Summary
holding that because officer saw appellant walking on the wrong side of the street in violation of section 552.006 of the Transportation Code, the officer at the onset of the encounter had reasonable suspicion and a basis to arrest appellant without a warrant
Summary of this case from Briseno v. StateOpinion
No. 06-17-00160-CR
01-31-2018
ALLON DEMOND AGNEW, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 124th District Court Gregg County, Texas
Trial Court No. 46,467-B Before Morriss, C.J., Moseley and Burgess, JJ.
MEMORANDUM OPINION
Trevor Gesik, an officer with the Kilgore Police Department, was traveling north off of Houston Street onto South Martin during the pre-dawn hours of December 10, 2016, when he saw Allon Demond Agnew walking on the edge of the street with the flow of traffic. Gesik made contact with Agnew to offer him a ride and to address the alleged offense.
In addition to Gesik's testimony, the State offered, and the trial court admitted, a recording of Gesik's patrol car dashboard camera (dash-cam) depicting the encounter, as well as maps and multiple photographs of the area. Gesik identified the area in which he had been traveling, where he stopped on the street, and where Agnew was standing in the street.
Agnew chose not to testify during the hearing on his motion to suppress, and he did not present any witnesses on his behalf; however, he did offer multiple photographs of the area in which the incident took place and Gesik's supplemental incident report. The trial court admitted the proffered exhibits.
The dash-cam recording shows the incident occurred at about 4:56 a.m.
On direct examination, Gesik stated that he was certain the individual, who was later determined to be Agnew, had been walking in the street with the flow of traffic, and not on the sidewalk. In addition, on cross-examination, Gesik continued to maintain that Agnew was walking in the roadway with the flow of traffic, but he conceded that "[Agnew] could have intended to cross at some point."
Gesik explained, "[A]fter I identified him [as Agnew], I went back to write a written warning for the violation, and our computer system notified me that he had a warrant with the Kilgore Police Department." Gesik determined that the warrant was active and informed Agnew of the outstanding warrant. Pursuant to the police department's policy, Gesik asked for, and received, assistance from an additional officer in order to make the arrest. Gesik stated that Agnew became upset but that he subsequently calmed down, allowing Gesik to place him in handcuffs. Gesik explained that he searched Agnew incident to his arrest and located a "small plastic bag with a clear crystal substance that [he] recognized as methamphetamine." As a result, Agnew was subsequently charged with possession of a controlled substance in an amount less than one gram.
After the trial court denied Agnew's motion to suppress, a jury found him guilty of possession of a controlled substance in an amount less than one gram. Agnew was sentenced to two years' confinement in a state-jail facility and was assessed a fine of $750.00. On appeal, Agnew contends the trial court erred in denying his motion to suppress. Because we find that the trial court did not abuse its discretion in denying the motion to suppress, we affirm the trial court's judgment.
The standard of review applicable to motions to suppress evidence is well known. "We review the trial court's decision to deny [a] motion to suppress evidence by applying a bifurcated standard of review." Young v. State, 420 S.W.3d 139, 141 (Tex. App.—Texarkana 2012, no pet.) (citing Graves v. State, 307 S.W.3d 483, 489 (Tex. App.—Texarkana 2010, pet. ref'd); Rogers v. State, 291 S.W.3d 148, 151 (Tex. App.—Texarkana 2009, pet. ref'd)). "Because the trial court is the exclusive trier of fact and judge of witness credibility at a suppression hearing, we afford almost total deference to its determination of facts supported by the record." Id. (citing State v. Ross, 32 S.W.3d 853, 856-57 (Tex. Crim. App. 2000); Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)). "We also afford such deference to a trial court's ruling on application of law to fact questions, also known as mixed questions of law and fact, if the resolution of those questions turns on an evaluation of credibility and demeanor." Id. (citing Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996)).
We apply a de novo review to the trial court's application of the law and its determination of questions not turning on credibility. Carmouche, 10 S.W.3d 323, 332 (Tex. Crim. App. 2000); Guzmen, 955 S.W.2d at 89; Graves v. State, 307 S.W.3d 483, 489 (Tex. App.—Texarkana 2010, pet. ref'd). "Since all evidence is viewed in the light most favorable to the trial court's ruling, we are obligated to uphold the denial of a motion to suppress if it was supported by the record and was correct under any theory of law applicable to the case." Young, 420 S.W.3d at 141 (citing Carmouche, 10 S.W.3d at 328; State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999)). "In determining whether a trial court's decision is supported by the record, we generally consider only evidence adduced at the suppression hearing, because the ruling was based on that evidence, rather than evidence introduced later at trial." Id. (citing Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim. App. 1996)).
As in this case, when the trial court has not made findings of fact and conclusions of law, we must imply the findings that support the trial court's ruling, so long as it finds some support in the record. State v. Kelly, 204 S.W.3d 808, 818-19 (Tex. Crim. App. 2006); see also Moran v. State, 213 S.W.3d 917, 922 (Tex. Crim. App. 2007). An appellate court will uphold a trial court's ruling if it is reasonably supported by the record and is correct under any theory of law applicable to the case. State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006).
In his sole point of error on appeal, Agnew contends the trial court should have granted his motion to suppress because his detention was improperly prolonged beyond its purpose without sufficient cause. Agnew continues, "[T]he officer seized [Agnew] when he detained [him] while he was walking on Spear St., disallowing him to leave while issuing him a warning for walking on the wrong side of the street." According to Agnew, his "detention turned into an impermissible 'fishing expedition' for unrelated criminal activity." We disagree.
In his written motion, Agnew asserted, in general, that he "was arrested without a lawful warrant, probable cause or other lawful authority." He referenced the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, Article I, Sections 9, 10, and 19 of the Texas Constitution, and Article 38.22 of the Texas Code of Criminal Procedure.
A police officer may stop and detain an individual if the officer has a reasonable suspicion that a violation is in progress or has been committed. Garcia v. State, 827 S.W.2d 937, 944 (Tex. Crim. App. 1992). A police officer has reasonable suspicion for a detention if he or she has specific, articulable facts that, when combined with rational inferences from those facts, would lead the officer to reasonably conclude that the person detained is, has been, or soon will be engaged in criminal activity. Matthews v. State, 431 S.W.3d 596, 603 (Tex. Crim. App. 2014); Wade v. State, 422 S.W.3d 661, 666-67 (Tex. Crim. App. 2013) (citing Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011). "[T]he likelihood of criminal activity need not rise to the level required for probable cause." State v. Kerwick, 393 S.W.3d 270, 273-74 (Tex. Crim. App. 2013). The standard for reasonable suspicion requires only "some minimal level of objective justification" for the stop. Hamal v. State, 390 S.W.3d 302, 306 (Tex. Crim. App. 2012) (quoting Foster v. State, 326 S.W.3d 609, 614 (Tex. Crim. App. 2010)).
Here, Gesik testified that he observed Agnew walking in the street with the flow of traffic, which is a violation of the Texas Transportation Code. See TEX. TRANSP. CODE ANN. § 552.006 (West 2011). Article 14.01 of the Texas Code of Criminal Procedure states,
Section 552.006 of the Texas Transportation Code states, in part, that "[a] pedestrian may not walk along and on a roadway if an adjacent sidewalk is provided and is accessible to the pedestrian." TEX. TRANSP. CODE ANN. § 552.006. Here, the dash-cam recording revealed there were multiple sidewalks in the area, including a sidewalk adjacent to the roadway in which Agnew had been walking.
(a) A peace officer or any other person, may, without a warrant, arrest an offender when the offense is committed in his presence or within his view, if the offense is one classed as a felony or as an offense against the public peace.TEX. CODE CRIM. PROC. ANN. art. 14.01 (West 2015).
(b) A peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view.
Thus, not only did Gesik have reasonable suspicion to detain Agnew at the outset, he also had a basis on which to arrest him; that is, Gesik observed an offense being "committed in his presence or within his view." Id. As long as an actual violation occurred, Gesik was free to enforce the law and detain Agnew. Moreover, after Gesik made contact with Agnew, he quickly learned of an active warrant for Agnew's arrest. As such, Gesik had not one, but two, reasons on which to detain and arrest Agnew and then to proceed with a subsequent search pursuant to the arrest. For these reasons, the trial court did not err when it denied Agnew's motion to suppress.
The evidence shows that approximately three minutes elapsed from the time Gesik made initial contact with Agnew to the time he learned there was an active warrant for Agnew's arrest. Upon receiving this information, Gesik immediately informed Agnew, who was, at the time, on his cell phone with his mother. Gesik informed Agnew that he needed to discontinue the call with his mother and Gesik then proceeded to place Agnew under arrest.
Agnew points out that, at trial, he testified he did not violate Section 552.006 because he was walking on the sidewalk rather than in the street and, therefore, Gesik had no basis upon which to detain him. "In determining whether a trial court's decision is supported by the record, we generally consider only evidence adduced at the suppression hearing, because the ruling was based on that evidence, rather than evidence introduced later at trial." Young, 420 S.W.3d at 141 (citing Rachal v. State, 917 S.W.2d at 809).
However, even if we were to consider Agnew's version of the facts, in a hearing on a motion to suppress, the trial court is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given to their testimony. See Ballard, 987 S.W.2d at 891. Accordingly, the trial court may believe or disbelieve all or any part of a witness' testimony, even if that testimony is uncontroverted. Garcia v. State, 15 S.W.3d 533, 535 (Tex. Crim. App. 2000). Although Agnew claimed at trial that he was walking on the side of the street, Gesik testified that he observed him walking in the street with the flow of traffic. Faced with conflicting testimony, the trial court would have been well within its discretion to determine that Gesik's version of events was more credible.
We affirm the judgment of the trial court.
Josh R. Morriss, III
Chief Justice Date Submitted: January 18, 2018
Date Decided: January 31, 2018 Do Not Publish