Hollingsworth v. State

• Decision Date: 30 March 2000
• Citation: 15 S.W.3d 586
• Parties: (Tex.App.-Austin 2000) James Hollingsworth, Appellant v. The State of Texas, Appellee NO. 03-98-00613-CR
• Court: Texas Court of Appeals

Page 586

15 S.W.3d 586 (Tex.App.-Austin 2000)

James Hollingsworth, Appellant v. The State of Texas, Appellee

NO. 03-98-00613-CR

COURT OF APPEALS, OF TEXAS AUSTIN.

March 30, 2000

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT NO. 981932, HONORABLE FRED A. MOORE, JUDGE PRESIDING

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Before Chief Justice ABOUSSIE, Justices B.A. SMITH and YEAKEL.

LEE YEAKEL, Justice.

A jury found appellant James Hollingsworth guilty of tampering with physical evidence and possession of a controlled substance, cocaine, in an amount of less than one gram. See Tex. Penal Code Ann. § 37.09 (West Supp. 2000); Tex. Health & Safety Code Ann. § 481.115(b) (West Supp. 2000). Upon the jury's assessment of punishment, the district court sentenced appellant to four years' confinement in the Texas Department of Criminal Justice Institutional Division for tampering with physical evidence¹ and two years' confinement in a state jail facility for possessing cocaine. Appellant presents seven points of error on appeal. We will affirm in part, and reverse and render in part.

BACKGROUND

In the late afternoon of March 7, 1998, Officer Kenneth Koch of the Austin Police Department (APD) received a radio call reporting a knife fight in the 1600 block of East Third Street between a black male and a white male.² Koch is familiar with this area and described it as a "high crime, high drug trafficking" area. Koch, who was in his patrol car when the call came in, went to the location. When Koch arrived, he observed appellant, a white male, walking northbound on Chalmers Avenue, heading toward the 1600 block of East Fourth Street. Koch testified he approached appellant because he believed appellant might have been involved in the fight. His belief was based on the man's location and a physical description.³ Appellant displayed no signs that he had been in a fight, and Koch did not see a knife or any other weapon on appellant.

Koch followed appellant in his marked patrol car at a slow rate of speed, trying to catch up with appellant. According to Koch, when appellant saw the police car, he started walking away at a faster pace. Koch testified this "raised [his] suspicions" that appellant was involved in some kind of illegal activity. When appellant began to walk down East Fourth, Koch stopped and exited his vehicle, asking appellant to stop. Appellant kept walking. Koch again asked appellant to stop. Appellant turned and looked at Koch but continued to walk away. At this point, appellant was walking on the sidewalk. There was a dumpster between the sidewalk and the street. Appellant "made a quick furtive movement towards the dumpster." Koch testified that he saw appellant "making a motion with his tongue in his mouth." Koch saw appellant duck his head and shoulder behind the dumpster and emerge a few seconds later. Koch was about twenty feet away from appellant at this time and had not physically restrained him. Koch testified that appellant had not stopped when appellant ducked behind the dumpster.

At about the time Koch exited his vehicle, Austin Police Officer Gregory White arrived on the scene. White was about ten feet in front of appellant and saw the events unfold. White's testimony corroborated Koch's, but more significantly, White was able to see appellant when appellant ducked behind the dumpster. White testified that appellant spit out two off-white, cube-shaped objects, which he suspected might be crack cocaine. At the time appellant spit out the objects, White was about ten feet in front of appellant, Koch was about twenty feet behind appellant, and appellant was located between a building and the dumpster.

After appellant emerged from behind the dumpster, Koch approached appellant, grabbed his jacket, and when appellant resisted, grabbed appellant from behind. They both fell to the ground, and appellant was placed in custody. Koch testified that appellant was being detained at this point to investigate the fighting incident. White then informed Koch that he had seen appellant spit out crack cocaine when he ducked behind the dumpster. Both officers testified that it is common for people to carry crack cocaine in their mouths to avoid its being detected.

Appellant was arrested for possession of a controlled substance. White seized two cube-shaped objects from the ground near the dumpster. White testified that the objects were "shiny looking" and appeared to be wet, suggesting they had been in someone's mouth because the ground was not wet at that time. Laboratory tests later confirmed that the substance was cocaine. Appellant denied that the cocaine was his or that he "ducked" behind the dumpster. He maintains that he was merely walking around the dumpster and White must have seen him spit Copenhagen tobacco.

Appellant filed a motion to suppress the cocaine claiming that the "arrest and search of [appellant] and the seizure of items . . . was effected without valid warrant, or probable cause, or reasonable suspicion, in violation of the Fourth and Fourteenth Amendments to the United States Constitution, Article I § 9 of the Texas Constitution, Article 38.23 of the Texas Code of Criminal Procedure, and Chapter 14 of the Texas Code of Criminal Procedure."⁴ Following a hearing, a magistrate denied the motion and made findings and conclusions, all of which were adopted by the district court.

On October 5, 1998, appellant was tried to a jury, which found him guilty of tampering with physical evidence and possession of less than one gram of cocaine. See Tex. Penal Code Ann. § 37.09; Tex. Health & Safety Code Ann. § 481.115(b). The district court assessed punishment at four and two years, respectively. In seven points of error appellant complains of both convictions and his punishment.

DISCUSSION

The Legality of the Seizure

In his first point of error, appellant complains that the district court erred in overruling appellant's motion to suppress because the evidence used against him was seized as a result of an illegal stop or detention. Specifically, appellant argues that his detention was based on a mistake and that the officer had no reasonable suspicion that appellant committed a crime or was about to commit a crime. The State responds by arguing that (1) appellant does not have standing to contest the seizure since he denied any possessory interest in the cocaine; (2) appellant has waived several of his arguments because he did not make them to the district court; and (3) if this Court reaches the merits of appellant's claims, then under California v. Hodari D., 499 U.S. 621 (1991), and Johnson v. State, 912 S.W.2d 227 (Tex. Crim. App. 1995), appellant voluntarily abandoned the cocaine and thus there was no illegal seizure. Assuming without deciding that appellant has standing to challenge the seizure, we conclude that appellant has preserved his arguments but voluntarily abandoned the cocaine.

The appropriate standard for reviewing a trial court's ruling on a motion to suppress evidence has recently been clarified: as a general rule, appellate courts should give almost total deference to the trial court's determination of the historical facts that the record supports, especially when the trial court's fact findings are based on evaluations of credibility and demeanor. See Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). However, an appellate court should review de novo the trial court's application of search-and-seizure law. See Carmouche, 10 S.W.3d at 327 (citing Guzman, 955 S.W.2d at 88-89). Thus, we will take the officers' version of the events as true and determine whether the cocaine was legally seized. See id.

We will assume for the sake of argument that when Koch approached appellant, he did not have reasonable suspicion warranting an investigative detention. See Comer v. State, 754 S.W.2d 656, 657 (Tex. Crim. App. 1986) (to temporarily detain individual, officer must have specific, articulable facts that create reasonable suspicion that individual is connected with criminal activity warranting further investigation). However, police and citizen encounters may occur when police do not have probable cause or reasonable suspicion to detain a citizen. See Armstrong v. State, 966 S.W.2d 150, 152 (Tex. App.--Austin 1998, no pet.). A police officer may approach a citizen without probable cause or reasonable suspicion to ask questions or even to request a search. See Hodari D., 499 U.S. at 628; Johnson, 912 S.W.2d at 235; Armstrong, 966 S.W.2d at 152. As long as the citizen to whom the officer puts the question remains free to disregard the question and walk away, there is no detention and no intrusion upon the citizen's liberty or right of privacy implicating the Fourth Amendment. See United States v. Mendenhall, 446 U.S. 544, 544 (1980); Hawkins v. State, 758 S.W.2d 255, 259 (Tex. Crim. App. 1988); Armstrong, 966 S.W.2d at 152.

Koch approached appellant to question him and determine whether he had been involved in the reported fight. At this point, there was no detention and no intrusion upon appellant's liberty or right of privacy. See Mendenhall, 446 U.S. at 544; Hawkins, 758 S.W.2d at 259; Armstrong, 966 S.W.2d at 152. Before Koch physically detained appellant, appellant spit out the cocaine. Appellant argues that he was seized before he spit out the cocaine. Appellant asserts that either (1) he had complied with the police order to stop before he spit out the cocaine; or (2) he was seized when, based on the surrounding circumstances, he reasonably felt that he was not free to leave because he was "blocked in" by the police officers.

In Hodari D. the United States Supreme Court clarified the definition of "seizure": under the Fourth Amendment, a seizure occurs when the suspect has yielded to authority. See Hodari D., 499 U.S. at 626. The Texas Court of Criminal Appeals has...