Robert Joseph Cheney v. The State of Texas--Appeal from 82nd District Court of Robertson County

IN THE

TENTH COURT OF APPEALS

No. 10-93-226-CR

ROBERT JOSEPH CHENEY,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 82nd District Court

Robertson County, Texas

Trial Court # 93-02-15,281-CR

O P I N I O N

Robert Joseph Cheney pleaded guilty to possession of a controlled substance. See Tex. Health & Safety Code Ann. 481.115 (Vernon 1992). Pursuant to a plea bargain agreement, the court placed Cheney on deferred adjudication for five years. Cheney appeals on a single point that the court erred in denying his motion to suppress.

Cheney argues that the evidence should have been suppressed because the "pat down" search exceeded the scope of a permissible Terry // frisk. Frank DeLouche, an officer with the Hearne Police Department, testified at the hearing on the motion to suppress that in the early morning hours of January 23, 1993, he and Officer Wood were patrolling Highway 6 south of Hearne. DeLouche observed a van parked near the driveway of a Texaco station. The officers, having knowledge that at least two automobiles at the station had been burglarized in the previous months, pulled into the driveway to investigate. They observed Cheney and another man walking towards them with a dog.

The men appeared "nervous and fidgety." The officers asked the men for identification. The men told the officers that they and another car were en route from College Station to Lake Somerville to camp overnight. // Cheney's companion, Pat Pinkerton, was arrested for public intoxication. DeLouche patted Cheney down for weapons. He felt an object in Cheney's front left pocket measuring approximately three to four inches in length and one to two inches in width. DeLouche asked what the object was. Cheney answered, "Drugs cocaine and marihuana." DeLouche removed the object which was a small vial of cocaine and a pipe used to smoke marihuana.

On cross-examination, Cheney attempted to show that thirty minutes elapsed between the time DeLouche stopped him and the time of arrest. DeLouche testified that, prior to the weapons pat down, he had Cheney secure an unleashed dog in the van because he was fearful that the dog would attack if any aggressive moves were made towards Cheney. On redirect, the State showed DeLouche the arrest report which indicated that the initial contact had been at 1:01 a.m. and the arrest was at 1:10 a.m. DeLouche clarified that the thirty-minute time frame was from initial contact until he left the scene.

Cheney testified that he had driven from Austin to College Station to meet a group of people from Houston. He was following the other vehicle when Pinkerton told him to pull over because he was going to be sick. Cheney's testimony differed slightly from that of DeLouche. Cheney estimated the time between the initial contact and the arrest as fifteen to twenty minutes.

Cheney argues that the court erred in denying his motion to suppress because the Terry frisk exceeded the scope of a weapons search when DeLouche waited thirty minutes to conduct the pat down search. He contends that the delay and other circumstances make it clear that DeLouche was not in fear of attack or harm.

In a suppression hearing, the trial judge is the sole and exclusive trier of fact and judge of the credibility of the witnesses as well as the weight to be given their testimony. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). If the court's resolution of a controverted issue is supported by the record, a reviewing court should not disturb that decision. Muniz v. State, 851 S.W.2d 238, 252 (Tex. Crim. App.), cert. denied, U.S. , 114 S. Ct. 116, 126 L. Ed. 2d 82 (1993).

Circumstances short of probable cause will permit a temporary investigative stop for the purposes of gathering information or to determine whether a crime has been committed. Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). Terry also authorizes an officer, without probable cause for arrest, to conduct a limited search of the detainee's outer clothing for weapons when specific and articulable facts lead him to reasonably conclude that the person with whom he is dealing is armed and dangerous. Id., 392 U.S. at 21, 88 S. Ct. at 1883. The purpose of a limited search for weapons following an investigative stop is not to discover evidence of a crime, but to allow the officer to pursue the investigation without fear of violence. Davis v. State, 829 S.W.2d 218, 220 (Tex. Crim. App. 1992) (quoting Wood v. State, 515 S.W.2d 300, 306 (Tex. Crim. App. 1974)).

The court, as the exclusive trier of fact and judge of the credibility of the witnesses, could believe DeLouche's version of the events that the Terry frisk took place within nine minutes after the initial contact. See Romero, 800 S.W.2d at 543. DeLouche testified that the men were "nervous and fidgety" in a suspicious place, that their location in Hearne did not match their explanation given that they were on the way to Lake Somerville, and that the dog had to be contained in the van before the pat down could occur.

Having reviewed the record, we do not find that the court erred in denying the motion to suppress. We overrule the point and affirm the judgment.

BILL VANCE

Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed July 6, 1994

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