Bernard Cecil Johnson v. The State of Texas--Appeal from 263rd District Court of Harris County

11th Court of Appeals

Eastland, Texas

Opinion

Bernard Cecil Johnson

Appellant

Vs. No. 11-02-00050-CR -- Appeal from Harris County

State of Texas

Appellee

The jury convicted Bernard Cecil Johnson of the offense of possession with intent to deliver more than one gram but less than four grams of cocaine. The trial court assessed punishment at confinement for six years. We affirm.

Appellant presents two points of error on appeal. In both points, appellant argues that the trial court erred in denying his motion to suppress because the State failed to sustain its burden of showing either reasonable suspicion or probable cause for appellant=s initial detention. Appellant=s complaint in the first point is based on a violation of U.S. CONST. amends. IV and XIV, and his complaint in the second point is based on a violation of TEX. CONST. art. I, ' 9.

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, 87 (Tex.Cr.App.1997). Because the trial court is the exclusive fact finder, the appellate court reviews evidence adduced at the suppression hearing in the light most favorable to the trial court=s ruling. Carmouche v. State, 10 S.W.3d 323 (Tex.Cr.App.2000). We also give deference to the trial court=s rulings on mixed questions of law and fact when those rulings turn on an evaluation of credibility and demeanor. Guzman v. State, supra. Where such rulings do not turn on an evaluation of credibility and demeanor, we review the trial court=s actions de novo. Guzman v. State, supra; Davila v. State, 4 S.W.3d 844 (Tex.App. - Eastland 1999, no pet=n).

The record from the hearing on the motion to suppress contains the testimony of Officer A. L. Leeson. Officer Leeson testified that she was on bicycle patrol in the parking lot of a motel known for narcotics offenses when she encountered appellant. Appellant was bent over into his car through the open driver=s side door. As Officer Leeson approached him, appellant raised up, glanced at her, and quickly bent back into his car. Concerned that appellant may have been reaching for a weapon, Officer Leeson unsnapped her holster and began Apulling [her] weapon out of [her] holster.@ Before Officer Leeson could raise her weapon, however, appellant Araised back up@ out of the car and began to walk away. Officer Leeson observed both cash and a baggie containing rocks of crack cocaine in plain view in appellant=s left hand when he Araised back up.@ Officer Leeson then requested that her partners Astop@ appellant, and they did. Appellant was subsequently arrested without a warrant.

Contrary to his assertion, appellant had not been stopped, detained, seized, or arrested when Officer Leeson observed the cocaine. See California v. Hodari D., 499 U.S. 621 (1991)(Fourth Amendment analysis); Johnson v. State, 912 S.W.2d 227 (Tex.Cr.App.1995)(Article I, ' 9 analysis). A seizure does not occur until the suspect is subjected to the use of physical force or until the suspect submits to a show of authority. California v. Hodari D., supra; Johnson v. State, supra. Furthermore, evidence located in plain view from a legal vantage point may be seized without a warrant, and a peace officer may arrest an offender without a warrant for any offense committed in the officer=s presence or within his view. Horton v. California, 496 U.S. 128, 135 (1990); TEX. CODE CRIM. PRO. ANN. art. 14.01(b) (Vernon 1977)(respectively). The record reflects that Officer Leeson observed the cocaine in plain view in appellant=s hand and that Officer Leeson made such observation from a legal vantage point in a motel parking lot. Consequently, appellant=s arrest was proper. See Horton v. California, supra; State v. Haley, 811 S.W.2d 597 (Tex.Cr.App.1991). We hold that the trial court did not err by denying appellant=s motion to suppress. Appellant=s first and second points of error are overruled.

The judgment of the trial court is affirmed.

TERRY McCALL

October 31, 2002 JUSTICE

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

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

Wright, J., and McCall, J.