Opinion
NO. 01-16-00380-CR
03-09-2017
CHRISTOPHER RICHMOND, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 262nd District Court Harris County, Texas
Trial Court Case No. 1477566
MEMORANDUM OPINION
Appellant, Christopher Richmond, was charged by indictment with possession of a controlled substance weighing at least four grams but less than 400 grams. After the trial court denied his motion to suppress, Appellant pleaded guilty subject to a plea bargain with a punishment at 12 years' confinement. In his sole issue on appeal, Appellant argues the trial court erred by denying his motion to suppress.
See TEX. HEALTH & SAFETY CODE ANN. §§ 481.103(a)(1), .116(a), (d) (Vernon's Supp. 2016).
We affirm.
Background
Officers J. Sneed and D. Morelli were on patrol at 1:00 a.m. on August 7, 2015. They were investigating a club in Harris County, Texas known for gang activity and narcotics use. They drove passed the club with their windows down and noticed the smell of marijuana. They saw a car with two people in it in the area where they smelled marijuana.
They stopped near the suspected car and approached on foot. As they walked closer, the smell grew stronger. The area was well lit and the officers could see into the car. Two men were in the car. Officer Morelli came up to the passenger side of the vehicle as the passenger got out of the car and began to walk away.
Officer Sneed approached the driver's side of the car. He saw the driver, Appellant, moving around like he was trying to find something. As he got close, Officer Sneed saw Appellant holding a clear plastic bag with pills. Based on his experience and training with identifying drugs, Officer Sneed recognized the pills to be ecstasy. After Appellant noticed him, Officer Sneed saw Appellant shove the bag of pills into the door panel. Appellant then opened the car door and got out of the car. Officer Sneed could see the bag of pills in the door panel. He also could smell the odor of marijuana coming from Appellant's car.
Officer Sneed directed Appellant to the patrol car. He then searched Appellant's car and found the ecstasy pills along with a baggie of cocaine.
Appellant testified at the motion to suppress. He denied having ever smoked marijuana in his life. He testified that Officer Sneed parked the patrol car behind his car, blocking him from leaving. He denied having any knowledge that ecstasy pills were in his car.
At the end of the hearing, the trial court found that Officers Sneed and Morelli were credible. The trial court found that the officers smelled marijuana and concluded that they had a duty to investigate. The trial court found that Officer Sneed saw Appellant with the bag of pills that Officer Sneed assessed were ecstasy. The court concluded that Officer Sneed observed Appellant possessing the bag of pills in plain view and that, accordingly, Officer Sneed had the right to arrest Appellant and recover the contraband.
Standard of Review
In his sole issue, Appellant argues the trial court erred by denying his motion to suppress. We review a trial court's denial of a motion to suppress evidence under a bifurcated standard of review. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013). We give almost total deference to a trial court's determination of historical facts, especially if those determinations turn on witness credibility or demeanor, and we review de novo the trial court's application of the law to facts not based on an evaluation of credibility and demeanor. Gonzales v. State, 369 S.W.3d 851, 854 (Tex. Crim. App. 2012). At a suppression hearing, the trial court is the sole and exclusive trier of fact and judge of the witnesses' credibility, and it may choose to believe or disbelieve all or any part of the witnesses' testimony. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).
When the trial court enters findings of fact, the appellate court considers all of the evidence in the record and "must determine whether the evidence supports those facts by viewing the evidence in favor of the trial court's ruling." Castro v. State, 373 S.W.3d 159, 164 (Tex. App.—San Antonio 2012, no pet.) (citing Keehn v. State, 279 S.W.3d 330, 334 (Tex. Crim. App. 2009)). Additionally, an appellate court must "uphold the trial court's ruling if it is supported by the record and correct under any theory of law applicable to the case." State v. Iduarte, 268 S.W.3d 544, 548 (Tex. Crim. App. 2008).
Motion to Suppress
Appellant argues that the officer's interaction with him was not a consensual encounter and that the officers lacked reasonable suspicion to perform an investigative detention. The Fourth Amendment to the United States Constitution protects people from unreasonable searches and seizures. U.S. CONST. amend. IV. Relevant to this, the law recognizes three categories of police-citizen interactions. Wade v. State, 422 S.W.3d 661, 667 (Tex. Crim. App. 2013). The first is a consensual encounter. Id. These do not implicate Fourth Amendment protections. Id. The second is an investigative detention. Id. This is a "seizure[] of limited scope and duration that must be supported by a reasonable suspicion of criminal activity." Id. The third is an arrest. Id. An arrest is "the most intrusive of Fourth Amendment seizures," and it is "reasonable only if supported by probable cause." Id.
Appellant testified that the officers parked the patrol car behind his car, blocking his ability to leave. See id. at 668 (holding encounter is not consensual if officer, through show of force or authority, restrains person's liberty). In contrast, the officers testified that the patrol car was parked near Appellant's car without blocking it and that they walked over to Appellant's car. It was the trial court's responsibility to resolve this conflict in historical fact, and we provide almost total deference to the trial court's findings. See Gonzales, 369 S.W.3d at 854; Maxwell, 73 S.W.3d at 281. The trial court expressly found that the officers were credible. Accordingly, we defer to the trial court's implicit determination that the officers did not park the patrol car in a way to block Appellant from leaving.
Officer Sneed testified that Appellant did not see him until he was close enough to Appellant's car to see in. Likewise, Appellant testified that he did not see Officer Sneed until he was next to him. Before this point, there was no interaction between Officer Sneed and Appellant. Accordingly, there is nothing to evaluate for a Fourth Amendment violation. See Wade, 422 S.W.3d at 667 (discussing Fourth Amendment considerations of police-citizens interactions).
Officer Sneed testified that, as he approached but before Appellant noticed him, he saw Appellant holding a bag of pills. Officer Sneed recognized the pills as ecstasy pills.
When an officer sees a person possessing drugs in plain view, the officer has probable cause to arrest the person. TEX. CODE CRIM. PROC. ANN. art. 14.01(a) (Vernon 2015) ("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"); see also TEX. HEALTH & SAFETY CODE ANN. § 481.116(a), (d) (establishing possession of controlled substance in penalty group two as second degree felony when amount is at least four grams but less than 400 grams); TEX. HEALTH & SAFETY CODE ANN. § 481.103(a)(1) (establishing "3,4-methylenedioxy amphetamine" as controlled substance in penalty group two); Brenes v. State, 488 S.W.3d 384, 390 (Tex. App.—Texarkana 2016, pet. ref'd) (recognizing "3,4-methylenedioxy amphetamine" is more commonly known as ecstasy). The officer also has probable cause to seize the drugs. See Miller v. State, 393 S.W.3d 255, 266 (Tex. Crim. App. 2012) (holding officer can seize item in plain view when officer views from place officer has right to be and it is immediately apparent that viewed item constitutes evidence of criminal activity).
Appellant denied possessing any drugs or even knowing of their existence in his car. This is another dispute of historical fact to which we must defer to the trial court. See Gonzales, 369 S.W.3d at 854; Maxwell, 73 S.W.3d at 281.
We hold the trial court did not err by denying Appellant's motion to suppress. We overrule Appellant's sole issue.
Conclusion
We affirm the judgment of the trial court.
Laura Carter Higley
Justice Panel consists of Justices Jennings, Higley, and Massengale. Do not publish. TEX. R. APP. P. 47.2(b).