John Palmer Lee, Jr. v. State of Texas--Appeal from 104th District Court of Taylor County

11th Court of Appeals

Eastland, Texas

Opinion

John Palmer Lee, Jr.

Appellant

Vs. No. 11-01-00172-CR B Appeal from Taylor County

State of Texas

Appellee

After appellant=s pretrial motion to suppress evidence was denied, appellant pleaded guilty to possession of cocaine. The trial court, in accordance with a plea agreement, assessed appellant=s punishment at confinement for seven years. Appellant appeals. We affirm.

Appellant contends in a single point of error that the trial court erred in not suppressing the evidence because the cocaine was obtained illegally in violation of the U.S. CONST. amend. IV; TEX. CONST. art. I, ' 9; and TEX. CODE CRIM. PRO. ANN. art. 38.23 (Vernon Pamph. Supp. 2002).

Police Officer Scott McNary was the only person who testified at the pretrial suppression hearing. The officer stated that he saw several persons in a dark area near an alley in a high drug area. The officer parked his car and walked toward the subjects. He observed appellant squatting down looking at something in his hand. As the officer approached, appellant stood up very quickly and concealed something in his hand. Officer McNary asked appellant what he had in his hand. Appellant did not answer the officer. Appellant then placed his hand behind his leg. The officer stated that, at that time, he did not know what appellant was concealing in his hand behind his leg. The officer stated that he thought it might be a weapon. The officer grabbed appellant=s arm and attempted to see what appellant had in his hand. As he pulled appellant=s hand up, the officer observed a small plastic baggie. At that point, appellant threw the baggie onto the ground. The officer observed where the baggie landed and seized the baggie after placing appellant under arrest. The officer described the baggie and stated that the off-white rock-like substance in the baggie appeared to be crack cocaine.

The trial court was the sole trier of fact and the judge of the credibility of the only witness who testified and the weight to be given to the police officer=s testimony. We view the evidence in the light most favorable to the trial court=s ruling, and we assume that the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record. State v. Ross, 32 S.W.3d 853, 855 (Tex.Cr.App.2000). We should afford almost total deference to the trial court=s determination of the historical facts. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Cr.App.1997). We will not reverse the trial court=s ruling unless a clear abuse of discretion is shown. Allridge v. State, 850 S.W.2d 471, 492 (Tex.Cr.App.1991), cert. den=d, 510 U.S. 831 (1993).

The Court in Terry v. Ohio, 392 U.S. 1 (1968), recognizes three categories of police-citizen interaction: (1) encounter; (2) investigative detention; and (3) arrest. See also Francis v. State, 922 S.W.2d 176 (Tex.Cr.App.1996). The controlling distinction between an encounter and either an investigative detention or an arrest is whether there has been a seizure. An intervention between a citizen and the police without a seizure is an encounter. Francis v. State, supra at 178. A law enforcement officer is permitted to approach a citizen without reasonable suspicion or probable cause in order to ask questions. Johnson v. State, 912 S.W.2d 227, 235 (Tex.Cr.App.1995).

Officer McNary was permitted to approach the subjects, including appellant, without reasonable suspicion or probable cause in order to ask questions. This was a lawful encounter. The officer was alone in a dark area in a high drug area. The officer observed that appellant, who had been squatting down, stood up quickly, concealing something in his hand next to his leg. The officer asked appellant what he had in his hand. Appellant was walking in the direction of the officer. Appellant did not respond to the officer=s question. Officer McNary testified that he thought that appellant might be concealing a weapon in his hand. The officer grabbed appellant=s arm and observed a small plastic baggie of some type. The officer was attempting to get appellant=s hand open so that the officer could make certain that appellant did not have a weapon. At this point, appellant jerked his hand away and threw the plastic baggie onto the ground. There was a seizure when the officer grabbed appellant=s arm. However, at that point, the officer had a specific, reasonable articulable suspicion that appellant could be armed and dangerous. See Worthey v. State, 805 S.W.2d 435, 439 (Tex.Cr.App.1991). Officer McNary had reasonable suspicion to investigate the baggie and probable cause to arrest appellant.

Appellant=s point of error is overruled. The evidence was not obtained in violation of the Fourth Amendment; Article I, section 9; or Article 38.23. Johnson v. State, supra. The authorities cited by appellant are factually distinguishable.

The judgment of the trial court is affirmed.

AUSTIN McCLOUD

SENIOR JUSTICE

March 21, 2002

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

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

McCall, J., and McCloud, S.J.[1]

[1]Austin McCloud, Retired Chief Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.