Roderick Deshawn Ward v. The State of Texas--Appeal from Crim Dist Ct 3 of Dallas Co of Dallas County

IN THE

TENTH COURT OF APPEALS

No. 10-97-056-CR

RODERICK DESHAWN WARD,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the Criminal District Court No. 3

Dallas County, Texas

Trial Court # F96-52294-J

O P I N I O N

On November 7, 1996, Roderick Deshawn Ward was arrested for possessing a .22 caliber Derringer two-shot handgun. He was then indicted for possession of a firearm by a felon. Tex Penal Code Ann. 46.04 (Vernon 1994). After he pled not guilty and waived his right to a jury trial, the court found him guilty and sentenced him to two years in prison. On appeal, Ward s sole point of error is that the trial court erred in admitting the gun into evidence because the arresting officer lacked probable cause to detain him and to do a pat-down.

In a hearing on a motion to suppress, 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. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996); Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). The trial judge may choose to believe or disbelieve any or all of a witness testimony. Green v. State, 934 S.W.2d 92, 98 (Tex. Crim. App. 1996). The findings of the trial court should not be disturbed absent an abuse of discretion. Id.; Cantu v. State, 817 S.W.2d 74, 77 (Tex. Crim. App. 1991); Meek v. State, 790 S.W.2d 618, 620 (Tex. Crim. App. 1990). Even if we would have decided the issue differently, we will not intercede if the court s ruling was within the zone of reasonable disagreement. DuBose v. State, 915 S.W.2d 493, 497 (Tex. Crim. App. 1996).

Around 11:30 p.m., while looking for an assault suspect at the Rose Garden Apartments, Officer Mark Terry of the Dallas Police observed Ward leave the apartments and enter the apartment parking lot, crossing over at least one sidewalk, carrying an open container of alcoholic beverage. Terry believed this conduct was a crime under the Texas Alcoholic Beverage Code because the apartment complex is located approximately two hundred feet from a public school. // See Tex. Alco. Bev. Code Ann. 101.75 (Vernon 1995). Terry approached Ward and asked to see some identification, but Ward did not have any. Considering Ward a stranger to the complex who had no identification, it was nearing midnight, and they were standing in a high-crime area, Terry decided to perform a pat-down search.

Ward urges that Terry did not have a reasonable suspicion that his conduct was connected with criminal activity because he did not measure the distance between Ward and the school property to determine if it was within 600 feet. We disagree. Terry had been patrolling the area for approximately five years. He testified that he knew the distance between the school property and the parking lot where Ward was detained to be about 200 feet. It was not necessary for him to measure the distance in order to investigate the potentially criminal activity. Although a police officer must have probable cause for a full custodial arrest, a mere stop of an individual for the purposes of investigation does not require such substantial justification. See Terry v. Ohio, 392 U.S. 1, 20-22, 88 S. Ct. 1868, 1879-80, 20 L. Ed. 2d 889 (1968); Gajewski v. State, 944 S.W.2d 450, 452 (Tex. App. Houston [14 Dist.] 1997, no pet.). Because a temporary detention is considered a lesser intrusion than a custodial arrest, a police officer may stop an individual if he has specific articulable facts which, in light of his experience and general knowledge, lead to the reasonable conclusion that criminal activity is afoot and the person detained is connected with the activity. Hoag v. State, 728 S.W.2d 375, 378-80 (Tex. Crim. App. 1987); Johnson v. State, 658 S.W.2d 623, 626 (Tex. Crim. App. 1983).

The reasonable-suspicion determination is based on the totality of the circumstances. U.S. v. Sokolow, 490 U.S. 1, 9, 109 S. Ct. 1581, 1586, 104 L. Ed. 2d 1 (1989); Holladay v. State, 805 S.W.2d 464, 473 (Tex. Crim. App. 1991). Officer Terry testified that he patrols the apartment complex at least once a night because it has a large drug problem and because the managers had asked the police to watch for criminal tresspassers who may be selling drugs. Because he had never seen Ward at the complex before, Terry was confident that he was not a resident. Believing that section 101.75 applied to the area through which Ward passed, Terry decided to detain Ward to investigate further. We believe this detention was valid based on a suspicion that was reasonable in light of Terry s experience and knowledge and the language of section 101.75. See id; Hoag, 728 S.W.2d at 378.

Ward claims that, even if Terry had a reasonable suspicion to detain him, the pat-down search was illegal because the facts did not give rise to a suspicion that he was armed or otherwise dangerous. We do not agree. When a Terry stop is made, the officer may conduct a search when the facts available would warrant a person of reasonable caution to believe that such a search is appropriate to protect the officer or others. Terry v. Ohio, 392 U.S. 1, 28-29, 88 S. Ct. 1868, 1879-81, 20 L. Ed. 2d 889 (1968). A Terry stop permits a search for weapons that reasonably could harm the officer. Davis v. State, 829 S.W.2d 218, 221 (Tex. Crim. App. 1992).

Officer Terry approached Ward and asked to see some identification but Ward did not have any. Considering the hour of the evening, the environment, and the fact that Ward was a stranger to the complex, Terry determined that a pat-down search was necessary to ensure the protection of himself and the other officers. Although a pat-down search is not justified simply because the officer has a mere suspicion that the defendant is armed, we believe the evidence establishes that the facts surrounding Terry s detention of Ward that night warranted his belief that a pat-down search was necessary. See Miller v. State, 786 S.W.2d 494, 496 (Tex. App San Antonio 1990, no pet.). //

Because Terry s initial detention of Ward was justified, as well as the subsequent pat-down search, we overrule Ward s point of error. The trial court was correct in admitting the gun found in Ward s possession. The judgment is affirmed.

BILL VANCE

Justice

Before Chief Justice Davis,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed September 24, 1997

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