Randall Gene Skipworth v. The State of Texas--Appeal from 283rd District Court of Dallas County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

RANDALL GENE SKIPWORTH, )

) No. 08-03-00014-CR

Appellant, )

) Appeal from the

v. )

) 283rd District Court

THE STATE OF TEXAS, )

) of Dallas County, Texas

Appellee. )

) (TC# F-0201586-LT)

)

O P I N I O N

Appellant Randall Gene Skipworth appeals his conviction for possession of a controlled substance, to-wit: methamphetamine, in an amount of four grams or more but less than 200 grams. A jury found Appellant guilty of the offense as charged in the indictment. Appellant pled true to two prior felony convictions. He elected to be sentenced by the trial court, which assessed punishment at 30 years= imprisonment in the Institutional Division of the Texas Department of Criminal Justice. On appeal, Appellant raises two issues, in which he contends the trial court erred in denying his pretrial motion to suppress and erred in denying his request for a jury instruction pursuant to Article 38.23(a) of the Texas Code of Criminal Procedure. We affirm.

Appellant does not challenge the sufficiency of the evidence to sustain his conviction, but we briefly recite facts from the trial that are relevant to or provide context for Appellant=s issues on appeal. On January 31, 2002, Dallas police were informed by the Drug Enforcement Agency that Cassandra Fontana, was staying in Apartment 3018 of the Budget Suites in Dallas County and that she had felony warrants out for her arrest. Late that same day, Dallas police deployment squad prepared to execute the arrest warrant by setting up undercover surveillance of the apartment[1] to see if Ms. Fontana was at that location. Two covert officers watched the apartment for about forty-five minutes before seeing Ms. Fontana stand on the apartment balcony smoking a cigarette. They radioed to uniformed officers who were waiting on the other side of the building complex. By the time the three uniformed officers reached the apartment, Ms. Fontana had gone back inside.

Officers Jeffrey Eggleston, Albert Wagner, and Michael Milligan approached the apartment and knocked on the door. A female later identified as Rebecca Decla answered the door. Officer Eggleston testified that they told her that her car was being towed as a ruse to have the door opened rather than use force to enter the apartment. The officers then asked for Ms. Fontana and Ms. Decla told them she was in the bathroom. After Ms. Fontana exited the bathroom, the officers told her they had a warrant for her arrest at which time she was arrested and handcuffed. The officers then did a protective sweep of the apartment for officer safety. According to the officers, Ms. Fontana gave verbal consent to search her apartment.

While the officers were searching the apartment, two males knocked on the apartment door. Officer Eggleston testified that the officers conducted a pat-down search for officer safety, obtained their identification, and Ms. Decla=s identification, and then he left the apartment to check for outstanding warrants on these persons on his computer in the squad car. The covert officers observed Officer Eggleston leaving the apartment about five or ten minutes after seeing the two males enter the apartment. About five minutes later, covert officers observed a male individual, later identified as Appellant, approach the apartment. They then tried to get in contact with the officers inside to inform them that somebody else was approaching the door. Covert officer Ruben Felan testified that he made contact with Officer Wagner about somebody approaching the door.

At trial, Officer Wagner testified that he was searching the bedroom while Officer Milligan was watching the people in the living room and Officer Eggleston was out at the squad car checking for warrants. According to Wagner, they were radioed that someone was approaching the door and he went towards the front door, which was about six feet away. As he approached the door, Appellant opened the door with a key and entered. Officer Wagner testified that Appellant was holding two bags in his left hand and what he later determined was a cell phone and keys in his right hand. The officer testified that he ordered Appellant to drop what he was holding and put his hands above his head. Appellant dropped the bags and Officer Wagner heard a clanking sound and observed glass pipes and a small glass vial fall out of one of the bags. The officer stated that he immediately recognized the items as drug paraphernalia and placed Appellant under arrest for possession of drug paraphernalia. Incident to that arrest, Officer Wagner searched the rest of the green bag and recovered inter alia a substance that field-tested positive as methamphetamine.

Cassandra Fontana testified as a defense witness that she had been living at the Budget Suites for about two or three weeks and was planning to leave that night. Ms. Fontana heard the knock on the door and knew it was the police because they identified themselves and said they wanted to notify Ms. Decla that her car had been towed. Ms. Fontana went to the bathroom to flush some drugs down the toilet. Then she heard the officers ask for her and she came out of the bathroom for them to handcuff her. According to Ms. Fontana, the officers started to search and she was never asked nor did she give verbal consent to the search. Officer Milligan asked her if she would make a phone call to see if she could get somebody over with some dope to make an arrest.[2] However, Ms. Fontana tried but her contact was not able to come. Ms. Fontana then testified that she was sitting on the edge of the couch when an individual named David knocked on the door. The officers went to the door, which was locked and latched, and attempted to open the door but the latch was still on. They shut the door, unbolted it, and then dragged David inside the room. Ms. Fontana recalled that the officers got David=s identification, patted him down, ran his license, and then let him go.

According to Ms. Fontana, Appellant knocked on the door shortly thereafter. She stated that she did not give Appellant a key to the apartment and he did not have a key. When she heard the knock on the door, she turned and saw two officers go to the door to let him in. They unlatched the door and opened it like they had done with David, shut the door real quick and let the latch off, and then the two officers grabbed Appellant and pulled him into the room. Ms. Fontana stated that Appellant had a black address book, a cell phone, and car keys in his hands. When the officers grabbed him, he dropped everything on the floor and then they started searching him and then handcuffed him. Appellant, she claims, did not have the green bag on him. Instead, she testified that the green bag and its contents including the drugs belonged to her and was in the room before Appellant arrived, lying on the carpet, underneath the coffee table in the living room, camouflaged by the same colored carpet.

DISCUSSION

Motion to Suppress

In Issue One, Appellant contends the trial court erred in denying his motion to suppress because he was illegally seized, either arrested or detained, when he was ordered to drop his possessions or was dragged into the room by officers. Appellant argues his illegal seizure was a direct link to Officer Wagner hearing the glass vials inside the green bag, his subsequent arrest for possession of drug paraphernalia, and eventual discovery of methamphetamine, evidence which was the Afruits@ of the illegal seizure.

Standard of Review

A trial court=s ruling on a motion to suppress is generally reviewed for an abuse of discretion. Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App. 1996); Gordon v. State, 4 S.W.3d 32, 35 (Tex.App.--El Paso 1999, no pet.). In reviewing a motion to suppress, we must give almost total deference to the trial court=s determination of historical facts and review de novo mixed questions of law and fact that do not turn on an evaluation of credibility and demeanor. State v. Ross, 32 S.W.3d 853, 856 (Tex.Crim.App. 2000); Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). As the trial court made no explicit findings of historical facts in this case, the evidence must be reviewed in a light most favorable to the trial court=s ruling. Carmouche, 10 S.W.3d at 327-28. The trial court=s ruling will be upheld if it is correct on any theory of law applicable to the case. Willover v. State, 70 S.W.3d 841, 845 (Tex.Crim.App. 2002); Ross, 10 S.W.3d at 855-56.

Evidence at Suppression Hearing

Two witnesses, Officer Wagner and Cassandra Fontana, testified at the pretrial suppression hearing in Appellant=s case. With respect to Appellant=s entry into the apartment, Officer Wagner testified that the covert officers radioed that someone else was approaching the room. Appellant let himself into the room with a key and was carrying several objects. Officer Wagner instructed Appellant to place what he was carrying down so the officers could pat him down.[3] When he told Appellant to put his bag down, Appellant dropped everything he was carrying. Officer Wagner recalled that Appellant had two bags, but they did not strike him as a weapon. When Appellant dropped the bags, Officer Wagner heard a clanking sound and saw several glass objects come out, which he recognized as drug paraphernalia. Officer Wagner then arrested Appellant for possession of drug paraphernalia and searched Appellant and the bag. As a result of the search after arrest, Officer Wagner recovered methamphetamine in the amount of four grams or more but less than 200 grams.

On cross-examination, Officer Wagner testified that Ms. Fontana had offered to make phone calls to get somebody to come over and sell her an ounce and the officers were attempting to arrange this while they searched the bedroom, closet, kitchen, and bathroom for weapons. Officer Wagner recalled finding at least one gun during the search. Officer Wagner clarified his testimony, stating that when Appellant came to the door, Appellant put a key in the door, turned the lock, and then entered the room. In Appellant=s right hand, he had a cell phone and keys and in his left hand he had two bags, one of which was a green bag. As he moved towards Appellant, Officer Wagner told Appellant to set the items down and Appellant dropped them and stuck his hands above his head. Officer Wagner observed that glass pipes had popped out of the green bag and immediately handcuffed Appellant. Officer Wagner then patted Appellant down and did not find a weapon on him.

Defense witness Cassandra Fontana recalled that she was in the restroom flushing drugs because she knew the police were at the door. While in the bathroom, she heard them ask for her and offered her wrists to the officers to be handcuffed when she exited. The officers then searched the room, starting with the bedroom where they found two guns. One of the officers asked her to make a phone call to see if she could get somebody over there with some dope. At some point, a man named David knocked on the door. The door was bolted and latched. An officer opened the door, but the latch was stuck. He then removed the latch, opened the door, and the officers then grabbed David by the arms and pulled him into the room. They then brought David into the kitchen, ran his information, and let him go ten or fifteen minutes later when his information came back clear. After David left, the officers bolted and latched the door again. About twenty minutes later, Appellant knocked on the door. According to Ms. Fontana, the officers went to the door in a panic rush. They opened the door, but the top part was still latched. Ms. Fontana saw Appellant standing outside before the officers quickly shut the door and unlatched it again. Two of the three officers then dragged Appellant into the room just as they had done to David. Ms. Fontana observed that Appellant had a black address book, his keys, and his cell phone. Ms. Fontana stated that she never saw a green bag in Appellant=s hand. Rather, that bag was already in the room on the floor underneath the coffee table. When Appellant=s black bag fell on the floor in the same area where the green bag was, the officers found the green bag. Appellant was patted down for weapons, but not placed under arrest at that point. Ms. Fontana testified that the green bag and its contents, including the dope, belonged to her.

At the conclusion of the suppression hearing, the trial court denied Appellant=s motion to suppress and overruled the same objections when Appellant re-urged them at trial.

Temporary Investigative Detention

The Fourth Amendment of the United States Constitution guarantees individuals the right to be free from unreasonable seizures. See U.S. Const. Amend. IV; Brewer v. State, 932 S.W.2d 161, 167 (Tex.App.--El Paso 1996, no pet.). A stop of an individual by the police violates this guarantee only if (1) the stop or detention constitutes a seizure, and (2) the seizure is unreasonable. Id. at 167. A seizure or detention occurs if, in light of all the circumstances surrounding an encounter between a police officer and an individual, the officer=s conduct would communicate to a reasonable person that he is not free to go, or not free to refuse the officer=s requests. Florida v. Bostick, 501 U.S. 429, 435, 111 S. Ct. 2382, 2387, 115 L. Ed. 2d 389 (1991); Brewer, 932 S.W.2d at 167. A defendant is detained if, from his or her perspective, there has been such a display of official authority that a reasonable person would not have felt that he was free to leave. United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 1877, 64 L. Ed. 2d 497 (1980); Chambers v. State, 866 S.W.2d 9, 19 (Tex.Crim.App. 1993), cert. denied, 511 U.S. 1100, 114 S. Ct. 1871, 128 L. Ed. 2d 491 (1994). A person has not been seized until he has yielded to a law enforcement officer=s show of authority or when officers physically limit his movement. California v. Hodari D, 499 U.S. 621, 626-28, 111 S. Ct. 1547, 1550-51, 113 L. Ed. 2d 690 (1991); Johnson v. State, 912 S.W.2d 227, 234 (Tex.Crim.App. 1995); Brewer, 932 S.W.2d at 167. The State in its brief concedes, in effect, that Appellant was seized, but argues that it was a legal seizure grounded in reasonable, articulable facts.

A police officer may be justified in stopping and briefly detaining a person for investigative purposes even though the evidence falls short of probable cause for an arrest. See Terry v. Ohio, 392 U.S. 1, 21-24, 88 S. Ct. 1868, 1879-81, 20 L. Ed. 2d 889 (1968); Davis v. State, 947 S.W.2d 240, 244 (Tex.Crim.App. 1997). To determine the reasonableness of an investigative detention, we apply the test articulated in Terry v. Ohio: (1) whether the officer=s action was justified at its inception; and (2) whether it was reasonably related in scope to the circumstances that justified the initial interference. Terry, 392 U.S. at 19-20, 88 S.Ct. at

1878-79; Davis, 947 S.W.2d at 244. The reasonableness of a temporary detention must be examined based on the totality of the circumstances and will be justified when the detaining officer has specific articulable facts, which taken together with rational inferences from those facts, lead him to conclude that the person detained actually is, has been, or soon will be engaged in criminal activity. Terry, 392 U.S. at 21, 88 S. Ct. at 1880; Woods v. State, 956 S.W.2d 33, 38 (Tex.Crim.App. 1997). This is an objective standard that considers whether the facts available to the officer at the moment of the seizure or the search would warrant a person of reasonable caution to believe that the action taken was appropriate. Terry, 392 U.S. at 21-22, 88 S. Ct. at 1879-80.

Under Terry, an officer may conduct a pat down search or frisk for weapons during an investigative stop when the officer has reason to believe that the suspect might be armed and dangerous, regardless of whether he has probable cause to arrest the individual for a crime. Terry, 392 U.S. at 27, 88 S. Ct. at 1883. The officer need not be certain that the suspect is armed; Athe issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.@ Id.

In this case, Dallas police officers were in Ms. Fontana=s apartment for the purpose of executing felony arrest warrants for Cassandra Fontana. In the course of executing the arrest warrants, Officers Wagner and Eggleston conducted a search of the premises. During that search, officers recovered at least one gun, while Ms. Fontana testified that they had found two guns prior to Appellant=s entry. The officers, with Ms. Fontana=s assistance, were also involved in trying to arrange a drug transaction at the apartment for that night. While officers were conducting the search and arranging the drug buy, two individuals knocked on the door and entered the apartment. The two individuals along with witness Rebecca Decla remained in the apartment while Officer Eggleston left to check their identification for outstanding warrants. Soon after, Appellant let himself into the apartment with a key.

At the moment of the stop, Officer Wagner would have known the following information: that weapons had already been recovered from the apartment while their search continued; several witnesses were on the premises, creating a concern for their safety; the apartment was a probable location for drug transactions; and officer safety was at issue given only two officers were in the apartment at the time of Appellant=s entry. While Officer Wagner did not think Appellant=s bags were weapons, he testified that he instructed Appellant to place what he was carrying down so the officers could pat him down. From the relevant facts and rational inferences, Officer Wagner could conclude that Appellant was soon to be involved in criminal activity and that he might be armed and dangerous. Under these circumstances, Officer Wagner was justified in temporarily detaining Appellant for investigative purposes.

Contrary to Appellant=s argument on appeal, the evidence does not support his contention that he was placed under arrest, rather than temporarily detained when Officer Wagner instructed Appellant to place what he was carrying down. Both arrests and investigative detentions are types of seizures, each involving varying degrees of restraint on an individual=s liberty. See Dean v. State, 938 S.W.2d 764, 768-69 (Tex.App. -Houston [14th Dist.] 1997, no pet.). The Texas Code of Criminal Procedure provides that a person is under arrest Awhen he has been actually placed under restraint or taken into custody by an officer or person executing a warrant of arrest, or by an officer or person arresting without a warrant.@ Tex.Code Crim.Proc.Ann. art. 15.22 (Vernon 1977); see also Amores v. State, 816 S.W.2d 407, 411 (Tex.Crim.App. 1991)(an arrest occurs when a person=s liberty of movement is restricted or restrained). In the context of search and seizure, A[a]n arrest requires either physical force or, where that is absent, submission to the assertion of authority.@ [Emphasis omitted]. Hodari D, 499 U.S. at 627, 111 S. Ct. at 1551. Arrests constitute the highest restriction on individual liberty and are accompanied by circumstances that would indicate to a reasonable person that the individual has been actually restricted or restrained. Dean, 938 S.W.2d at 768-69, citing, Hoag v. State, 728 S.W.2d 375, 379 (Tex.Crim.App. 1987). The initial stop of Appellant by instructing him to set down what he was carrying would not have indicated to a reasonable person that he had been actually restricted or restrained by Officer Wagner. As discussed above, the seizure of Appellant constituted a legal temporary detention for investigative purposes. We overrule Issue One.

Jury Instruction

In Issue Two, Appellant argues that the trial court erred in denying his requested jury instruction pursuant to Article 38.23 of the Texas Code of Criminal Procedure because he contradicted and disputed the facts surrounding his detention and arrest. Specifically, Appellant points to Ms. Fontana=s testimony, in which she stated that officers unlatched the door from within, opened the door, and grabbed or dragged Appellant into the room. Appellant asserts that this testimony alone was sufficient to create a factual dispute as to the legality of the detention. From this testimony, Appellant contends, the jury could have concluded that the search and subsequent seizure of contraband were Atainted fruit@ of his illegal detention and therefore inadmissible evidence under Article 38.23.

Standard of Review

When an appellant alleges jury charge error on appeal, our first task is to determine whether error actually exists in the charge. Hutch. v. State, 922 S.W.2d 166, 170 (Tex.Crim.App. 1996); Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985)(Opin. on reh=g). If there is jury charge error, we then must determine if the error caused sufficient harm to warrant reversal. Hutch, 922 S.W.2d at 170-71; Almanza, 686 S.W.2d at 171. Where the defendant timely objected at trial to the jury charge, as in this case, we must reverse if the error is not harmless. Hutch, 922 S.W.2d at 171; Almanza, 686 S.W.2d at 171.

Article 38.23 Jury Instruction

Article 38.23(a) of the Texas Code of Criminal Procedure provides:

No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of Americas, shall be admitted in evidence against the accused on the trial of any criminal case.

In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.

Tex.Code Crim.Proc.Ann. art. 38.23(a)(Vernon Supp. 2004).

An Article 38.23 instruction directs a jury to disregard evidence if it resolves, in a defendant=s favor, a factual dispute concerning the manner in which the evidence was obtained. Balentine v. State, 71 S.W.3d 763, 773 (Tex.Crim.App. 2002); Thomas v. State, 723 S.W.2d 696, 707 (Tex.Crim.App. 1986). If a defendant successfully raises a factual dispute over whether evidence was illegally obtained, inclusion of a properly worded Article 38.23 instruction is mandatory. Bell v. State, 938 S.W.2d 35, 48 (Tex.Crim.App. 1996).

To determine whether Appellant was entitled to an Article 38.23 instruction, we must consider whether the evidence at trial raised a factual dispute as to how the evidence was obtained.[4] Officer Wagner testified at trial that he gave Appellant a verbal command to put down what he was holding and put his hands above his head. Appellant then dropped the bags and Officer Wagner saw glass pipes and vials fall out of the green bag. Ms. Fontana testified that Appellant knocked on the door and was grabbed by officers and pulled into the room. When the officers put their hands on him, Appellant dropped everything he had on the floor, which according to her, did not include the green bag. Rather, Ms. Fontana testified that the green bag and its contents were hers, not Appellant=s. According to Ms. Fontana=s testimony, the challenged evidence was not obtained as a result of Appellant=s alleged illegal seizure. Because Appellant did not raise a factual dispute as to how the evidence was obtained, the trial court did not err in refusing Appellant=s requested jury instruction. Issue Two is overruled.

We affirm the trial court=s judgment.

March 4, 2004

DAVID WELLINGTON CHEW, Justice

Before Panel No. 1

Larsen, McClure, and Chew, JJ.

(Do Not Publish)

[1] In the record, witnesses referred to Ms. Fontana=s residence as either an apartment, hotel room, or room in their description of events. For the sake of consistency, throughout this opinion we will refer to her residence as an apartment, rather than a hotel room since Ms. Fontana testified that she had been living there for some weeks.

[2] Officers Milligan and Wagner conceded on cross-examination that they attempted to broker a deal to buy drugs in the course of executing the arrest warrant for Ms. Fontana. According to Officer Milligan, the two males arrived while Ms. Fontana was trying to contact someone to come over with some dope, who told her he did not have any or was not going to bring any.

[3] At trial, Officer Wagner testified that he gave Appellant a verbal command to put down what he was holding and put his hands above his head.

[4] Appellant requested the following instruction, which defense counsel read into the record:

You are instructed that under our law, no evidence obtained or derived by an officer or other person as an [sic] result of an unlawful detention shall be admissible in evidence against such accused.

An officer is permitted to make a temporary investigative detention of a person if the officer has specific articulable facts, which, comma, taken together with rational inferences from those facts leads him to conclude that the person actually detained has been or soon will be engaged in criminal activity, period.

Now, comma, bearing in mind if you find from the evidence that on the occasion in question, the defendant, Randall Gene Skipworth, appeared at the door, 3018--Apartment 3018 and was immediately detained by the officers herein or you have a reasonable doubt thereof that such detention would be illegal, and if you find from the facts so to be, or if you have a reasonable doubt thereof, you will disregard this testimony. The officers relative to their detention of defendant and the conclusions drawn as a result thereof, you will not consider such evidence for any purpose whatsoever.