Lamar Arndretta Burton v. State

Affirmed and Memorandum Opinion filed March 31, 2009

Affirmed and Memorandum Opinion filed March 31, 2009.

In The

Fourteenth Court of Appeals

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NO. 14-08-00445-CR

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LAMAR ARNDRETTA BURTON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 185th District Court

Harris County, Texas

Trial Court Cause No. 1127633

M E M O R A N D U M  O P I N I O N

A jury found appellant, Lamar Arndretta Burton, guilty of possession, with intent to deliver, four to two hundred grams of cocaine.  The jury found two enhancement paragraphs true and assessed punishment at thirty-six years= confinement.  In a single issue, appellant contends the trial court Areversibly erred@ in denying his motion to suppress evidence.  Because our disposition is based on settled law, we issue this memorandum opinion and affirm.  See Tex. R. App. P. 47.4.

I.  Factual and Procedural Background

Based on events occurring at a Houston motel, appellant was charged with possession of cocaine, with intent to deliver.  He filed a pre-trial motion to suppress evidence, contending his detention was without probable cause or reasonable suspicion, his arrest and search were without probable cause and without a warrant, and the items seized were products of the illegal arrest and search. The trial court did not hold a pre-trial hearing, instead indicating that, if it granted the motion, the State would have no case and telling the parties it would therefore consider the motion after the officers testified.

Trial was to a jury.  The State called Houston Police Officers G.N. Duron and Jason Turrentine, who provided the following evidence.

On August 2, 2007, Duron and Turrentine were patrolling a high-crime area.  They had patrolled the area as partners for three to four years as part of a Ahot spot@ unit.  Many of the motels in the area, including the Royal Inn, experienced Aa lot of prostitution . . . stolen vehicles . . . [and] drug activity.@  The Royal Inn had been the scene of multiple arrests, with Duron and Turrentine having made between fifty and one-hundred arrests in the eight months preceding August 2.^[1]

Around 6:30 to 7:00 a.m., the officers saw four people, including appellant, in the Royal Inn=s parking lot.  Appellant and another man were facing each other, their hands were open, and they were looking at their hands.  According to Turrentine, AOne looked like he was taking something from the other one, which in that area we immediately believe that to be a narcotics transaction.@

As the officers entered the parking lot, appellant and the other man saw them and were  Astartled.@  Appellant started walking toward one of the motel rooms.  According to Duron, the other man was Areal fidgety.@  Duron thought he was Agoing to bolt.@  The officers told everyone Anot to move,@ but appellant walked quickly away.

Turrentine left his patrol car, followed appellant, and told him to stop.  Appellant ignored the command and continued toward his ground-level motel room. According to Turrentine, as appellant opened the door, Turrentine grabbed appellant=s left hand, and appellant dropped two rocks that Turrentine immediately recognized as cocaine.  The rocks landed inside the room to the left of the door.  Appellant=s momentum carried Turrentine and appellant into the room. Once inside, Turrentine saw a woman sitting on the bed and holding a crack pipe.

Appellant struggled with Turrentine inside the motel room.  Appellant told Turrentine to get out of the room and resisted Turrentine=s attempts to restrain him, causing Turrentine  twice to use his taser on appellant.  Turrentine eventually secured appellant and saw a pair of men=s shoes next to the bed.  One shoe was stuffed with small bills; the other, with cocaine.  Turrentine handcuffed appellant and the woman, collected the cocaine appellant had dropped, and recovered the pipe and cocaine from the bed.  After Turrentine took appellant and the woman to the patrol car, he returned to the motel room and searched it.

At the close of the State=s testimony, appellant testified out of the jury=s presence on his motion to suppress.^[2] According to appellant, when he saw the officers pull into the Royal Inn parking lot, he walked toward his motel room because he had a cup of beer in his hand and Athat would [have] been like . . . an open container,@ and he did not want to cause any confusion.  Appellant testified he did not hear anyone calling to him.  He also testified he was in his room with the door closed when Turrentine kicked in the door.  The focus of appellant=s argument at the hearing was on Turrentine=s allegedly illegal entry into the room.

The trial court denied the motion and entered the following findings in the record:

The Court finds, based on the credible testimony of both Officers Duron and Turrentine, that when they arrived at the location, the Royal Inn, the defendant was standing in the parking lot, that he then, as officers approached, went toward his room, that as he arrived at the room, the Court believes . . . Officer Turrentine=s testimony . . . that he asked the defendant to stop, that he reached to grab the defendant, the defendant opened the door and they were pulled into the room and at that time as that was all going on, observed the defendant throw down two rocks of crack cocaine which were then recovered.

And the Court does not find the testimony of Mr. Burton to be credible, that he was already inside his room with the door closed, as the officer pulled up, that the officer was not even out of his car when Mr. Burton got into the room and shut the door.

The State rested.       

Appellant testified in his own behalf and called two additional witnesses.  The jury found appellant guilty.

II.  Preservation of Error

In a single issue, appellant contends the trial court Areversibly erred@ when it denied his motion to suppress evidence.  The State initially argues appellant failed to preserve this issue for appeal because he did not timely object and because his complaint in the trial court does not comport with his complaint on appeal.  We disagree.

Appellant filed a pre-trial motion to suppress evidence.  Before voir dire, appellant=s counsel drew the court=s attention to the motion and indicated he was aware the trial court carried that motion with trial.  The following interaction then ensued:

THE COURT: As far as the motion to suppress, what the State=s going to do is when they get ready to offer the drugs, they=re going to come up to the bench and I=m going to ask you if you have any evidence to put in front of the jury=s presence.  If it=s something you=re going to put on in front of the jury=s presence, you can decide whether or not I can rule on it or I can rule then or we=ll hear testimony outside the jury=s presence.  I=ll do that and rule at that point.  Okay?

[Defense Counsel]: All right.  I guess what I was thinking was since there may be some mention in the State=s opening argument about these drugs and what was found and these type [sic] things, where they were found, I was thinking more of a hearing prior to opening statement to the jury so that if the Court does grant the motion C

THE COURT: If the Court grants the motion, what else does the State have?

[Defense Counsel]:  I understand.

THE COURT: Nothing.

[Defense Counsel:] Okay.  All right.

The trial court=s comments to defense counsel in the present case are virtually indistinguishable from the comments in Garza v. State, in which the court of criminal appeals held the defendant had preserved his challenge to denial of his motion to suppress.  126 S.W.3d 79, 81B85 (Tex. Crim. App. 2004).  As in Garza, appellant was reasonable to interpret the court=s comments Aas an instruction to seek a ruling at the conclusion of the State=s presentation of evidence, and not sooner.@  Id. at 85.

The State also characterizes appellant=s trial court complaint as relating only to Turrentine=s entry into the motel room.  In his oral argument to the court, appellant did focus exclusively on this aspect of the events.  In his written motion, however, he also argued his initial detention was illegal.

We conclude appellant has preserved his complaint for appeal.  We turn now to the merits of his argument.

III.  Standard of Review

We review a trial court=s ruling on a motion to suppress for abuse of discretion.  See Alvarado v. State, 853 S.W.2d 17, 23 (Tex. Crim. App. 1993).  Accordingly, we must give great deference to the trial court=s findings of historical facts as long as the record supports the findings, especially when the findings are based on an evaluation of credibility and demeanor.  See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).  We afford the same amount of deference to the trial court=s ruling on Amixed questions of law and fact@ when those issues turn on an evaluation of witnesses= credibility and demeanor.  Id.  When rulings on Amixed questions of law and fact@ do not turn on an evaluation of credibility and demeanor, we review the rulings de novo.  Id.  If the trial court=s decision is correct on any theory of law applicable to the case, we must sustain the decision.  State v. Ross, 32 S.W.3d 853, 855B56 (Tex. Crim. App. 2000).

IV.  Analysis

Appellant argues the officers= initial stop of him was not justified.  He then argues, because he was illegally detained, he cannot be considered to have abandoned the rocks of  cocaine.  Finally, he contends, because Turrentine=s entry into appellant=s motel room was not justified, the plain view doctrine does not support seizure of the evidence inside the room. We turn to appellant=s first, and main, argument.

A police officer may stop and briefly detain a person for investigative purposes if, under the totality of the circumstances, the officer has reasonable suspicion supported by articulable facts that the person detained is, has been, or soon will be, engaged in criminal activity.  Terry v. Ohio, 392 U.S. 1, 21 (1968); Woods v. State, 956 S.W.2d 33, 38 (Tex. Crim. App. 1997). Whether a detention is reasonable under the totality of the circumstances turns on the content and reliability of the information the officer possesses.  Alabama v. White, 496 U.S. 325, 330 (1990).

By the time Turrentine told appellant to stop, the officers had observed (1) appellant=s  movement toward a motel room when he saw the officers arrive at the parking lot, (2) appellant=s presence in a high crime area, (3) appellant=s having appeared to have exchanged something with a companion in the parking lot, and (4) the companion=s Afidgety@ behavior.  Although flight alone is insufficient to justify an investigatory detention, flight from a show of authority may be a factor supporting reasonable suspicion that a person is involved in criminal activity.  Salazar v. State, 893 S.W.2d 138, 141 (Tex. App.CHouston [1st Dist.] 1995, pet. ref=d, untimely filed).  Presence in a high crime area is also a factor.  Illinois v. Wardlow, 528 U.S. 119, 124 (2000).  Although the behavior of appellant and his companion was not overtly criminal, that behavior, coupled with Turrentine=s knowledge of drug transactions, could constitute yet another factor supporting a reasonable suspicion they were engaging in criminal activity.  See Lunde v. State, 736 S.W.2d 665, 667 (Tex. Crim. App. 1987).^[3]  In short, Turrentine had reasonable suspicion to stop appellant.

Additionally, when appellant continued moving away after Turrentine told him stop, Turrentine had probable cause to arrest him for evading detention.  See Rue v. State, 958 S.W.2d 915, 918 (Tex. App.CHouston [14th Dist.] 1997, no pet.).  Even if one assumes Turrentine pursued appellant into his motel room, Turrentine=s warrantless entry into the room was justified under the exigent circumstances exception to the warrant requirement.  See id.  Thus, despite appellant=s contention to the contrary, Turrentine=s detention of appellant and Turrentine=s presence at the door of, or in, appellant=s motel room were lawful.

At that point, Turrentine saw appellant drop what Turrentine immediately believed were two rocks of crack cocaine and saw the woman sitting on the bed and holding a crack cocaine pipe.  Seizing property in plain view involves no invasion of privacy and is presumptively reasonable.  Walter v. State, 28 S.W.3d 538, 541 (Tex. Crim. App. 2000).

For a seizure to be justified under the plain view doctrine, (1) the police officer must lawfully make the initial intrusion or otherwise properly be in a position where he can view the contraband, (2) the officer must discover the incriminating evidence inadvertently, and (3) it must be Aimmediately apparent@ to the police that the items they observe may be evidence of a crime, contraband, or otherwise subject to seizure.  Id.  Appellant contests only the first of these criteria. However, as we have explained above, Turrentine was properly at the motel room door when he observed appellant drop the cocaine and saw the woman on the bed with the crack cocaine pipe.^[4]  At either that point, or in the process of restraining appellant and removing appellant and the woman from the room, Turrentine also observed the cocaine and money in the shoes.  Seizure of the evidence was justified under the plain view doctrine.^[5]

The trial court did not abuse its discretion in denying appellant=s motion to suppress evidence.  Accordingly, we overrule appellant=s sole issue and affirm the trial court=s judgment.

/s/        Charles W. Seymore

Justice

Panel consists of Chief Justice Hedges and Justices Anderson and Seymore.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  When asked whether the number of arrests was less than one hundred or less than fifty, Duron responded it was less than one hundred, but he did not know whether it was less than fifty.

^[2]  The State=s chemist testified immediately after the officers and before the court heard the motion.

^[3]  Appellant analogizes his case to Gurrola v. State, 877 S.W.2d 300 (Tex. Crim. App. 1994), and  Smith v. State, 759 S.W.2d 163 (Tex. App.CHouston [14th Dist.] 1988, pet. ref=d).  In Gurrola, police observed four persons, including the defendant, who were Aengaged in no more than a heated discussion@ in an apartment parking lot and who dispersed when the police arrived.  877 S.W.2d at 302.  Smith was decided under the Aas consistent with innocent as with criminal activity@ test.  See 759 S.W.2d at 165.  The court of criminal appeals repudiated that test in Woods v. State, 956 S.W.2d 33, 38 (Tex. Crim. App. 1997).

^[4]  Because Turrentine=s presence at the motel door was not illegal, appellant=s argument the cocaine rocks were not Aabandoned@ also fails.  See Brimage v. State, 918 S.W.2d 466, 507 (Tex. Crim. App. 1996) (A[A]bandonment of property occurs if (1) the defendant intended to abandon the property and (2) his decision to abandon the property was not due to police misconduct.@) (plurality op. on reh=g).   

^[5]  Before securing appellant in the patrol car, Turrentine, at a minimum, had seized the two rocks of cocaine appellant dropped and two rocks of cocaine from the bed.  As discussed above, he had also seen the shoes containing the money and the cocaine.  Neither the record nor the parties= briefs clarify whether Turrentine collected the contents of the shoes before or after appellant was in the patrol car. Appellant does not argue reentry of the motel room was unjustified or yielded illegally seized evidence.