Mario Alberto Martinez v. The State of Texas--Appeal from County Crim Court No 1 of Dallas County

IN THE

TENTH COURT OF APPEALS

No. 10-95-179-CR

MARIO ALBERTO MARTINEZ,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the County Criminal Court

Dallas County, Texas

Trial Court # MB94-32298-A

O P I N I O N

Appellant was charged by information with the class B misdemeanor offense of possession of marihuana, which was alleged to have occurred on October 7, 1994. Appellant pled nolo contendere pursuant to a plea-bargain agreement. After hearing the evidence, the trial court followed the plea agreement by deferring adjudication and ordering community supervision for twelve months and setting a fine of $200.00 and costs, from which Appellant appeals.

A hearing was conducted on Appellant's motion to suppress, which motion the trial court denied. This appeal is from the trial court's denial of this motion.

Officer W. R. Stone, a police officer of the City of Irving for some five and one-half years, testified at the hearing on the motion to suppress. His testimony is summarized as follows:

On October 7, 1994, he was dispatched to investigate a report about a person selling marihuana at the Golden Cue Pool Hall. The description of the person given in the dispatch was a Hispanic male at a certain pool table wearing blue jean shorts. When Stone arrived, he saw Appellant, who was the only person inside who matched the description. Appellant appeared intoxicated and had a heavy odor of alcoholic beverage upon him. His eyes were very glassy and bloodshot. Because the music was so loud, he asked Appellant to step outside so they could talk. Appellant voluntarily did so. Stone asked Appellant what he had been doing, and Appellant replied that he had been playing pool. Stone asked Appellant to answer a few more questions and Appellant began getting belligerent. As Stone was about to arrest him for public intoxication, he saw a bulge about four inches long in Appellant's right-front pants pocket. From his experience as a police officer, Stone knew it could be anything, including a weapon; so for his own safety, he patted Appellant down. When Stone touched the bulge, he felt something semi-hard, and he thought it could be a weapon. Appellant's pants looked tight, so Stone asked Appellant to take the object out of his pocket. Because Appellant's pants were so tight and because he was intoxicated, Appellant had difficulty getting the object out and Stone had to help him pull it out. After it was out, Stone saw it was a baggie of marihuana. Thereupon, he arrested Appellant for possession of marihuana.

The trial court denied Appellant's motion to suppress, from which denial Appellant comes to this court on three points of error as follows:

(1) The trial court erred in overruling Appellant's motion to suppress evidence under the United States Constitution, Amendments IV and XIV.

(2) The trial court erred in overruling Appellant's motion to suppress evidence under the Texas Constitution, Article 1, Section 9.

(3) The trial court erred in overruling Appellant's motion to suppress evidence because Appellant was unlawfully arrested without a warrant and the State did not meet any of the statutory exceptions to the warrant requirement set forth in Chapter 14 of the Texas Code of Criminal Procedure.

We overrule all of Appellant's points and contentions and affirm the trial court's judgment.

In Johnson v. State, S.W.2d (Tex. Crim. App. No. 1340-93, delivered November 15, 1995, the Court of Criminal Appeals held that with respect to when a seizure occurs, Article I, Sec. 9 of the Texas Constitution is to be interpreted the same as the Fourth Amendment to the Federal Constitution. Therefore, to determine whether a consensual encounter occurred or whether a seizure of the person occurred, the Fourth amendment analysis is used.

A seizure does not occur simply because a police officer approaches an individual and asks a few questions. So long as a reasonable person would feel free to "disregard the police and go about his business," the encounter is consensual and no reasonable suspicion is required. Florida v. Bostick, 501 U.S. 429, 111 S. Ct. 2382, 115 L. Ed. 2d 389 (1991); California v. Hodari, 499 U.S. 621, 628, 111 S. Ct. 1547, 1552, 113 L. Ed. 2d 690 (1991). The encounter will not trigger Fourth Amendment scrutiny unless it loses its consensual nature. Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 20 L. Ed. 2d 889, 911 (1968). Terry v. Ohio authorizes a brief investigatory detention (which is a seizure under the Fourth Amendment) based on reasonable articulable suspicion in order to determine identity, briefly investigate and/or maintain the status quo. The court must look at the totality of the information known by the officer in determining whether reasonable, articulable suspicion existed justifying the temporary detention of Appellant. United States v. Hensley, 469 U.S. 221, 105 S. Ct. 675, 83 L. Ed. 2d 604 (1985).

The facts of the case at bar, as we have hereinabove related them, show a consensual encounter, as opposed to a seizure. Irrespective of whether a consensual encounter or a brief detention occurred, the patdown/frisk conducted by Officer Stone was justified under the criteria set out by Terry v. Ohio, hereinabove cited. Also see Thomas v. State, 884 S.W.2d 215 (Tex. App. El Paso 1994, pet. ref'd); Ablon v. State, 537 S.W.2d 267, 269 (Tex. Crim. App. 1976). In summary, Officer Stone wanted to question Appellant but was concerned for his safety because he saw a four-inch bulge in Appellant's pants pocket. From his training, Stone knew it could be anything, including a weapon. This was a specific, articulated reason for Stone's belief that Appellant might be armed and he was entitled to frisk Appellant for his own safety, and he patted Appellant down. When he touched the bulge, he felt something semi-hard, and he thought it could be a weapon. For his own safety, Officer Stone was entitled to find out whether what felt like a weapon was in fact a weapon. Stone, standing next to Appellant, asked him to take it out rather than taking it out himself because Appellant's blue jeans looked so tight. Appellant had difficulty getting the object out of this pocket, and the officer had to help him pull it out. It was only after it was out that Stone saw it was a baggie of marihuana, and not a weapon. At this point contraband was visually in plain view and Stone was entitled to arrest Appellant for the possession of marihuana offense occurring in his presence under Tex. Code Crim. Proc. Ann. Art. 14.01 (Vernon 1977).

Appellant's points of error are overruled. The judgment of the trial court is affirmed.

JOHN A. JAMES, JR.

Justice (Retired)

Before Justice Cummings,

Justice Vance, and

Justice James (Retired)

Affirmed

Opinion delivered and filed March 13, 1996

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