Smith, Calvin Allen v. State

  Opinion issued on July 3, 2002

In The

Court of Appeals

For The

First District of Texas

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NO. 01-01-00272-CR

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CALVIN ALLEN SMITH, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 184th District Court

Harris County, Texas

Trial Court Cause No. 834513

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O P I N I O N

Appellant, Calvin Allen Smith, was charged by indictment with the felony offense of attempted burglary of a habitation. ⁽¹⁾ The jury found appellant guilty, and, after finding two enhancement paragraphs true, assessed punishment at life in prison. In four points of error, appellant claims (1) the trial court erred by overruling his motion to suppress, (2) the trial court erred by refusing to submit a 38.23 instruction, and (3) the evidence was legally and factually insufficient. We affirm.

Factual Background  

At approximately midnight on March 11, 1999, Thonda Theissen, awoke to the sound of mumbling and the light of flashlight beams shining through her dining room window. Thiessen ran inside her bathroom, called 911, and waited for the police to arrive.

Houston Police Department officer J.R. Richardson arrived at the scene within minutes of Theissen's call. He testified that as he approached her front door, he heard low talking, gravel shuffling, and the tapping of glass coming from the rear of Theissen's home. After Richardson's radio made a loud sound, he heard some movement in the backyard, and also a sound like someone hitting or thumping on wood.

Within a couple minutes, Richardson's backup arrived, and they went to the back yard to investigate. Although no one was in the rear of the home, Richardson noticed that the patio light was unscrewed and there was a crack in the dining room window. According to Theissen, the window had not been cracked prior to that evening. Additionally, there was fresh algae on the fence and it appeared that someone had jumped over the fence and scraped off the algae. At that time, Richardson radioed for other nearby units to be on the look-out for "suspicious persons, vehicles, or activity."

Officer Michael Dew heard Officer Richardson's radio call and began to search the area. When he approached the corner of Bolivia and Birchmont, he saw a dark green Buick Le Sabre, parked at the curb about one car length down from the intersection, turn on its parking lights. ⁽²⁾ As he passed by the car, he heard the car start and saw it begin to drive away.

Officer Dew testified that, given the proximity of the car to the crime scene and the fact that no other traffic was seen in the area, he ordered another unit following the Le Sabre to stop the car and investigate. Once the car was stopped, Officer Dew approached appellant, who was a passenger in the car, and asked for his driver's license. Appellant was wearing a black T-shirt and blue jeans, was out of breath, sweating heavily, and appeared to be nervous. Officer Dew testified appellant had algae smudges on his jeans.

After checking both occupants' driver's licenses through his computer, officer Richardson determined that both men did not live in the area and that they had outstanding city warrants. Appellant and the driver were placed under arrest, and the car was inventoried. In the back seat, officers discovered a backpack, which contained four flashlights, a pair of infrared binoculars, a mini pry bar, flat tip screwdrivers, wire cutters, pliers, three pairs of gloves, nylon hose, a loaded .38 Rossi revolver, ammunition, condoms, and some casino cards from a Louisiana casino with appellant's name on them.

Motion to Suppress  

In his first point of error, appellant claims generally the trial court erred in overruling his motion to suppress evidence because the initial stop of his vehicle violated both the United States and Texas Constitutions. ⁽³⁾ Specifically, appellant argues that the officers did not have reasonable suspicion to make an investigatory stop of his vehicle and that the evidence seized after the illegal stop should have been suppressed.

Standard of Review

The deference an appellate court should afford a trial court in reviewing a search and seizure ruling is often "determined by which judicial actor is in a better position to decide the issue." Guzman v. State, 955 S.W.2d 85, 87 (Tex. Crim. App. 1997). If the issue involves the credibility of a witness, thereby making the evaluation of that witness's demeanor important, "compelling reasons exist for allowing the trial court to apply the law to the facts." Id. Appellate courts should afford almost total deference to a trial court's determination of historical facts that the record supports, especially when based on the trial court's evaluation of credibility and demeanor. See id. at 89. An appellate court "should afford the same amount of deference to trial courts' rulings on 'application of law to fact questions,' also known as 'mixed questions of law and fact,' if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor." Id. However, "appellate courts may review de novo 'mixed questions of law and fact' not falling within this category." Id.

Investigative Detention

We examine the reasonableness of a temporary detention based on the totality of the circumstances. Woods v. State, 956 S.W.2d 33, 38 (Tex. Crim. App. 1997). To justify an investigative detention, an officer must have specific articulable facts which, premised upon his experience and personal knowledge, and when coupled with the logical inferences from those facts, would warrant the intrusion on the detainee. Garza v. State, 771 S.W.2d 549, 558 (Tex. Crim. App. 1989). Although more than an inarticulate hunch is necessary, a police officer, in appropriate circumstances, may stop and detain an individual "to investigate suspected criminal behavior even though there is not probable cause to make an arrest." Hernandez v. State, 523 S.W.2d 410, 411 (Tex. Crim. App. 1975). To determine whether an officer is justified in making such an intrusion, the court must find that the articulable facts used by the officer created a reasonable suspicion that some activity out of the ordinary was occurring or had occurred, some suggestion to connect the detainee with the unusual activity, and some indication the unusual activity is related to crime. Garza, 771 S.W.2d at 558.

Under circumstances similar to this case, this Court has held an officer had sufficient reasonable suspicion to justify an investigatory stop. See Brooks v. State, 830 S.W.2d 817, 819-21 (Tex. App.--Houston [1st Dist.] 1992, no pet.). In Brooks, an officer, responding to a "burglary-in-progress" call, became suspicious of a parked car in the area of the burglary because it pulled off the road when the officer approached. Id at 819. The officer followed the car and radioed ahead to a second unit and instructed the other unit to stop the car, while the officer returned to check on the reported burglary. Id. The second officer testified that he stopped the defendant, "to just find out whether or why he was leaving the scene or if he had any evidence of a break-in, if at all." Id. He further testified that the defendant committed no felony or breach of peace, or traffic offense, and made no attempt to escape in his presence. Id. Once the officer stopped the defendant, he ran a driver's license check, and found the defendant had outstanding warrants. Id.

In deciding the detention issue, this Court concluded that the stop was justified because the officers were able to articulate that (1) a burglary in progress was reported at a certain location, (2) the defendant was seen driving from the area as officers arrived, and (3) based on the experience of the officers, it was not uncommon for burglary suspects to be leaving or even be gone when officers arrived. Id. at 821. We further held that it was "customary to stop and investigate anyone leaving the immediate area of a burglary in progress." Id.

The facts of Brooks have significant similarities to the facts of our case. Id. Both cases involve officers responding to reports of crime during the early morning hours. In both situations, the officers observed vehicles departing the area of the reported crime. In neither case were the occupants of the vehicles identified as having been at the very location where the reported crime took place before their vehicles were stopped. In each case, one of the factors in the officer's decision to stop the vehicle for investigative purposes was that the vehicle was located in close proximity to the crime scene. In both cases, when the vehicles were stopped, there was no other traffic seen in the area.

We recognize that there may be instances when a person's conduct, viewed in a vacuum, appears purely innocent, yet when viewed in light of the totality of the circumstances, those actions give rise to reasonable suspicion. Woods, 956 S.W.2d at 38. We find, as we did in Brooks, that, under the totality of the circumstances in this case, the officers' suspicion that the occupants of appellant's vehicle could have been involved in illegal activity was reasonable and was based on articulable facts and circumstances. See Brooks, 830 S.W.2d at 819-21. Accordingly, we hold that the trial court did not err in denying appellant's motion to suppress.

Appellant's first point of error is overruled.

Jury Instruction  

In his second point of error, appellant claims the trial court erred in refusing to instruct the jury, pursuant to article 38.23 of Texas Code of Criminal Procedure, that, if it had a reasonable doubt that evidence was illegally obtained, it should disregard such evidence. See Tex. Code Crim. Proc. Ann. art 38.23 (Vernon Supp. 2002).

A defendant is entitled to a 38.23 jury instruction only if the evidence introduced at trial raises a fact issue regarding whether the evidence was obtained illegally. Bell v. State, 938 S.W.2d 35, 48 (Tex. Crim. App. 1996). When the essential facts concerning a search or arrest are not in dispute, the legality of the search or arrest is a question of law, not fact. Campbell v. State, 492 S.W.2d 956, 958 (Tex. Crim. App. 1973); Brooks v. State, 707 S.W.2d 703, 706 (Tex. App.--Houston [1st Dist.] 1986, pet. ref'd).

In this case, appellant does not refer us to any evidence in the record raising a factual dispute as to how the evidence was obtained. Appellant points to no inconsistencies in the testimony, and we find none in the record. Instead, appellant merely asserts that "the record in this cause contains some evidence, which, if believed, could have supported a conclusion that the appellant was the victim of a stop and search not supported by reasonable suspicion or probable cause." Accordingly, we find the trial court did not err by omitting an article 38.23 instruction. See Tex. Code Crim. Proc. Ann. art. 38.23; see also Bell, 938 S.W.2d at 48.

Appellant's second point of error is overruled.  

  Legal and Factual Sufficiency  

In his third and fourth points of error, appellant claims the evidence adduced at trial was legally and factually insufficient to sustain a conviction for attempted burglary of a habitation.

Standard of Review

When reviewing the legal sufficiency of the evidence, the court will look at the evidence in the light most favorable to the prosecution and determine if a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781 (1979); Garrett v. State, 851 S.W.2d 853, 857 (Tex. Crim. App. 1993). We will not re-evaluate the weight and credibility of the evidence, but only ensure the jury reached a rational decision. See Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993).
When reviewing the factual sufficiency of the evidence, we ask "whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof." King v. State, 29 S.W.3d 556, 563 (Tex. Crim. App. 2000). We will reverse the fact finder's determination only if a manifest injustice has occurred. Id. In conducting this analysis, we must avoid substituting our judgment for that of the fact finder. Id.

Attempted Burglary   

Criminal attempt occurs when a person acts with specific intent to commit an offense and does an act amounting to more than mere preparation that tends, but fails to, effect the commission of the offense. See Tex. Penal. Code Ann. § 15.01(a) (Vernon Supp. 2002). Attempted burglary is established by proving beyond a reasonable doubt, by either direct or circumstantial evidence, appellant did an act amounting to more than mere preparation to enter the habitation of another, without the owner's effective consent, intending to commit a felony or theft. See Tex. Penal Code Ann. § 30.02(a) (Vernon Supp. 2002); Roane v. State, 959 S.W.2d 387, 388-89 ((Tex. App.--Houston [14th Dist.] 1998, pet. ref'd). Mere presence of an accused at the scene of an offense is not alone sufficient to support a conviction, although it is a circumstance tending to prove guilt which, combined with other facts, may suffice to show the accused was a participant. See Johnson v. State, 537 S.W.2d 16, 18 (Tex. Crim. App. 1976).  

In this case, the evidence showed that, on the night of the attempted burglary, Officer Richardson heard low talking, gravel shuffling, and the tapping of glass coming from the rear of Theissen's home. After his radio made a loud sound, the tapping on the glass stopped, and he heard "scurrying," "fast movements," and a sound like someone hitting wood. Upon further investigation in the backyard, Richardson noticed that a patio light was unscrewed, that there was a crack in the dining room window, and that algae on the fence had been scraped or scuffed off. Immediately, he alerted other officers in the area to be on the lookout for suspicious persons, vehicles, or activity.

Officer Dew, who was just a block away from the scene, observed a vehicle turn on its lights and begin to drive away within a couple of minutes from Richardson's broadcast. It was early in the morning, and there was no other traffic in the area. After pulling over the vehicle, several officers testified that appellant was wearing dark clothes, he was out of breath, sweating heavily, and appeared to be nervous. Officers also noticed that appellant had algae smudges on his pants, which were consistent with the algae smudges Richardson observed on Theissen's fence. Theissen also testified that the crack in her dining room window was not there before the night of the attempted burglary.

After arresting appellant for having outstanding warrants, Richardson found a backpack in the car which contained, among other things, flashlights, infrared binoculars, screwdrivers, wire cutters, pliers, gloves, stockings, a handgun, and casino cards with appellant's name on them.

Although the evidence indicating appellant committed attempted burglary is entirely circumstantial, the State's evidence, and the inferences which can be drawn from that evidence, support a finding on each element of attempted burglary. Although appellant called three witnesses' in his defense, none of those witness's testimony undermined the State's case. We hold that the evidence is both legally and factually sufficient.

We overrule appellant's third and fourth points of error.

Conclusion

We affirm the trial court's judgment.

Margaret Garner Mirabal

Justice

Panel consists of Justices Mirabal, Taft, and Smith. ⁽⁴⁾

Do not publish. Tex. R. App. P. 47.

1. Tex. Penal Code Ann. §§ 15.01(a), 30.02(a) (Vernon Supp. 2002).

2. Bolivia street runs north-south and is the main street which runs through Thiessen's subdivision. Theissen's house is located on Birchmont, which runs east-west, and appellant's car was parked at the intersection of Bolivia and Birchmont.

3.

Where, as here, an appellant does not separately argue the existence of differences in protection against unreasonable search and seizure under the federal and state constitutions, we may deem the federal and state constitutional protections identical. Naraiz v. State, 840 S.W.2d 415, 432 (Tex. Crim. App. 1992) (state and federal constitutional protections deemed identical for purposes of appeal where appellant fails to present separate arguments showing why state constitutional protections differ from federal constitutional protections). Hence, we will address appellant's claims under the United States and Texas Constitutions concurrently.

4. The Honorable Jackson B. Smith Jr., retired Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.