No. 01-02-00174-CR.
February 20, 2003. DO NOT PUBLISH.
Appeal from County Criminal Court at Law No. 13, Harris County, Texas, Trial Court Cause No. 1086270.
Before Chief Justice RADACK and Justices NUCHIA and HANKS.
SAM NUCHIA Justice
Ivan Rodriguez, appellant, was charged with the misdemeanor offense of possession of marihuana. After the trial court denied appellant's motion to suppress, appellant entered a plea of guilty. The trial court assessed the appellant's punishment at eight days confinement in the Harris County Jail. In two points of error, appellant complains that the trial court committed reversible error in overruling his motion to suppress.
Background
At about 8:40 p.m., Houston Police Officers Joseph Ramirez and Willie Hassan were called to a location in north Houston to investigate a possible vehicle burglary. At the motion-to-suppress hearing, Ramirez testified on direct examination that, as they were driving up to investigate the burglary, appellant was walking away from the area. Ramirez testified that he approached appellant and asked appellant if he had seen anything or had any information. Appellant did not reply, took a step back, and hid his hands behind his back. Ramirez testified that appellant's reaction startled him. Ramirez then asked appellant, "Let me see your hands," but appellant did not comply. Ramirez asked appellant two more times, "Let me see your hands," but appellant still did not comply. Ramirez then drew his pistol, pointed it at appellant, and gave him the command again. Appellant did not comply but kept stepping back, and, at that point, Ramirez approached appellant with his pistol still pointed at him. Appellant finally complied. Appellant did not have anything in his hands. Fearing for his safety, Hassan conducted a pat-down for weapons, but did not find any. The officers asked appellant what he was grabbing for, and appellant responded, "I have marihuana in my pocket." The officers retrieved marihuana from appellant's pocket and from appellant's ankle. Appellant was arrested for possession of marihuana. Discussion
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. In reviewing a ruling on a question of application of law to facts, we review the evidence in the light most favorable to the trial court's ruling. Guzman, 955 S.W.2d at 89. Motion to Suppress In his first two points of error, appellant claims the trial court erred in denying his motion to suppress because the officers lacked reasonable suspicion to detain and search him for weapons and the officers did not have a right to continue his detention after the search failed to reveal any weapons. Police officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place and asking him questions. See State v. Perez, 85 S.W.3d 817, 819 (Tex.Crim.App. 2002). Such interaction is merely an encounter and does not rise to the level of an investigative detention. Id. Therefore, in this case, the officers' interaction with the appellant was simply an encounter, which does not require reasonable suspicion. Additionally, an officer, without probable cause, may conduct a limited search of a detainee's outer clothing for weapons, when specific and articulable facts lead him to reasonably conclude that the person with whom he is dealing is armed and dangerous. Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1879-80 (1968); Davis v. State, 829 S.W.2d 218, 220 (Tex.Crim. App. 1992). In this case, Ramirez testified that he approached appellant and asked him if he had seen anything relating to the alleged burglary. Ramirez testified that appellant responded by hiding his hands behind his back and would not show his hands after several requests by Ramirez to do so. Ramirez testified that as a result of appellant's non-compliance, he drew his pistol and ordered appellant to show his hands. Ramirez stated that as a result of appellant's conduct, he searched appellant for weapons as a safety precaution. Appellant also contends that, once the officers searched him and found no weapons, any further detention was unauthorized. Appellant claims that the officer's questioning was a continued detention. In Williams v. State, the Beaumont Court of Appeals, dealing with a similar issue, held that, they "know of no authority which prevents an officer from merely asking a suspect what is in his [the suspect's] pocket after having conducted a proper Terry pat-down." Williams v. State, 27 S.W.3d 688, 690 (Tex.App.-Beaumont 2000, no pet.). We conclude that the officer's questioning after appellant's pat-down for weapons was not a continued detention. We overrule appellant's two points of error. Conclusion
Based on the record before us, we hold that the trial court did not err in denying appellant's motion to suppress. We affirm the trial court's judgment.