Johnson v. State, No. 07-07-0327-CR (Tex. App. 1/15/2009)
| Decision Date | 15 January 2009 |
| Docket Number | No. 07-07-0327-CR.,07-07-0327-CR. |
| Parties | DESMOND DE-RON JOHNSON, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
Appeal from the 108th District Court of Potter County, No. 54,577-E, Honorable Abe Lopez, Judge.
Panel D: Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Following a plea of not guilty, Appellant, Desmond De-Ron Johnson, was convicted by a jury of possession of marihuana in an amount of five pounds or less but more than four ounces, a state jail felony. See Tex. Health & Safety Code Ann. § 481.121(b)(3) (Vernon 2003). The jury's finding that the offense was committed in a drug-free zone formed the basis of punishment as a third degree felony. See § 481.134(d)(1) (Vernon Supp. 2008). Appellant was sentenced to eight years confinement and an $8,000 fine. By his first four issues, Appellant maintains he was denied due process and a fair trial by the trial court's (1) denial of his motion to suppress; (2) refusal to instruct the jury pursuant to article 38.23 of the Texas Code of Criminal Procedure; (3) refusal to instruct the jury pursuant to article 38.41 of the Texas Code of Criminal Procedure; and (4) refusal to enforce its own discovery order and allowing testimony of witnesses and expert witnesses when they had not been disclosed by the State. By issues five and six, Appellant challenges the legal and factual sufficiency of the evidence to support the drug-free zone enhancement to his conviction. By his seventh and final issue, Appellant asserts he was denied his constitutional right to confront witnesses through the introduction of hearsay testimony regarding the county where the offense was alleged to have occurred. For the reasons that follow, we affirm.
Officers Sammy Martinez and Scott Chappel are members of a community-oriented problem solving squad. The squad is designed to work on long-term problems arising from complaints from citizens and businesses. While on patrol on the afternoon of October 16, 2006, the officers were flagged down by a citizen who believed individuals were dealing drugs at San Jacinto Park. The individual identified the suspects by name and gave a description of the clothing the two suspects were wearing. The officers drove to the park and saw two males who fit the description walking in a southerly direction. According to the officers, numerous other persons were in the park, but no one else fit the descriptions given. As they drove in the direction of the suspects, Appellant's companion, Dustin Baker, ducked behind a tree momentarily, threw something down, then reappeared. The officers exited the patrol car and approached the individuals.
Baker's furtive movement in ducking behind a tree was suspicious to Officer Martinez and caused him safety concerns. He initiated a pat down search of Appellant for weapons while Officer Chappel tended to Baker. During the search, Officer Martinez detected a strong odor of marihuana and notified Appellant of the anonymous complaint he had received and asked if he was carrying drugs. Appellant admitted he had drugs in his coat pocket. Officer Martinez reached into the coat pocket and pulled out a plastic baggie containing marihuana and a set of digital scales.
A search behind the tree where Baker had concealed himself turned up a marihuana blunt (a cigar that has had the tobacco removed and replaced with marihuana). Appellant and Baker were both arrested. Appellant was charged with, and convicted of, possession of marihuana in a drug-free zone.
By his first issue, Appellant contends he was denied due process and a fair trial by the trial court's denial of his motion to suppress. We disagree. Appellant filed his motion to suppress one week prior to commencement of trial urging among other items, suppression of the marihuana on the ground that it was seized without a warrant, probable cause, or other lawful authority in violation of his constitutional rights.
According to the record, a pretrial hearing on Appellant's motion to suppress was scheduled to take place at docket call, however, no hearing was held because Appellant's counsel failed to appear. After the jury was seated, but before voir dire began, defense counsel urged his motion to suppress explaining his absence at docket call was due to lack of notice. In response, the trial court stated:
And I indicated to you in chambers that we waited for you and you took off somewhere. The Prosecutor had witnesses here in the courtroom. We were in the courtroom with witnesses and I was here and you were gone. We went looking for you and my bailiff said you took off. So if I have time, I'll hear it later on, otherwise, it's overruled.
Following this exchange, Appellant's counsel did not object to the denial of a hearing or to the trial court's ruling. Furthermore, during the State's case-in-chief, Appellant's counsel did not object to the introduction of the evidence sought to be suppressed on the same grounds alleged in the motion. After the State rested its case-in-chief, defense counsel conferred with Appellant and then rested without presenting evidence or reurging his motion to suppress. The following morning, the trial court announced:
I see your motion to suppress, and according to the evidence from the officers covered, I gave you sufficient leeway there for me to get all the data that I needed. And based on what I heard from the officers, although it was before the jury, I would have denied that motion.
Generally, in order to preserve error, the record must show that Appellant made a timely request, objection, or motion, and that the trial court ruled on it. Tex. R. App. P. 33.1(a)(1). Appellant's failure to appear and timely urge his motion to suppress when scheduled constitutes a waiver of that motion. Therefore, the trial court did not err when it overruled Appellant's motion to suppress prior to the commencement of voir dire.
However, our inquiry does not stop there. In the exchange immediately prior to the commencement of voir dire, the trial court did express an intent to consider the motion at a later time. Furthermore, at the end of the trial, the trial court indicated that, based upon the evidence that it did hear during trial, it would have denied the motion. Under such circumstances, it can be said that the trial court carried the motion with the trial and subsequently reconsidered its merits. Although such an unorthodox course of proceedings is inappropriate in a jury trial setting, when a trial court allows a motion to suppress to be conducted in a unitary proceeding with the trial itself, the appellant does not waive his motion by failing to object to the admission of the evidence he seeks to suppress. Garza v. State, 126 S.W.3d 79, 84 (Tex.Crim.App. 2004). Therefore, assuming without deciding that Appellant adequately preserved error, we will address the merits of his motion to suppress.
A trial court's ruling on a motion to suppress is reviewed for abuse of discretion standard. Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App. 2002). Where, as here, the facts are undisputed, we conduct a de novo review of the trial court's application-of-law-to-fact questions that do not turn on the credibility and demeanor of the witnesses. Amador v. State, 221 S.W.3d 666, 673 (Tex.Crim.App. 2007); Estrada v. State, 154 S.W.3d 604, 607 (Tex.Crim.App. 2005). If the trial court's decision is correct on any theory of law applicable to the case, it will be sustained. State v. Ross, 32 S.W.3d 853, 855-56 (Tex.Crim.App. 2000).
The Fourth Amendment of the United States Constitution and Article I, § 9 of the Texas Constitution protect against unreasonable searches and seizures by government officials. See Wiede v. State, 214 S.W.3d 17, 24-25 (Tex.Crim.App. 2007); Johnson v. State, 912 S.W.2d 227, 232-34 (Tex.Crim.App. 1995);Martinez v. State, 72 S.W.3d 76, 81 (Tex.App.-Amarillo 2002, no pet.). A pedestrian is entitled to the protection of the Fourth Amendment as he walks down the street. See Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Reasonableness of a search is a question of law that is reviewed de novo and is evaluated by the totality of the circumstances. Kothe v. State, 152 S.W.3d 54, 62 (Tex.Crim.App. 2004); Woods v. State, 956 S.W.2d 33, 38 (Tex.Crim.App. 1997).
An investigative detention occurs when an individual is encountered by a police officer, yields to the officer's display of authority, and is temporarily detained for purposes of an investigation. Johnson, 912 S.W.2d at 235. A person "yields to an officer's display of authority" when a reasonable person would not feel free to continue walking or otherwise terminate the encounter. Florida v. Bostick, 501 U.S. 429, 436, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991);State v. Velasquez, 994 S.W.2d 676, 679 (Tex.Crim.App. 1999); Johnson, 912 S.W.2d at 234-35. An investigative detention is constitutionally permissible if, under the totality of the circumstances, the officer has reasonable suspicion supported by articulable facts that the person detained is, has been, or soon will be engaged in criminal activity. Terry v. Ohio, 392 U.S. at 21-22; Ford v. State, 158 S.W.3d 488, 492 (Tex.Crim.App. 2005). These facts must amount to more than a mere inarticulable hunch or suspicion. Williams v. State, 621 S.W.2d 609, 612 (Tex.Crim.App. 1981). Whether reasonable suspicion exists is determined by considering the facts known to the officer at the moment of detention. Davis v. State, 947 S.W.2d 240, 243 (Tex.Crim.App. 1997). Additionally, a determination of reasonable suspicion must be based on common sense judgments and inferences about human behavior. See Illinois v. Wardlow, 528 U.S. 119, 125, 120 S.Ct. 673, 676, 145 L.Ed.2d 570 (2000).
Relying on Florida v. J.L., 529 U.S. 266, 270, 120 S.Ct. 1375, 146 L.Ed.2d 254...
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