WILLIE JAMES WHITE, Appellant v. THE STATE OF TEXAS, Appellee

Affirmed and Opinion filed December 18, 1989.
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-88-01297-CR
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WILLIE JAMES WHITE, Appellant
V.
THE STATE OF TEXAS, Appellee
 
.................................................................
On Appeal from the Criminal District Court No. 5
Dallas County, Texas
Trial Court Cause No. F88-85
540-VL
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O P I N I O N
Before Justices McClung, Lagarde and Ovard
Opinion By Justice Lagarde
        Willie James White was convicted of burglary of a vehicle and punishment, enhanced by prior convictions, was assessed at twenty-five years' confinement. He now appeals, raising four points of error. Three points relate to the trial court's failure to grant appellant's motion to suppress evidence, and one alleges that the conviction rests on insufficient evidence. We overrule all four points of error and affirm.
        Dallas police officer Larry L. Kennedy, an eight year veteran of the force, testified that he was on duty in his patrol car at 3:30 a.m. on July 29, 1988. Earlier in the evening, he had received several reports of thefts from motor vehicles in his patrol area, although he had not received information on the particular offense in this case. He testified that the burglary reports somewhat heightened his awareness of his surroundings. As Officer Kennedy turned the marked patrol car down the 2800 block of Vilbig, he observed appellant and two other men walking in the street. Officer Kennedy observed two of the men carrying objects and one of them, later identified as appellant, appeared to be concealing an object inside a cloth. Officer Kennedy stated that this observation of the three men initially attracted his attention. As Officer Kennedy and his partner began following them, appellant threw the long, cloth-covered object over a fence and continued walking.
        At this point, the uniformed officers stopped their patrol car, got out, and stopped the trio to investigate. During this exchange, appellant denied throwing anything or having had anything in his hands. Appellant, who had no identification, falsely told the officer that his name was Roger Black. FN:1 Officer Kennedy testified that one of appellant's companions was carrying a portable "Escort" brand radar detector, and had no reasonable explanation for his possession of this object.
        Officer Kennedy recovered the object appellant threw away while the other two officers detained the trio. The cloth-covered object discarded by appellant, and recovered by Officer Kennedy, was a "Brinkman" brand flashlight. Officer Kennedy also testified that he did not observe appellant shining the flashlight, although he conceded that he did not check to see if it worked.
        Approximately fifteen minutes after Officer Kennedy first stopped appellant, his partner, Officer Allen, notified Officer Kennedy that an employee of the Jorgenson Steel plant had reported a truck burglary. The items missing from the truck were an Escort radar detector and a Brinkman flashlight. At this time, police arrested appellant. Officer Kennedy stated that Jorgenson Steel is located seven or eight blocks from the place where he saw appellant discard the flashlight.
        The complainant described the detector and the flashlight as items taken from his truck, and later identified the recovered flashlight as his property. At trial, he stated that he worked the night shift at Jorgensen Steel. Complainant testified that his truck was secure at 2:30 a.m., but when he took his 3:30 a.m. lunch break, he discovered that his truck had been burglarized and that the detector and flashlight were gone. He stated that he did not give anyone, including appellant, permission to break into his vehicle or possess his flashlight.
        In his first point of error, appellant states that the court improperly overruled his motion to suppress evidence (the flashlight) because the police based appellant's stop on an inarticulate hunch and mere suspicion. We initially note that the standard for an investigative "Terry" stop, broken into its components, requires that the officer have:
        (1) specific articulable facts
        (2) which in light of the officer's experience and general knowledge
        (3) together with rational inferences from those facts
        (4) would reasonably warrant a stop.
See Glass v. State, 681 S.W.2d 599, 601 (Tex. Crim. App. 1984); see also Adams v. Williams, 407 U.S. 143, 145-46 (1972) (citing Terry v. Ohio, 392 U.S. 1, 21-23 (1968)).
        Texas courts have consistently held that behavior that is as equally consistent with innocent activity as with criminal activity will not allow detention of an individual based on those facts. Hoag v. State, 728 S.W.2d 375, 379 (Tex. Crim. App. 1987); Green v. State, 744 S.W.2d 313, 314 (Tex. App.--Dallas 1988, pet. ref'd) (individuals briefly visiting passenger side of the appellant's car did not, by itself, justify a detention); see Glass, 681 S.W.2d at 601-02 (appearing nervous at the approach of police officers is equally consistent with innocent activity); Rodriguez v. State, 578 S.W.2d 419, 420 (Tex. Crim. App. [Panel Op.] 1979) (looking over shoulder in direction of police car). Courts have specifically noted that an individual's presence in a high crime area, without more, will not justify a detention. Comer v. State, 754 S.W.2d 656, 658 (Tex. Crim. App. 1986). In Comer, the court suggested that mere presence in a high crime area does not constitute a fact giving rise to a rational inference that a person is involved in criminal activities. Id. However, presence in a high crime area stands as one factor an officer can consider in deciding to make a reasonable investigatory stop. See Adams, 407 U.S. 143, 144-46 (1972); Hammond v. State, 664 S.W.2d 838, 839 (Tex. App.--Corpus Christi 1984, no pet.).
        The articulable facts, when viewed objectively, must create a reasonable suspicion that some unusual activity is occurring or has occurred. Anderson v. State, 701 S.W.2d 868, 873 (Tex. Crim. App. 1985) cert. denied, 479 U.S. 870 (1986) (driving at night without headlights). Further, there must be some suggestion to connect the detainee with the unusual activity, and some indication that the unusual activity is related to the crime. Id. The circumstances must reasonably justify detention, and the officer's subjective state of mind is not the determinative factor when reviewing the correctness of an investigative stop. Hoag, 728 S.W.2d at 378-79; Williams v. State, 726 S.W.2d 99, 101 (Tex. Crim. App. 1986); contra Pickens v. State, 712 S.W.2d 560, 562 (Tex. App.--Houston [1st Dist.] 1986, pet. ref'd) ("The testimony of the officer as to the reasons for making the stop is crucial" in evaluating the validity of an investigatory stop). A brief stop of a suspicious individual, to determine his identity or momentarily maintain the status quo while obtaining more information, may be a reasonable course of action in light of the articulable facts known to that officer at the time of the stop. Dickey v. State, 716 S.W.2d 499, 503 fn.4 (Tex. Crim. App. 1986).
        As a threshold issue, in order to determine the correctness of Officer Kennedy's Terry stop, we must first review the record to determine when the stop occurred. Officer Kennedy testified that he noticed appellant walking in the road and that as the patrol car turned toward appellant, appellant discarded the flashlight. Officer Kennedy then stopped appellant and asked appellant's name. Appellant gave a false name and denied carrying or throwing an object. Officer Kennedy stated that appellant had been detained for fifteen minutes when another officer radioed in the report of a stolen flashlight. Officer Kennedy could not recall whether appellant sat or stood during the fifteen-minute detention, but he did state that appellant was not handcuffed.
        Officer Kennedy stated that he detained appellant after appellant threw away the flashlight. When the officer finished questioning appellant about the flashlight, the officer said that he continued to detain the entire group for "class C violations, pedestrian in a roadway." His purpose in continuing the detention was to hold the men while investigating the possibility of another crime being committed. Officer Kennedy testified that appellant's disposal of the flashlight led him to believe that a theft had taken place. After Officer Kennedy received the description of complainant's stolen property, the police officers arrested appellant and the person carrying the detector for possession of stolen property. The remaining detainee was arrested for the pedestrian violation.
        Officer Kennedy first saw appellant while he was patrolling an area marked by recent automobile burglaries. One of the legitimate and unquestioned purposes of having police officers on patrol is to detect evidence of crime being committed. Johnston v. State, 643 S.W.2d 427, 429 (Tex. App.--Houston [14th Dist.]), pet. ref'd per curiam, 640 S.W.2d 893 (Tex. Crim. App. 1982) (adopting the analysis of the appellate court's concurring opinion). Officer Kennedy clearly had a right to be where he was when he saw appellant. Furthermore, simply driving the patrol car closer to appellant did not involve a seizure or detention. Michigan v. Chesternut, 108 S. Ct. 1975, 1980 (1988). Seizure or detention for an investigative stop occurs when a reasonable person, surveying the circumstances, believes that he is not free to leave. Id. at 1979. This arguably occurred in the circumstances at hand when Officer Kennedy stopped appellant and asked about the flashlight. We hold that at this point, the officer possessed articulable facts that would allow this experienced officer to reasonably infer that some type of criminal activity involving appellant may have taken place. Officer Kennedy knew that several automobiles had been burglarized that night and as the patrol car approached appellant, that appellant abandoned an object, later determined to be the flashlight. This abandonment of the object, and appellant's prior attempt to conceal it in a cloth, are objective facts supporting the reasonableness of the subsequent detention. FN:2 Johnston, 643 S.W.2d at 429-30. This attempt to hide the flashlight, and its subsequent abandonment, under these circumstances, is more consistent with criminal activity than with innocent behavior. During questioning, appellant's denials supplied further reasonable suspicion that appellant's actions involved criminal activity, thus justifying continued detention to investigate. See id at 429. Appellant possessed no identification and flatly denied throwing away the flashlight, even though Officer Kennedy had watched him dispose of the item. These factors were also consistent with criminal behavior in these circumstances. See Montoya v. State, 625 S.W.2d 25, 29 (Tex. Civ. App.--San Antonio 1981, no pet.). In light of the facts known at the time, the officers behaved reasonably in detaining appellant while they conducted a short, fifteen-minute investigation. Because Officer Kennedy had specific, articulable facts leading him to a reasonable belief that appellant had engaged in some criminal behavior, the stop was justified. Appellant's first point of error is overruled.
        In his second point of error, appellant complains that his motion to suppress should have been granted because appellant's arrest for being a pedestrian in a roadway was a pretext for trying to find another offense that might have been committed. An arrest used as a pretext is an illegal arrest, and evidence discovered as a result cannot be used at trial. McNary v. State, 747 S.W.2d 932, 935 (Tex. App.--Dallas 1988, no pet.). The facts in this case reveal that Officer Kennedy subjectively justified detaining appellant as a pedestrian in the roadway. FN:3 As we have previously noted, the justification for an investigative stop must rest on articulable facts that would lead an objective, reasonable person to believe that the detainee was connected to some criminal activity. This justification exists in the case at bar, regardless of Officer Kennedy's subjective views on his reasons for holding appellant. The police arrested appellant for possession of stolen property; this arrest did not function as a pretext for any other arrest. We overrule appellant's second point of error.
        Appellant also states that the flashlight evidence should be suppressed because appellant relinquished the flashlight as a result of police misconduct. Appellant states that his decision to abandon the flashlight resulted from the officer's approach toward appellant with the intention of conducting an illegal arrest or detention. Appellant contends that because the relinquishment was involuntary and illegally coerced, the evidence should be excluded. We do not agree that the evidence resulted from police illegality.
        True abandonment consists of two components: 1) the accused must intentionally abandon the property; and 2) the decision to abandon must not be a product of police misconduct. Comer, 754 S.W.2d at 659. Appellant threw the flashlight away as the patrol car turned in his direction. We have already noted that the police were properly patrolling the area and that appellant was not in detention or custody at the time. See Chesternut, 108 S. Ct. at 1980. No police misconduct induced appellant to throw away the flashlight; rather, appellant's actions can reasonably be seen as part of a calculated risk to disassociate himself with incriminating evidence. The fourth amendment does not protect freely abandoned property and the police have a right to retrieve such property. Hawkins v. State, 758 S.W.2d 255, 258 (Tex. Crim. App. 1988). Appellant's actions meet the abandonment test set forth in Comer. We overrule appellant's third point of error.
        In his final point of error, appellant states that the evidence is insufficient to support his conviction because circumstances do not exclude every reasonable hypothesis except appellant's guilt. Because appellant challenges the sufficiency of the evidence, we will examine the evidence in the light most favorable to the judgment to determine whether any rational trier-of-fact could have found the essential elements of the offense beyond a reasonable doubt. Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). This standard of review holds true for both direct and circumstantial evidence. Carlsen v. State, 654 S.W.2d 444, 449 (Tex. Crim. App. 1983). Still, a conviction based on circumstantial evidence cannot be sustained unless the evidence excludes every reasonable hypothesis except the guilt of the accused. Vaughn v. State, 607 S.W.2d 914, 921 (Tex. Crim. App. 1980). Proof amounting only to a strong suspicion is insufficient. Id. Nevertheless, every fact need not point directly and independently to the defendant's guilt; a conclusion of guilty can rest on the combined and cumulative force of all incriminating circumstances. Vanderbilt v. State, 629 S.W.2d 709, 716 (Tex. Crim. App. 1981).
        Appellant was indicted for violation of section 30.04 of the Texas Penal Code which, in pertinent part, reads:
Burglary of Vehicles
        (a)    A person commits an offense if, without the effective consent of the owner, he breaks into or enters a vehicle or any part of a vehicle with intent to commit any felony or theft.
Tex. Penal Code Ann. § 30.04 (Vernon 1974). Appellant states that the evidence is insufficient because the complainant did not identify the items by their serial numbers and because no evidence exists to show that appellant ever came in contact with the complainant's vehicle. Appellant argues that the State's circumstantial evidence did not exclude the reasonable hypothesis that appellant obtained the flashlight from one of the other men without any knowledge that it was stolen.
        The evidence shows that appellant tossed a flashlight over a fence. When the police recovered this item, the complainant identified it as the same flashlight that had been in his vehicle. We hold that complainant sufficiently identified his property. The complainant stated that his vehicle had been secure at 1:30 a.m., but when he checked it at 3:30 a.m., it had been burglarized. Officer Kennedy said that he saw appellant discard the flashlight at about 3:30 a.m. Appellant threw away the item approximately eight blocks from the site of the burglary of complainant's vehicle. Complainant testified that he did not give appellant permission to enter his truck or to take his flashlight.
        Appellant's unexplained possession of recently stolen property is one circumstance tending to support his guilt. Montoya, 625 S.W.2d at 28. The inference of guilt is strengthened in this case because the possession was personal to the defendant and was recent in relation to the burglary. Rodriguez v. State, 549 S.W.2d 747, 749 (Tex. Crim.
App. 1977). Further, appellant's possession of the property was unexplained, and appellant's carrying and hiding the item inside a cloth indicated his conscious assertion of a right to the property. These factors also support appellant's conviction. Id.; Dickerson v. State, 740 S.W.2d 567, 570 (Tex. App.--Fort Worth 1987, pet. ref'd). Complainant unequivocally testified that the flashlight was inside his truck at 2:30 a.m. When he returned at 3:30 a.m., the window vent was broken, and the flashlight was gone. This evidence establishes the essential element of entry into the vehicle. Grant v. State, 647 S.W.2d 778, 780 (Tex. App.--Austin 1983, no pet.); see Alford v. State, 676 S.W.2d 199, 202 (Tex. App.--Corpus Christi 1984, no pet.); cf. Valdez v. State, 462 S.W.2d 24, 26-27 (Tex. Crim. App. 1971). We hold the evidence is sufficient to uphold appellant's conviction; therefore, we overrule his final point of error.
        The trial court's judgment is affirmed.
 
 
 
                                                          
                                                          SUE LAGARDE
                                                          JUSTICE
DO NOT PUBLISH
TEX. R. APP. P. 90
881297F.U05
 
 
FN:1 The police discovered this fact after they formally arrested appellant.
FN:2 Appellant cites Ceniceros v. State, 551 S.W.2d 50, 54 (Tex. Crime. App. 1977) (opinion on rehearing) in support of his assertion that Officer Kennedy lacked reasonable suspicion to justify appellant's stop. The facts of Ceniceros are similar to those in this case, but differ in several important respects. In Ceniceros, the arresting officer had information that several burglaries had occurred in his patrol area. The appellant was standing in a group when the officer approached "to see if they had any business in the area." The opinion notes that the officer possessed no other facts, aside from observation of the group and the burglary reports, before he detained the appellant. When the officer asked for identification, the appellant opened his wallet. At this point some heroin, wrapped in tinfoil, fell out of the appellant's wallet. The Court of Criminal Appeals ruled that the heroin was inadmissible because the officer's Terry stop was based on his inchoate and unparticularized suspicion. Id. at 33 (citing Terry, 391 U.S. 1). In the case at hand, appellant also stood in a group in an area where burglaries had been reported; however, Officer Kennedy had more than these facts when he stopped appellant. Officer Kennedy observed appellant attempting to conceal, and then discarding, the incriminating evidence. This occurred before Officer Kennedy stopped appellant. In Ceniceros, the contraband came to light after the stop. While the facts in Ceniceros are similar to those in this case, this important difference makes the holding of Ceniceros inapplicable.
FN:3 Officer Kennedy admitted that this particular street did not have a sidewalk so pedestrians would necessarily have to walk in the roadway.
File Date[12-18-89]
File Name[881297F]