No. 14-97-01263-CR
Opinion filed August 31, 1999. DO NOT PUBLISH. TEX. R. APP. P. 47.3(b).
On Appeal from the 183rd District Court, Harris County, Texas, Trial Court Cause No. 752110.
Panel consists of Chief Justice, MURPHY and Justices, YATES and FOWLER.
WANDA McKEE FOWLER, Justice.
Over his plea of not guilty, a jury found appellant, George Prince, guilty of unlawfully, intentionally, and knowingly possessing a controlled substance, namely cocaine, weighing more than one gram and less than four grams. See TEX. HEALTH SAFETY CODE ANN. § 481.115 (Vernon Supp. 1999). The trial court assessed punishment at eight years imprisonment in the Texas Department of Criminal Justice, Institutional Division. However, the trial court probated the sentence and placed appellant on community supervision for eight years. Appellant appeals his conviction on two points of error. We affirm the trial court judgment.
BACKGROUND FACTS
On May 5, 1997, Houston Police Officer, Terry Starkey, was patrolling the Fifth Ward in his police car when he received a call over his radio about a disturbance between a man and a woman occurring at 1405 Bayou. Starkey drove to the house and walked up to the front door. When he reached the front porch, a man, later identified as appellant, came out of the house and met him on the front porch. The man appeared to be very nervous and angry. According to Starkey, he was fidgeting a lot and wanted to know why Starkey was there. Starkey asked to see the woman who had called the police. Appellant stated there was no woman at the house. In Starkey's experience, he found that parties to a disturbance try to keep the police from discovering what is happening in the house, so he asked appellant if he could go inside the house. The appellant stated that he could. Once inside the house, appellant continued to fidget and appear angry. After Starkey looked in the living room, he did not find the female who phoned in the complaint. However, Starkey felt he had to look in the other rooms in the house to make sure the female was not there. When Starkey tried to look in rooms other than the living room, appellant would walk up to within a few inches of Starkey on his gun side. Starkey repeatedly asked appellant to step back. When that didn't work, Starkey asked appellant to sit on the sofa. After the sixth request, appellant sat on the sofa. When Starkey turned to investigate the other rooms, appellant stood up and again walked right up to within inches of Starkey's gun. At this point, Starkey grew concerned about his safety and decided to handcuff appellant and place him in his patrol car, so he could search the house in safety. Starkey told appellant that he was not under arrest, and appellant appeared to understand that. Before putting appellant in handcuffs, Starkey conducted a pat-down search. During this search, Starkey found a small cylindrical object in appellant's left front pants' pocket. Thinking the object was a crack pipe, Starkey removed it from appellant's pants. The object turned out to be a pink bubble gum, lip balm tube, so he replaced it in appellant's pants. Starkey placed appellant in his patrol car and called another unit to watch appellant while he searched the house. As Starkey searched the house, he did not find the female who reported the disturbance. Starkey left the house and intended to free appellant from the back of his patrol car; but, when appellant exited the patrol car, Starkey noticed that appellant's hands, which had been handcuffed behind his back when Starkey put him in the car, were now in front of his body. He also noticed that appellant's right hand was bleeding badly. When asked where he hurt his hand, appellant stated that he cut it on some glass. However, when Starkey looked inside the patrol car, he did not see any glass, but he did see that there was blood on the back seat, on the seat's back rest, on the door, and on the door panel. He also noticed that the door panel had been pulled away from the door. Starkey testified that prior to his shift, he checked out his patrol car. He testified that the back seat was free from damage and that there was no contraband in the back seat. Starkey testified that checking the back seat of the car before each shift was standard operating procedure for the police officers. He testified that it is necessary to make note of any prior damage before the shift starts because the officer can be held accountable for it if he doesn't. After noticing that appellant's hand was bleeding, Starkey began to search his car. He testified that he felt appellant injured himself while trying to conceal some contraband inside the car. While Starkey searched the now damaged door panel, a second officer, W. H. Fitzgerald, pulled out the removable back seat. Once this seat was removed, a pink bubble gum, lip balm tube rolled out from underneath the seat. Fitzgerald handed it to Starkey, who recognized it as the pink bubble gum, lip balm tube he had previously found in appellant's pocket. When Starkey opened the lip balm tube, more than fifteen rocks of what appeared to be crack cocaine were inside. Starkey field tested the rocks, and they tested positive for cocaine. Appellant was arrested for possession of a controlled substance. Appellant appeals his conviction on two points of error. DISCUSSION AND HOLDINGS
In his first point of error, appellant contends the evidence is legally insufficient to support his conviction. Appellant argues that the State cannot prove that appellant possessed the contraband in question. We disagree. When reviewing the legal sufficiency of the evidence, this court must decide "`whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Garrett v. State, 851 S.W.2d 853, 857 (Tex.Crim.App. 1993) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). This same standard of review applies to cases involving both direct and circumstantial evidence. See King v. State, 895 S.W.2d 701, 703 (Tex.Crim.App. 1995). On appeal, this court does not re-evaluate the weight and credibility of the evidence, but we consider only whether the jury reached a rational decision. See Muniz v. State, 851 S.W.2d 238, 246 (Tex.Crim.App. 1993). If we were to accept appellant's argument that he was not in possession of the crack cocaine, we would have to disregard the evidence in the record. This is because the argument hinges on appellant's belief that the State did not prove that the lip balm tube recovered from Starkey's car was the same tube Starkey found in appellant's pocket. Appellant argues that a fingerprint test should have been done to show a connection to him. Also, appellant argues that the lip balm tube in question cannot be distinguished from any other lip balm tube. However, appellant's argument ignores the simple facts of this case. Starkey testified that he searched the back seat of his car before his shift and found no contraband or lip balm tubes in the back seat. Starkey testified that when he conducted a pat down search of appellant, he found a pink bubble gum, lip balm tube. After appellant was removed from the back seat, the police officers found a pink bubble gum, lip balm tube containing crack cocaine in the back seat. Starkey also testified that during the five hours he had been on duty, no other individual had been in the back seat of his patrol car. This evidence is sufficient to show that appellant possessed the crack cocaine. See Garcia v. State, 871 S.W.2d 769, 771 (Tex.App.-Corpus Christi 1994, pet. ref'd) (stating that sufficient evidence existed to show appellant possessed the contraband that was discovered in the back seat of a police car after the police officer testified that he checked the back seat area of the car for contraband before his shift began and found none and that appellant was the first person who had been in the back seat of the car once the police officer began his shift). Based on this evidence and the case law, we find sufficient evidence existed for a rational trier of fact to conclude beyond a reasonable doubt that appellant possessed the lip balm tube containing the crack cocaine. We, therefore, overrule appellant's first point of error. In his second point of error, appellant contends the trial court erred by overruling his motion to suppress evidence pursuant to the Texas Constitution. Appellant argues that the lip balm tube was the "fruit of the poisonous tree" from appellant's illegal detention. Thus, the trial court should not have allowed the crack cocaine into evidence. We disagree. In reviewing a trial court's ruling, an appellate court must determine the applicable standard of review. See Guzman v. State, 955 S.W.2d 85, 87 (Tex.Crim.App. 1997). "The amount of deference a reviewing court affords to a trial court's ruling on a `mixed question of law and fact' (such as the issue of probable cause) often is determined by which judicial actor is in a better position to decide the issue." Id. If the issue involves a witness' credibility and demeanor, compelling reasons exist for allowing the trial court to apply the law to the facts. See id. However, if the issue is whether an officer had probable cause, under the totality of the circumstances, the trial judge is not in an appreciably better position than the reviewing court to make that determination. See id. "In a recent decision, the United States Supreme Court held that, although great weight should be given to the inferences drawn by the trial judges and law enforcement officers, determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal." Id. (citing Ornelas v. United States, 517 U.S. 690, 116 S. Ct. 1657, 134 L. Ed. 2d 911 (1996)). The reason for this rule is that "`probable cause and reasonable suspicion acquire content only through application.'" Id. In this case, Starkey detained appellant in order to search his house for someone who reported a disturbance. As discussed above, Starkey received a call from dispatch asking him to investigate a report of a disturbance between a man and a woman. When Starkey arrived at the given address, a man met him outside. In his experience, one party of a disturbance call generally tries to prevent the police from discovering what is actually going on. For this reason, Starkey asked appellant if he could look around his house. Appellant agreed. Once inside the house, appellant would not step back from the Starkey's gun or gun hand. Starkey testified that he was afraid appellant would grab his gun. Starkey also testified that appellant was larger than he and that their size difference was a concern. Starkey attempted to control the situation by repeatedly asking appellant to step away. Appellant refused to comply. Starkey then asked appellant to sit on a sofa. After six requests for appellant to sit down, appellant complied. However, once Starkey turned away from the sofa, appellant again walked up on Starkey's gun and gun hand. Concerned for his safety, Starkey finally handcuffed appellant and placed him in his patrol car. Starkey told appellant he was not arresting him, and appellant appeared to understand that. Starkey's actions were a reasonable investigative detention. The police department received a call about a disturbance between a man and a woman. The address given was appellant's house. An anonymous phone call can provide sufficient justification for police officers to initiate an investigation. See Clemons v. State, 605 S.W.2d 567, 570 (Tex.Crim.App. [Panel Op.] 1980). Once at the address where the potential crime had been reported, appellant met Starkey on the front porch. "Discovery of such an individual in the general area where a crime has been reported supports at least a brief investigative detention for purposes of gathering further information." Livingston v. State, 739 S.W.2d 311, 326-27 (Tex.Crim.App. 1987) (citing Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)). Thus, Starkey was free to talk to appellant to gather further information. Appellant then allowed Starkey into the house in order to facilitate Starkey's investigation. Once inside the house, appellant became uncooperative and conducted himself in a threatening manner towards Starkey. Then, Starkey handcuffed appellant and secured him in his patrol car for his safety. "It is permissible for an officer to handcuff an individual being detained when the officer reasonably believes it is necessary to do so to protect himself." Brown v. State, 830 S.W.2d 171, 175 (Tex.App.-Dallas 1992, pet. ref'd) see Rhodes v. State, 945 S.W.2d 115, 117-18 (Tex.Crim.App. 1997); Mays v. State, 726 S.W.2d 937, 943-44 (Tex.Crim.App. 1986). Thus, we believe appellant's detention was legal and any evidence produced as a result of that detention was admissible. Therefore, the trial court did not err when it overruled appellant's motion to suppress the crack cocaine, and we overrule appellant's second point of error. We affirm the trial court judgment.