No. 05-06-01359-CR
Opinion Filed July 23, 2008. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause No. F06-62945-UI.
Before Justices FITZGERALD, LANG-MIERS, and MAZZANT.
Opinion By Justice FITZGERALD.
A jury convicted Billy Cornel Fritz of possession of cocaine in an amount less than one gram. The jury found the enhancement paragraph true and assessed Fritz's punishment at eight years' confinement. Fritz appeals, challenging the trial court's denial of his motion to suppress and his motion for continuance, the factual sufficiency of the evidence supporting the jury's findings, and the admission into evidence of five photographs of the site of his arrest. The State raises one cross-point, asking us to modify the judgment to correct a clerical error. As modified, we affirm the trial court's judgment.
Appellant's Brief states Fritz's punishment included a $10,000 fine, but neither the jury's verdict form nor the trial court's judgment indicate a fine was assessed.
Background
Dallas Police Officer Antonio Lopez testified that he and his partner, Officer Karen Snider, were patrolling their sector of the city during the early morning hours of February 28, 2006. As he regularly did, Lopez checked on a high-crime industrial area known as "the cut." The cut was known for drug-trafficking, prostitution, and other criminal activity; Lopez had made many arrests there over his years on patrol. Shortly before four o'clock in the morning, Lopez turned the headlights off on his marked patrol car and entered the area. Although all local businesses were closed at that hour, there were lights shining from various buildings. Lopez saw Fritz and another man (later identified as Daniel Puente) engaging in a "hand-to-hand exchange," which Lopez believed was a drug transaction. Lopez testified Fritz and Puente noticed the approaching police car and turned away. Lopez saw Fritz stuff something down the right side of his windbreaker or down the right side of the front of his pants. Lopez was concerned Fritz was concealing a gun, so the officers got out of the car and directed both men-now walking away-to stop. They did, and while Snider approached and addressed Puente, Lopez approached Fritz. Lopez directed Fritz to interlock his fingers with his hands behind his back; Fritz complied. Then Lopez, with a flashlight in one hand, lifted the right side of Fritz's windbreaker with the other hand and checked for a weapon. Instead of a gun, Lopez saw an open Marlboro cigarette box protruding from Fritz's jeans pocket. A rock-like substance, which Lopez believed was cocaine, was visible in the otherwise-empty box. Lopez seized the substance and placed Fritz under arrest. Meanwhile, Snider questioned and patted down Puente; he was eventually released. Sergeant Kevin Campbell testified he was called to the scene of the arrest to perform preliminary tests on the rock-like substance. It tested presumptively positive for cocaine. This preliminary testing was confirmed through analysis at the Southwestern Institute of Forensic Science. Motion to Suppress
After the conclusion of voir dire, Fritz orally moved to suppress "the stop, the search, and the arrest of the Defendant." Following a hearing at which Officer Lopez testified, the trial court denied the motion. In his first and second issues, Fritz contends the trial court erroneously denied his motion in contravention of the United States and Texas Constitutions. Specifically, Fritz argues the officers lacked a basis upon which to detain him. We review a trial court's ruling on a motion to suppress under a bifurcated standard. We give almost total deference to the trial court's determination of historical facts. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). When, as in this case, the trial court does not make express findings of fact, we review the evidence in a light most favorable to the trial court's ruling. Carmouche v. State, 10 S.W.3d 323, 328 (Tex.Crim.App. 2000). Then we review de novo the court's application of the law to the facts. Guzman, 955 S.W.2d at 88. In this case, that review requires us to determine whether Lopez's detention of Fritz violated the latter's rights under the Fourth Amendment or Article I, § 9 of the Texas Constitution, both of which protect individuals from unreasonable searches and seizures. A police officer is justified in briefly detaining an individual for the purpose of investigating behavior that may be criminal, so long as the officer can "point to specific and articulable facts, which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion." Carmouche, 10 S.W.3d at 328 (quoting Terry v. Ohio, 392 U.S. 1, 21 (1968)). We evaluate the reasonableness of a temporary detention by examining the totality of the circumstances, asking whether the specific articulable facts and rational inferences therefrom led the officer to conclude that the person detained had been engaged in criminal activity. See Woods v. State, 956 S.W.2d 33, 38 (Tex.Crim.App. 1997). After an investigatory stop, an officer may conduct a limited search of the suspect's outer clothing for weapons if the officer reasonably believes the suspect is armed and dangerous. Carmouche, 10 S.W.3d at 329. The purpose of this limited search is not to discover evidence of a crime but to allow the investigation to proceed without fear of violence to the officer. Id. Officer Lopez testified to specific facts that led him to believe Fritz had been engaging in criminal activity: Lopez observed a hand-to-hand exchange between Fritz and Puente; when Fritz saw the patrol car approaching, he turned away and stuffed something into his pants under his jacket; the exchange took place at approximately four o'clock in the morning, during the week, in a high-crime area of the city known for drug transactions; and Lopez was very familiar with the area and had made many arrests there. From these facts, Lopez drew at least two inferences: the exchange he witnessed was likely a drug transaction, and there was reason to be concerned Fritz had stuffed a weapon under his jacket. Given Lopez's years of experience patrolling this very area, these inferences were rational. Lopez's version of the facts, together with his rational inferences, supports the trial court's implicit findings. Thus, viewing the totality of the circumstances, we conclude Lopez articulated sufficient specific facts and rational inferences therefrom to support detaining Fritz. See id. at 328. We further conclude Lopez sufficiently articulated his reasonable belief that Fritz was armed and dangerous so as to support the limited search for weapons under Fritz's jacket. See id. at 329. Fritz relies heavily on Smith v. State, 759 S.W.2d 163 (Tex.App.-Houston [14th Dist.] 1988, pet. ref'd), which concluded a detention and search were unreasonable. Fritz correctly relates that many of the facts in Smith are similar to the facts in this case. However, Smith was decided under a standard that has since been rejected by our Court of Criminal Appeals. The Smith court concluded: The police officers acted improperly in detaining appellant because his actions were as consistent with innocent activity as criminal activity and there existed no specific articulable facts indicating appellant's activity was related to a crime.
Id. at 165 (emphasis added). The Court of Criminal Appeals has held the "as consistent with innocent activity as with criminal activity" standard is not a viable test for determining reasonable suspicion. Woods, 956 S.W.2d at 38. Thus, Fritz's reliance on Smith is misplaced. The trial court did not err in denying Fritz's motion to suppress. We decide his first and second issues against him. Motion for Continuance
In his third issue, Fritz argues the trial court abused his discretion by denying his motion for continuance. Fritz filed his motion on the morning his case was set for trial. The motion seeks a continuance "for the want of a witness whose testimony is believed to be material for the Defendant," namely Daniel Puente. According to the motion, Fritz's counsel learned only the day trial was scheduled to begin that the State had not subpoenaed Puente; defense counsel had not issued his own subpoena because he believed the State was going to call Puente. As to the subject of the witness's testimony, the motion states only: "Witness was present when the alleged offense occurred and can provide material details about what happened." The court heard the motion the next morning, before opening statements were to begin. Defense counsel stated he had sent his investigator the day before to find Puente. The investigator spoke to Puente's mother, who was unaware of his whereabouts. Counsel stated he was "not sure whether it's possible to get to him anytime soon." The prosecutor stated he "would not oppose holding this case at some point for a day or two" so the defense would have the opportunity to find its witness. The trial court denied the motion, but agreed, if it was necessary, to be flexible and to hold over a day of trial to obtain the presence of the witness. After the State rested, the prosecutor asked the court whether any "further continuance" was necessary, referring to the earlier discussion. Counsel for the defense made no response or request for more time, and the court proceeded with other matters. We review the denial of a motion for continuance under an abuse of discretion standard. Gallo v. State, 239 S.W.3d 757, 764 (Tex.Crim.App. 2007). When a motion for continuance is based on the absence of a witness, the motion must state "the diligence which has been used to procure [the witness's] attendance." Tex. Code Crim. Proc. Ann. art. 29.06, § 2 (Vernon 2006). The Court of Criminal Appeals has interpreted this provision to require diligence not only in procuring the presence of the witness, but also in presenting the motion. Dewberry v. State, 4 S.W.3d 735, 756 (Tex.Crim.App. 1999). As a rule, a motion for continuance based on the absence of witnesses that is filed on the day the trial is set to commence does not show the diligence required to support the motion. Id. In this case, Fritz has failed to evidence a reasonable level of diligence in attempting to procure the attendance of this witness. He offers no basis for his professed belief that the State was planning to call the witness. The record indicates that, some six days before the trial setting, Fritz filed an Omnibus Pre-trial Motion that included a request for a list of the State's witnesses. This is the only effort we find in the record to determine who the State would call to testify at trial. When the State filed its list in response to the motion, Fritz claimed surprise and sought the continuance. The record does not evidence a diligent effort to procure the attendance of this witness. The trial court did not abuse its discretion in denying the motion for continuance on this ground alone. Fritz's motion for continuance was also required to state "[t]he facts which are expected to be proved by the witness, and it must appear to the court that they are material." Tex. Code Crim. Proc. Ann. art. 29.06, § 3. But his motion states only that "Witness was present when the alleged offense occurred and can provide material details about what happened." This statement did not give the trial court any indication of the testimony Puente might provide. It is wholly insufficient to support a continuance based on the absence of the witness. Again, the trial court could have denied the motion on this ground as well. Fritz argues these failures of his motion should be overlooked because we can view the motion as one based on equity, not statute. Fritz relies on the case of O'Rarden v. State, 777 S.W.2d 455 (Tex.App.-Dallas 1989, pet. ref'd), but O'Rarden is not applicable here. O'Rarden's discussion of equitable motions for continuance is in response to the State's argument that the defendant had failed to preserve error at trial by filing a sworn written motion for continuance. Id. at 459. O'Rarden declared an oral motion may be an exception to the requirement of a sworn writing when circumstances support an appeal to the equitable powers of the trial court. Id. In O'Rarden, those circumstances were the discovery after trial commenced of favorable evidence the prosecution had suppressed. Id. at 460. However, although the O'Rarden court was willing to make an exception to the requirement of a sworn writing, the opinion makes clear that both the trial court and the prosecutor had to be made aware of the substance of the complaint that would merit a continuance. In O'Raden, that was accomplished. Id. In Fritz's case, the motion was sworn and in writing; it is the substance of the motion-the evidence of diligence and the statement of facts to be proved-that cause it to fail. Calling the motion an equitable one and citing O'Rarden cannot cure the inadequacies of Fritz's motion. We decide Fritz's third issue against him. Factual Sufficiency of the Evidence
In his fourth issue, Fritz complains that the evidence is factually insufficient to support the jury's finding that he possessed the cocaine at issue. In a factual sufficiency review, we view all of the evidence in a neutral light and ask whether a jury was rationally justified in finding guilt beyond a reasonable doubt. Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). To prove unlawful possession of a controlled substance, the State must prove that: (1) the accused exercised control, management, or care over the substance; and (2) the accused knew the matter possessed was contraband. Poindexter v. State, 153 S.W.3d 402, 405 (Tex.Crim.App. 2005). The evidence establishing these elements may be direct or circumstantial, but it must establish, to the requisite level of confidence, that the accused's connection with the drug was more than just fortuitous. Id. at 405-06. Fritz's sole contention under this issue is that the evidence does not satisfy this "more than fortuitous" standard. We disagree. The cocaine was discovered in a box in Fritz's pants pocket, after a police officer saw him stuff something in his pants. There is nothing in the record to suggest that Fritz's possession was "fortuitous." Fritz would have us evaluate his possession under an "affirmative links" analysis. Such a analysis is appropriate when a defendant is not in exclusive possession of the place in which drugs are discovered. See, e.g., Taylor v. State, 106 S.W.3d 827, 830-31 (Tex.App.-Dallas 2003, no pet.) (cocaine discovered on coffee table in apartment living room; defendant discovered in crawl space under far corner of house). The various factors in such an analysis are not meaningful or necessary when-as in this case-the evidence establishes the defendant was in exclusive, knowing possession of the contraband. The jury was rationally justified in finding Fritz possessed the cocaine at issue in this case. See Watson, 204 S.W.3d at 415. We decide his fourth issue against him. Authentication of Photographs
In his fifth through ninth issues, Fritz contends the trial court erroneously admitted five photographs into evidence. Specifically, Fritz complains the photographs were improperly authenticated. The photographs showed the scene of the arrest, but they were taken in the daylight rather than in the conditions that would have existed at roughly four o'clock in the morning when the arrest took place. Officer Lopez testified that the photographs fairly and accurately depicted the scene as he knew it, except for the lighting issue and the presence of different vehicles. Lopez conceded he did not know when the photographs were taken, but he stated the location looks the same as the photographs at night, "it's just darker." Fritz objected that the photographs did not accurately portray the arrest scene because they were taken during the daytime. The trial court overruled his objection and admitted the photographs. We review a trial court's decision to admit evidence under an abuse of discretion standard. See McDonald v. State, 179 S.W.3d 571, 576 (Tex.Crim.App. 2005). If the trial court's decision was within the "bounds of reasonable disagreement," we do not disturb the ruling. See Apolinar v. State, 155 S.W.3d 184, 186 (Tex.Crim.App. 2005). The Texas Rules of Evidence generally allow an exhibit to be authenticated "by evidence sufficient to support a finding that the matter in question is what its proponent claims." Tex. R. Evid. 901(a). This rule allows photographs to be authenticated by the testimony of any witness who has personal knowledge that the particular item accurately represents the scene or event which the photographs purport to portray. Kelley v. State, 22 S.W.3d 642, 644 (Tex.App.-Waco 2000, pet. ref'd). Fritz concedes Lopez had personal knowledge of the scene of the arrest, but he challenges the trial court's implicit conclusion that the photographs accurately represent the scene they purport to portray. Lopez's testimony established that the photographs did accurately represent the scene as it appears in the daytime. The variance in lighting from the time of the arrest was pointed out to the jury repeatedly. So long as the photographs were offered and admitted into evidence with the jury knowing of the variance, we find no abuse of discretion. See Craig v. State, 704 S.W.2d 948, 951 (Tex.App.-Fort Worth 1986, pet. ref'd). We decide Fritz's fifth through ninth issues against him. Clerical Error in Judgment
In a single cross-point, the State asks us to modify the judgment to correct a clerical error. This Court has the power to modify an incorrect judgment to make the record speak the truth when we have the necessary information to do so. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.Crim.App. 1993). The record demonstrates that Assistant District Attorney Drew Gatlin represented the State in this case. The judgment, however, states that "D Mitchell" was the attorney for the State. We conclude the judgment contains a clerical error. We sustain the State's cross-point and modify the judgment to reflect that Drew Gatlin was attorney for the State at the trial of this matter. Conclusion
We have decided each of Fritz's issues against him and sustained the State's cross-point. Accordingly, as modified, we affirm the trial court's judgment.