Opinion
No. 05-04-01320-CR
Opinion Filed May 17, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 194th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F03-57127-NM. Affirmed.
Before Justices O'NEILL, RICHTER, and FRANCIS.
OPINION
The trial court convicted Victor Lawrence Wess of unlawful possession of a firearm by a felon and sentenced him to twenty-five years in prison. In two issues, appellant complains about the factual insufficiency of the evidence to sustain his conviction and the trial court's failure to suppress evidence of the gun. We affirm. Dallas police officers James Bristo and Kenneth Chapin responded to an anonymous call that three men were in front of the house at 2814 Brigham Lane in south Dallas, drinking beer, and "there was some drug dealing going on." Bristo knew the area as a "high drug activity area" and had been to the house in question two to four times in the past on drug-related calls. When the police arrived at the house, they saw three men on the porch. One of the men was appellant. Bristo began by asking "general questions," such as whether the men lived there and why they were there. The men, including appellant, denied living at the house and said they did not know who lived there. The men told the officers they were there "about breeding dogs." However, the men did not have dogs with them, and neither Bristo nor Chapin saw any dogs on the property. Both officers were suspicious. Bristo testified that because the call was drug-related and "knowing that weapons are often associated with drugs," the three men were taken to the car to be frisked. Bristo said he was trying to identify the men and wanted to frisk them for their protection. At the time, the men were not free to leave. While Bristo and Chapin were frisking the other two men, appellant took off running. Bristo caught him after about ten yards, took him back to the car, frisked him, and found a .25 — caliber semi-automatic gun that was admitted into evidence at trial. The officers next tried to determine who lived at the Brigham Lane house by having dispatch check the utility records, but water and electricity were not turned on at the house. Bristo assumed the house was vacant and did a "quick security sweep." Inside he found two more people. He did not, however, find anything that indicated anyone was living in the house. He believed there were some clothes in the house but could not remember whether there was any furniture, other than a coffee table. Appellant had outstanding warrants, and he was arrested. The officers took appellant to jail. During book-in, the officers filled out information regarding appellant's social security number, address, emergency contacts, etc. On the book-in sheet offered as evidence, appellant's address was listed on Vesper Street. Chapin testified he obtained the address from the computer and appellant verified it as his address. Appellant testified that when arrested, he had lived at the house on Brigham Lane for almost two months, having moved there from the Vesper Street address. He said he was in the process of having his mail switched to his new address and was using a post office box at the time. Appellant told the court he had utility service, i.e., electricity, telephone, and water, but had his girlfriend pay the bills. He could not "recall" his landlord's name, but said he had made payments to her and the receipts were in a dresser drawer in the house. On the day he was arrested, appellant said two people were at his house to meet his cousin about picking up some pit bull dogs. Appellant said his cousin breeds pit bulls. When the police arrived, appellant had locked the bars on the front door because he did not know the two people that well. His cousin was inside the house sleeping. When the officers initially asked who lived at the house, appellant said he "didn't know" because he "didn't know what to say." He asked the officer if anything was wrong, and the officer told him that he had heard drugs were being sold at the location. Appellant said that after the officer said he was going to "shake everybody down," appellant told him he lived at the house. Appellant said the officer told him he answered "too late." Appellant said the officer picked the lock and opened the door to his house, went inside, and then yelled that he had found dope, dope bags, a dope scale, and the gun that Bristo said he found on appellant. At that point, appellant said he "took off running." Appellant said Bristo caught him and told him, "Since you're running, we're going to give you the gun." Appellant said the gun did not belong to him. On the way to the police station, appellant said the police asked him where he lived, and he told them he recently moved from Vesper Street to Brigham Lane. At the station, appellant said the police did not ask for his address but obtained it from the computer. On cross-examination, appellant could not "recall" the address of the Brigham Lane house, saying he only stayed there two months and was without his medication during that time which affected his memory. He acknowledged that his girlfriend, who he said paid his utility bills at the house, and his cousin, the dog breeder, were not at court to testify, nor were the two men who were on the porch when the police arrived. He had several felony convictions and had been to prison at least four times. Appellant's sisters also testified that he lived at the Brigham Lane house when he was arrested. Karen Mack testified she had been by the house to visit appellant "about three times." Each time she visited, appellant would answer the door. She testified the house had furniture, but she was not sure whether it had electricity. She did not think the water was turned on. She said appellant had "fixed it up" with painting and carpeting. Diane Horn also testified that appellant lived at the Brigham Lane address until his arrest. Horn said she took appellant home one day, briefly went inside, and said the house had some furniture. After hearing the evidence, the trial court found appellant guilty of the charge. To establish the offense of unlawful possession of a firearm by a felon, the State had to prove appellant was previously convicted of a felony and he possessed a firearm at a location other than the premises at which he lived. See Tex. Pen. Code Ann. § 46.04(a)(2) (Vernon Supp. 2004-05). In his first issue, appellant argues the evidence is factually insufficient to prove that he did not live at the residence where he was arrested. The standard for reviewing the factual sufficiency of the evidence is well-established. See Ross v. State, 133 S.W.3d 618, 620 (Tex Crim. App. 2004). Resolutions in the conflicts in the evidence and credibility of the witnesses lie within the fact finder's exclusive province. Obigbo v. State, 6 S.W.3d 299, 305 (Tex.App.-Dallas 1999, no pet.). Here, the evidence showed that when the police arrived at the location to investigate a drug call, appellant was on the front porch. The police testified appellant specifically denied that he lived at the house and also said he did not know who owned the house. The book-in sheet showed that appellant lived on Vesper Street. The police obtained that address from the computer and verified from appellant that it was his address. In contrast, appellant testified he told the officer he lived at the house and that officers nevertheless listed his address as Vesper Street. He also presented the testimony of his two sisters to support that he lived on Brigham Lane. The trial court, however, was charged with resolving any conflicts in the evidence and apparently believed the officers' testimony. Having considered all the evidence in this case, we conclude it is not so weak that the verdict was clearly wrong and manifestly unjust nor was contrary evidence so strong that the standard of proof beyond a reasonable doubt could not be met. The evidence was factually sufficient to prove appellant did not live at the residence where he was arrested. We resolve the first issue against him. In his second issue, appellant argues the trial court erred in failing to suppress the gun because it was seized pursuant to an illegal detention and subsequent illegal pat-down search. Specifically, he argues the officer did not have reasonable suspicion to believe he was engaged in criminal activity and therefore the detention and the fruits of that detention, the pistol, must be suppressed. We disagree. An officer conducts a lawful temporary detention, or Terry stop, when he has reasonable suspicion to believe that an individual is violating the law. Ford v. State, 158 S.W.3d 488, 492 (Tex.Crim.App. 2005). Reasonable suspicion exists if the officer has specific, articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably conclude that a particular person actually is, has been, or soon will be engaged in criminal activity. Id. This is an objective standard that disregards any subjective intent of the officer and looks solely as to whether an objective basis for the stop exists. Id. A reasonable suspicion determination is made by considering the totality of the circumstances. Id. at 492-93. An anonymous tip, standing alone, may justify the initiation of an investigation but rarely provides the reasonable suspicion necessary to justify an investigative detention or search. Alabama v. White, 496 U.S. 325, 329 (1990); In re A.T.H., 106 S.W.3d 338, 343 (Tex.App.-Austin 2003, no pet.). Generally, an officer "must have additional facts before the officer may reasonably conclude that the tip is reliable and an investigatory detention is justified." In re A.T.H., 106 S.W.3d at 344. The officer's experience and prior knowledge, along with corroboration of the details of the tip, may give the officer reasonable suspicion. Id. Finally, once a person is detained, an officer may frisk the detainee when he reasonably suspects he is dealing with an armed individual. Wilson v. State, 132 S.W.3d 695, 698 (Tex.App.-Amarillo 2004, pet. ref'd). This does not mean that the officer must be absolutely certain that the individual is armed, nor does the officer have to have probable cause to arrest. Id. Rather, the issue is whether a reasonably prudent officer in the same circumstances would be warranted in believing that his safety or that of others is in danger. Id. That weapons and violence are associated with the drug trade is rather settled. Id. (citing Carmouche v. State, 10 S.W.3d 323, 330 (Tex.Crim.App. 2000)). Thus, encountering one who is reasonably suspected to be engaging in drug activity can justify a brief and minimally intrusive frisk of his person. Id. Here, the officers responded to an anonymous call that reported three men were drinking at the Brigham Lane address and dealing drugs. The house was located in a high-drug activity area and, in fact, Officer Bristo had been to the house several times in the past on drug-related calls. When they arrived at the house, they saw three men drinking beer on the porch. The men said they did not live at the house and did not know who lived there. They told police they were there about "dog breeding," yet the officers saw no dogs. According to Bristo, he took appellant and the other two men to the squad car so that he could identify them and frisk them. Given that the officers were responding to a drug call and the men had no good explanation for being at the house, we conclude officers had reason to be suspicious of the men in light of the circumstances at the house. Further, since weapons and drugs are frequently associated with the drug trade, the officers were justified in frisking the men for weapons. See Carmouche, 10 S.W.3d at 330. We note that appellant fled before the police could frisk him and was caught and then frisked. Thus, even if the police did not have reasonable suspicion before appellant fled, they certainly had the requisite level of suspicion to justify a frisk after appellant's evasive actions. We resolve the second issue against appellant. We affirm the trial court's judgment.