Moore v. State, 04-00-00414-CR

CourtCourt of Appeals of Texas
Writing for the CourtSitting Alma L. Lopez, Justice, Paul W. Green, Justice, Karen Angelini; Opinion by Alma L. Lopez; Paul W. Green
Citation55 S.W.3d 652
Parties(Tex.App.-San Antonio 2001) Billy Douglas MOORE a.k.a. Bobby Douglas Moore, Appellant v. The STATE of Texas, Appellee
Docket NumberNo. 04-00-00414-CR,04-00-00414-CR
Decision Date18 July 2001

Page 652

55 S.W.3d 652 (Tex.App.-San Antonio 2001)
Billy Douglas MOORE a.k.a. Bobby Douglas Moore, Appellant
The STATE of Texas, Appellee
No. 04-00-00414-CR
Court of Appeals of Texas, San Antonio
July 18, 2001

From the 212th Judicial District Court, Galveston County, Texas Trial Court No. 98CR1800 Honorable Susan E. Criss, Judge Presiding

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Copyrighted Material Omitted

Page 654

Thomas W. McQuage, Galveston, for Appellant.

M. Elizabeth Gunn, Asst. Crim. Dist. Atty., Galveston, for Appellee.

Sitting Alma L. Lopez, Justice, Paul W. Green, Justice, Karen Angelini, Justice

Opinion by Alma L. Lopez, Justice

The jury found appellant guilty of possession of a firearm by a felon and sentenced him to ten years imprisonment in the Institutional Division of the Texas Department of Criminal Justice. Appellant presents three issues on appeal: (1) that the trial court erred in denying his motion to suppress; (2) that his conviction is not supported by sufficient evidence; and (3) that he received inadequate assistance of counsel during the punishment phase of his trial. We reverse and remand.


On the morning of May 8, 1998, Donald Monacey and Richard Deore were working at a grocery store in Galveston, Texas. At approximately 7:00 a.m., they saw a young African-American male ("suspect") enter the store, pick up two five-pound hams, and stuff them into his pants. Monacey shouted to the suspect to stop, but the suspect ran out of the store and into the parking lot. Monacey and Deore chased the suspect, who dropped one of the hams in his haste to flee. The on-foot chase lasted ten blocks until Monacey and Deore lost sight of the suspect. As Monacey and Deore were walking back to the grocery store, they saw the suspect get into the driver's seat of a parked blue Volkswagen in which appellant was a passenger. Just before Monacey and Deore reached the car, the suspect drove off in the Volkswagen. Coincidentally, a customer of the grocery store arrived in a pickup truck and offered to aid Monacey and Deore in the chase. They jumped into the back of the

Page 655

pickup truck and commenced a car chase that lasted some twelve to fourteen city blocks. Bill Scott, a patrolman with the Galveston Police Department, was sitting in his patrol car at an intersection when he saw the Volkswagen, followed by the pickup truck, run a stop sign and speed through the intersection. Scott recognized one of the men in the back of the pickup as being an employee of the grocery store. Both men in the back of the pickup were pointing to the Volkswagen. Scott called dispatch and advised that he was in pursuit of a Volkswagen. Scott stopped the Volkswagen, handcuffed both the suspect and appellant, taking them into "custody." Monacey and Deore told Scott that the suspect had stolen a ham from the grocery store and that appellant had been waiting in the Volkswagen. Scott found the ham in the Volkswagen. Other officers arrived at the scene. One patted down appellant, finding no weapons. A second officer, Lopez, transported the suspect and appellant to the Galveston jail. At the jail, Lopez thoroughly searched appellant's pockets and found three .22 caliber shells. Lopez called Scott and told him that he had found three shells and to search the Volkswagen for a gun. Scott searched the Volkswagen again and found a .22 caliber gun underneath the passenger seat.

Motion to Suppress

Appellant argues on appeal that the trial court erred in denying his motion to suppress, because Scott did not have the authority to make a warrantless arrest. Scott did not see appellant commit a crime, and the grocery store employees did not accuse appellant of having committed a felony. Therefore, appellant urges that Scott had no authority to arrest appellant without a warrant, and any evidence found as a result of that illegal arrest should have been suppressed pursuant to article 38.23 of the Texas Code of Criminal Procedure. The State responds that appellant was not arrested, only temporarily detained for investigative purposes.

We review a trial court's denial of a motion to suppress under an abuse of discretion standard. Rivera v. State, 808 S.W.2d 80, 96 (Tex. Crim. App. 1991); In re L.R., 975 S.W.2d 656, 657-58 (Tex. App. San Antonio 1998, no pet.). Under this standard, we "view the evidence in the light most favorable to the trial court's ruling," affording almost total deference to findings of historical fact that are supported by the record. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). However, when the resolution of the factual issue does not turn upon an evaluation of credibility or demeanor, we review the trial court's determination of the applicable law, as well as its application of the appropriate law to the facts it has found, de novo. Id.

Investigative Detention or Arrest?

The threshold issue is whether the seizure of appellant can be characterized as an investigative detention or a custodial arrest, because the nature of the seizure determines the constitutional parameters which apply to determine its legality. Amores v. State, 816 S.W.2d 407, 411 (Tex. Crim. App. 1991); Shipman v. State, 935 S.W.2d 880, 882-83 (Tex. App. San Antonio 1996, pet. ref'd). Both arrests and investigative detentions are types of seizures, each involving varying degrees of restraint on an individual's liberty. Dean v. State, 938 S.W.2d 764, 768 (Tex. App. Houston [14th] 1997, no pet.). "An investigative detention is a temporary and narrowly tailored investigation directed at determining a person's identity or maintaining the status quo while officers obtain more information." Id. (citing Comer v. State, 754 S.W.2d 656, 657 (Tex.

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Crim. App. 1986)). In federal jurisprudence, several non-exclusive factors have been identified as being determinative of whether a seizure has elevated into a custodial arrest: (1) the basis for the encounter; (2) whether the encounter was consensual; (3) the duration of the encounter; (4) investigative methods used to confirm suspicions; (5) an officer's statement that the suspect is/is not free to leave; (6) whether weapons are displayed or other force used; (7) the number and demeanor of the officers present at the seizure; (8) the extent of the suspect's restraint; (9) whether the suspect was transported to another location against his will; and (10) whether the suspect was free to leave. Shipman, 935 S.W.2d at 883 (citing United States v. Mendenhall, 446 U.S. 544, 554-56 (1980); Florida v. Royer, 460 U.S. 491, 503-04 (1983); United States v. Nova, 870 F.2d 1345, 1352-53 (7th Cir. 1989); United States v. Hammock, 860 F.2d 390, 393 (11th Cir. 1988)). Moreover, article 15.22 of the Texas Code of Criminal Procedure provides that "[a] person is arrested when he has been actually placed under restraint or taken into custody by an officer or person executing a warrant of arrest, or by an officer or person arresting without a warrant." The Texas Court of Criminal Appeals has interpreted this provision literally, holding that an arrest occurs when a person's liberty of movement is restricted or restrained. Amores, 816 S.W.2d at 411.

The only evidence before the trial court when it ruled on appellant's motion to suppress was the testimony of Scott. Scott testified that he saw the Volkswagen, followed by the pickup truck, run a stop sign and speed through an intersection. He recognized one of the men in the back of the pickup truck as an employee of the grocery store, who was pointing to the Volkswagen. He stopped the Volkswagen because of the traffic violation, although he admitted that he did not give the driver of the pickup truck a ticket. Scott took both men "into custody." The employees of the grocery store told him that the driver had stolen a ham and that the passenger had been waiting in the Volkswagen. The following exchange between appellant's attorney and Scott occurred during the hearing:

Q:You were stopping them for traffic?

A:That's correct.

Q:Now, did you have you were by yourself when you made the arrest of these two men?

A:That's correct.

Q:And you put them both into custody?

A:That's correct.

Q:Okay. Now, at the time that you put them into custody, did you have some information that this man right here had made some traffic offense?

A:By the time I put him into custody, there were two more units on the scene. At this time the Kroger's people were on the scene; and then they advised that these people had stole[n] a ham, had been involved in shoplifting in the store.

Q:Did they say that this man stole a ham?

A:They claimed both parties in the vehicle had stolen a ham from the store.

[omitted testimony]

Q:You see a car, a Volkswagen Fox, run a stop sign?


Q:And that gives you the right under [article] 14.01 [of the Texas Code of Criminal Procedure], an offense within view, to stop that car, right?


Page 657

Q:But this man had not committed any offense, had he?

A:He was in the vehicle.

Q:Are we to take it from [your statement] that [article] 14.01 says that if there's an offense committed within your view, that every occupant of the vehicle may be arrested?


Q:Who could be arrested?

A:What is your point?

Q:My question is: If a driver makes a traffic infraction, do you have the right to arrest?

A:I arrested the driver.

Q:Is that the only person you have the right to arrest?

A:I arrested the subject here, too.

Q:Sir, my question is: Who do you have the right to arrest?

A:The driver for the traffic.

Q:The driver for the traffic. Okay. Now, so far this is all that you knew. So when they pulled over for you, that's all that you knew is that [you had] somebody [who] ran the stop sign, right?


Q:Now, then, later on somebody arrived at the scene that you know, and he says, "Those guys stole a ham?" Or, does he say, "Suspect number one [the driver] stole a ham?"

A:He said suspect number one entered the store and removed...

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