Furr v. State
| Decision Date | 22 January 2015 |
| Docket Number | NUMBER 13-14-00287-CR |
| Parties | CHRIS FURR, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
On appeal from the 214th District Court of Nueces County, Texas.
Before Chief Justice Valdez and Justices Rodriguez and Garza
Appellant, Chris Furr, pleaded guilty to possession of less than one gram of heroin, a state jail felony, see TEX. HEALTH & SAFETY CODE ANN. § 481.115(b) (West, Westlaw through 2013 3d C.S.), and was sentenced to two years' imprisonment, with the sentence suspended and Furr placed on community supervision for three years. Furr argues onappeal that the trial court erred by denying a pre-trial motion to suppress evidence. We affirm.
Furr's motion requested suppression of all evidence obtained "as the result of an illegal traffic stop, arrest, or search in violation of the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution, Article 1, Sections 9, 10, [and] 19 of the Texas Constitution, [and] Articles 1.04, 1.05, 1.06, and 38.23 of the Texas Code of Criminal Procedure."
At the suppression hearing, Sergeant Mike Ayala of the Corpus Christi Police Department testified that he was on patrol at around 2:00 p.m. on August 28, 2012, when he was advised of an anonymous report of "two males using drugs" near 513 Sam Rankin Street, which Ayala testified is a known "high crime, high drug" area. He stated that Officer George Alvarez had already located the subjects at the time he arrived at the scene. The following colloquy occurred:
Q. [Prosecutor] Once you arrived to back him up, what did you and Officer Alvarez do?
A. [Ayala] Officer Alvarez was making contact with a—an individual by the name of Collier.
. . . .
Q. Did you hear the call that Officer Alvarez was out on?
A. Yes, sir.
Q. And was this gentleman that he was talking to of the same description that came over the call?
A. Yes, sir.
Q. Were there two individuals involved?
A. Two individuals.
The officers followed Furr into the Mother Teresa Shelter, which was about twenty or thirty yards away. Ayala contacted Furr in the "yard" of the shelter. According to Ayala, when he approached Furr, Furr "was acting kind of suspicious, kind of anxious, nervous, sweating, like he was trying to be evasive and avoid us." Ayala explained that he then conducted a pat-down to ensure that Furr was not armed. In conducting the pat-down, Ayala felt something in Furr's right front pocket which Ayala knew from experience to be a crack pipe. Ayala removed the pipe along with two syringes from Furr's pocket. Ayala stated that, at this point, Furr was under arrest for possession of drug paraphernalia. Ayala then asked Furr for identification, and Furr said that it was in his wallet. Ayala opened Furr's wallet and observed "two small little balloons" which Ayala believed contained heroin.
On cross-examination, Ayala conceded that he did not hear the initial report of drug activity; he did not know the identity of the individual that provided the tip; and he did not know if the informant saw a drug transaction or if the informant even saw any drugs at all.The only information provided to Ayala was that there were two individuals using drugs at that specific location, along with a description of the individuals. Ayala stated that Furr met the description of one of the individuals allegedly using drugs. Ayala acknowledged that there was no report that the alleged drug users were armed or dangerous. He further clarified that he did not actually witness Furr "walk[] away furtively" but was rather informed of that by Alvarez. He did not see Furr commit any crimes, but decided to follow him because "he fit the description of the individuals on the call." He clarified that the tipster had given a description only of the suspect's clothing, not of the suspect's physical characteristics. Ayala denied that he felt threatened or afraid, but he conducted the pat-down because "I'm not going to take a chance with someone that's supposedly using drugs." Ayala testified that, when he asked Furr if he was carrying a weapon, Furr "didn't respond initially" but "was just kind of out of it" and "looked like he was under the influence of a drug."1
Alvarez testified that he was on patrol on the day and time in question. He was advised of "two subjects"—one was a white male wearing all black, and the other was a white male wearing a black shirt and a brown backpack. Alvarez approached Collier, who matched one of the descriptions. At the time, Furr was not close to Alvarez but rather "continued into the area of the—the shelter." Alvarez stated that, initially, Furr and Collier were "walking together." He stated: "I passed them and I—since they fit the description, I looked back in the mirror and I saw them looking back." According to Alvarez, Furr then "went into the shelter area." Alvarez could not remember if Furr "hurried" into the shelterarea but he agreed that Furr looked back over his shoulder as he went there. Alvarez could not recall whether Furr appeared to be under the influence of alcohol or any other substance. Ayala then arrived at the scene to provide backup. Alvarez observed Ayala pat down and arrest Furr.
Like Ayala, Alvarez conceded on cross-examination that he did not know the identity of the individual that provided the tip. The tip merely referenced two individuals "using drugs"; it did not indicate what kind of drugs were being used or that a transaction was taking place. Alvarez himself observed no crimes taking place, nor did he observe any drugs in plain sight. Alvarez conceded that, at the time Furr walked away, he had the right to do so. Alvarez further testified:
Alvarez agreed with defense counsel that he "didn't have any reason to believe [Furr] hadany weapons on him or that he was involved in any sort of criminal activity other than [the] anonymous call."
The trial court denied the motion to suppress. Furr later pleaded guilty and was convicted and sentenced. The trial court certified Furr's right to appeal. See TEX. R. APP. P. 25.2(d).
In reviewing a trial court's ruling on a motion to suppress, we apply a bifurcated standard of review, giving almost total deference to a trial court's determination of historic facts and mixed questions of law and fact that rely upon the credibility of a witness, but applying a de novo standard of review to pure questions of law and mixed questions that do not depend on credibility determinations. Martinez v. State, 348 S.W.3d 919, 923 (Tex. Crim. App. 2011).
We review the trial court's decision for an abuse of discretion. Id. "We view the record in the light most favorable to the trial court's conclusion and reverse the judgment only if it is outside the zone of reasonable disagreement." State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006). The trial court's ruling will be upheld if it "is reasonably supported by the record and is correct on any theory of law applicable to the case." Id. (citing Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990)). However, a trial court has no discretion in determining what the law is or applying the law to the facts. State v. Kurtz, 152 S.W.3d 72, 81 (Tex. Crim. App. 2004). Therefore, the question of whether a given set of historical facts gives rise to reasonable suspicion is reviewed de novo. Wade v. State, 422 S.W.3d 661, 669 (Tex. Crim. App. 2013).
When, as here, no findings of fact or conclusions of law are filed, we assume the trial court made all findings in support of its ruling that are consistent with the record. Carmouche v. State, 10 S.W.3d 323, 327-28 (Tex. Crim. App. 2000); cf. Vasquez v. State, 411 S.W.3d 918, 920 (Tex. Crim. App. 2013) ().
The Fourth Amendment to the United States Constitution provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . ." U.S. CONST. amend. IV. "[E]vidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America" is inadmissible in a criminal case. TEX. CODE CRIM. PROC. ANN. art. 38.23 (West, Westlaw through 2013 3d C.S.).
In Terry v. Ohio, the United States Supreme Court held:
[W]here a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently...
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