
evidence results when an extraneous matter is so intertwined with the State’s proof of
the charged crime that avoiding reference to it would make the State’s case incomplete
or difficult to understand.”3 Under the common law, this contextual evidence was
treated as a distinct class “res gestae” evidence under the reasoning that the criminal
act does not occur in a vacuum, and the jury has a right to hear the contextual
evidence.4 It was explicitly defined out of “other crimes, wrongs or acts” in Texas
Rule of Evidence 404(b), much as a party’s own statement is defined out of the
hearsay rule in Rule 801(e)(2).5
In the case now before this court, the videos and testimony showing Appellant
engaged in hand-to-hand drug transactions outside the convenience store support the
officers’ reasonable suspicion that Appellant was committing the criminal offense of
possession of a controlled substance with intent to deliver. This reasonable suspicion
2
Tex. Code Crim. Proc. Ann. art. 37.07, § 3(g).
3
Prible v. State, 175 S.W.3d 724, 732 (Tex. Crim. App. 2005).
4
Worthy v. State, 312 S.W.3d 34, 41 (Tex. Crim. App. 2010).
5
Id. at 39.
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supports the officers’ actions leading to their developing probable cause for their
allegations in support of the warrant request. Without this evidence, the officers’
actions would be unsupported, difficult to understand, and the bases for the warrant
could only be guessed at.
Appellant also claims that admission of the evidence violates Rule 403, which
prohibits the admission of otherwise admissible relevant evidence “if its probative
value is substantially outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay, or needlessly
presenting cumulative evidence.”6 Appellant raised this express objection during the
pretrial hearing outside the jury’s presence, and the trial court ruled on this objection.7
Under Rule 403, the trial court must balance the inherent probative force of the
proffered item of evidence, along with the proponent’s need for that evidence, against
(1) any tendency of the evidence to suggest decision on an improper basis, (2) any
tendency of the evidence to confuse or distract the jury from the main issues, (3) any
tendency of the evidence to be given undue weight by a jury that has not been
equipped to evaluate the probative force of the evidence, and (4) the likelihood that
6
Tex. R. Evid. 403.
7
Tex. R. Evid. 103(b).
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presentation of the evidence will consume an inordinate amount of time or merely
repeat evidence already admitted.8
The nature of the evidence as same-transaction contextual evidence, as
explained above, makes it particularly relevant. Rather than having the potential to
confuse the jury, consume an inordinate amount of time, or suggest a decision on an
improper basis, the evidence was necessary to the jury’s understanding of the charged
offense. Thus, the trial court did not err by concluding the evidence was admissible
under Rule 403.
The complained-of evidence was admissible as same-transaction contextual
evidence.9 Its admission before the jury was proper and did not unfairly prejudice
Appellant. We overrule Appellant’s first point on appeal.
Motion to Suppress Evidence Found During Search of Truck
In his second point challenging the trial court’s denial of his motion to
suppress, Appellant argues that while sniffing for drugs, Ricky––the trained narcotics-
detection dog that alerted on the portable basketball goal located at the edge of the
curb, facing the street, but near the Dodge pickup––should have been ordered to stop
his search at that point rather than being ordered to again search the outside of the
Dodge pickup. Appellant argues that the failure to stop Ricky’s search unreasonably
8
Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006).
9
See, e.g., Moreno v. State, 195 S.W.3d 321, 327 (Tex. App.––Houston [14th Dist.]
2006, pet. ref’d).
10
prolonged his detention, violated the Fourth Amendment, and rendered the
continued detention and search unlawful.
Appellant points out that two police officers, Officer Coleman and Sergeant
Hubbard, admitted that Ricky had alerted on the basketball goal. Sergeant Hubbard
justified the alert by saying that it was a windy day and that the scent had probably
pooled at the basketball goal. He also said that Ricky did not give a false alert but
rather a “fringe” alert. He explained that a fringe alert could be an alert of up to six
feet from the target source. There is no evidence that anyone thoroughly searched the
basketball goal to determine whether there were drugs or drug residue. Appellant
suggested at trial that Ricky alerted on the basketball goal to get the reward he is given
for an accurate alert. Appellant also suggests on appeal that, because Ricky was not
rewarded and was sent back to search the truck a second time, he alerted on the truck
to please his handler and to receive his reward.
Standard of Review on a Motion to Suppress
A trial court’s ruling on a motion to suppress is reviewed under a bifurcated
standard of review.10 A reviewing court should give great deference to the trial court’s
findings of historical facts, so long as the record supports those findings.11 The
reviewing court also gives deference to the trial court’s rulings on mixed questions of
10
Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000).
11
Guzman v. State, 955 S.W.2d 85, 87 (Tex. Crim. App. 1997).
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law and fact when those rulings turn on an evaluation of credibility and demeanor.12
Where such rulings do not turn on an evaluation of credibility and demeanor, the
appellate court reviews the trial court’s actions de novo.13
Application
Officers must have reasonable suspicion to detain a person and his property
while conducting a canine sniff.14 Even if the officers have reasonable suspicion to
support the initial detention, “an investigative detention must be temporary and last
no longer than is necessary to effectuate the purpose of the stop.”15 Although officers
must act to confirm or dispel suspicion quickly, the detention may continue for a
reasonable time until they have done so.16 Reasonable suspicion, like probable cause,
is dependent upon both the content of the information possessed by the police and its
degree of reliability.17
12
Id.13
Id.14
United States v. Place, 462 U.S. 696, 706–10, 103 S. Ct. 2637, 2645–46 (1983);
Davis v. State, 947 S.W.2d 240, 243–44 (Tex. Crim. App. 1997).
15
Florida v. Royer, 460 U.S. 491, 500, 103 S. Ct. 1319, 1325 (1983).
16
Matthews v. State, 431 S.W.3d 596, 603 (Tex. Crim. App. 2014).
Alabama v. White, 496 U.S. 325, 330, 110 S. Ct. 2412, 2416 (1990); see also Penn.
17
v. Brown, 924 A.2d 1283, 1285, 1288–89 (Pa. Super. Ct. 2007) (upholding probable-
cause determination for search when canine’s first sniff of bag was inconclusive, but
canine alerted on bag after it was repositioned into a group of bags, and citing federal
and state cases holding that a canine’s failure to alert is not conclusive of a probable-
12
The trial court saw video of Appellant in the black sedan conducting hand-to-
hand drug transactions. That video shows the objects in front of Appellant on the
dash of the sedan and cash in Appellant’s hands after the hand-to-hand exchanges.
The judge could also see Appellant get into the Dodge Ram pickup. Officer Gray
testified that he saw Appellant outside the truck by the passenger’s door within
minutes of Appellant’s leaving the convenience store, and, inside the vehicle, Officer
Gray saw a scale he recognized as an object often connected with the distribution of
narcotics. Sergeant Hubbard testified before the court concerning Ricky’s training
and explaining Ricky’s conduct.
The issue before this court is a mixed question of credibility and law. We do
not disturb the trial court’s determination of credibility. In addressing the issues of
law, without disturbing the trial court’s apparent determinations of credibility, and
applying the appropriate standard of review, we cannot say the trial court erred in
denying Appellant’s motion to suppress the evidence found inside the pickup. We
overrule Appellant’s second point on appeal.
Conclusion
Having overruled Appellant’s points on appeal, we affirm the trial court’s
judgment.
cause determination and is instead a factor to consider in the totality of the
circumstances).
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/s/ Lee Ann Dauphinot
Lee Ann Dauphinot
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: September 9, 2021
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