Petty v. State

• Decision Date: 24 July 1985
• Docket Number: 05-84-01304-CR,Nos. 05-84-01303-C,s. 05-84-01303-C
• Citation: 696 S.W.2d 635
• Parties: Johnny Wayne PETTY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 635

696 S.W.2d 635

Johnny Wayne PETTY, Appellant, v. The STATE of Texas, Appellee.

Nos. 05-84-01303-CR, 05-84-01304-CR.

Court of Appeals of Texas Dallas.

July 24, 1985.

S. Michael McColloch, David W. Coody, Bruner, McColl, McColloch & McCurley, Dallas, for appellant.

Celia V. Barr, Asst. Dist. Atty., Dallas, for appellee.

Before CARVER, GUILLOT and DEVANY, JJ.

DEVANY, Justice.

Johnny Wayne Petty appeals his conviction for aggravated assault and the sentence imposed after the trial court revoked his probation in an earlier robbery case. Appellant contends that his aggravated assault conviction must be reversed because the State failed to prove an element of the offense. Concerning the sentence in the robbery case, he complains that the trial court considered matters unsupported by any evidence when it assessed his punishment. We affirm the trial court's judgments in both cases.

Aggravated Assault

On September 13, 1984, two Dallas police officers responded to a disturbance complaint. When they arrived at the scene, three agitated witnesses reported that a man had been yelling at them. The officers testified that the witnesses told them that he had called them prostitutes and had asked one of them to "work for him" as "his girlfriend." The witnesses told the officers that they had refused his solicitations and that appellant had refused their repeated requests to leave them alone. During this conversation, one of the witnesses saw appellant walking on the other side of the street. All three witnesses identified him as the man who harassed them; therefore, the officers decided to question appellant and to instruct him not to bother the three women again. However, appellant ignored the officers' requests to stop and rapidly walked between two buildings. The officers followed, eventually detained him, and conducted a pat-down search for weapons. According to the officers, appellant reluctantly surrendered his identification. While one officer questioned appellant about the disturbance, the other requested by radio a check for outstanding arrest warrants. The officers testified that the warrant check was a part of their routine procedure during an investigatory stop. One of the officers stated at trial that they did not intend to arrest appellant for the disturbance when they requested his identification. Three to five minutes after the officers requested the check, however, they learned of a warrant for appellant's arrest for violating the conditions of his probation in the robbery case. The officers told appellant that he was under arrest, handcuffed him, and attempted to place him in the back seat of their patrol car. Appellant struggled and kicked one of the officers in the groin. Consequently, appellant was convicted by the court of aggravated assault.

Under sections 22.01 and 22.02 of the Penal Code, a person is guilty of aggravated assault if he intentionally, knowingly or recklessly causes bodily injury to a peace officer "when the person knows or has been informed the person assaulted is a peace officer ... [who] is lawfully discharging an official duty." Tex. Penal Code Ann. §§ 22.01(a)(1), 22.02(a)(2) (Vernon Supp.1985). Appellant claims that the officer assaulted was not lawfully discharging an official duty when the assault occurred because the arrest resulted from an unconstitutional detention. He concludes, therefore, that his arrest was illegal because it resulted from an unreasonable seizure in violation of the fourth amendment. ^{1 1} U.S. Const. amend. IV. We hold the detention did not violate the fourth amendment and that the officer was acting lawfully when he arrested appellant.

When the officers restricted appellant's freedom of movement and requested his identification, they seized appellant for purposes of fourth amendment analysis. Terry v. Ohio, 392 U.S. 1, 16, 19, 88 S.Ct. 1868, 1877, 1878, 20 L.Ed.2d 889 (1968); Ebarb v. State, 598 S.W.2d 842, 850 (Tex.Crim.App.1980) (on rehearing); see also, Dunaway v. New York, 442 U.S. 200, 208-12, 99 S.Ct. 2248, 2254-56, 60 L.Ed.2d 824 (1979). The seizure of appellant was reasonable under the fourth amendment if the "officer's action was justified at its inception," and "was reasonably related in scope to the circumstances which justified the interference in the first place." Terry, 392 U.S. at 19-20, 88 S.Ct. at 1878-79. An investigatory stop is "justified at its inception" if the law enforcement agents can reasonably infer from specific, articulable facts that the person detained is committing, is preparing to commit, or has recently committed a crime. See Terry, 392 U.S. at 21, 88 S.Ct. at 1879; Gearing v. State, 685 S.W.2d 326, 328 (Tex.Crim.App.1985); see also United States v. Hensley, 469 U.S. 221, 105 S.Ct. 675, 680, 83 L.Ed.2d 604 (1985). Based on the disturbance complaint, the conversation with the witnesses at the scene, and the witnesses' identification of appellant, ² the officers had reason to suspect that appellant had committed and might again commit the offenses of disorderly conduct and solicitation of prostitution. See Tex.Penal Code Ann. §§ 42.01(a)(1) & (5), 43.02(a)(2) (Vernon Supp.1985). These circumstances warranted stopping appellant to investigate the situation and to discourage him from creating any further disturbances. Therefore, the initial seizure of appellant was not unreasonable and did not violate the fourth amendment.

Even though the investigatory stop was "justified at its inception," appellant argues that it became unreasonable because the officers held him solely to check for arrest warrants, a purpose which he claims is not "reasonably related in scope to the circumstances ... justif[ying] the interference." Appellant reasons that, since the officers had already decided not to arrest him for the disturbance, they could not legally detain him pending the completion of the check unless they had probable cause to believe that there was a warrant for his arrest. Appellant, further reasons that, since his continued detention was illegal, the resulting arrest was illegal; therefore, he concludes that the officer was not lawfully discharging his duty when he was assaulted.

We recognize that an investigative stop can last no longer than necessary to effect the purpose of the stop absent probable cause to arrest the person or the person's consent. ³ See Florida v. Royer 460 U.S. 491, 500, 103 S.Ct. 1319, 1325, 75 L.Ed.2d 229 (1983). However, appellant's claim incorrectly assumes that at some point during the stop all legitimate investigation of the disturbance ended and that the officers held him only to allow the warrant check to be completed. One officer testified that appellant was held until the check was finished because the officers "had to be sure [appellant] had [identification] and was the correct person." Apparently, the warrant check was an incident of the officer's request for verification of appellant's identification and not, as appellant would have us believe, an inquiry distinct from the verification procedure. Determining identity and preserving the status quo while obtaining more information are legitimate reasons for which law enforcement officers may detain a person who is reasonably suspected of criminal activity. Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972); Johnson v. State, 658 S.W.2d 623, 626 (Tex.Crim.App.1983); see also Hensley, 105 S.Ct. at 683, 684; see e.g., United States v. Sharpe, 470 U.S. 675, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985) (approving twenty minute stop in which officers detained suspect pending arrival of drug enforcement agent). Thus, we conclude that appellant's detention was not prolonged solely for some reason not directly related to the disturbance investigation.

Nevertheless, we must still decide whether checking for outstanding arrest warrants during an otherwise valid investigatory stop is so unrelated in scope to the purpose of the detention that it renders the stop unconstitutional. While neither party cites any case discussing this question, and our research reveals no controlling Texas case, we are guided by the Supreme Court's opinion in Michigan v. Summers, 452 U.S. 692, 701 n. 12, 101 S.Ct. 2587, 2593 n. 12, 69 L.Ed.2d 340 (1981). Although Summers involved the detention of a homeowner during the execution of a search warrant, Justice Stevens, writing the majority opinion, discussed the legitimate purposes for investigatory stops and quoted with approval from Professor La Fave's treatise on the fourth amendment. In a portion of the passage quoted by the Supreme Court, Professor La Fave observes:

It is clear that there are several investigative techniques which may be utilized effectively in the course of a Terry -type stop. The most common is interrogation, which may include both a request for identification and inquiry concerning the suspicious conduct of the person detained. Sometimes the officer will communicate with others, either police or private citizens, in an effort to verify the explanation tendered or to confirm the identification or determine whether a person of that identity is otherwise wanted.... There is no reason to conclude that any of the investigative methods of the type just listed are inherently objectionable....

3 W. La Fave, Search and Seizure § 9.2, pp. 36-37 (1978) (footnotes omitted) (emphasis added). Either through independent analysis or in reliance on this portion of Professor La Fave's treatise, many jurisdictions have approved warrant checks conducted by the police during otherwise valid investigatory stops. Florida v. Bell, 382 So.2d 119 (Fla.Dist.Ct.App.1980); Biggers v. Georgia, 162 Ga.App. 163, 290 S.E.2d 159, 160-61 (1982); Illinois v. Ellis, 113 Ill.App.3d 314, 68 Ill.Dec. 885, 446 N.E.2d 1282 (1983); Ohio v. McFarland, 4 Ohio App.3d 158, 446 N.E.2d 1168, 1172 (1982); Rhode Island v. Demasi, 448 A.2d 1210, 1213 (1982), cert. denied, 460 U.S. 1052, 103 S.Ct. 1500, 75...