Texas Faith Partners, d/b/a Traditions Square Apartments v. Kimberly Lindke--Appeal from 335th District Court of Burleson County

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State: Texas

Court: Texas Northern District Court

Docket No: 10-06-00028-CV

Case Date: 01/17/2007

Plaintiff: Darrell Wayne Jackson

Defendant: The State of Texas--Appeal from County Court at Law of Taylor County

Preview:Darrell Wayne Jackson v. The State of Texas--Appeal from County Court at Law of Taylor County
Opinion filed October 21, 2005 Opinion filed October 21, 2005 In The Eleventh Court of Appeals __________ No. 11-04-00180-CR __________ DARRELL WAYNE JACKSON, Appellant V. STATE OF TEXAS, Appellee On Appeal from the County Court at Law No. 1 Taylor County, Texas Trial Court Cause No. 1-110667 OPINION After the trial court overruled his motion to suppress evidence, a jury convicted Darrell Wayne Jackson of a Class B Misdemeanor (possessing a usable quantity of marihuana),[1] and the trial court assessed his punishment at confinement for 20 days and a fine of $100. We affirm.

Background Facts The information and complaint charged that on or about August 15, 2003, appellant did knowingly or intentionally Apossess a usable quantity of marihuana of less than two ounces.@ Appellant filed a motion to suppress Aany evidence illegally obtained@ at the time of appellant=s warrantless arrest, claiming that the two police officers violated his constitutional rights.[2] We will discuss the testimony of the four witnesses. There were two Abilene police officers plus appellant and his probation officer. One of the police officers and appellant testified at the pretrial hearing on the motion to suppress evidence and again during the jury trial. Officer Les Bruce testified that he was a police officer with the police department of the City of Abilene and that he was assigned to the narcotics division. He received a phone call from a Areliable informant@ on August 15, 2003, at approximately 4:30 p.m. Officer Bruce said that the confidential informant had given him information in the past which had been reliable and that he chose not to get a warrant because of exigent circumstances. Officer Bruce said that he and Officer Steve Rogers went to the address and observed Aa subject that was completely and exactly [as]
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described@ to him as being Athe person in possession of the mari[h]uana.@ The two officers walked up to a group of black males who were sitting on chairs on the open front porch of an apartment building. Officer Bruce said that he asked appellant if he would step away from the others to talk to him and that appellant came with him Avoluntarily.@ Officer Bruce agreed that he did not give appellant any Miranda warnings[3] before he was searched, and Officer Bruce said that appellant gave him Aconsent to a search of his person.@ Officer Bruce said that appellant told him that appellant Adid not mind@ if Officer Bruce looked in appellant=s pockets. During that search, Officer Bruce found the marihuana for which appellant was convicted of possessing.

During trial, Officer Bruce testified that he had been employed by the Abilene Police Department for more than 21 years and that he was standing face-to-face with appellant when he found the marihuana in appellant=s right front pants pocket. Relevant portions of Officer Bruce=s testimony during cross-examination read as shown: Q: He was restrained [at the time of the search]? A: He was not restrained. Q: Well, didn=t you tell him where to move to? A: He was detained, but he was not restrained. (Emphasis added) During redirect examination, Officer Bruce testified that everything they did that day was in compliance with the standard operating procedures of the Abilene Police Department. Appellant testified that he had heard the testimony of Officer Bruce and that he did not consent to the search. Appellant testified that the officer Ajust went ahead and did it.@ Appellant also testified that the officer did not get the marihuana from him and that the officers found the marihuana when they were searching the area around the chairs. Appellant also testified: I know that it=s a drug area down there, but I was bringing [my niece] down there to see [my sister]. I had just got there about five minutes ago or something like that. And, uh, I had no idea there was that [marihuana] in the chair down there. Because I know that those people do sell drugs. (Emphasis added) Appellant said that he did not Afool with any drugs or nothing like that,@ that he was on parole, and that he had never failed any of the random drug tests. On cross-examination, appellant admitted that he was on parole for possession of cocaine and that he had other prior arrests for drug possession. Appellant also admitted that the sister that he was visiting had Aquite a lengthy record@ of drug offenses. Officer Steve Rogers testified that he had been a police officer for the City of Abilene for about 24 years and that he was at the police station on Friday, August 15, 2003, at about 4:30 p.m., when he received a telephone call from Officer Bruce who needed his assistance. Relevant portions of Officer Rogers=s testimony read as shown: Q: And tell us what happened when you got to the scene?

A: There were several people sitting [outside an old apartment complex] in chairs. I went up to one of them and started doing just small talk, asking, you know, AHow is the weather?@ and things like that. Agent Bruce did the same thing. [AFTER OFFICER BRUCE AND APPELLANT WALKED A FEW FEET AWAY FROM THE OTHER MEN, OFFICER ROGERS SAID THAT HE FOLLOWED THEM.] Q: And what happened after that?
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A: Agent Bruce informed him why we were there and asked him if he had any illegal controlled substance or paraphernalia or mari[h]uana on his person. Q: And how did [appellant] respond? A: He said, ANo, I don=t.@ Q: What happened after that? A: Agent Bruce asked him, ADo you mind if I look?@ And he said, ANo, not at all.@ And gave a gesture like this (indicating). Q: What happened then? A: Agent Bruce put his hands into [appellant=s] pockets and pulled out a clear plastic bag containing mari[h]uana. (Emphasis added) During cross-examination, Officer Rogers agreed that they did not get identification from the other men who were there when the officers arrived at the scene; and he said that the officers did not think that that was necessary. He also agreed that the officers did not fingerprint the package which Officer Bruce found in appellant=s pocket, and he said that the officers did not think that that was necessary.

After the State rested, appellant testified before the jury and said that he had been working for about two and one-half years for Aspen Tree Experts (a company which does line clearance work for the electric utility company), that he had been promoted, and that he was now a crew supervisor. Appellant testified that he received drug counseling and drug rehabilitation while he was in the penitentiary and that he had been on parole for more than three years. We note that appellant also testified that he let Officer Bruce search him and that he claimed that the officer did not find anything on him. Appellant said that one of the officers reached down into one of the chairs and found the drugs there. Then the police told him that he was Aunder arrest@ and took him to jail. Appellant said that the police never did read him his rights. During his cross-examination, appellant said that he was a Achanged man@ since he had the counseling while he was in prison and that he would not do anything to jeopardize his parole status. Appellant agreed that he was arrested while he was at his sister=s place, that she had quite a criminal record, and that his sister was on parole when he took his sister=s daughter to see her. Appellant also admitted that he gave consent for Officer Bruce to search him. Appellant said: AI did not care one bit.@ Appellant testified that the two police officers were Alying@ about finding the drugs on him. Linda Conley was called as a witness by appellant=s attorney, and she testified that she was the parole officer who supervises appellant. She testified that the records of the parole office showed that appellant has never had any Adirty@ drug tests, that he has been consistently employed, and that he has reported consistently. Trial Court=s Ruling The trial court overruled the motion to suppress evidence. Issue Presented for Review Appellant argues that the trial court abused its discretion by denying his motion to suppress evidence. Opinion We review the trial court=s ruling on a motion to suppress evidence with a Abifurcated@ standard of review, giving almost total deference to the trial court=s express or implied findings of historical facts and reviewing Ade novo@ the

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application of the law to those facts. See, e.g., State v. Ross, 32 S.W.3d 853, 856 (Tex.Cr.App.2000). An Ainvestigative detention@ is permitted when it is supported by reasonable suspicion. Citizen v. State, 39 S.W.3d 367, 370 (Tex.App. - Houston [1st Dist.] 2001, no pet=n). Reasonable suspicion is evaluated in the light of all the existing circumstances; and a temporary detention is justified when the detaining officer has knowledge of specific, articulable facts, which together with rational inferences from those facts lead him or her to conclude that the detained person is, has been, or soon will be engaged in criminal activity. See Terry v. Ohio, 392 U.S. 1 (1968).

The record supports the following historical facts. Two experienced police officers were responding to a tip from a confidential informant who had given reliable information in the past. Appellant fit the description which had been given to the police, and appellant was detained in a Adrug area@ where people sell drugs. Appellant gave consent for the search, and he was arrested after the drugs were found in his pocket. The trial court did not abuse its discretion in overruling the motion to suppress evidence. Appellant=s sole issue for review is overruled. This Court=s Ruling The judgment of the trial court is affirmed. BOB DICKENSON SENIOR JUSTICE October 21, 2005 Do not publish. See TEX.R.APP.P. 47.2(b). Panel consists of: Wright, C.J., and McCall, J., and Dickenson, S.J.[4]

[1]See TEX. PEN. CODE ANN. ' 12.22 (Vernon 2003) & TEX. HEALTH & SAFETY CODE ANN. ' 481.121(b)(1) (Vernon 2003). [2]Appellant cites U.S. CONST. amend. XIV and TEX. CONST. art. I, ' 9. [3]See Miranda v. Arizona, 384 U.S. 436 (1966). [4]Bob Dickenson, Retired Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.

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