Kelley v. State

• Decision Date: 14 March 1991
• Docket Number: No. C14-90-060-CR,C14-90-060-CR
• Citation: 807 S.W.2d 810
• Parties: Elvis KELLEY, Appellant, v. The STATE of Texas, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 810

807 S.W.2d 810

Elvis KELLEY, Appellant, v. The STATE of Texas, Appellee.

No. C14-90-060-CR.

Court of Appeals of Texas Houston (14th Dist.).

March 14, 1991.

Discretionary Review Refused

June 19, 1991.

Jerry B. Register, Huntsville, Roy E. Greenwood, Austin, for appellant.

Jack Phillips, David P. Weeks, Huntsville, for appellee.

Before ROBERTSON, SEARS and DRAUGHN, JJ.

OPINION

DRAUGHN, Justice.

This is an appeal from a conviction of possession of cocaine with intent to deliver under the Texas Controlled Substances Act. The jury found appellant guilty as charged and sentenced him to 99 years imprisonment and a $10,000 fine. In seven points of error, appellant complains of the sufficiency of the evidence and argues that the trial court erred in: (1) denying his motion to suppress; (2) allowing accomplice testimony that was tainted as a result of an illegal arrest; (3) permitting impeachment evidence of an extraneous offense during the guilt/innocence phase of the trial; and (4) allowing improper impeachment during the punishment phase. We find no error in the denial of the motion to suppress, but we reverse and remand because of the admission of the extraneous offense. In view of our discussion and ruling on the motion to suppress, the extraneous offense and the factual sufficiency points, we do not address the remaining points raised.

A brief recitation of the facts elicited at the hearing on appellant's motion to suppress is necessary to address appellant's first point concerning the alleged illegality of the search. About 10:00 p.m. on the evening of August 16, 1989, Byron Bush, a deputy with the Walker County Sheriff's Department, received a telephone call from Deputy Dickey, also with the Walker County Sheriff's Department. Dickey told Bush that he had just received a phone call from a confidential informant who told Dickey that appellant was in Emancipation Park in Huntsville, sitting in a gray and maroon Lincoln Continental with another black man selling crack cocaine. The informant also said that the men had an Uzi weapon in the car. Bush testified that he knew appellant and knew that appellant was involved with dealing crack. Dressed in civilian clothes, Bush went to Emancipation Park about 10:30 p.m. but could not find the Lincoln. He then parked his car and resumed his search on foot. Bush found appellant sitting behind the wheel of a black pickup truck. The driver's door to the truck was open and appellant was facing the interior of the truck with his hands down at his right side. There was a woman, Melinda Archie, sitting in the middle of the seat and her husband, Melvin Archie, was sitting on her right. As Bush approached the truck, he shined his flashlight into the car and instructed appellant to get out and "show him his hands." After several furtive gestures, appellant stepped out of the truck and showed Bush his empty hands. Bush instructed appellant to step away from the truck and reached into the truck to search the area where appellant had been sitting. Bush lifted a straw hat that was on the seat and found a plastic bag containing crack cocaine. There was testimony at trial that appellant had been seen previously wearing the hat. Bush then ordered the other two passengers from the truck, placed all three people under arrest, and radioed for assistance. A search of the area uncovered two match boxes and a plastic baggie, each containing crack cocaine, on the ground outside the passenger door of the truck. A chemist with the Department of Public Safety testified that the bag found under the hat contained 10.6 grams of 99% pure cocaine. No Uzi or weapon of any type was found in or around the truck.

In his first point of error, appellant argues that the trial court erred in denying his motion to suppress the crack cocaine as the fruit of an illegal search. Appellant contends that the information credited to Deputy Dickey's informant lacked a sufficient basis of reliability or credibility to authorize appellant's detention. The reasonableness of an investigative detention is reviewed based on the totality of the circumstances for each case. United States v. Mendenhall, 446 U.S. 544, 561, 100 S.Ct. 1870, 1880, 64 L.Ed.2d 497 (1980). Under the test, the informant's veracity and the basis of his knowledge are merely relevant considerations. Rojas v. State, 797 S.W.2d 41, 43 (Tex.Crim.App.1990). Other factors that are present may compensate for any weaknesses in the informant's information thus yielding sufficient probable cause despite the weaknesses. Id. To analyze the reasonableness of a detention, this court should look to several factors: (1) the public interest served by the detention; (2) the severity of interference with individual liberty; and (3) the objective facts that the officer relied on in light of his knowledge and expertise. Brown v. Texas, 443 U.S. 47, 50-51, 99 S.Ct. 2637, 2640-2641, 61 L.Ed.2d 357 (1979).

Police officers may briefly stop a suspicious individual to determine the person's identity or to maintain the status quo while obtaining more information. Occupants of automobiles are as subject to a brief detention as are pedestrians. Johnson v. State, 658 S.W.2d 623, 626 (Tex.Crim.App.1983) (citing Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972)). Circumstances short of probable cause for arrest may justify a temporary investigative detention because narrowly tailored investigations are less intrusive upon personal liberty than arrests. Schwartz v. State, 635 S.W.2d 545, 546 (Tex.Crim.App.1982); Davis v. State, 794 S.W.2d 123, 124-25 (Tex.App.--Austin 1990, pet. ref'd.).

In order to justify such an intrusion, "an officer must have specific articulable facts which, in light of his experience and personal knowledge, together with other inferences from those facts, would warrant the intrusion on the person stopped for further investigation." Schwartz, 635 S.W.2d at 547. These specific articulable facts must create a reasonable suspicion in the officer's mind that "some activity out of the ordinary is occurring or had occurred, some suggestion to connect the detained person with the unusual activity, and some indication that the activity is related to a crime." Comer v. State, 754 S.W.2d 656, 657 (Tex.Crim.App.1986) (quoting Johnson v. State, 658 S.W.2d at 626). When an officer is justified in believing a suspect is armed, the officer may take the necessary measures to determine whether the suspect is carrying a weapon and to neutralize the threat to the officer and others. Davis, 794 S.W.2d at 125 (citing Terry v. Ohio, 392 U.S. 1, 24, 88 S.Ct. 1868, 1881, 20 L.Ed.2d 889 (1968)). See also Goodwin v. State, 799 S.W.2d 719, 727 (Tex.Crim.App.1990).

Here, Deputy Bush was told by another officer that a known informant saw appellant in Emancipation Park in the city of Huntsville sitting in a certain model car with another black male dealing crack cocaine and allegedly possessing an Uzi. Initially, we note that the court of criminal appeals has authorized the use of "hearsay-upon-hearsay" in situations such as this. See Hennessy v. State, 660 S.W.2d 87, 91 (Tex.Crim.App.1983). Bush's subsequent investigation based on this information failed to turn up the identified automobile. However, Bush did find appellant sitting in the front seat of a pickup in the company of a black female and a black male. Bush testified that the truck was sitting in an area of the park that was not well lit and, when he approached the truck, he recognized appellant. Bush knew that appellant dealt in crack cocaine in the past and also knew that area of Huntsville had a well-known reputation as a location for drug dealing. Bush approached the vehicle without drawing his gun and shined the flashlight on appellant. He observed appellant making numerous furtive gestures between appellant's body and the woman sitting in the middle of the truck. Bush, concerned about the possibility of appellant having an automatic weapon, ordered appellant to get out of the truck and to show his hands. Bush needed to repeat his request several times while appellant continued to make furtive gestures, put his hands behind his back, and "squirmed in his seat." Bush's testimony indicates a serious concern that appellant possessed a weapon. After appellant got out of the truck, Bush noticed the hat sitting on the seat next to the unknown female. Bush reached into the truck and moved the hat. The implication of the testimony reflects that at the time he moved the hat, Bush was still concerned about the possible presence of a weapon. Instead, Bush found the bag of crack cocaine.

Furtive gestures can be a valid indicia of mens rea when coupled with reliable information or other suspicious circumstances. Smith v. State, 542 S.W.2d 420, 421 (Tex.Crim.App.1976); Evans v. State, 799 S.W.2d 412, 415 (Tex.App.--Corpus Christi 1990, no pet.). Bush testified that appellant immediately recognized him as a law enforcement officer and then started making the furtive gestures. Appellant argues that Bush's information was unreliable because Bush did not find appellant in the identified vehicle and no weapon was recovered. The accuracy of the informant's information is, however, only a factor to be weighed when viewing the totality of the circumstances. Rojas v. State, 797 S.W.2d at 43. We find that Bush's personal knowledge of appellant and the reputation of Emancipation Park, coupled with appellant's obvious attempt to hide something from Bush before he could get closer, justifies the minimal intrusion that resulted when Bush reached into the truck and moved the hat. We also find that a valid public policy consideration impacts on Bush's actions in that there was information that an Uzi, an automatic weapon, may have been involved. Consequently, we hold that the trial court correctly denied appellant's motion to suppress.

Furthermore, we find that appellant lacks standing to contest the search....