No. 01-01-01133-CR.
Issued February 13, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.
Appeal from the 339th District Court, Harris County, Texas, Trial Court Cause No. 873135.
Before Justices TAFT, KEYES, and HIGLEY.
EVELYN V. KEYES, Justice
Raymond Arceneaux, Jr., appellant, was charged with possession of phencyclidine ("PCP") weighing more than four grams and less than 200 grams, a second degree felony punishable by imprisonment for no more than 20 years and no less than two years and a fine of no more than $10,000. Appellant moved to suppress the evidence, and the trial court denied the motion. The jury found appellant guilty and the enhancement paragraph true. The trial court assessed punishment at 17 years' confinement and a $1,000 fine. We affirm.
Facts
On March 29, 2001, Houston Police Officer Mike Burdick, a plain-clothes undercover officer, was driving his car near Rosewood Park. Burdick heard loud music and noticed several cars and men blocking the street. Because the area has a gang called the Rosewood Boys, Burdick contacted officers in marked patrol cars to investigate and to tell the men to turn down the music. Burdick testified that the one car blocking the street drove away when the marked patrol car arrived and that appellant's car was not blocking the street. Houston Police Officers Eric Newman and Noey Hernandez responded to Burdick's call. Newman testified that the park was a local hangout for a gang and that the park was "very high in narcotics activity." When Newman arrived at the park, he began to secure the area by asking persons to place their hands on his patrol car and, if they were seated in a car, to get out of their car. The officers identified all of the people in the park and patted them down. About 10 persons were suspected of gang activity, narcotics activity, or traffic violations. Newman saw appellant sitting in his car with the window up and asked him to get out of the car. Newman was trying to identify appellant to ensure the officers' safety. When appellant opened his car door, Newman smelled an extremely strong chemical odor that, from his experience, he recognized as PCP. Newman also saw a vanilla extract bottle, commonly used to hold PCP, on the floorboard. Newman did not place appellant under arrest when appellant initially got out of the car. Newman patted down appellant and then put appellant into the back of his patrol car. Burdick was called to the park to provide help because there were only two uniformed officers at the scene. Burdick and Newman inventoried appellant's car. Newman found marihuana cigarettes in appellant's car, prescription bottles with other people's names on them, and two additional vanilla extract bottles under appellant's seat. Marihuana was also found both inside the car and on the ground outside the car within the crime scene. Newman bagged and tagged all items inventoried. K.K. Alexander of the Houston Police Department Crime Laboratory testified that he tested the evidence found in appellant's car and found 18.8 grams of PCP. Gary Ball, Christopher Jones, Gabriel Norris, James Washington, Randy Jones, Jerimiya Washington, Joseph Taylor, Lester Walker, III, Jason Phillips, and Doniano Jernigan testified that appellant was not in his car when the officers arrived at the park. Ball, Jones, Norris, and Taylor also testified that the officers made them get on their knees. Norris stated that he had talked to Jones and Ball about what they had testified to and what questions they were asked. Ball testified that no one had any alcohol or drugs at the park; and Taylor testified that appellant did not have any drugs. All of the appellant's witnesses denied any knowledge of the gang, Rosewood Boys, although Norris has a tattoo on his arm that says Rosewood and has a tombstone with "tombstone life" written on it. Motion to Suppress
In his sole point of error, appellant argues that the trial court erred in admitting evidence found in his car over his timely objection that his detention was illegal. He asserts that the seizure of evidence from his car was the fruit of an illegal investigatory detention not supported by reasonable suspicion. Standard of Review We review a trial court's ruling on a motion to suppress evidence for abuse of discretion. Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App. 1996); Taylor v. State, 945 S.W.2d 295, 297 (Tex.App.-Houston [1st Dist.] 1997, pet. ref'd). The Court will afford almost total deference to a trial court's determination of historical facts that the record supports, especially when the findings are based on the evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). The fact finder is the sole judge of the witnesses' credibility and may accept or reject any or all of the witnesses' testimony. Taylor, 945 S.W.2d at 297. However, when, as here, we are reviewing a mixed question of law and fact, we conduct a de novo review. Guzman, 955 S.W.2d at 89. A police officer may briefly stop a suspicious individual to determine his identity or to maintain the status quo momentarily while obtaining more information. Gurrola v. State, 877 S.W.2d 300, 302 (Tex.Crim.App. 1994). An investigatory detention does not occur when an officer merely approaches a parked car in a public place and knocks on the window. Merideth v. State, 603 S.W.2d 872, 873 (Tex.Crim.App. 1980); Ashton v. State, 931 S.W.2d 5, 7 (Tex.App.-Houston [1st Dist.] 1996, pet. ref'd). Investigative detentions must be reasonably related in scope to the circumstances that justified the interference in the first place. State v. Cardenas, 36 S.W.3d 243, 246 (Tex.App.-Houston [1st Dist.] 2001, pet. ref'd). To justify an intrusion, the officer must have specific, articulable facts which, in light of his experience and personal knowledge, together with inferences from those facts, reasonably warrant the intrusion on the freedom of the citizen detained for further investigation. Martinez v. State, 29 S.W.3d 609, 611 (Tex.App.-Houston [1st Dist.] 2000, pet. ref'd) (citing Terry v. Ohio, 392 U.S. 1, 21 (1968)). This case is controlled by Merideth, in which the Texas Court of Criminal Appeals held that an investigative stop did not occur when an officer approached a parked car in a public place and knocked on the window; rather the stop and detention did not occur until the odor of marihuana was detected. See Merideth, 603 S.W.2d at 873; see also Sandoval v. State, 860 S.W.2d 255, 259 (Tex.App.-Houston [1st Dist.] 1993, pet. ref'd) (holding that the search and seizure was justified following the detection of a marihuana odor). We hold that the trial court did not abuse its discretion in admitting the evidence and denying appellant's motion to suppress. We overrule appellant's sole point of error. Conclusion
We affirm the judgment of the trial court.