Reynolds v. State

• Decision Date: 19 February 1998
• Docket Number: No. 14-96-00567-CR,14-96-00567-CR
• Citation: Reynolds v. State, 962 S.W.2d 307 (Tex. App. 1998)
• Parties: Larry Carl REYNOLDS, Appellant, v. The STATE of Texas, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 307

962 S.W.2d 307

Larry Carl REYNOLDS, Appellant, v. The STATE of Texas, Appellee.

No. 14-96-00567-CR.

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

Feb. 19, 1998.

W. Troy McKinney, Houston, for appellant.

Carmen C, Mitchell, Houston, for appellee,

Before YATES, AMIDEI and FOWLER, JJ.

OPINION

AMIDEI, Justice.

Larry Carl Reynolds appeals from his conviction of possession of cocaine in an amount of less than 28 grams. TEX. HEALTH & SAFETY CODE ANN. § 481.115 ¹. After his motion to suppress evidence was denied, appellant pleaded guilty to the charge and the trial court sentenced him to five years imprisonment. This court dismissed his direct appeal for want of jurisdiction. Reynolds v. State, No. B14-93-01040-CR (Tex.App.--Houston [14 th Dist.], March 16, 1995, no pet.) (not designated for publication). Upon appellant's post-conviction application for writ of habeas corpus, the court of criminal appeals granted appellant an out-of-time appeal. Ex Parte Larry Carl Reynolds, No. 72, 297 (Tex.Crim.App., March 20, 1996) (not designated for publication). In two points of error, appellant contends the trial court erred in failing to suppress all fruits of his arrest because the State failed to prove reasonable suspicion or probable cause for appellant's initial stop in violation of the Texas and United States Constitutions. We affirm.

On May 7, 1993, at about 6:30 p.m., Officer Carl Dyess received a call from an unidentified person (informant) who asked for Officer Dyess by name. The informant told Officer Dyess there was a black male in a green Buick with a rag top selling crack cocaine in the area of Goodhope and Rebecca streets. Officer Dyess testified this area was known for narcotics and prostitution. The informant also told Dyess he watched the guy sell about an ounce of cocaine to someone, he had some more in his car, and the guy was carrying a pistol. Dyess gave the informant his beeper number and told him to call if he had more information. Dyess and Officer Wood then went to Goodhope and Rebecca but did not see the green Buick convertible. In response to a call on his beeper at that location, Dyess called the informant and set up an in-person meeting. Dyess and Officer Wood met with the informant and Dyess told the informant: "I know you from somewhere." The informant told Dyess: "That's right, you do. You put my daddy in jail." The informant would not give Dyess his name but did give him his telephone number. The informant then told the officers the driver was Larry Reynolds and gave the officers the license plate number of the green Buick convertible. The informant then told the officers that appellant was on his way "right now," or "soon," to Rebecca and Goodhope to sell cocaine. The officers then returned to Rebecca and Goodhope but did not find the green Buick at the location. The officers then determined the license plate number was registered to Larry Reynolds, 3405 Goodhope. The officers drove to 3405 Goodhope and observed a green Buick convertible parked there with the same license plate number furnished by the informant. A black male then came out of the house, got in the green Buick convertible, and drove off. Dyess radioed patrol units and reported the Buick's departure and direction of travel. Dyess and Wood then drove around the block, observed the car stopped at a stop sign, drove by the Buick convertible, and parked their unmarked car a short distance away. Dyess got out of the car and walked towards the Buick. At this time, marked police cars had stopped on the other side of the intersection and police officers were getting out of their cars. The record is unclear as to the number of marked cars, and whether the marked cars were blocking the intersection or merely parked. Dyess was wearing a raid jacket and plain clothes. Dyess stated appellant was looking at the marked patrol cars as Dyess approached the Buick on foot. Dyess testified the convertible top was down and he then saw appellant stuff a pistol between the front seats of the convertible. Dyess then drew his pistol, told appellant to get out, and placed appellant under arrest. The officers then searched the car and found cocaine in a compartment in the console of the convertible.

In points of error one and two, appellant contends the trial court erred in denying his motion to suppress because the officers did not have reasonable suspicion or probable cause to stop appellant. Because the informant's tip was not corroborated by the police, appellant contends his seizure was invalid under the Texas and United States Constitutions and, therefore, all evidence acquired after his arrest was inadmissible.

Standard of Review

In Guzman v. State, 955 S.W.2d 85, 88-89 (Tex.Crim.App.1997), the court of criminal appeals expressly overruled DuBose v. State, 915 S.W.2d 493 (Tex.Crim.App.1996); State v. Carter, 915 S.W.2d 501 (Tex.Crim.App.1996); and Arcila v. State, 834 S.W.2d 357 (Tex.Crim.App.1992). Id. at 90. The Guzman court established a new standard of review for appellate courts, as follows:

[A]s a general rule, the appellate courts ... should afford almost total deference to a trial court's determination of the historical facts that the record supports especially when the trial court's fact findings are based on an evaluation of credibility and demeanor [citation omitted]. The appellate courts ... should afford the same amount of deference to trial court rulings on "application of law to fact questions," also known as "mixed questions of law and fact," if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor. The appellate courts may review de novo "mixed questions of law and fact" not falling within this category.

Id. at 89.

If the issue to be determined on appeal is whether the officer had probable cause to seize a suspect, under the totality of the circumstances, "the trial judge is not in an appreciably better position than the reviewing court to make that determination." Id. at 87. Officer Dyess was the only witness to testify at appellant's hearing on his motion to suppress. Appellant does not dispute the historical facts, as determined at his hearing, but disputes the determination by the trial court applying the law to the facts. Appellant argues that the officers did not sufficiently corroborate the details of the informant's tip with respect to any criminal activity that would justify a stop. Because the issue in this case does not involve the credibility of a witness, but involves whether the officer had probable cause to seize appellant, under the totality of the circumstances, we review the "mixed question of law and fact" de novo, affording total deference to the trial court's determination of the historical facts. Id. at 87--89.

De Novo Review

1. The investigative detention. Appellant contends the stop by Officer Dyess was not based on reasonable suspicion because the information given by the unidentified informant was not proven reliable. Appellant argues the police did not have any additional factors confirming the substance of the criminal activity in the informant's tip and, therefore, probable cause to stop him did not exist. Appellant cites Rojas v. State, 797 S.W.2d 41, 43-44 (Tex.Crim.App.1990) as authority for his contention.

Rojas involved a telephone call from an anonymous male caller who stated he was advised that a vehicle belonging to appellant, and which might be driven by him, contained a quantity of marijuana in the trunk. The caller described the vehicle as a 1982 Lincoln, maroon over black with roses on the windows, and unicorns etched in the back glass and windshield. The caller also said that the vehicle would be at a certain church for a funeral and then would be going to a certain cemetery for graveside services. Id. at 42. In Rojas, the information was secondhand when received by the informer, and there was no evidence that the informer ever asserted that he had any personal knowledge whatsoever of contraband. Id. at 44. Accordingly, the court of criminal appeals held:

We thus hold that in order to satisfy the totality of the circumstances test, when an anonymous tip is relied upon to furnish probable cause, the informer must assert personal knowledge or there must be additional facts showing reason to believe that the contraband sought will probably be where the information indicates it will be.

Id. at 44.

This is not the situation here. The information from the informant in this case was that he "watched the guy sell about an ounce of cocaine to someone," he had more in the car, and the "guy was carrying a pistol." The informant thus asserted personal knowledge that three crimes were committed (sale of cocaine, possession of cocaine, and unlawfully carrying a pistol). Rojas would not apply to the facts in this case because the informant "asserted personal knowledge" of criminal activity. Id. at 44.

The State argues there was no "investigative stop" and appellant was not detained in any manner by the officers until appellant stuffed the pistol between the seats. The State cites Stewart v. State, 603 S.W.2d 861, 862 (Tex.Crim.App.1980) and Merideth v. State, 603 S.W.2d 872, 873 (Tex.Crim.App.1980) as authority for its contention. Stewart involved officers approaching a van parked at the end of a street. They smelled marijuana emanating from the van, the driver consented to a search of the van, and the officers found marijuana. Id. at 862. The Stewart court found the officers did not "seize" appellant because the van was already stopped and appellant got out of the van without being requested to do so and, therefore, the officers did not restrain his freedom to walk away. Id. Stewart was a similar case in which the officers received a radio call to investigate the appearance of several people around some parked cars in an apartment complex. The officer observed appellant and a female sitting in a pickup truck. The officer...