Alfred Cotton v. State of Texas--Appeal from 292nd District Court of Dallas County

11th Court of Appeals

Eastland, Texas

Opinion

Alfred Cotton

Appellant

Vs. No. 11-01-00124-CR C Appeal from Dallas County

State of Texas

Appellee

The jury convicted appellant of possession with intent to deliver a controlled substance, cocaine, in an amount of 4 grams or more but less than 200 grams. The trial court found the enhancement paragraphs to be true and assessed punishment at 25 years confinement. We affirm. In his sole point of error, appellant argues that the trial court erred in denying his motion to suppress evidence. After jury selection, appellant presented his pretrial motion which included a motion to suppress illegally-obtained evidence. The trial court allowed appellant to Acarry along@ his motion for a ruling at the close of the State=s evidence. Appellant presented his motion after the State rested its case, and the trial court denied the motion.

In reviewing a trial court's ruling on a motion to suppress, appellate courts must give great deference to the trial court's findings of historical facts as long as the record supports the findings. Guzman v. State, 955 S.W.2d 85 (Tex.Cr.App.1997). We must afford the same amount of deference to the trial court=s rulings on Amixed questions of law and fact,@ such as the issue of probable cause, if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor. Guzman v. State, supra at 89. Appellate courts, however, review de novo Amixed questions of law and fact@ not falling within the previous category. Guzman v. State, supra. When faced with a mixed question of law and fact, the critical question under Guzman is whether the ruling "turns" on an evaluation of credibility and demeanor. Loserth v. State, 963 S.W.2d 770, 773 (Tex.Cr.App.1998). A question "turns" on an evaluation of credibility and demeanor when the testimony of one or more witnesses, if believed, is always enough to add up to what is needed to decide the substantive issue. Loserth v. State, supra. We must view the record in the light most favorable to the trial court=s ruling and sustain the trial court=s ruling if it is reasonably correct on any theory of law applicable to the case. Guzman v. State, supra.

Dallas Police Officer John Mark Bynum testified that on October 24, 2000, he and his partner were assigned to the Roseland Homes Housing Development as part of a special assignment. Officer Bynum testified that, at approximately 1:00 a.m., he and his partner received a call to respond to a domestic disturbance within that area. The officers only received the block number and not a specific apartment number. Officer Bynum said that, when they arrived at the apartment building, he and his partner went around the building in different directions for their safety. As he was turning the corner, Officer Bynum saw six or seven people standing behind the building. Officer Bynum had previously made arrests at that very location for drug offenses. As he approached, Officer Bynum saw appellant walk away from the group carrying a styrofoam container. Officer Bynum stated that appellant looked at him, looked at the styrofoam container, and then threw the styrofoam container on the ground.

Officer Bynum testified that he approached appellant to speak to him about littering and to have him pick up the styrofoam container. Officer Bynum conducted a Apat-down@ search of appellant for weapons and then walked over to retrieve the styrofoam container. Officer Bynum stated that the lid of the styrofoam container was open and that inside there was a sandwich bag containing several Arock-like@ objects that were later determined to be crack cocaine. As he was picking up the styrofoam container, Officer Bynum=s partner informed him that appellant was running away. Officer Bynum put the sandwich bag in his pocket and began pursuing appellant. After a chase, appellant was apprehended by Officer Bynum=s partner. Appellant resisted when the officers attempted to place handcuffs on him, and the officers had to use pepper spray to restrain him.

Appellant specifically argues that he was unlawfully detained and that he abandoned the styrofoam container involuntarily as a result of the officer=s illegal detention. The record shows that appellant dropped the container before being detained by Officer Bynum. The Fourth Amendment does not protect a person who voluntarily abandons his property. Abel v. United States, 362 U.S. 217, 241 (1960); Citizen v. State, 39 S.W.3d 367 (Tex.App. Houston [1st Dist.] 2001, no pet=n); Cooper v. State, 889 S.W.2d 8 (Tex.App. - Eastland 1994, no pet=n). Voluntary abandonment of property occurs if: (1) the defendant intended to abandon property; and (2) his decision to abandon the property was not due to police misconduct. Brimage v. State, 918 S.W.2d 466, 507 (Tex.Cr.App.1996); Citizen v. State, supra. The record shows that appellant threw the styrofoam container down when he saw Officer Bynum. The trial court did not err in denying appellant=s motion to suppress.

The judgment of the trial court is affirmed.

JIM R. WRIGHT

JUSTICE

February 14, 2002

Do not publish. See TEX.R.APP.P. 47.3(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.