Brown v. State

• Decision Date: 13 December 2000
• Docket Number: No. 10-99-045-CR,10-99-045-CR
• Citation: 35 S.W.3d 183
• Parties: (Tex.App.-Waco 2000) RASHANN MAURICE BROWN, Appellant v. THE STATE OF TEXAS, Appellee
• Court: Texas Court of Appeals

Page 183

35 S.W.3d 183 (Tex.App.-Waco 2000)

RASHANN MAURICE BROWN, Appellant v. THE STATE OF TEXAS, Appellee

No. 10-99-045-CR

IN THE TENTH COURT OF APPEALS

December 13, 2000

From the 13th District Court Navarro County, Texas Trial Court # 26,882

[Copyrighted Material Omitted]

Before Chief Justice Davis Justice Vance and Justice Gray (Justice Gray dissenting)

OPINION

REX D. DAVIS, Chief Justice

The court convicted Rashann Maurice Brown in a bench trial of taking a controlled substance (marihuana) into a correctional facility and sentenced him to two years' imprisonment. Brown claims in two issues that: (1) the court erred in overruling his motion to suppress because the State lacked probable cause to arrest him; and (2) the evidence is insufficient to support his conviction because it does not establish that he intentionally and knowingly took marihuana into the county jail.

BACKGROUND

DPS Trooper Jean Bangassar stopped a U-Haul truck on Interstate Highway 45 in the early afternoon for speeding. The driver identified himself with an Arkansas identification card. He informed Trooper Bangassar that a friend of one of the passengers had rented the truck but he could not find the rental agreement. He told her that they had come from Leesville, Louisiana and were going to Wilmer, Texas. Bangassar asked the occupants to exit the truck.

Brown sat in the right front seat of the U-Haul. He identified himself to the trooper as Shawn Johnson and gave a date of birth, but he could not recall his social security number. Bangassar suspected Brown was lying because a records check revealed no one with that name and birth date and because Brown could not recall his social security number even though he told her about a job he had working for a magazine company in Florida.

Bangassar noticed the rental agreement in the front console as the occupants exited. After obtaining a consent to search the U-Haul, Bangassar discovered two additional passengers were in the cargo compartment. The agreement reflected that Haden Drexler Brandies had rented the U-Haul in Pensacola, Florida as an "IN-TOWN RENTAL" and that the truck was three days' overdue. Brandies was not one of the truck's occupants. A check on the vehicle revealed that it had been reported stolen by the owner. The occupants told Bangassar that Brandies had left them without explanation when they were staying at a hotel in Leesville.

Bangassar arrested all five occupants for unauthorized use of a motor vehicle. She and other officers transported them to the Navarro County Justice Center. At the Justice Center, the officers took the suspects to a break room in the sheriff's department.¹ The officers advised the suspects of their Miranda rights and questioned them further about the U-Haul and its owner.

Brown stated that Brandies was his roommate in Florida and that he was with Brandies when he rented the truck. Bangassar determined from the interrogation of the suspects that Brown and another identified in the hearing only as "Shep" had been with Brandies in Florida and had traveled together with him from Florida. Accordingly, she turned Brown and "Shep" over to jail authorities to be booked in on the unauthorized use charge and had the other three occupants released from custody.

As the suspects sat in the break room, Deputy Bruce Venable asked them "if they had anything in their possession that they weren't suppose to have in their possession; namely, drugs, weapons, or anything like that." He cautioned them that "it's a completely different charge once you step behind the secured doors of the jail." None of the suspects turned over any contraband.

The officers took Brown inside the secured area of the jail to the booking area. After Brown was booked into the jail, he pulled a small quantity of marihuana from one of his pants pockets and handed it to Venable as he was undressing to take a shower.

SUPPRESSION RULING

Brown contends in his first issue that the court abused its discretion in overruling his motion to suppress because Trooper Bangassar did not have probable cause to arrest him. The State responds that probable cause existed for Brown's arrest under the totality of the circumstances.

An officer must have probable cause to make a warrantless arrest. See Amores v. State, 816 S.W.2d 407, 413 (Tex. Crim. App. 1991); Josey v. State, 981 S.W.2d 831, 841 (Tex. App.-Houston [14th Dist.] 1998, pet. ref'd). "Probable cause exists 'when the facts and circumstances within an officer's personal knowledge and of which he has reasonably trustworthy information are sufficient to warrant a person of reasonable caution in the belief that, more likely than not,' a particular suspect has committed an offense." Hughes v. State, 878 S.W.2d 142, 154 (Tex. Crim. App. 1992) (op. on reh'g) (quoting Castillo v. State, 818 S.W.2d 803, 805 n.4 (Tex. Crim. App. 1991)); Blackmon v. State, 926 S.W.2d 399, 404 (Tex. App.-Waco 1996, pet. ref'd).

[P]robable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity. By hypothesis, therefore, innocent behavior frequently will provide the basis for a showing of probable cause; to require otherwise would be to sub silentio impose a drastically more rigorous definition of probable cause than the security of our citizens demands. . . . In making a determination of probable cause the relevant inquiry is not whether particular conduct is "innocent" or "guilty," but the degree of suspicion that attaches to particular types of noncriminal acts.

Stull v. State, 772 S.W.2d 449, 452 n.1 (Tex. Crim. App. 1989) (quoting Illinois v. Gates, 462 U.S. 213, 243 n.13, 103 S. Ct. 2317, 2335 n.13, 76 L. Ed. 2d 527 (1983)).

At the time Trooper Bangassar decided to arrest Brown, she knew that: (1) he was a passenger in a stolen truck; (2) he was from the state in which the truck was stolen; (3) the purported lessor of the truck was not among its occupants; (4) the rental agreement which evidenced that the truck was three days' overdue was in the front console area near where Brown was sitting; (5) the other occupants could not identify Brown other than to say that they knew him only by the name he had given the officer; and (6) Brown did not know his own social security number despite claiming to be gainfully employed. Because the name and birth date Brown gave her did not produce any results when checked, Bangassar also had reason to believe Brown had lied to her about his identification.

From this evidence, we conclude that Trooper Bangassar had sufficient probable cause to believe that Brown was a participant in the commission of the unauthorized use of the stolen U-Haul truck. Accordingly, we overrule his first issue.

VOLUNTARINESS

Brown argues in his second issue that the evidence is "insufficient" to establish that he intentionally or knowingly took the marihuana into the jail. He claims that he could not have taken the marihuana into the jail with the requisite culpability because he was handcuffed when he was escorted into the jail. Thus, he contends that he "had no control over the [marihuana]" and "had no opportunity to dispose of [it] prior to being taken inside the jail facility."

The State relies on Deputy Venable's testimony to establish that Brown did have an opportunity to turn over the marihuana during the interview process and before he was escorted into the secured area of the jail. The State also places weight on Brown's written stipulation that he was intentionally and knowingly possessing marihuana when he was "placed into custody." According to the State, this constitutes sufficient evidence to support the conviction.

Since the advent of the factual sufficiency analysis of Clewis in 1996, we have articulated several different approaches for construing a "sufficiency" complaint to determine whether it challenges the legal or factual sufficiency of the evidence (or both). In Hoffman v. State, we concluded that the appellant's sufficiency point constituted a factual sufficiency challenge because he requested reversal and remand in his discussion of the relief required in the event of a favorable ruling on that point.² 922 S.W.2d 663, 671 & n.6 (Tex. App.-Waco 1996, pet. ref'd). In Caldwell v. State, we observed that we would construe a general sufficiency challenge as a challenge to the legal sufficiency of the evidence. 943 S.W.2d 551, 552 (Tex. App.-Waco 1997, no pet.). More recently, we have noted that we look to the arguments made and the cases cited to construe a general sufficiency issue. See Purvis v. State, 4 S.W.3d 118, 120 (Tex. App.-Waco 1999, no pet.).

As we have previously stated, counsel should clearly specify the type of sufficiency challenge being made and state the applicable standard of review. See Purvis, 4 S.W.3d at 119-20; Deckard v State, 953 S.W.2d 541, 543 n.3 (Tex. App.-Waco 1997, pet. ref'd). If counsel fails to do so, we may require re-briefing under Rule of Appellate Procedure 38.9. See Tex. R. App. P. 38.9. However, if we are satisfied that the briefing rules have not been flagrantly violated, we will construe the issue presented. Preferably, the argument and authorities presented in the brief will dictate whether an issue challenges the legal or factual sufficiency of the evidence or both. See Purvis, 4 S.W.3d at 120; Hoffman, 922 S.W.2d at 671 n.6. Otherwise, we will construe a general sufficiency challenge as a challenge to only the legal sufficiency of the evidence. See Caldwell, 943 S.W.2d at 552.

In this case, Brown does not specify whether he is challenging the legal or factual sufficiency of the evidence on this issue. Nevertheless, he cites Gonzales v. State as supporting authority. 638 S.W.2d 41 (Tex. App.-Houston [1st Dist.] 1982, pet. ref'd). Gonzales is a legal sufficiency case. See id. at 43. Accordingly, we construe Brown's second issue as a challenge to the legal sufficiency of the evidence. See Purvis, 4 S.W.3d at 120.

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