GEORGE MARTINEZ v. THE STATE OF TEXAS--Appeal from 105th District Court of Nueces County

NUMBER 13-04-00085-CR

 COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI  B EDINBURG

GEORGE MARTINEZ, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 On appeal from the 105th District Court of Nueces County, Texas.

 MEMORANDUM OPINION

 Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

Memorandum Opinion by Justice Hinojosa

A jury found appellant, George Martinez, guilty of the offense of possession of less than one gram of cocaine,[1] and assessed his punishment at twenty months=confinement in a state jail and a $500 fine. The trial court has certified that this Ais not a plea bargain case, and [appellant] has the right of appeal.@ See Tex. R. App. P. 25.2(a)(2). By two points of error, appellant contends the trial court erred (1) in denying his motion to suppress and (2) in denying him pre-trial jail credit. We affirm.

This is a memorandum opinion not designated for publication. Because all issues of law presented by this case are well settled and the parties are familiar with the facts, we will not recite the law and the facts here except as necessary to advise the parties of our decision and the basic reasons for it. See Tex. R. App. P. 47.4.

A. Motion to Suppress

By his first point of error, appellant contends the trial court erred in overruling his motion to suppress. Specifically, appellant asserts there was no probable cause for his arrest.

1. Standard of Review

A trial court=s ruling on a motion to suppress is generally reviewed for abuse of discretion. See Ford v. State, 26 S.W.3d 669, 672 (Tex. App.BCorpus Christi 2000, no pet.) (citing Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999)). In a suppression hearing, the trial court is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given to their testimony. State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999). In reviewing a trial court=s ruling on a motion to suppress, we afford almost total deference to the trial court=s determination of the historical facts that the record supports, especially when the trial court=s findings turn on evaluating a witness=s credibility and demeanor. State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We afford the same amount of deference to the trial court=s ruling on Aapplication of law to fact questions,@ also known as Aquestions of law and fact,@ if resolving those ultimate questions turns on evaluating credibility and demeanor. Ross, 32 S.W.3d at 856; Guzman, 955 S.W.2d at 89. However, we review de novo questions of law and Amixed questions of law and fact@ that do not turn on an evaluation of credibility and demeanor. Ross, 32 S.W.3d at 856; Guzman, 955 S.W.2d at 89. Where, as here, no findings of fact are filed by the trial court, Awe view the evidence in the light most favorable to the trial court=s ruling and assume that the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record.@ Ross, 32 S.W.3d at 855-56.

2. Applicable Law

A police officer may stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that, given the officer=s experience and general knowledge, lead to the reasonable conclusion that criminal activity is afoot and the detained person is associated with the activity. Terry v. Ohio, 392 U.S. 1, 29-30 (1968); Davis v. State, 947 S.W.2d 240, 244 (Tex. Crim. App. 1997); Cerny v. State, 28 S.W.3d 796, 798 (Tex. App.BCorpus Christi 2000, no pet.). Probable cause is not required, only an objective reasonable suspicion. Terry, 392 U.S. at 29; Cerny, 28 S.W.3d at 800. Reasonable suspicion requires Athat there is something out of the ordinary occurring and some indication that the unusual activity is related to crime.@ Davis, 947 S.W.2d at 244. In evaluating the reasonableness of a stop, the totality of the circumstances present in each case must be considered to understand the Awhole picture.@ Cerny, 28 S.W.3d at 800; see Woods v. State, 956 S.W.2d 33, 38 (Tex. Crim. App. 1997). A trained police officer is entitled to rely on his or her knowledge of a particular location and certain actions of individuals in determining whether an investigative search is warranted. McKinney v. State, 761 S.W.2d 549, 553 (Tex. App.BCorpus Christi 1988, no pet.) (citing United States v. Gomez, 633 F.2d 999, 1004 (2d Cir. 1980) (stopping car in area of high narcotics activity valid factor)). However, mere presence alone in an area of high crime or narcotics activity is insufficient to warrant an investigatory search. Id.

The behavior of an individual can be a factor in determining the legality of a search. Illinois v. Wardlow, 528 U.S. 119, 124-25 (2000). Actions such as nervousness, furtive gestures, sudden movements towards pockets, or flight are susceptible to reasonable suspicion, although alone the acts may be innocent. Wardlow, 528 U.S. at 124; Woods, 956 S.W.2d at 38; Worthey v. State, 805 S.W.2d 435, 438-39 (Tex. Crim. App. 1991). These actions combined with other factors, i.e., presence in high crime area, can give rise to the requisite level of suspicion justifying an investigative detention. Wardlow, 528 U.S. at 124-25. The United States Supreme Court has acknowledged that sometimes innocent people may be stopped and detained in order for police officers to resolve behavioral ambiguities. Id. (citing Terry, 392 U.S. at 5-6).

3. Analysis

Appellant asserts that the police officers lacked probable cause or reasonable suspicion to conduct a Terry stop and frisk because he was merely standing on a street corner, not engaging in any illegal activity. As indicated in Wardlow, one factor alone may be insufficient to permit a stop. Wardlow, 528 U.S. at 124-25. However, several factors were present in the case at bar raising reasonable suspicion that there was Asomething out of the ordinary occurring . . . related to crime.@ Davis, 947 S.W.2d at 244. At the suppression hearing, Officer Espinosa testified that appellant was standing on a street corner at 4:50 a.m. with a female in an area known for high narcotics activity, and appellant and the female made furtive movements as soon as they noticed the police patrol unit. Suspecting appellant and the female were concealing weapons or drugs, the officers stopped their vehicle and approached appellant. The officers, drawing upon their knowledge of the area, law enforcement training, and experience,[2] determined that a search was warranted. Officer Espinosa escorted appellant to the rear of the police unit, advised appellant that he would conduct a Terry frisk, and asked appellant if he had anything in his pockets about which the officer needed to know. Officer Espinosa testified that cocaine was discovered in appellant=s pocket after appellant disclosed its location.

In light of the totality of the circumstances, we conclude that reasonable suspicion existed to warrant the investigatory search of appellant, and having probable cause that appellant was in possession of a controlled substance, the officers made a lawful arrest. See Cerney, 28 S.W.3d at 798. We hold the trial court did not err in denying appellant=s motion to suppress. Appellant=s first point of error is overruled.

B. Credit for Time Served

By his second point of error, appellant complains the trial court abused its discretion in assessing his punishment at twenty months= confinement in a state jail and not giving him credit for time served in county jail before he was sentenced. He claims his total sentence exceeds the twenty-four month maximum permitted by law for a state jail felony.

1. Applicable Law

It is well settled that Ain all criminal cases the judge . . . shall give the defendant credit on his sentence for the time that the defendant has spent in jail in said cause . . . from the time of his arrest and confinement until his sentence by the trial court.@ Tex. Code Crim. Proc. Ann. art. 42.03(2)(a) (Vernon 2004) (emphasis added). A trial court must award credit for time served for the same offense and not time incarcerated pre-trial for independent offenses. See Ex parte Crossley, 586 S.W.2d 545, 546 (Tex. Crim. App. 1979). However, time credit is subject to the discretion of the trial court when the pre-trial time was accrued in a county facility and it is to be credited to a state facility sentence. Tex. Code Crim. Proc. Ann. art. 42.12(15)(h)(2) (Vernon 2004); Ex parte Bates, 978 S.W.2d 575, 577 (Tex. Crim. App. 1998).

2. Analysis

Appellant was incarcerated because he was charged with this case and was arrested for a separate unrelated parole violation. He was in the county jail for seven months before he was tried and sentenced in this case. The trial court was not required to give him time credit for the parole violation. See Crossley, 586 S.W.2d at 546.

Appellant contends that because he is indigent, time credit must be given in accordance with Ex parte Harris.[3] Harris is distinguishable from the instant case because Harris relates to time credit given for the same offense. Ex parte Harris, 946 S.W.2d 79, 80 (Tex. Crim. App. 1997). Appellant was incarcerated for two separate offenses: the possession charge in this case and the violation of his parole. For this reason, we hold Harris is inapplicable.

Regardless of indigence, if appellant had been able to post bond for the controlled substance charge in this case, he would not have been released; instead, he would have remained incarcerated pending a hearing before the parole board on his parole violation charge. See Tex. Gov=t Code Ann. ' 508.254(c) (Vernon 2004).

We hold the trial court did not abuse its discretion in denying appellant credit for jail time served before he was sentenced in this case. Appellant=s second point of error is overruled.

The judgment of the trial court is affirmed.

FEDERICO G. HINOJOSA

Justice

Do not publish. See Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed this

the 28th day of July, 2005.

[1] See Tex. Health & Safety Code Ann. ' 481.115(a)(b) (Vernon 2003).

[2] Officer Espinosa testified he had been a police officer for seven years, and Officer Mersing testified he had been a police officer for nine years.

[3] A defendant must be given time credit for pre-trial incarceration where the defendant is found indigent, did not post bond, and is assessed a maximum sentence. Ex parte Harris, 946 S.W.2d 79, 80 (Tex. Crim. App. 1997). To deny time credit would violate equal protection of the law because the defendant would be incarcerated beyond the maximum penalty due to indigence. Id.