Balentine v. State

• Decision Date: 03 April 2002
• Docket Number: No. 73490.,73490.
• Citation: 71 S.W.3d 763
• Parties: John Lezell BALENTINE, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

71 S.W.3d 763

John Lezell BALENTINE, Appellant, v. The STATE of Texas.

No. 73490.

Court of Criminal Appeals of Texas.

April 3, 2002.

C.J. McElroy, Amarillo, for Appellant.

John L. Owen, Assistant District Attorney, Amarillo, Matthew Paul, State's Attorney, Austin, for State.

OPINION

MEYERS, J., delivered the unanimous opinion of the Court.

Appellant was convicted of capital murder on April 19, 1999. Tex. Pen.Code Ann. § 19.03(a)(7)(A) (Vernon 1994). Pursuant to the jury's answers to the special issues set forth in Texas Code of Criminal Procedure Article 37.071, Sections 2(b) and 2(e), the trial judge sentenced appellant to death. Art. 37.071 § 2(g).¹ Direct appeal to this Court is automatic. Art. 37.071 § 2(h). Appellant raises four points of error but does not challenge the sufficiency of the evidence at either stage of the trial. We will affirm.

I.

In his first point of error, appellant asserts the trial court abused its discretion in denying his motion to suppress evidence obtained as the result of a detention and search that violated his rights under the Fourth Amendment.² Appellant also argues that the investigative detention evolved into an arrest that was not supported by probable cause. In order to address these contentions, we review the evidence introduced at the hearing on appellant's motion to suppress.³

Officer Timothy Hardin of the Amarillo Police Department testified that he was dispatched on a shots-fired call at 2:26 a.m. on Wednesday, January 21, 1998. When Hardin arrived, the complainant stated that he thought he had heard .22 caliber shots to the east of his residence. Hardin looked around and found nothing in the complainant's backyard or the alleyway behind the house. Two other officers then arrived and offered to assist Hardin by searching the area in their vehicle. After the officers left, Hardin noticed a man, later identified as appellant, walking down the street two houses away from the complainant's residence.

Hardin testified that when he first saw appellant, appellant had his hands in his pockets, appeared to be nervous, and was constantly looking over his shoulder in Hardin's direction. In addition, appellant was walking away from Hardin at a brisk pace. Hardin ordered appellant to stop and raise his hands in the air. Hardin then approached appellant, and conducted a pat-down "Terry frisk"⁴ because he "didn't know if [appellant] might be the person who had fired shots" and that he "wanted to make sure that there was no weapon on [appellant] while I was speaking to him." Hardin did not feel any weapons.⁵

Nevertheless, Hardin suspected that appellant may have been involved in the reported gunfire and he escorted appellant to the back seat of his patrol car for questioning. When Hardin asked appellant why he was in the area, appellant stated that he was walking from a WalMart, which was approximately five miles away, to his sister's house, which was located several miles across town. Appellant identified himself as "John Lezell Smith" and told Hardin that he was staying with his sister. Appellant initially stated that he did not know his social security number but later told Hardin five of the digits. He then stated that he had planned to visit a friend in the area and agreed to let Hardin ask this friend to identify appellant because appellant did not have a driver's license or an identification card.

Hardin drove appellant to his friend's residence. Appellant's friend identified him as "John" and stated that he lived a block away, which contradicted appellant's story that he was staying with his sister several miles across town. Appellant explained that his friend was unaware he had moved. When Hardin asked appellant to show him where he used to live, appellant gave Hardin an address that turned out to be an empty lot.

Hardin asked appellant if he had ever been arrested in Amarillo and appellant replied that he had not. Hardin contacted the police dispatcher to run a records check. According to the police dispatcher, "John Lezell Smith" had been arrested for traffic warrants. Hardin again became concerned for his safety because he felt that a subject who would lie to him during questioning might "commit some type of unsafe act or conceal a weapon."

Hardin placed appellant in handcuffs, had him exit the vehicle, and conducted a second, more thorough pat-down search. When he patted down the outside of appellant's front pants pocket, he felt what he thought was a small pocket knife. Hardin put his hand in appellant's pocket and felt that the object was actually a lighter. While Hardin was feeling the lighter, his hand touched an object that he immediately recognized as a bullet. He removed the object from the pocket and saw that it was a .32 caliber bullet. Appellant told Hardin that he had recently been on a hunting trip and forgotten the bullet in his pocket. Hardin again placed appellant in the patrol car and called a supervisor who told Hardin to complete a field interview card and then release appellant because possession of a bullet was not against the law.

Hardin returned the bullet to appellant and offered him a ride to his sister's house, which appellant accepted. The trip took five to ten minutes and Hardin dropped appellant off at the residence at 3:36 a.m. Hardin returned to the area where he had detained appellant to have another look around but found nothing. Later that day, officers for the Amarillo Police Department were called to the scene of a triple homicide that had occurred at a residence fifty yards from where Officer Hardin encountered appellant. The police identified appellant as a suspect the day the victims were discovered. Appellant was eventually arrested in July of 1998 in Houston. At a pre-trial suppression hearing, appellant moved to suppress the physical evidence obtained as a result of Officer Hardin's search. The trial court denied the motion and Hardin testified at trial about the bullet he found in appellant's pocket. In addition, the State introduced evidence that the three victims were killed by .32 caliber bullets and that three spent cartridge shells found at the scene of the murders were marked identically to the bullet found on appellant.

We review a trial court's ruling on a motion to suppress evidence for an abuse of discretion. Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App.1996). In this review we give "almost total deference to the trial court's determination of historical facts" and review the court's application of search and seizure law de novo. Guzman v. State, 955 S.W.2d 85, 88-89 (Tex.Crim.App.1997). Here, the trial court did not make explicit findings of historical facts, so we review the evidence in a light most favorable to the trial court's ruling and assume that the trial court made implicit findings of fact supported in the record. Carmouche v. State, 10 S.W.3d 323, 327-28 (Tex.Crim.App.2000) (citations omitted).

A. Lawfulness of initial detention

An officer may conduct a brief investigative detention, or "Terry stop," when he has a reasonable suspicion to believe that an individual is involved in criminal activity. Terry, 392 U.S. at 21, 88 S.Ct. 1868; Carmouche, 10 S.W.3d at 329. The reasonableness of a temporary detention must be examined in terms of the totality of the circumstances and will be justified when the detaining officer has specific articulable facts, which, taken together with rational inferences from those facts, lead him to conclude that the person detained actually is, has been, or soon will be engaged in criminal activity. Woods v. State, 956 S.W.2d 33, 38 (Tex.Crim.App. 1997).

Appellant argues that Officer Hardin had only a hunch, not reasonable suspicion, to detain him. In support of this contention, he asserts that the only thing Officer Hardin observed on the date in question was a man crossing the street who looked back over his shoulder, as most individuals in a residential area would do if they noticed a police car.⁶ Additionally appellant argues that the timing of the detention was suspect. Appellant notes that once dispatched to the scene, Hardin spent several minutes interviewing the complainant, searching the area around the complainant's residence and speaking to the two officers who arrived to assist him. Appellant argues that because a significant amount of time had elapsed since the placement of the shots-fired call, the fact that appellant was seen crossing the street nearby was no longer suspicious. In other words, appellant's activity could not have been an articulable fact on which to base reasonable suspicion because any connection to criminal activity was too tenuous to justify a stop.

However, the totality of the circumstances demonstrate that Officer Hardin had reasonable suspicion to detain appellant. Woods, 956 S.W.2d at 38. Shortly after arriving on the scene of a shots-fired call, Hardin observed appellant walking across the street nearby the complainant's residence. It was approximately 2:30 in the morning in what Hardin described as a residential, low-traffic area. Appellant appeared nervous and was walking briskly away from the reported direction of the gunfire while constantly looking back over his shoulder in Hardin's direction. See Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (nervous, evasive behavior is a pertinent factor in determining reasonable suspicion for a Terry stop). Officer Hardin was able to point to specific articulable facts that led him to conclude appellant was or would soon be engaged in criminal activity. Viewing the totality of the circumstances, we conclude Hardin had reasonable suspicion to detain appellant.

B. Weapons Search

Appellant also challenges the validity of the second pat-down search performed by Hardin, during which Hardin discovered the .32 caliber bullet.

Law enforcement personnel may conduct a limited search for weapons of a suspect's outer clothing, even in the...