Alvin Carter v. State

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN





ON REMAND



NO. 3-90-200-CR



ALVIN CARTER,

APPELLANT

vs.





THE STATE OF TEXAS,

APPELLEE

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT

NO. 100,501, HONORABLE JON N. WISSER, JUDGE PRESIDING

Appellant entered a plea of guilty to the offense of possession of a controlled substance, cocaine, in an amount less than twenty-eight grams. See Tex. Health & Safety Code

Ann. § 481.115(b) (West 1992). The trial court deferred adjudication of guilt, ⁽¹⁾ placing appellant on probation for a term of six years. Appeal is limited to the court's overruling of appellant's motion to suppress.

Randall Millstead, an officer with the Austin Police Department Repeat Offender Unit testified to the events leading up to appellant's arrest and the seizure of the contraband. Officer Millstead was working undercover at the Realata Apartments in East Austin on September 27, 1989, as part of a cocaine task force. The Realata Apartment complex was a "high density area for crack cocaine sales and had been such, targeted as one of the main areas that our task force was working on." Millstead had made purchases of narcotics at these apartments prior to the date in question. Millstead related that as a result of his experience he could distinguish narcotic sellers' activities from people in the apartment who had legitimate activity. He had "often" witnessed transactions where a seller would approach a vehicle and an occupant of the car would get out and "go down to the creek bed" on the west side of the apartments. Following a narcotic transaction in the creek bed, the buyer would walk to the other side of the creek where he would be picked up by the driver of the vehicle.

When Millstead and a fellow officer drove into the parking lot of the Realata Apartment on the day in question, they purchased a "rock of cocaine" from a seller who "flagged [the officers] down." The focus of the surveillance at the apartments was on Asa Lopeka, a "known crack dealer." Lopeka and a friend were observed approaching a number of vehicles before the arrival of appellant. On several of these occasions, the passenger in the vehicle would accompany Lopeka or his partner to the creek bed and the driver would pick up his partner on the other side of the creek. When appellant and a person identified as Glenn Dilworth arrived at the apartments, appellant got out of the car and followed Lopeka and his friend, Michael Haynes, to the creek bed. Appellant was subsequently picked up by Dilworth on the other side of the creek. Millstead did not see any money or cocaine exchanged between appellant and Lopeka. However, from "what I [Millstead] observed from my training and experience and having bought crack cocaine in the area and from observing several vehicles prior to their [appellant and Dilworth] pickup truck entering the parking lot, and transactions being negotiated in the very same manner, I felt that there was a crack cocaine transaction taking place."

Millstead followed appellant and Dilworth until a marked police car responded to Millstead's request to stop the pickup. When Millstead approached the pickup and identified himself as a police officer, he observed that appellant and Dilworth "had their hands concealed--just reaching around on the seat, under the dash board." After appellant and Dilworth refused to comply with two requests from the officers that they "get their hands where they could be seen," Millstead pointed his gun toward the pickup. Appellant and Dilworth were removed from their vehicle and their persons and the pickup were searched. Crack cocaine was found in a plastic trash bag affixed to the dash of the pickup.

Appellant urges that the trial court erred in overruling his motion to suppress because: (1) there was not probable cause to search the vehicle and arrest appellant; (2) there was no exception to the requirement of a warrant for the search and arrest; (3) the officers did not have specific articulable facts to justify stopping the vehicle; and (4) the officers did not have probable cause to search for weapons.

Probable cause for a warrantless arrest exists at the moment the facts and circumstances within the officer's knowledge, and of which he has reasonably trustworthy information, are sufficient to warrant a prudent person in believing that the arrested person has committed or is committing an offense. Britton v. State, 578 S.W.2d 685, 689 (Tex. Crim. App. 1978). The reviewing court must look at the "totality of the circumstances" in determining whether there existed a substantial basis for concluding that there was probable cause at the time in question. See Angulo v. State, 727 S.W.2d 276, 278 (Tex. Crim. App. 1987). Circumstances short of probable cause may justify temporary detention for purposes of investigation. See Meeks v. State, 653 S.W.2d 6, 12 (Tex. Crim. App. 1983). The officer must have possessed articulable facts that created some reasonable suspicion to connect the suspect with unusual activity that was related to crime. See Hoag v. State, 728 S.W.2d 375, 380 (Tex. Crim. App. 1987). "In justifying a stop, the police officer can make rational inferences from the articulable facts based upon the officers personal knowledge and experience." Davis v. State, 829 S.W.2d 218, 220 (Tex. Crim. App. 1992).

In the instant cause, the officers did not see appellant commit an overtly criminal act. However, activities that are not overtly criminal may be sufficient, when coupled with an officer's prior knowledge, to establish probable cause that an offense is occurring. See Adkins v. State, 764 S.W.2d 782, 785 (Tex. Crim. App. 1988). As a veteran investigator of narcotic offenses, Millstead could distinguish the activities of narcotic dealers from legitimate activity. Millstead knew from experience that the conduct of Lopeka and appellant was consistent with narcotic activity. While the officers' information that Lopeka was a known crack dealer was not shown to have come from informants whose trustworthiness was established, Millstead's observations of Lopeka's activities constituted a factor that lent credence to the informant's information. See Whaley v. State, 686 S.W.2d 950, 951 (Tex. Crim. App. 1985).

Assuming that Millstead and his fellow officers did not have probable cause to arrest appellant after he and Dilworth left the apartment complex, the officers possessed sufficient facts that created reasonable suspicion to connect appellant with unusual activity that was related to crime so as to justify an investigative stop. After appellant and Dilworth were stopped, they refused to raise their hands in response to the officers' request until a gun was pointed toward them. Millstead observed appellant and Dilworth "reaching around on the seat under the dash board," conduct that Millstead characterized as "furtive movement." Based on their prior knowledge and observations, together with the events that transpired after appellant and Dilworth were stopped, we hold that the officers had probable cause to believe that, when arrested, appellant had committed or was committing in the officers' presence the offense of possession of a controlled substance. Tex. Code Crim. Proc. Ann. art. 14.01 (West 1977). The officers were justified in arresting appellant, and in searching him and the vehicle incident to that arrest. Appellant's points of error are overruled.

The order of the court deferring adjudication and placing appellant on probation is affirmed.

Tom G. Davis, Justice

Before Justices Aboussie, B. A. Smith and Davis^*

Affirmed

Filed: March 9, 1994

Do Not Publish

^* Before Tom G. Davis, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1988).

1. On original submission, this Court dismissed the appeal, holding that no appeal lies from an order deferring guilt and placing the defendant on probation. Carter v. State, No. 3-90-200 (Tex. App.--Austin 1990). Subsequently, the Court of Criminal Appeals held that an appeal may be taken after deferral of guilt. Dillehey v. State, 815 S.W.2d 623 (Tex. Crim. App. 1991). The Court of Criminal Appeals summarily granted appellant's petition for discretionary review and remanded to this Court for reinstatement of appellant's appeal. Carter v. State, No. 101-91 (Tex. Crim. App. 1992).