Carmouche v. State, 09-98-077CR

• Decision Date: 27 January 1999
• Docket Number: No. 09-98-077CR,09-98-077CR
• Citation: Carmouche v. State, 989 S.W.2d 392 (Tex. App. 1999)
• Parties: Ronald CARMOUCHE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 392

989 S.W.2d 392

Ronald CARMOUCHE, Appellant, v. The STATE of Texas, Appellee.

No. 09-98-077CR.

Court of Appeals of Texas Beaumont.

Submitted Jan. 4, 1999.

Decided Jan. 27, 1999.

Barry R. Bryan, Lufkin, for appellant.

Clyde M. Herrington, Dist. Atty., J. Dawn Armstrong, Asst. Dist. Atty., Lufkin, for state.

Before WALKER, C.J., BURGESS, and STOVER, JJ.

OPINION

DON BURGESS, Justice.

A jury convicted Ronald Carmouche of the offense of possession of a controlled substance and sentenced him to twenty years of confinement in the Texas Department of Criminal Justice, Institutional Division, and a $10,000 fine. Carmouche brings one point of error on appeal. In his sole point of error, Carmouche complains the trial court erred in overruling his motion to suppress and "in permitting the introduction of evidence obtained as the result of an unlawful search and arrest." Carmouche argues the officers who arrested him did not have "probable cause to justify the warrantless search conducted on Appellant."

In Guzman v. State, 955 S.W.2d 85 (Tex.Crim.App.1997), the Court of Criminal Appeals outlined the standard of review appellate courts must use in motion to suppress cases. In Guzman, the court held that courts of appeals should afford almost total deference to a trial court's determination of the historical facts that the record supports. Id. at 89. Furthermore, the courts of appeals should afford the same amount of deference to the trial court's rulings on application of law to fact questions, referred to as mixed questions of law and fact, if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor. Id. However, de novo review of these mixed questions of law and fact may be applied where the resolution thereof is not restricted to an evaluation of credibility and demeanor. Id. Therefore, because the trial court's decision to grant or deny the motion to suppress turned on the court's assessment of witness credibility and demeanor, we will review the record applying a deferential, abuse of discretion standard of review.

The facts of this case are as follows: in August 1996, Ricky Allen, a narcotics investigator with the Texas Department of Public Safety, received a phone call from Phylliss Williams, an informant. Williams told Allen that she and Carmouche would be traveling from Harris County to Nacogdoches and that Carmouche would be in possession of cocaine. Williams could not give information about the kind of car they would be traveling in so Allen instructed her to stop at a specific gas station en route so that officers could identify the vehicle. Allen made visual contact with Williams at an Exxon station in Corrigan, Texas. Williams was driving and Carmouche was a passenger. Williams' car was under visual surveillance until the car reached Lufkin, where Trooper Kervin Largent followed the car and stopped it for a traffic violation. The vehicle was searched after Williams consented. Largent patted down Carmouche and found him to be in possession of over nineteen hundred dollars. Cocaine was not found on Carmouche during his first pat-down.

The informant, Williams, subsequently told Texas Ranger Aaron D. Williams that Carmouche hid the cocaine in the crotch area of his pants. Ranger Williams then approached Carmouche and asked if he would consent to a pat-down. Carmouche responded that he had already been searched. Ranger Williams asked him if he could do another pat-down. Carmouche shrugged, turned around, and put his hands on the car and stood in the position to be searched. Ranger Williams then placed his hands on Carmouche's crotch area where the package of cocaine was located. He removed a large package of cocaine from Carmouche's pants. During a subsequent inventory of the car, Largent found a set of gram scales.

Carmouche alleges "the facts as articulated by officers did not warrant the investigative stop or the continued detention of appellant after the initial search." He further urges that the officers did not have probable cause to search him and that his continued detention and second pat-down exceeded the scope of the investigative detention.

Generally, an investigative detention is justified under both the state and federal constitutions if the officer, based on specific and articulable facts, reasonably surmises that the detained person may be associated with a crime. Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968); Davis v. State, 829 S.W.2d 218, 219 (Tex.Crim.App.1992). Having observed a traffic violation, Officer Largent acted reasonably when he stopped the vehicle in which Carmouche was a passenger. Strickland v. State, 923 S.W.2d 617, 620 (Tex.App.--Houston [1st Dist.] 1995, no pet.). As part of this temporary detention, it was permissible for Largent to ask Carmouche to step out of the automobile. Id.

A pat-down search during a detention is permissible when the police officer reasonably suspects he is dealing with an armed and dangerous individual. Maldonado v. State, 853 S.W.2d 746, 748 (Tex.App.--Houston [1st Dist.] 1993, no pet.) (citing Terry, 392 U.S. at 27, 88 S.Ct. at 1883). The officer does not have to be absolutely certain that the individual is armed, nor does he have to have probable cause to...