Summary
holding reasonable suspicion of truancy justified detention
Summary of this case from Saldana v. StateOpinion
No. 05-03-00647-CR
Opinion issued May 26, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Criminal Court No. 8, Dallas County, Texas, Trial Court Cause No. MA02-43090-J. Affirmed.
Before Justices MORRIS, WHITTINGTON, and JAMES
MEMORANDUM OPINION
Shahien Rassaf appeals the trial court's order deferring adjudication of guilt and placing him on fifteen months' community supervision. In a single point of error, appellant contends the trial judge abused her discretion in denying his motion to suppress. We affirm the trial court's order. Appellant contends the trial judge erred in denying his motion to suppress because the police officers did not have "specific articulable facts at the time they stopped appellant . . . to indicate that appellant was, had been, or was about to be involved in any criminal activity." Appellant claims that because the officers did not have a reasonable suspicion to justify his temporary detention, any evidence discovered as a result of this detention should have been suppressed. We disagree. We review a trial judge's ruling on a motion to suppress for abuse of discretion, giving almost total deference to the trial judge's determination of historical facts, but review search and seizure law de novo. Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim. App. 2002); Garcia v. State, 15 S.W.3d 533, 535 (Tex.Crim.App. 2000). Thus, if the issue involves the credibility of a witness, making the evaluation of that witness's demeanor important, we defer to the trial judge's determination of the facts. Joseph v. State, 3 S.W.3d 627, 633 (Tex. App.-Houston [14th Dist.] 1999, no pet.) (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997)); see Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim. App. 2000); State v. Terrazas, 4 S.W.3d 720, 725 (Tex.Crim.App. 1999). Absent an abuse of discretion, we may not disturb the trial judge's findings. See Guardiola v. State, 20 S.W.3d 216, 223 (Tex. App.-Houston [14th Dist.] 2000, pet. ref'd) (citing Penry v. State, 903 S.W.2d 715, 744 (Tex.Crim.App. 1995)). In reviewing a trial judge's ruling on a suppression motion, we must view the record and all reasonable inferences therefrom in the light most favorable to the ruling, and sustain the ruling if it is reasonably supported by the record and is correct under any theory of law applicable to the case. Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App. 1996); Knisley v. State, 81 S.W.3d 478, 483 (Tex. App.-Dallas 2002, pet. ref'd). In a motion to suppress hearing, the trial judge is the sole trier of fact and judge of witness credibility and may believe or disbelieve all or part of a witness's testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000). The movant on a motion to suppress has the initial burden to produce evidence that defeats the presumption of proper police conduct and shifts the burden to the State to prove the reasonableness of the search and seizure. Rogers v. United States, 330 F.2d 535, 542 (5th Cir. 1964); Russell v. State, 717 S.W.2d 7, 9 (Tex. Crim App. 1986). Not every encounter between police officers and citizens implicates the Fourth Amendment. See Hunter v. State, 955 S.W.2d 102, 104 (Tex.Crim.App. 1997); Lewis v. State, 915 S.W.2d 51, 53 (Tex. App.-Dallas 1995, no pet.). A police officer is "as free as any other citizen to stop and ask questions of a fellow citizen." Hunter, 955 S.W.2d at 704; Lewis, 915 S.W.2d at 53. Such encounters are consensual so long as a reasonable person would feel free to disregard the police and go about his business. Florida v. Bostick, 501 U.S. 429, 434 (1991); see Lewis, 915 S.W.2d at 53. Only when the questioning becomes a detention, however brief, must it be supported by reasonable suspicion. Lewis, 915 S.W.2d at 53. To justify such a detention, an officer must have specific, articulable facts which, in light of the officer's experience and personal knowledge, together with rational inferences from those facts, would reasonably warrant the intrusions. Ramirez v. State, 672 S.W.2d 480, 482 (Tex.Crim.App. 1984); Lewis, 915 S.W.2d at 53. The officer must have a reasonable suspicion that some activity out of the ordinary is occurring or has occurred, some suggestion to connect the detained person with the unusual activity, and some indication that the activity is related to a crime. See Woods v. State, 956 S.W.2d 33, 37-38 (Tex.Crim.App. 1997). Although appellant contends the officers lacked reasonable suspicion to detain him and, therefore, the marijuana found in plain view in his car and subsequently seized by the officers was inadmissible, we disagree. Officer Barry Orton testified he is currently assigned to J.J. Pearce High School as the resource officer. His job as resource officer is to maintain safety on campus. Officer Orton and another Richardson police officer followed appellant to the parking lot to ask what he was doing in the area and why he had visited a school in which he was not enrolled. According to the officers, appellant could have been truant or trespassing. Because the officers had a reasonable suspicion that appellant was either truant or trespassing, we conclude they were justified in detaining appellant for questioning. See Rue v. State, 958 S.W.2d 915, 917-18 (Tex. App.-Houston [14 Dist.] 1997, no pet.). While Officer Orton was standing by appellant's car, he looked through the window and saw a bag of marijuana on the floor in plain view. At that point, Officer Orton was justified in arresting appellant. After arresting appellant, Orton discovered a pipe in the pocket door of the car and scales for weighing drugs in the trunk of the car. Because the officers had a reasonable suspicion to support appellant's detention and his subsequent arrest was lawful, any search incident to arrest was also lawful. See Mottley v. State, 841 S.W.2d 550, 551 (Tex. App.-Houston [1st Dist.] 1992, no pet.) (holding that warrantless arrest was proper because offense was committed in officers' presence; thus, search incident to that arrest also proper). We conclude the trial judge did not abuse her discretion in overruling appellant's motion to suppress. We overrule appellant's sole point of error. We affirm the trial court's order.
A peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view. See Tex. Code Crim. Proc. Ann. art. 14.01 (Vernon 1977). Possession of marijuana is a Class A misdemeanor. See Tex. Health Safety Code Ann. § 481.121 (Vernon 2003).