Johnson v. State

Decision Date30 September 1993
Docket NumberNo. 05-89-01086-CR,05-89-01086-CR
Citation864 S.W.2d 708
PartiesRicardo Lloyd JOHNSON, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Appeals

John D. Nation, R.K. Weaver, Dallas, for appellant.

Robert P. Abbott, Dallas, for appellee.

Before the Court en banc.

OPINION ON REMAND

LAGARDE, Justice.

The trial court convicted Ricardo Lloyd Johnson of aggravated possession of cocaine with intent to deliver and assessed punishment at fifty years' confinement. On original submission, this Court held that, based solely on the Fourth Amendment of the United States Constitution, the trial court erred in overruling Johnson's motion to suppress because the police officers had neither reasonable, articulable suspicion nor probable cause to make a warrantless search and because there were insufficient specific articulable facts to justify a temporary detention. Further, we held that Johnson did not voluntarily abandon the contraband. Consequently, we reversed the trial court's judgment and remanded the cause for further proceedings. Johnson v. State, 802 S.W.2d 325 (Tex.App.--Dallas 1990), vacated, 825 S.W.2d 126 (Tex.Crim.App.1992). After quoting the following portion of this Court's majority opinion, "The flaw in the State's case is that none of the circumstances preceding the officer's detention of appellant justified a reasonable suspicion that he was involved in criminal conduct," the court of criminal appeals vacated this Court's judgment and remanded this cause for our reconsideration of Johnson's suppression argument "by reviewing the totality of the circumstances of appellant's arrest in light of California v. Hodari D." Johnson v. State, 825 S.W.2d 126, 127 (Tex.Crim.App.1992); see California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991).

Pursuant to Robinson v. State, 790 S.W.2d 334, 336 (Tex.Crim.App.1990), we allowed rebriefing. Johnson now challenges the overruling of his motion to suppress under the Fourth Amendment of the United States Constitution and article one, section nine of the Texas Constitution. Reviewing the totality of the circumstances of Johnson's arrest, we now determine that Johnson was "seized" under the Fourth Amendment and article one, section nine of the Texas Constitution when he dropped the contraband; thus, he did not voluntarily abandon the contraband. However, we further conclude that the police had probable cause to arrest him for an offense committed within their view and that the contraband was recovered in a search incident to that lawful warrantless arrest. Accordingly, we hold that the trial court did not err in denying Johnson's motion to suppress. We also hold that his sentence of fifty years' imprisonment does not constitute cruel and unusual punishment. Accordingly, we overrule both points of error and affirm the trial court's judgment.

FACTUAL BACKGROUND

Dallas Police Officer Charles Ray Bailey testified that at about 1:45 p.m., he and his partner, Police Corporal Clifford E. Lewis, were conducting a foot patrol of an apartment complex located in a high-crime area noted for drug transactions, some of which occurred in public view. As the officers approached a breezeway, Bailey "heard someone say that there was a large stash of marijuana being kept in a house somewhere." Bailey heard two distinctive voices discussing the matter, but he could not see any of the persons in the breezeway. Bailey did not recall anything else being said during the conversation. When Bailey and Lewis walked around the corner of the breezeway, Johnson and two other men immediately ran. Bailey noticed Johnson was carrying a "purplish thing," later identified as a Crown Royal bag. When the three men ran away from the officers, Bailey chased after Johnson. During the chase, Bailey twice ordered Johnson to stop running. Bailey noticed Johnson fumbling with what appeared to be a handgun, twice ordered Johnson to drop the weapon, and drew his own weapon in response. Shortly thereafter, the Crown Royal bag and the weapon either became dislodged or were dropped by Johnson. Johnson then stopped. Lewis appeared, arrested Johnson, and recovered the Crown Royal bag containing 162 envelopes of suspected contraband, 1 a small amount of marijuana, and $1454.10. Bailey recovered the loaded 9-mm pistol that Johnson dropped. Bailey testified that, in his experience, handguns are used during drug transactions and that, before he entered the breezeway, it was reasonable to suspect that someone might be armed. After the officers had read Johnson his rights, he said, "You didn't find this on me. This was not found on me."

Lewis testified that, while conducting a patrol of an apartment complex in a high-crime area, he overheard a conversation in a breezeway "about a stash [of marijuana] that somebody had somewhere." Lewis could not see who was talking, but he heard two voices. When Lewis and Bailey entered the breezeway, three men began to run. Lewis instructed Bailey "to get the gentleman with the bag in his hand." When Lewis saw Bailey chase Johnson around the end of the building, Lewis ran back through the breezeway and up to the end of the building to put himself in front of Johnson. As Johnson came around the end of the building, Lewis saw Johnson "fumbling (indicating) with his front, and the weapon was coming out of the front, or it was already out. I can't remember which." Lewis then drew his gun and yelled at Johnson to stop and drop the gun. "[A]t that point in time the gun and the bag was [sic] dropped." The officers then "converged on him into [sic] the next breezeway." Lewis was only fifteen feet away from Johnson when he saw Johnson "fumbling with the weapon." After they arrested Johnson, Lewis searched the bag and found the cocaine, marijuana, and money in it. When the officers searched Johnson, they did not find any drug paraphernalia on him. Lewis further Johnson filed a pre-trial motion to suppress. Because trial was before the court, the trial judge agreed to rule on Johnson's motion at the close of the evidence at the guilt-innocence phase of trial. The trial court overruled Johnson's motion, stating that the officers were entitled to detain and subsequently to arrest and search Johnson.

                testified that, prior to entering the breezeway, he "had a reasonable belief ... that the crime was about to be committed."   He thought that he had sufficient grounds to make an investigatory detention and that, once Johnson began to run, Johnson was not free to leave the area
                

Johnson did not testify at the guilt-innocence phase of trial but did testify at the punishment hearing. Johnson stated that he was at the apartment complex to return a car he had borrowed. He was in the breezeway with a man who was telling him about some marijuana the man's son had found in a refrigerator. When Johnson saw the man run away, Johnson panicked, turned around to run, and fell down. The police then arrested him. Johnson denied having a gun, holding a Crown Royal bag, or having drugs in his possession. He also denied fleeing from the police officers. Johnson stated that the approximately $1400 the officers found was his, 2 however, and that he had intended to use $1000 of the money to purchase T-shirts for resale.

Johnson sought probation, arguing that there was no actual delivery and that although there was testimony of a gun being present, there was no testimony that it was pointed at or used against the police officers. The State took issue with Johnson's characterization that Johnson did not threaten the officers or their lives. At the conclusion of the arguments, the trial court stated, "and the Court also takes it very seriously when the defendant has a gun and tries to use it on an officer...."

MOTION TO SUPPRESS
Standard of Review

At a suppression hearing, the trial judge is the sole judge of the witnesses' credibility and the weight given their testimony. Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990). The trial judge may accept or reject any or all of the witnesses' testimony. Johnson v. State, 803 S.W.2d 272, 287 (Tex.Crim.App.1990), cert. denied, 501 U.S. 1259, 111 S.Ct. 2914, 115 L.Ed.2d 1078 overruled on other grounds, Heitman v. State, 815 S.W.2d 681, 685 n. 6 (Tex.Crim.App.1991). We do not engage in our own factual review. We only consider whether the trial court improperly applied the law to the facts. See Romero, 800 S.W.2d at 543. Absent a showing of an abuse of discretion, we do not disturb the trial court's findings. Maddox v. State, 682 S.W.2d 563, 564 (Tex.Crim.App.1985). We view the evidence in the light most favorable to the trial court's ruling. Daniels v. State, 718 S.W.2d 702, 704 (Tex.Crim.App.), cert. denied, 479 U.S. 885, 107 S.Ct. 277, 93 L.Ed.2d 252 (1986), overruled on other grounds, Juarez v. State, 758 S.W.2d 772, 780 n. 3 (Tex.Crim.App.1988). If the evidence supports the trial court's ruling, we do not disturb that ruling. Johnson, 803 S.W.2d at 287. We must uphold the trial court's ruling if it can be upheld on any valid theory, regardless of whether the State argued it in the trial court or on appeal. See Lewis v. State, 664 S.W.2d 345, 347 (Tex.Crim.App.1984) (disposing of motion to suppress on grounds of appellant's lack of standing despite fact that State did not argue lack of standing at trial or on appeal).

Burden of Proof on a Motion to Suppress

When a defendant seeks to suppress evidence on the basis of the right to be free of unreasonable search and seizure, the burden of proof is initially on the defendant. Russell v. State, 717 S.W.2d 7, 9 (Tex.Crim.App.1986). In Russell, the court of criminal appeals further explained the burden of proof as follows:

As the movant in a motion to suppress evidence, a defendant must produce evidence that defeats the presumption of proper police conduct and therefore shifts Once a defendant has established 1) that a search or seizure occurred and 2) that no warrant was obtained,...

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