Ronnie McWright, Jr. v. The State of Texas--Appeal from 208th District Court of Harris County

11th Court of Appeals

Eastland, Texas

Opinion

Ronnie McWright, Jr.

Appellant

Vs. No. 11-02-00021-CR B Appeal from Harris County

State of Texas

Appellee

Derrick Demon Henderson

Appellant

Vs. No. 11-02-00022-CR - Appeal from Harris County

State of Texas

Appellee

These appeals arise from a joint prosecution of appellants. After the denial of their motions to suppress physical evidence, appellants pleaded guilty to the offense of possession of a controlled substance, to-wit: codeine. The trial court accepted appellants= pleas, deferred their adjudication of guilt, placed them on community supervision for a term of 7 years, and assessed a $500 fine. Each appellant brings a sole issue on appeal attacking the trial court=s denial of their motions to suppress evidence. We affirm.

We review a trial court=s ruling on a motion to suppress using a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Cr.App.2000). We afford almost total deference to a trial court=s determination of historical facts supported by the record, especially when the trial court=s fact findings are based upon an evaluation of credibility and demeanor. State v. Ross, 32 S.W.3d 853, 856 (Tex.Cr.App.2000)(citing Guzman v. State, 955 S.W.2d 85, 88 89 (Tex.Cr.App.1997)). We afford the same deference to the trial court=s ruling on mixed questions of law and fact, if the resolution of those questions turns on an evaluation of credibility and demeanor. Guzman v. State, supra at 89. However, we review the trial court=s application of the law to the facts de novo. Guzman v. State, supra at 89.

Appellants sought to suppress physical evidence obtained from a vehicle which they occupied. The record from the hearing on the motion to suppress reflects that deputies of the Harris County Sheriff=s Department observed the vehicle occupied by appellants parked on the parking lot of a gas station at approximately 12:30 a.m. on March 25, 2001. The deputies described the general location as being a high-crime area. The lights on the vehicle were off, and it was parked in an area of the parking lot not commonly used by the customers of the gas station. The deputies testified that they parked their vehicle behind appellants= vehicle. The deputies then approached appellants=vehicle in order to identify appellants and determine what they were doing.

As he approached the driver=s side of the vehicle, Deputy Jason Brown observed Taco Cabana cups containing a pink liquid inside of the vehicle. Deputy Brown then spoke with the driver of the vehicle. He further observed that the driver had slurred speech and that his eyes appeared to be glassy. Deputy Brown believed that the driver may have been intoxicated based on this observation. Deputy Brown asked the driver about the liquid in the cups. The driver informed him that the cups contained cough syrup. Deputy Brown then asked the driver to step out of the vehicle so that he could further investigate the possibility that appellants were in the possession of an illegal substance. The passenger was also asked to step out of the vehicle at this time. Appellants subsequently advised the deputies that the original container for the cough syrup was located in the center console of the vehicle. The deputies then recovered the original container of the cough syrup from the vehicle. The deputies noted that the prescription label had been removed from the original container. Appellants denied having a prescription for the cough syrup.

Appellant McWright testified at the hearing on the motion to suppress. His testimony regarding the initial contact between appellants and the deputies differed from the deputies= version of the events. Appellant McWright testified that appellants were waiting for some friends while they sat in his car on the parking lot. Appellants ate food from Taco Cabana while waiting. Appellant McWright testified that the deputies approached him while he was outside of the car throwing away trash. He testified that the deputies instructed him to stop, come back, and answer some questions.

Appellants contend that the deputies did not have sufficient grounds for making the initial contact with appellants. There are three distinct categories of interactions between police officers and citizens: encounters, investigative detentions based on reasonable suspicion, and arrests based on probable cause. State v. Perez, 85 S.W.3d 817, 819 (Tex.Cr.App.2002); Francis v. State, 922 S.W.2d 176, 178 (Tex.Cr.App.1996). Only detentions and arrests amount to seizures of persons requiring a certain objective level of suspicion. Francis v. State, supra at 178. An encounter is not a seizure and requires neither reasonable suspicion nor probable cause. Francis v. State, supra at 178. As noted by the Court of Criminal Appeals:

Police officers Ado not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions.@

State v. Perez, supra at 819 (quoting Florida v. Bostick, 501 U.S. 429, 434 (1991)).

Appellants essentially assert that the deputies= initial contact with them constituted an investigative detention. Appellant McWright=s version of the events supports this assertion wherein he testified that the deputies instructed him to Astop.@ However, the deputies= version of the events indicates that the initial contact only constituted an encounter. Under the standard of review applicable to suppression hearings, we defer to the trial court=s implied determination that the deputies= account was accurate. Therefore, the deputies were not required to possess any level of objective suspicion prior to making contact with appellants. Deputy Brown=s observation that Appellant McWright appeared to be intoxicated provided the deputies with sufficient reasonable suspicion to detain appellants further for investigative purposes. The sole issue in each appeal is overruled.

Finally, Appellant Henderson has filed a motion to dismiss his appeal. His counsel has filed a subsequent motion suggesting that Appellant Henderson was coerced into filing the motion to dismiss. In the interest of justice, we have considered the merits of Appellant Henderson=s appeal. His motion to dismiss the appeal and his counsel=s motion requesting a hearing on Appellant Henderson=s desire to dismiss his appeal are overruled as moot.

The judgments of the trial court are affirmed.

W. G. ARNOT, III

CHIEF JUSTICE

September 4, 2003

Do not publish. See TEX.R.APP.P. 47.2(b).

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

Wright, J., and McCall, J.