Morrison v. State

• Decision Date: 19 February 2004
• Docket Number: No. 14-02-00924-CR.,No. 14-02-00925-CR.,14-02-00924-CR.,14-02-00925-CR.
• Citation: 132 S.W.3d 37
• Parties: Corey Dawan MORRISON, Appellant v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

132 S.W.3d 37

Corey Dawan MORRISON, Appellant v. The STATE of Texas, Appellee.

No. 14-02-00924-CR.

No. 14-02-00925-CR.

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

February 19, 2004.

Clyde Williams, Houston, for appellant.

Carmen Castillo Mitchell, Houston, for appellee.

Panel consists of Justices YATES, EDELMAN, and GUZMAN.

OPINION

LESLIE BROCK YATES, Justice.

Appellant Corey Dawan Morrison challenges his convictions for possession with intent to deliver a controlled substance and possession of a firearm by a felon. In three points of error, appellant argues: (1) the trial court erred when it denied his motion to suppress evidence because the evidence was obtained during an illegal search; (2) he received ineffective assistance of counsel; and (3) the prosecutor assaulted appellant during her closing argument in the punishment phase of trial. We affirm.

I. Factual and Procedural Background

Officer K.Y. King of the Houston Police Department's Narcotics Division obtained a combination search and arrest warrant on January 30, 2002, after a confidential informant purchased cocaine from a man known as "Gucci." The warrant authorized the arrest of "any person(s)[ ] including but not limited to ... [`]Gucci[']," and the search of a business known as Video 2000, where the informant had purchased the drugs. The officer conducting surveillance for the narcotics division monitored activity just prior to the raid at Video 2000, which was located in a strip center. He testified that, shortly after surveillance began, "Gucci," later identified as Kenneth McDonald, left the store for approximately 20 minutes. McDonald had returned and was in the video store when a white Escalade arrived. At this point, the raid team was en route to execute the warrant. Two males (one later identified as appellant) and a female exited the vehicle and entered the store. McDonald then left Video 2000 and walked to a convenience store in the same strip center. The raid team arrived, took McDonald into custody at the convenience store, and brought McDonald back with them to Video 2000.

The four individuals in the video store (McDonald, appellant, another male, and one female) were told to lay on the floor while officers performed a search of the premises. Accounts of what occurred next differ. According to testimony from at least one of the officers, the individuals were, at some point during this process, patted down, handcuffed, and placed in chairs. During the suppression hearing, appellant testified that he was never placed in a chair, but was instead on his knees. Officer King testified that she then noticed appellant "digging around" behind him and told him to be still. Sergeant Garcia, whose primary objective was to secure the scene, also testified that appellant had his hands behind his back "as if trying to place his hands ... in the back of his pants." Officers King and Massey notified Officer Siewert that appellant was told several times to "quit digging in the rear of his pants." At the suppression hearing, appellant denied that he was ever "digging" in his pants.

When appellant apparently refused to remain still, Officers Siewert and Massey took him to a back room of the store where the adult movies were displayed. Once in the room, Officer Siewert testified that he pulled appellant's pants back and observed a piece of plastic protruding from appellant's buttocks.¹ At the time, three other members of the raid team were present. Officer Siewert testified that he then had appellant pull his pants down and bend over. He retrieved the plastic bag, the contents of which were later identified as "rocks" of crack cocaine. During this period, appellant was resisting the officers and, consequently, the officers had to physically bend him over to retrieve the bag. Appellant claimed, during the suppression hearing, that officers were holding the bag against his buttocks, he could not reach it, and it did not belong to him. After recovery of the bag, appellant was placed under arrest. While conducting the search of the premises, the officers also seized several guns and body armor from the video store.

Appellant was charged by indictment with possession with intent to deliver a controlled substance and with possession of a firearm by a felon. A jury found appellant guilty of both offenses and, after finding two enhancement paragraphs to be true, assessed punishment at forty-five years' confinement for possession of a firearm by a felon and seventy-five years' confinement for possession with intent to deliver a controlled substance.

Appellant filed a motion for new trial on September 23, 2002, alleging prosecutorial misconduct, jury misconduct, and trial court error in instructing the jury on the law.² The trial court denied the motion by written order the following day. The trial court then held a hearing on the same motion on January 7, 2003, and again denied the motion. In doing so, the trial court issued findings of fact and conclusions of law.

II. Analysis and Discussion

A. Motion to Suppress

In his first point of error, appellant contends the police did not have reasonable suspicion or justification to detain and search him and, by doing so, violated his Fourth and Fourteenth Amendment rights under the United States Constitution and article I, section 9 of the Texas Constitution.³

In reviewing a trial court's ruling on a defendant's motion to suppress, an appellate court must first determine the applicable standard of review. The Court of Criminal Appeals has made clear that while appellate courts should afford almost total deference to the trial court's determination of the historical facts, mixed questions of law and fact not turning upon an evaluation of credibility and demeanor are to be reviewed de novo. Guzman v. State, 955 S.W.2d 85, 87-88 (Tex.Crim.App.1997). Specifically, questions of reasonable suspicion and probable cause should be reviewed de novo on appeal. Id. at 87. This is because the trial judge is not in a better position than the reviewing court to make that determination. Id. Similarly, whether a defendant was "detained" within the meaning of the Fourth Amendment is a mixed question of law and fact that is reviewed de novo. See Hunter v. State, 955 S.W.2d 102, 105 n. 4 (Tex.Crim.App. 1997).

1. The Detention

As part of his first issue, appellant contends that his mere presence on the premises during the execution of the search warrant did not justify his detention upon the arrival of the raid team.

Pursuant to the United States and Texas Constitutions, a defendant is detained if, from his or her perspective, there has been such a display of official authority that a reasonable person would not have felt that he was free to leave. United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980); Chambers v. State, 866 S.W.2d 9, 19 (Tex. Crim.App.1993). The record from the hearing on the motion to suppress indicates that when the raid team entered Video 2000 through the Success Entertainment entrance, all of the individuals in the store, including appellant, were handcuffed and remained in the store while officers executed the search warrant. Appellant testified they were commanded to lay on the ground; Officer Siewert could not recall whether it occurred in this instance, but stated that he requires people to get on the ground when he is conducting search warrants. Under these circumstances, a reasonable person in appellant's position would not have believed that he was free to leave and, thus, a detention occurred.

When a search warrant is issued for a particular residence, a judicial officer has made an objective determination that there is probable cause to believe someone in the residence is committing a crime. Michigan v. Summers, 452 U.S. 692, 703-04, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981). Therefore, when the warrant is executed, a person who is an occupant of the premises may be detained for the duration of the search. Id. This limited exception to the probable cause requirement does not, however, automatically extend to those who are merely on the premises at the time of the execution of the search warrant. Lippert v. State, 664 S.W.2d 712, 721-22 (Tex. Crim.App.1984).

Appellant relies heavily on Lippert for the proposition that, like in Lippert, he was merely on the premises, the combination arrest and search warrant does not in any way describe or refer to him,⁴ and, therefore, the officers were not justified in detaining him absent probable cause. In Lippert, the Court of Criminal Appeals found that the combination search and arrest warrant, in addition to the supporting affidavit, did not contain any reference to appellant or any information which would constitute probable cause that he possessed a controlled substance. Id. at 716. The court further concluded that appellant's mere presence on the premises at the time of the execution of the search warrant, without more, did not authorize his detention and subsequent frisk or search. Id. at 721-22. According to Lippert, to justify the detention and search of a person, other than an occupant, who is present on the premises during the execution of a valid search warrant, there must be some independent factors, other than mere presence, that tie the person to the unlawful activities on the premises. See id.

Even if the combination arrest and search warrant does not refer to appellant, the Lippert case is distinguishable from the facts before this court. In Lippert, the appellant was not in the residence or on the premises when the search for narcotics began, but rather arrived 15 to 30 minutes after the raid team commenced execution of the warrant. Id. at 715. In this case, appellant was inside the video store when the raid team arrived. An officer executing a warrant may temporarily detain a party to determine whether the individual is an occupant of the premises being searched. See Salazar v. State, 893 S.W.2d...