ALBERT EARL BROWN, JR., Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued November 16, 2010
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-09-00595-CR
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ALBERT EARL BROWN, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the 219th Judicial District Court
Collin County, Texas
Trial Court Cause No. 219-80474-07
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OPINION
Before Justices Morris, Moseley, and Myers
Opinion By Justice Morris
        At trial, Albert Earl Brown, Jr. waived his right to a jury and was convicted by the trial court of possession of cocaine. He now complains in three points of error that the trial court erred in denying his motion to suppress evidence in the case and the evidence against him is legally and factually insufficient. We affirm the trial court's judgment.
Factual Background
        A police officer first encountered appellant among a group of people when she arrived at an apartment complex parking lot following a noise complaint at the location. The officer instructed the people gathered in the lot to disperse. Appellant and another man did not comply. She asked the men whether they lived in the apartments. Both replied that they did not. The other man left the scene. As appellant began to walk away, he kicked a tequila bottle on the ground close to his feet. The officer asked appellant if the bottle belonged to him. He denied that it did. As the officer watched appellant move away, she saw him stumble twice. She approached him again and at that point could smell the odor of an alcoholic beverage on his breath. The officer detained appellant briefly to determine if he was intoxicated. An undercover officer at the scene performed a pat-down search of appellant. Appellant was uncooperative and refused to put down his cigarette or spread his legs during the search. He appeared to be protecting the left side of his pants. When asked how much alcohol he had, appellant said that he had not had any. He was uncooperative when another officer at the scene attempted to perform the HGN field sobriety test on him. At that point, the original officer believed that appellant was a danger to himself because he was intoxicated, on foot, and near a busy street. She arrested him for public intoxication.
        The officer placed appellant, handcuffed behind his back, in a squad car and fastened his seatbelt. On the ride to the jail, appellant unfastened his seatbelt, requiring the arresting officer to request a backup officer to follow her to the jail. An officer at the jail found a small but useable amount of loose marijuana leaves and seeds in one of appellant's pockets. After the officer had gathered the small amount of marijuana in his hand, appellant leaned forward and blew the marijuana to the floor.
        After appellant was booked into the jail, the arresting officer searched her car. Under the front passenger seat, she found three baggies of what appeared to be cocaine. The officer testified that the baggies were not in the car when she searched it at the jail following another arrest that preceded appellant's arrest that night. She stated that she was certain the baggies were not in the car before appellant got into it.
        Initial testing of the contents of each of the three baggies was presumptive for cocaine. Then samples from each of the baggies were combined, and the conclusive testing of that composite sample showed the presence of cocaine. The total weight of the cocaine found in the baggies was 1.08 grams.
        Appellant testified in his own defense. He admitted unbuckling his seatbelt in the police car but denied possessing the cocaine found in the car. According to appellant, the arresting officer admitted to him in the car that she knew he was not intoxicated. He denied being intoxicated or stumbling at the location of his arrest. He claimed that the marijuana found in his pocket was the result of his “holding some weed for somebody else prior to the incident.” He admitted, however, that he had a previous drug conviction as well as a conviction for unauthorized use of a motor vehicle.
Discussion
        In his first point of error, appellant complains that the trial court erred in denying his motion to suppress the evidence collected as a result of his illegal detention and arrest. Appellant specifically argues the arresting officer did not have reasonable suspicion to stop him or probable cause to arrest him for public intoxication. By finding appellant guilty of the charged offense, the trial court implicitly overruled his motion to suppress.
        When reviewing a trial court's ruling on a motion to suppress, we view all of the evidence in the light most favorable to the ruling. State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008). We afford almost total deference to a trial court's determination of the historical facts that the record supports, especially when the implicit factfinding is based on an evaluation of credibility and demeanor. Id. We review de novo the trial court's application of the law. State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000). When, as here, the trial court does not enter findings of fact, we infer the necessary factual findings that support the trial court's ruling if the evidence, viewed in the light most favorable to the ruling, support the implied fact findings. Garcia-Cantu, 253 S.W.3d at 241.
        A law enforcement officer is justified in detaining a person for investigative purposes if the officer has a reasonable suspicion to believe the individual is violating the law. Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). Reasonable suspicion exists if an officer has specific, articulable facts that, when combined with rational inferences from those facts, would lead the officer to conclude reasonably that a particular person actually is, has been, or soon will be engaged in criminal activity. Castro v. State, 227 S.W.3d 737, 741 (Tex. Crim. App. 2007). In making a reasonable suspicion determination, we disregard the subjective intent of the officer making the stop and consider solely, under the totality of the circumstances, whether there was an objective basis for the stop. See Ford, 158 S.W.3d at 492-93.
        A police officer may arrest an individual without a warrant if probable cause exists with respect to the individual in question and the arrest falls within one of the exceptions set out in chapter 14 of the code of criminal procedure. Neal v. State, 256 S.W.3d 264, 280 (Tex. Crim. App. 2008). The statutory exception applicable to this case is article 14.01(b) of the code of criminal procedure, which permits a police officer to arrest an offender without a warrant for an offense committed in the officer's presence or view. See Tex. Code Crim. Proc. Ann. art. 14.01(b) (West 2005). Probable cause to believe the person committed the offense exists where the officer possesses a reasonable belief, based on facts and circumstances either within the officer's personal knowledge or about which the officer has reasonably trustworthy information, that an offense has been or is being committed. Neal, 256 S.W.3d at 280. In determining whether probable cause exists, we again apply a “totality of the circumstances” test. Torres v. State, 182 S.W.3d 899, 902 (Tex. Crim. App. 2005).
        Here, the officer observed appellant being uncooperative, kicking a bottle as he finally made his way out of the apartment complex and stumbling two times before she approached him. As she neared appellant, she could smell the odor of alcoholic beverage on his breath. He was noncompliant as another officer tried to perform a pat-down search on him, and he was so disorderly that an HGN field sobriety test could not be performed on him. All of this happened near a busy street. Considering all these circumstances, and deferring to the trial court's determination of witness credibility, we conclude the trial court did not abuse its discretion when it determined the arresting officer had reasonable suspicion to detain appellant for public intoxication and probable cause to arrest him for that offense. We overrule appellant's first point of error.
        In his second and third points of error, appellant challenges the legal and factual sufficiency of the evidence supporting his conviction. He particularly argues that there was insufficient evidence to link him to the cocaine found in the officer's patrol car and the amount of cocaine was not sufficiently proved because a composite sample from all three baggies was used when it was determined the substances found were, in fact, cocaine. The Texas Court of Criminal Appeals recently overruled its opinion in Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996), adopting a factual sufficiency standard. The court held that the legal sufficiency standard of Jackson v. Virginia , 443 U.S. 307 (1979), is now “the only standard that a reviewing court should apply in determining whether evidence is sufficient to support each element of a criminal offense.” Brooks v. State, No. PD-0210-09, 2010 WL 3894613, at *1 (Tex. Crim. App. Oct. 6, 2010). We will therefore not consider appellant's factual sufficiency challenge.
        In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). We review all the evidence in the light most favorable to the verdict, and assume the trier of fact resolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a manner that supports the verdict. See Rollerson v. State, 227 S.W.3d 718, 724 (Tex. Crim. App. 2007).
        The evidence at appellant's trial showed that he resisted the pat-down search for weapons before his arrest. Moreover, he unbuckled his seatbelt in the squad car on his way to the jail. At the jail, police found a useable amount of marijuana in his pocket. And the arresting officer testified that she was certain the baggies of cocaine found in the patrol car after appellant's arrest were not in the car before he got inside it. We conclude this evidence sufficiently links appellant to the cocaine.
        Appellant additionally argues that because the analyzing chemist used a composite sample from the three baggies found in the patrol car, rather than testing the contents of each of the baggies individually, the evidence fails to show he possessed more than one gram of cocaine. Appellant acknowledges this Court has previously held that composite sampling is an acceptable method of proving the type and amount of a controlled substance beyond a reasonable doubt. See Guia v. State, 220 S.W.3d 197, 203 (Tex. App.-Dallas 2007, pet. ref'd). He requests, however, that we revisit the holding of Guia in light of the fact that the amount of cocaine in his case exceeds one gram by only .08 grams. We decline to do so. The evidence against appellant is legally sufficient to support his conviction. We overrule his second and third points of error.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          JOSEPH B. MORRIS
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
090595F.U05