James Earl Kennedy v. The State of Texas--Appeal from 265th District Court of Dallas County

IN THE

TENTH COURT OF APPEALS

No. 10-99-291-CR

JAMES EARL KENNEDY,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 265th District Court

Dallas County, Texas

Trial Court # F99-46469-R

O P I N I O N

Appellant Kennedy appeals from his conviction for unlawful possession of cocaine (enhanced by two prior felony convictions), for which he was sentenced to 17 years in prison.

Officers Samuel McDonald and Michael Bricker were patrolling in South Dallas as part of a special drug enforcement unit. They pulled into a driveway next to an apartment complex known for its drug activity. Officer McDonald noticed two men facing each other against the wall, and they appeared to be exchanging something. McDonald believed the hand to hand exchange was a drug transaction. McDonald approached the two men. They both turned and walked away from each other. As appellant was walking away, he dropped a small clear blue plastic bag with white powder in it. At the time he dropped the baggie, appellant was about ten feet from McDonald. McDonald stopped appellant before he turned the corner and, as he was trying to handcuff appellant, the other suspect got away. Once appellant was handcuffed, McDonald picked up the baggie and found cocaine inside. Appellant was indicted for possession of cocaine (less than 1 gram [enhanced by 2 prior felony convictions]). Trial was to a jury which convicted appellant, found the two alleged enhancements to be true, and assessed appellant 17 years in prison.

Appellant appeals on five points of error.

Point 1. The trial court erred by allowing the state to exercise its peremptory strikes in a racially discriminatory manner against three prospective jurors.

Specifically, appellant complains the state exercised its peremptory strikes in a racially discriminatory manner regarding minority jurors (1) Sylvester Lee; (4) Dorothy Prince; and (14) Marlin McDaniel.

Batson v. Kentucky, 476 U.S. 79 (1986) and Article 35.261 Tex. Code. Crim. Proc. prohibit peremptory challenges based on race. Under Batson, once a defendant has established a prima facia case, the burden shifts to the state to provide race-neutral reasons for striking the venire members in question. Appellant then has the burden of showing that the race-neutral reasons articulated by the state were in fact a pretext for discrimination. Williams v. State, 804 S.W.2d 95, 101 (Tex. Crim. App. 1991); Pondexter v. State, 942 S.W.2d 577, 581. In examining a Batson claim, on appellate review, the reviewing court reviews the record in the light most favorable to the trial court s ruling and reverses the trial court s decision only if it is left with a definite and firm conviction that a mistake has been committed. Adanandus v. State, 866 S.W.2d 210, 224 (Tex. Crim. App. 1993). Additionally, absent some other evidence which rebuts the state s race-neutral explanation, we will not disturb the trial court s finding that the state s explanation is legitimate. Chambers v. State, 866 S.W.2d 9, 25 (Tex. Crim. App. 1993); Pondexter, p. 581. The ultimate burden of persuasion regarding racial motivation rests with, and never shifts from the opponent of the strike, in this case, appellant. Ford v. State, 1 S.W.3d 691, 693 (Tex. Crim. App. 1999).

Appellant contends the reasons offered for the state s strikes to prospective jurors 1, 4, and 14 were a sham or pretext for racially motivated strikes.

Prospective Juror 1. At the Batson hearing, the state explained that juror 1 was struck because he had a bad experience with the police. Appellant rebutted the state s explanation by stating that prospective juror 1 told the prosecution that his experience would not affect his judgment.

Striking a prospective juror based on the juror s statement that he had a bad experience with police officers is a race-neutral reason for the strike. Davis v. State, 964 S.W.2d 352, 355 (Tex. App. Ft. Worth, no pet).

Once the prosecution provides an adequate explanation, then the burden shifts back to the opponent of the strike to persuade the trial court that the race-neutral explanation is merely a pretext for purposeful discrimination. Batson, p. 98. Appellants response was that prospective juror 1 said he could be fair and impartial despite his bad experience with the police. This does not render the state s race-neutral explanation a sham or pretext.

The state s explanation need not rise to the level of a challenge for cause. Tate v. State, 939 S.W.2d 738, 746-47 (Tex. App. Houston [14th] 1997, pet. ref d.). Appellant did not meet his burden of persuasion. There was no evidence to rebut the state s race-neutral explanation, and we should not disturb the trial court s finding that the state s explanation is legitimate. Pondexter, p. 581.

Prospective juror 4. At the Batson hearing, the prosecutor stated she struck prospective juror 4 because she stated she is a consultant and it would be hard for her to sit in a jury trial for the next two or three days. Appellant rebutted the state s explanation by pointing out that there were several self-employed jurors on the panel and that juror 4 is African-American and appellant is African-American. Simply stating his disagreement with the state s explanation is insufficient to establish show or pretext. Johnson v. State, 959 S.W.2d 284, 289 (Tex. App. Dallas 1997, pet. ref d.). Absent evidence to rebut the state s race-neutral explanation, we should not disturb the trial court s finding that the state s explanation is legitimate. Pondexter, p. 581.

Prospective juror 14. At the Batson hearing, the prosecutor stated she struck juror 14 because he believed drugs should be legalized and he was not the best juror for this type of case. Appellant attempted to rebut the state s explanation by stating he did not hear the prospective juror express that drugs should be legalized. The trial judge however did hear juror 14 express that drugs should be legalized.

The reason stated by the prosecutor was race-neutral. Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim. App. 1992). Absent evidence to rebut the state s race-neutral explanation, we should not disturb the trial court s finding that the state s explanation is legitimate. Pondexter, p. 581. Appellant did not rebut the prosecutor s explanation.

Point 1 is overruled.

Point 2. The trial court abused its discretion by failing to suppress all evidence obtained as a result of a warrantless illegal arrest.

Point 3. The trial court abused its discretion by failing to suppress all evidence obtained because the police officer had no probable cause to detain and arrest appellant.

The trial court conducted a suppression hearing, after which it overruled appellant s motion to suppress.

The standard for reviewing the trial court s suppression ruling is set forth in Guzman v. State, 955 S.W.2d 85, 87, 88 (Tex. Crim. App. 1997). Appellate courts should afford almost total difference to the trial court s ruling on mixed questions of law and fact if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor. The appellate courts may review de novo mixed questions of law and fact not falling within this category. Maestas v. State, 987 S.W.2d 59, 62 (Tex. Crim. App. 1999).

As the movant to suppress evidence, a defendant must prove (1) that a search or seizure occurred and (2) that no warrant was obtained. Johnson v. State, 864 S.W.2d 708, 714 (Tex. App. Dallas 1993, aff d, 912 S.W.2d 227 (Tex. Crim. App. 1995). Once the defendant meets this burden, the burden shifts to the state to provide the reasonableness of the search or seizure. Id. The Fourth Amendment bridles the government s power to invade a person s privacy by requiring a showing of probable cause. Woods v. State, 956 S.W.2d 33, 35 (Tex. Crim. App. 1997). In this case, the seizure occurred without a warrant. The trial court determined the seizure was reasonable and overruled appellant s motion to suppress.

Probable cause to arrest without a warrant exists if at the moment of arrest the facts and circumstances within the officer s knowledge and of which the officer had reasonably trustworthy information were sufficient to warrant a prudent man in believing the arrested person had committed or was committing an offense. Brown v. State, 986 S.W.2d 50, 52 (Tex. App. Dallas 1999, no pet.). We examine the totality of the circumstances to determine whether probable cause existed at the time of the warrantless arrest. An officer may arrest a suspect for an offense committed within his presence. Tex. Code Crim. P. Art. 14.01.

This court must decide whether Officer McDonald had probable cause under the totality of the circumstances to justify a warrantless arrest of appellant. Officer McDonald saw what he believed was a hand to hand money exchange in the apartment parking lot. The officer got out of his car and approached appellant. Appellant turned to walk away. The officer saw appellant drop a small clear blue plastic bag containing white powder and was aware that narcotics are frequently packaged in baggies such as the one dropped by appellant. The officer could suspect appellant in possession of a controlled substance, and thus had probable cause to arrest appellant. Mayham v. State, 795 S.W.2d 285, 289 (Tex. App. Houston [14th] 1990, no pet.).

Further, appellant abandoned the cocaine before he was arrested. When police take possession of abandoned property, there is not a seizure under the Fourth Amendment. Hawkins v. State, 758 S.W.2d 255, 257 (Tex. Crim. App. 1988). A person who drops contraband onto the ground in the sight of a police officer should not be heard to complain that his rights were violated by his subsequent arrest. Mayham, p. 289.

There was no improper seizure of evidence and the trial court correctly overruled appellant s motion to suppress.

Points 2 and 3 are overruled.

Point 4. The evidence is factually insufficient to link appellant to the cocaine found on the ground.

Point 5. The evidence is legally insufficient to sustain appellant s conviction that he possessed less than 1 gram of cocaine as alleged in the indictment.

In reviewing the legal sufficiency challenge, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential statements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996).

In reviewing a factual sufficiency challenge, we view all the evidence without the prism of in the light most favorable to the verdict and set aside the verdict if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Examples of such a wrong and unjust verdict including instances in which the jury s finding is manifestly unjust, shocks the conscience, or clearly demonstrates bias. Clewis v. State, 922 S.W.2d 126, 131-32 (Tex. Crim. App. 1996); Jones, p. 647-48.

The jury was instructed to convict appellant if they found that he knowingly or intentionally possessed cocaine. The direct or circumstantial evidence must affirmatively link the accused to the contraband, but it need not be so strong that it excludes every other outstanding reasonable hypothesis except the defendant s guilt. Brown v. State, 911 S.W.2d 744, 748 (Tex. Crim. App. 1995).

Affirmative links may be established by facts and circumstances that indicate the accused s knowledge of and control over the contraband, including the fact that the contraband was in close proximity to the accused. Grant v. State, 989 S.W.2d 428, 434-35 (Tex. App. Houston [14th] 1999, no pet.).

Appellant was arrested seconds after Officer McDonald saw him drop the baggie containing the cocaine on the ground. Officer McDonald testified appellant s dropping of drugs before being arrested is consistent with what other suspects do in the same situation.

The evidence affirmatively links appellant to the cocaine seized. When the officer pulled up to the apartment complex, appellant was standing close with the other suspect. Officer McDonald, who is familiar with the high crime area and a member of a drug enforcement force witnessed what he believed was a drug transaction. When appellant and his accomplice saw McDonald approach, they immediately turned and walked away. Appellant dropped the blue plastic baggie on the ground, which was later determined to be cocaine. McDonald saw appellant drop the cocaine, which is sufficient to convict appellant of possession. Nelms v. State, 834 S.W.2d 110, 112 (Tex. App. Houston [1st] 1992 pet. ref d).

Points 4 and 5 are overruled.

The judgment is affirmed.

FRANK G. McDONALD

Chief Justice (Retired)

Before Chief Justice Davis,

Justice Vance, and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed May 31, 2000

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