Opinion
No. 10-17-00053-CR
11-08-2017
CALVIN DEAN COLE, Appellant v. THE STATE OF TEXAS, Appellee
From the 443rd District Court Ellis County, Texas
Trial Court No. 40803CR
MEMORANDUM OPINION
Calvin Dean Cole was convicted of unlawful possession of a firearm, enhanced, and sentenced to 25 years in prison. See TEX. PENAL CODE ANN. § 46.04 (West 2011). Because the trial court did not err in denying Cole's motion to suppress, the trial court's judgment is affirmed.
MOTION TO SUPPRESS
In one issue, Cole contends the trial court erred in denying Cole's motion to suppress. Specifically, Cole asserts that the warrantless search of Cole's pickup was unreasonable; thus, the shotgun seized was inadmissible and should have been suppressed. The State argued at trial, as it does on appeal, that the search was justified as a protective sweep for weapons based on the facts and circumstances surrounding the nature of the call that officers had received.
In his motion and at the hearing, Cole also asserted that any statements made by Cole should be suppressed. He does not advance any argument on appeal about the statements.
Standard of Review
When reviewing a trial court's ruling on a motion to suppress, we review de novo a trial court's application of law to the facts, but we defer to the trial court on determinations of credibility and historical fact. Hubert v. State, 312 S.W.3d 554, 559 (Tex. Crim. App. 2010). When a trial judge makes express findings of fact, an appellate court must examine the record in the light most favorable to the ruling and uphold those fact findings so long as they are supported by the record. State v. Rodriguez, 521 S.W.3d 1, 8 (Tex. Crim. App. 2017). We then review the trial court's legal rulings de novo unless the findings are dispositive. State v. Robinson, 334 S.W.3d 776, 778 (Tex. Crim. App. 2011).
Evidence
Red Oak Police officers received a disturbance call involving weapons. When Detective Greg Dansby and other officers arrived at the scene, they made contact with two black males and one female. The males were standing next to a red pickup, and the female was sitting inside the pickup. The officers drew their weapons, and Dansby ordered the three to step away from the vehicle. He then ordered them down on the ground. One of the males, Tucker, was verbally combative and was not complying with Dansby's instructions. This increased Dansby's apprehension regarding the officers' safety on the scene, especially when the disturbance call indicated a weapon was involved. Tucker ultimately complied with Dansby's instructions and was detained when Dansby holstered his weapon and retrieved his Taser. Officer David Palmer arrived on the scene to assist and detained Cole. Cole was detained because of the type of call received and officers were unaware if he had weapons or if any of the suspects were going to become violent.
Once all three were detained, Dansby approached the pickup from the driver's side because the female was detained on the passenger side with the door open and her back was inside the door. Dansby looked inside the driver's side, opened the door, and began to look for any type of weapons or anything that might still "cause a threat." He looked in the front seat, briefly looked behind the seat, and then looked in the floor underneath the driver's seat where he discovered a shotgun.
Protective Sweep
A protective sweep of the passenger compartment of an automobile is limited to those areas in which a weapon may be placed or hidden. Michigan v. Long, 463 U.S. 1032, 1049, 103 S. Ct. 3469, 77 L. Ed. 2d 1201 (1983). The officer must have a reasonable belief based on specific and articulable facts which, when taken together with the rational inferences from those facts, reasonably warrant the officer's belief that the detainee is dangerous and the detainee may gain immediate control of a weapon. See id.; Williams v. State, 454 S.W.3d 172, 175 (Tex. App.—Houston [14th Dist.] 2014, pet. ref'd). The officer does not have to be absolutely certain that the detainee possesses a weapon; the test is whether a reasonably prudent officer in the same circumstances would be warranted in believing that his safety or the safety of others is in danger. See Long, 463 U.S. at 1050-51; O'Hara v. State, 27 S.W.3d 548, 551 (Tex. Crim. App. 2000).
Application
In this case, officers received a disturbance call that involved a weapon. Further, one of the suspects at the scene was verbally combative which increased the apprehension of the officer conducting the sweep regarding their safety on the scene. After reviewing the record, it is clear that the officer had a reasonable belief, based on specific and articulable facts, that his safety or the safety of others was in danger. Accordingly, the trial court did not err in concluding that the officer acted reasonably and did not err in denying Cole's motion to suppress.
CONCLUSION
Cole's sole issue on appeal is overruled, and the trial court's judgment is affirmed.
TOM GRAY
Chief Justice Before Chief Justice Gray, Justice Davis, and Justice Scoggins
Affirmed
Opinion delivered and filed November 8, 2017
Do not publish
[CR25]