Smith, Garrett Wayne v. The State of Texas--Appeal from 9th District Court of Waller County

Affirmed and Opinion filed October 31, 2002

Affirmedand Opinion filed October 31, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-01-01077-CR

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GARRETT WAYNE SMITH, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 9th District Court

Waller County, Texas

Trial Court Cause No. 00-12-10,514

O P I N I O N

Following a bench trial, appellant was convicted of possession of a controlled substance with intent to deliver (enhanced to habitual). On appeal, appellant asserts two points of error, arguing he was denied a fair trial and that his judgment and sentence should be set aside. We affirm.

PROCEDURAL BACKGROUND

Appellant was indicted for the offense of possession with intent to deliver a controlled substance weighing four grams or more, but less than 200 grams, by aggregate weight. Tex. Health & Safety Code Ann. '481.112(d) (Vernon 2002). Appellant s indictment was enhanced with two prior convictions, making him an habitual felon.

On the date of trial, October 10, 2001, appellant moved to suppress two pieces of evidence: a matchbox taken from appellant s person during a search incident to arrest, and a shiny object taken from another offender s automobile. Following the denial of his motion to suppress, appellant entered a plea of guilty.

Punishment was assessed by the trial court at twenty-five years in the Institutional Division of the Texas Department of Criminal Justice (TDCJ). Appellant gave timely notice of appeal.

FACTUAL BACKGROUND

On October 17, 2000, Investigator Robert Burns, a narcotics investigator with the Westside Narcotics Task Force, witnessed a silver vehicle with a broken tail light and no license plate light driving on a road in Hempstead, Waller County, Texas. Before he could stop the vehicle for the traffic violations, he saw a maroon vehicle, later determined to have been driven by appellant, pull up next to the silver vehicle. He saw the driver of the maroon vehicle toss a shiny object into the silver vehicle and drive away.

Burns proceeded to make a traffic stop of the silver vehicle, which was being driven by Otis Wilson, a lone occupant. During the stop, Burns detected an odor of marijuana coming from inside Wilson s vehicle. He arrested and handcuffed Wilson, placed him in the backseat of his patrol car, and searched the silver vehicle for evidence. During the search, Burns found a golf-ball-sized package of marijuana, which he identified as the shiny object he had seen tossed from appellant s car into Wilson s car.

During the time Burns was stopping and searching Wilson s automobile, appellant doubled back in the maroon automobile and drove slowly by the scene of the traffic stop two to three times. Appellant then parked within six feet of Wilson s vehicle and started asking Burns questions about what was going on with Wilson. Burns instructed appellant several times to move along, and also told appellant that he was interfering with an investigation and needed to be on his way. Despite Burns instructions, appellant got out of his vehicle and stood a short distance from Wilson s vehicle while Burns attempted to inventory the vehicle. Burns testified that appellant s presence at the scene in this manner presented a potential threat and interfered with his investigation because he was unable to turn his back to appellant to conduct the search and inventory of Wilson s vehicle. Appellant did not leave the scene.

Burns testified that he decided to arrest appellant for interfering with the duties of a public servant. He told appellant he was under arrest and, before handcuffing him, asked appellant to place his hands on the roof of appellant s car. Burns then frisked appellant and found a matchbox containing cocaine in appellant s pants, tucked inside the waistband.

ISSUES ON APPEAL

Appellant asserts two points of error: (1) the trial court erred in denying appellant s motion to suppress the matchbox and its contents taken from appellant s person; and (2) the trial court erred in denying appellant s motion to suppress the shiny object and its contents taken from Wilson s vehicle.

STANDARD OF REVIEW

The standard of review of a trial court=s ruling on a motion to suppress is abuse of discretion. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996); Curry v. State, 965 S.W.2d 32, 33 (Tex. App.CHouston [1st Dist.] 1998, no pet.). The appellate court shall independently review a trial court s determination of reasonable suspicion and probable cause, because this requires the application of law to facts. Ornelas v. United States, 517 U.S. 690, 697 (1996); Guzman v. State, 955 S.W.2d 85, 87B88 (Tex. Crim. App. 1997); Curry, 965 S.W.2d at 34. The appellate court shall, however, give great weight to certain inferences drawn by the trial judge. Guzman, 955 S.W.2d at 87.

The amount of deference reviewing courts afford trial courts rulings on mixed question of law and fact (such as the issue of probable cause) is often determined by which judicial actor is in a better position to decide the issue. Id. at 87. Appellate courts should afford almost total deference to a trial court s determination of historical facts that the record supports, especially when the trial court s fact findings are based on an evaluation of credibility and demeanor. Id. at 89. The appellate courts may review de novo mixed questions of law and fact that do not require evaluations of credibility and demeanor. Id. at 89.

DENIAL OF APPELLANT S

MOTION TO SUPPRESS MATCHBOX

Appellant argues on appeal that the trial court erred in failing to suppress the cocaine-laden matchbox that was found in the appellant=s waistband after his arrest by Burns. He asserts the search was improper because appellant=s arrest was warrantless and lacked probable cause. Appellant=s argument is without merit.

 1. Appellant was lawfully arrested.

Burns needed no warrant to arrest appellant. Under Article 14.01 of the Texas Code of Criminal Procedure, a peace officer may arrest a person without a warrant if that person commits an offense in the presence or view of the peace officer. Tex. Crim. Proc. Code Ann. ' 14.01(b) (Vernon 2002); Stull v. State, 772 S.W.2d 449, 452 (Tex. Crim. App. 1989); Gonzales v. State, 638 S.W.2d 41, 44 (Tex. App.CHouston [1st Dist.] 1982, pet. ref=d).

Burns personally witnessed appellant committing two offenses. Under section 38.15(a) of the Texas Penal Code, it is an offense when [a] person . . . interrupts, disrupts, impedes, or otherwise interferes with: (1) a peace officer while the peace officer is performing a duty or exercising authority imposed or granted by law. Tex. Pen. Code ' 38.15(a)(1) (Vernon 2001). Under sections 481.120 and 481.121 of the Texas Health and Safety Code, it is also unlawful to deliver and possess marijuana. Tex. Health & Safety Code Ann. '' 481.120 and 481.121 (Vernon 2002).

Because Burns personally witnessed appellant interfering with the search of Wilson s vehicle, and since Burns personally observed appellant transferring a package believed to contain marijuana from his vehicle into Wilson=s, no warrant was necessary to arrest appellant for either offense. Burns arrest of appellant for the offense of interference with public duties was therefore lawful.

Appellant, however, argues he was only asking questions about Burns investigation of Wilson, not physically interfering, and so could not be arrested for the offense of interference with public duties. See Tex. Pen. Code ' 38.15(d) (stating it is a defense to the offense where objectionable behavior consists of speech only).

Appellant, however, misstates the facts. Burns never testified appellant=s questions interfered, impeded, or interrupted his investigation of Wilson; he testified appellant s presence was the threat because appellant was standing behind him in close proximity. It was appellant=s presence that made Burns apprehensive for his safety, inhibited his search, and led to appellant=s arrest.

Because Burns could lawfully arrest a person committing an offense in his presence, and because appellant committed both interference with public duties and possession and delivery of a controlled substance in Burns presence, his arrest was lawful. It is of no consequence that appellant was arrested for a different crime than the one for which he was eventually charged. See Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999).

2. Appellant was lawfully searched.

A search incident to arrest is lawful. Chimel v. California, 395 U.S. 752, 762B63 (1969); Williams v. State, 726 S.W.2d 99, 101 (Tex. Crim. App. 1987). An arresting officer may search an arrestee s person to discover and remove weapons and to seize evidence to prevent its concealment or destruction, and may search the area within the immediate control of the person arrested, meaning the area from which he might gain possession of a weapon or destructible evidence. Chimel, 395 U.S. at 762B63.

Burns testified that, as a peace officer, it was his habit to search arrestees prior to handcuffing them. He testified he had foundC on many occasions Cmatchboxes containing contraband. It was therefore not unreasonable for Burns to look into appellant s matchbox during his search of appellant=s person; it was reasonable for him to determine if the matchbox held a weapon such as a razor blade or small knife.

3. Appellant s matchbox was lawfully seized.

It is beyond dispute that a firearm or controlled substance found in a search incident to a lawful arrest may be admitted into evidence, regardless of the charge on which police initially arrested an accused. Oles, 993 S.W.2d at 106. Because appellant was lawfully arrested and his search lawfully conducted as a search incident to arrest, Burns= seizure of the matchbox containing cocaine in appellant s waistband was lawful. U.S. Const. amend. IV. Accordingly, the trial court did not err in failing to suppress this evidence.

We overrule appellant=s first point of error.

DENIAL OF APPELLANT S MOTION TO SUPPRESS

THE SHINY OBJECT FOUND IN WILSON S AUTOMOBILE

In his second point of error, appellant argues that the trial court erred in failing to suppress the shiny ball of marijuana found in Wilson s vehicle.[1] Appellant, however, has no standing to raise this issue.

Fourth Amendment rights are personal rights that may not be vicariously asserted. Brown v. U.S., 411 U.S. 223, 230 (1973); Cannon v. State, 807 S.W.2d 631, 633 (Tex. App.CHouston [14th Dist.] 1991, no pet.). It is appellant s burden of proof to establish that he has standing. State v. Klima, 934 S.W.2d 109, 111 (Tex. Crim. App. 1996). The State may raise the issue of lack of standing for the first time on appeal in cases where an appellant=s motion to suppress evidence was not granted. Id. at 112.

An infringement of Fourth Amendment rights occurs when a person has an expectation of privacy and that expectation is violated. Katz v. U.S., 389 U.S. 347, 352 (1967); U.S. v. Hunt, 505 F.2d 931, 938 (5th Cir. 1974). Unless the appellant can demonstrate an infringement of his Fourth Amendment rights, a mere passenger does not have standing to challenge the search of an automobile in which he is riding. Cannon, 807 S.W.2d at 633; Harris v. State, 713 S.W.2d 773, 775 (Tex. App.CHouston [1st Dist.] 1986, no pet.).

In appellant s case, he had no expectation of privacy in Wilson s automobile. Mancusiv. DeForte, 392 U.S. 364, 368 (1968). Not only was he not the driver of the vehicle in which the marijuana was found, he was not even a passenger in it. Additionally, no evidence was admitted that he had a possessory interest in the car, that he was ever inside the car, or that he had an interest in any of the articles stored within the car.

Even if appellant did have standing to object to admission of the marijuana evidence, he cites no authority for his second point of error that the trial court improperly denied his motion to suppress the marijuana. A brief that is conclusory and cites no authority presents nothing for review. Tex. R. App. P. 38.1 (h); Pierce v. State, 777 S.W.2d 399, 418 (Tex. Crim. App. 1989); Burns v. State, 923 S.W.2d 233, 237 (Tex. App.CHouston [14th Dist.] 1996, pet ref d.). Because appellant cites no constitutional provision, statutory authority, or case law to support his claim, we find this point of error to be inadequately briefed and decline to address it. See Vuong v. State, 830 S.W.2d 929, 940 (Tex. Crim. App. 1992).

Accordingly, appellant s second point of error is overruled.

CONCLUSION

We overrule appellant s points of error and affirm the judgment of the trial court.

/s/ John S. Anderson

Justice

Judgment rendered and Opinion filed October 31, 2002.

Panel consists of Justices Yates, Anderson, and Frost.

Do Not Publish C Tex. R. App. P. 47.3(b).

[1] It is unclear whether appellant asked the trial court to suppress the ball of marijuana found by Burns. The motion to suppress filed by appellant asked the trial court to suppress the matchbox and cocaine found on appellant as well as any and all tangible evidence seized by law enforcement officers . . . in connection with the detention and arrest of Garrett Smith . . . . Since the marijuana in Wilson=s vehicle was actually found prior to appellant=s arrestCand since it pertained only to the detention and arrest of WilsonCit is not clear whether appellant made a specific request that the marijuana be suppressed. If appellant did not specifically ask the trial court to suppress the marijuana, he cannot complain of it for the first time on appeal. See Tex. R. App. P. 33.1. We will read appellant=s motion broadly to include the marijuana.