Charles Dewey Westbrook v. The State of Texas--Appeal from 339th District Court of Harris County

Affirmed and Opinion filed February 8, 2007

Affirmed and Opinion filed February 8, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-06-00040-CR

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CHARLES DEWEY WESTBROOK, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 339th District Court

Harris County, Texas

Trial Court Cause No. 1018612

O P I N I O N

Appellant, Charles Dewey Westbrook, appeals from his conviction for possession of cocaine.[1] After the trial court denied his motion to suppress unlawfully obtained evidence, appellant pleaded guilty, and the trial court found him guilty and assessed punishment at 12 months imprisonment. In two issues, appellant contends that the trial court erred in denying his motion to suppress and that he received ineffective assistance of counsel. We affirm.

Background

At the hearing on the motion to suppress, Officer James Drury of the Harris County Sheriff=s Office testified that on March 3, 2005, he and Sergeant Sean Conrad responded to a call at the Haverstock Apartments in separate police vehicles. Drury explained that the complex is rather large and that 60 percent of the calls in that area on any given night originate from the complex. When the officers arrived, appellant=s vehicle was parked sideways, blocking the sole entrance to the complex. Drury stopped behind appellant=s vehicle, and Conrad stopped in front of appellant=s vehicle. The officers Asat there and waited,@ but when appellant did not move, they approached his vehicle on foot. Drury approached the driver=s side, and Conrad approached from the front of the vehicle. Drury said that when appellant looked up at Conrad, appellant immediately put his vehicle in reverse and started backing up, forcing Drury to move out of the way. Drury said A[s]top, stop, stop,@ but appellant continued backing up until finally stopping inches from the bumper of Drury=s vehicle.

Drury asked appellant, AWhat are you doing? Are you okay?@ Appellant replied, AI didn=t do it. Why are you doing this to me? I didn=t do it.@ Drury said that appellant=s responses made him think that appellant was probably either extremely nervous or on some type of narcotics. Appellant continued speaking very rapidly, repeating the same phrases. Appellant then reached under his seat, which Drury said was an officer safety hazard because he may have had a weapon underneath the seat. Drury therefore ordered appellant to stop and exit the vehicle. Appellant exited very quickly, slammed the door shut, and started to reach into his pocket, while still repeating the same phrases. Drury twice said, AStop. Keep your hands where I can see them,@ but appellant continued to try to reach into his pocket. Drury grabbed appellant=s hand to keep it out of the pocket. The minute Drury touched appellant, appellant became combative, pulling away, twisting sideways, and still trying to get his hand in the pocket. By that time, Sergeant Conrad had come around the vehicle, and Drury instructed appellant to AStop. Quit resisting. Keep your hands up where we can see them.@ Appellant continued reaching into his pocket. The officers then told him he was under arrest and to put his hands behind his back, but appellant dauntlessly continued his efforts. The officers eventually forced appellant to the ground and handcuffed his hands behind his back. Drury searched appellant=s pocket to see what appellant had been reaching for and discovered a small baggy of cocaine. The officers did not find any weapons or any other contraband on appellant or in his vehicle.

On cross-examination, Drury stated that by blocking the exit, appellant was not breaking any law. Drury said that he approached appellant to check on him, and if appellant was fine, Drury was going to ask him to move. Drury acknowledged that once the two officers parked their vehicles in front of and behind appellant=s vehicle, appellant=s way was blocked. He said that given the high-crime nature of the apartment complex, appellant had to be considered dangerous because he was there and because he acted suspiciously. He said that he probably intended to do a pat down search of appellant as soon as appellant exited the vehicle. He also stated that he considered appellant under arrest when he began physically resisting by continually attempting to reach into his pocket. At that point, Drury told appellant that he was under arrest and to put his hands behind his back.

Sergeant Sean Conrad, also of the Harris County Sheriff=s Office, testified that around 3 a.m. on March 3, 2005, he and Officer Drury arrived at the Haverstock Hill Apartments in response to a call from the complex. The officers could not enter the premises, however, because appellant=s vehicle was parked across the entrance. Conrad parked his vehicle in front of appellant=s vehicle, and Drury parked his vehicle behind appellant=s vehicle. They sat there for a few seconds, but when appellant did not move his vehicle, the officers got out of their vehicles and approached appellant=s vehicle on foot. Conrad stated that the situation raised suspicions because appellant would have had to have done some maneuvering in order to get his vehicle positioned in that space, and they did not know why he would park in that manner.

Appellant put his car in reverse, and Conrad and Drury both told him to stop. Drury then approached the driver=s side of the vehicle and began speaking to appellant, while Conrad moved to the passenger=s side and shined his flashlight in the vehicle to look for weapons Aand things like that.@ Although Conrad could not hear all of the conversation clearly, he could tell that appellant was being defensive, and he could see that appellant was Anervous,@ Ajittery,@ and Afidgety.@ Conrad said that he Aheard [appellant] say, >Why are you messing with me? I didn=t do it,= things like that.@ Appellant then reached under his seat, and Conrad felt that appellant may have been reaching for a weapon. Drury asked appellant to step out of the car, which was proper procedure given the possibility that appellant may have had a weapon. Appellant exited the vehicle, while continuing to say, AWhy are you messing with me? I didn=t do it.@ Conrad moved around the vehicle at that point, and appellant kept trying to put his hand in his pocket. Drury ordered appellant not to do so and to relax, but appellant continued to reach into his pocket. Drury then grabbed appellant=s hand to keep him from putting it in his pocket. Appellant began to struggle and pull away, so Conrad also grabbed appellant, and he and Drury took appellant to the ground. They then handcuffed appellant and patted him down for weapons. On cross-examination, Conrad acknowledged that he and Drury parked their vehicles so that appellant was blocked in and could not have left without hitting one of the officer=s vehicles. He further agreed that prior to being blocked in and other than Abeing parked wrong,@ appellant had not done anything wrong. Conrad opined that at the point that appellant Ajerked away@ from Drury, appellant was resisting Drury=s attempt to search, detain, or arrest him. Conrad acknowledged, though, that his view was obscured at times, and the only way that he knew a search had commenced by that point was that Drury later told him so. He stated, however, that when appellant avoided Drury=s grasp, he was resisting detention.

No other witnesses were called. At the conclusion of testimony and argument, the trial court stated that (1) the officers actions in approaching appellant=s vehicle were reasonable given that he was blocking a driveway that they were attempting to enter; (2) Drury did not act improperly in ordering appellant out of the vehicle after appellant reached under his seat; and (3) the ultimate arrest and search of appellant was also proper. The court denied the motion to suppress.

Motion to Suppress

In his first issue, appellant contends that the trial court erred in denying his motion to suppress because the officers lacked sufficient probable cause, rendering the stop, detention, and arrest illegal. We review a trial court=s ruling on a motion to suppress evidence under an abuse of discretion standard. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996). At a suppression hearing, the trial judge is the sole fact finder. Arnold v. State, 873 S.W.2d 27, 34 (Tex. Crim. App. 1993). We give almost total deference to the trial court=s determination of historical facts when supported by the record, particularly if the findings turn on witness 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). The same deference is accorded to determinations of mixed questions of law and fact if their resolution depends upon witness credibility and demeanor. Ross, 32 S.W.3d at 856. Issues that present purely legal questions are considered under a de novo standard. Id. We will sustain the trial court=s ruling if it is reasonably supported by the record and is correct on any theory of law applicable to the case. Villarreal, 935 S.W.2d at 138.

There are three basic categories of interaction between police officers and citizens: encounters, investigative detentions, and arrests. Francis v. State, 922 S.W.2d 176, 178 (Tex. Crim. App. 1996). An encounter is a friendly exchange of pleasantries or mutually useful information. Id. (citing Terry v. Ohio, 392 U.S. 1 (1968)). In an encounter, a police officer is not required to possess any particular level of suspicion because the citizen is under no compulsion to remain. Id. In an investigative detention (also known as a temporary detention or ATerry stop@), however, the officer must be able to articulate specific facts that, in light of his experience and personal knowledge, together with inferences from those facts, reasonably warrant the intrusion on the freedom of the citizen stopped. Id. (citing Terry, 392 U.S. at 21). In other words, to justify a detention, there must be a reasonable suspicion by the officer that some unusual activity is or has occurred, that the detained person is connected with the activity, and that the unusual activity is related to the commission of a crime. Id. An investigative detention is a seizure under which the citizen is not free to leave, at least for some period of time. Id. An arrest imposes the highest level of intrusion and thus requires the highest level of suspicion, or Aprobable cause,@ that the citizen involved has engaged in or is engaging in criminal activity. Id. (citing Henry v. United States, 361 U.S. 98, 103 (1959)). The seizure involved in an arrest will generally not be brief. Id. The key questions in determining whether an interaction is an encounter or a detention are whether a reasonable person would have believed he or she was free to leave and whether they actually yielded to the officer=s show of authority. Id. The key issue in determining whether an interaction constitutes a detention or an arrest is whether a reasonable person would have believed the seizure was to be brief.

It is also important to note, particularly in the present case, that these differing levels of interaction often flow from one into the next, and sometimes the lines between them may blur in any given transaction. See id. A[W]hat may begin as a consensual encounter can readily become an investigative detention, which may evolve into an arrest.@ Id.

Appellant initially asserts that the officers positioned their patrol cars to block him in, and that Officer Drury=s action of approaching appellant was not justified because appellant was not guilty of any offense. Appellant additionally argues that the officers= questioning and detaining of him Awas not reasonably related in scope to the circumstances that justified the interference in the first place.@ Lastly, appellant argues that his arrest was not reasonable. He asserts that A[i]t is a broad leap from checking to see if a person who is sitting in his vehicle is okay, to arresting the person for felony possession.@ In short, appellant contends that the officers acted in violation of his constitutional rights during the entire episode.

There is some suggestion in the officers= testimony that it would have been difficult for appellant to just drive away once the officers arrived and positioned their vehicles in front of and behind appellant=s vehicle. However, the officers each testified that they were responding to a call from the apartment complex, appellant was blocking the only entrance to the complex, and appellant did not drive away when the officers pulled up and waited for him to vacate the entrance. Officer Drury further testified that he and Sergeant Conrad stopped in the only acceptable spots that they could to avoid blocking the street.[2] The record supports the conclusion that the officers= conduct upon arrival was reasonable under the circumstances and constituted at most an encounter and not a detention. Therefore, no level of suspicion was required at this point. See Francis, 922 S.W.2d at 178.

When appellant did not vacate the entrance, Officer Drury exited his own vehicle and approached to see if appellant was okay. He testified that if appellant was okay, he was simply going to ask appellant to move. The situation was at this point still an encounter, as a police officer may certainly approach a citizen who is blocking an apartment complex entrance, particularly when the officer is attempting to respond to a call from the complex. However, the officers= suspicions were reasonably beginning to elevate at this point. The complex was situated in a high crime area, and it is certainly unusual, as Sergeant Conrad stated, for a person to block an apartment complex entrance in this fashion. When appellant spotted Conrad, appellant immediately put his vehicle in reverse and started backing up. Drury said A[s]top, stop, stop,@ as appellant was about to run into Drury=s vehicle. Drury asked appellant, AWhat are you doing? Are you okay?@ In response, appellant began speaking rapidly and repeating himself, saying: AI didn=t do it. Why are you doing this to me?@ Drury said that appellant=s responses made him think that appellant was probably either extremely nervous or on some type of narcotics. Sergeant Conrad supported this assessment when he testified that appellant appeared nervous, jittery, and fidgety. Appellant then reached under his seat, and Drury ordered him out of the vehicle.

At this point, having been ordered out of his vehicle by a police officer, a reasonable person would not have felt free to leave; therefore, a temporary detention had begun. See Francis, 922 S.W.2d at 178. Officer Drury supported the detention by explaining that appellant=s behavior and conduct presented an officer safety hazard because he may have had a weapon underneath the seat. Sergeant Conrad echoed these same concerns in his testimony. Nervous behavior and furtive movements may constitute factors in determining reasonable suspicion for a detention. See Lippert v. State, 664 S.W.2d 712, 721 (Tex. Crim. App. 1984) (holding that officer had no justification for detention where, among other factors, defendant had made Ano furtive gestures or sudden movements towards a pocket or other place where a weapon might be concealed@); McCraw v. State, 117 S.W.3d 47, 54 (Tex. App.CFort Worth 2003, pet. ref=d) (noting absence of any testimony defendant made furtive gestures that could have led officer to believe defendant had a weapon in the vehicle); Gaines v. State, 99 S.W.3d 660, 667 (Tex. App.CHouston [14th Dist.] 2003, no pet.) (noting that United States Supreme Court opinions have recognized nervous, evasive behavior as a pertinent factor in determining reasonable suspicion for a detention). Further, a temporary detention is an appropriate method to ensure officer safety under circumstances in which an officer reasonably feels threatened. See Rhodes v. State, 945 S.W.2d 115, 117-18 (Tex. Crim. App. 1997). Accordingly, the trial court did not err in holding that Drury had articulated specific facts reasonably warranting the detention.

After appellant exited the vehicle, he began trying to reach in his pocket. Given appellant=s prior suspicious behavior, Drury could have been reasonably concerned that appellant may have been reaching for a weapon. See Lippert, 664 S.W.2d at 721. Drury repeatedly instructed appellant to stop, and when appellant refused, Drury physically prevented appellant from pushing his hand into his pocket. Yet, appellant still continued to try, twisting and pulling away from Drury. Drury testified that he wanted to prevent appellant from reaching into the pocket and also wanted to search the pocket. Drury could then also have had a reasonable suspicion that appellant was resisting an attempt to search him. See Tex. Penal Code Ann. ' 38.03 (Vernon 2002) (criminalizing resisting search by a police officer). By the time Drury and Conrad brought appellant to the ground and handcuffed him, an innocent person in appellant=s shoes could have believed he or she was under arrest and was not going to be released anytime soon. See Francis, 922 S.W.2d at 178. However, it is clear that at each step it was appellant=s conduct, and not the officer=s, that escalated the situation. Given appellant=s behavior and the escalating sequence of events, the trial court did not err in finding that the officers possessed the requisite suspicion to render appellant=s arrest reasonable. Having found that the record supports the trial court=s holding that the officers possessed the appropriate level of suspicion at each stage of the episode, we overrule appellant=s first issue.

Assistance of Counsel

In his second issue, appellant contends that he received ineffective assistance of counsel because his counsel did not permit him to testify and did not call any other witnesses at the hearing on the motion to suppress. The Sixth Amendment to the United States Constitution guarantees the right to reasonably effective assistance of counsel in criminal prosecutions. U.S. Const. amend. VI; McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970). In reviewing an ineffective assistance claim, an appellate court Amust indulge a strong presumption that counsel=s conduct [fell] within the wide range of reasonable professional assistance; that is, [appellant] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.@ Strickland v. Washington, 466 U.S. 668, 689 (1984). Under the two pronged Strickland test, in order to demonstrate ineffective assistance of counsel, a defendant must first show that counsel=s performance was deficient, i.e., that his assistance fell below an objective standard of reasonableness; second, a defendant must affirmatively prove prejudice by showing a reasonable probability that, but for counsel=s unprofessional errors, the result of the proceeding would have been different. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Id. at 813. Appellant bears the burden of proving by a preponderance of the evidence that counsel was ineffective. Id. In the majority of cases, the record on direct appeal is simply undeveloped and cannot adequately reflect the alleged failings of trial counsel. Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998). This is particularly true when the alleged deficiencies are matters of omission and not of commission that may be revealed in the record. Id. A proper record is best developed in a habeas corpus proceeding or in a motion for new trial hearing. Jensen v. State, 66 S.W.3d 528, 542 (Tex. App.CHouston [14th Dist.] 2002, pet. ref=d). The case before us is not a habeas corpus proceeding, and appellant did not file a motion for new trial.

Although appellant is correct that he did not testify at the hearing on the motion to suppress and that his counsel did not call any other witnesses, the record is completely silent as to what appellant or any other uncalled witness would have said had they testified. A claim of ineffective assistance of counsel based on counsel=s failure to call witnesses does not succeed in the absence of a showing that such witnesses were available to testify and that the defendant would have benefitted from their testimony. Wilkerson v. State, 726 S.W.2d 542, 550-51 (Tex. Crim. App. 1986); Wade v. State, 164 S.W.3d 788, 796 (Tex. App.CHouston [14th Dist.] 2005, no pet.). Accordingly, on the record before us, appellant cannot rebut the presumption that his counsel was effective; thus, he cannot satisfy the first prong of Strickland. See Thompson, 9 S.W.3d at 812. His second issue is overruled.

We affirm the trial court=s judgment.

/s/ Adele Hedges

Chief Justice

Judgment rendered and Opinion filed February 8, 2007.

Panel consists of Chief Justice Hedges and Justices Yates and Seymore.

Do Not Publish C Tex. R. App. P. 47.2(b).

[1] Appellant=s name appears alternatively in the record as AWestbrook@ and AWestbrooks.@ No issue is made on appeal regarding the variation.

[2] On cross-examination, Drury acknowledged that there was a parking lot nearby, but he explained that it would not have been an acceptable place for the officers to wait for appellant to leave.