Beachem v. State

1

GEORGE RALPH BEACHEM, Appellant v. THE STATE OF TEXAS, Appellee

No. 05-21-00421-CR

Court of Appeals of Texas, Fifth District, Dallas

October 25, 2022

Do Not Publish Tex.R.App.P. 47.2(b)

On Appeal from the 296th Judicial District Court Collin County Texas Trial Court Cause No. 296-82711-2019

Before Justices Smith and Nowell ^[1]

MEMORANDUM OPINION

CRAIG SMITH, JUSTICE

A jury convicted appellant George Ralph Beachem of possessing with intent to deliver more than four but less than 200 grams of methamphetamine, see Tex. Health & Safety Code Ann. § 481.112(d), and the trial court sentenced appellant to twenty-two years' confinement. In two issues, appellant contends that, during the punishment phase (1) the trial court erred in denying his motion to suppress evidence of two extraneous felony offenses and (2) defense counsel's failure to object to inadmissible judgments and sentences constituted ineffective assistance of counsel. For the following reasons we affirm the trial court's judgment.

Background

On December 2, 2018, appellant left a shaving kit in an Uber. He called the Uber driver and left voice messages describing the kit and where he left it in the car. The driver located the kit and looked at its contents to determine whether she needed to return it to appellant right away or could drop it at an Uber center for pickup. Inside the kit, she saw what she believed were illegal drugs, scales, and various sized bags. The driver contacted the police, who observed that the kit contained what appeared to be methamphetamine, a digital scale, and multiple baggies. An officer, pretending to be the Uber driver, contacted appellant and arranged to meet him. Police arrested appellant after he arrived for the meeting. A forensic chemist later determined the kit contained 28.3 grams of methamphetamine, including adulterants or dilutants.

Appellant was charged with possessing with intent to deliver more than four but less than 200 grams of methamphetamine. Following a trial, a jury found him guilty of the offense.

Appellant opted for the trial court to determine his punishment. The State presented evidence of appellant's criminal history, and appellant presented evidence, including his own testimony, on punishment and mitigation. At issue in this appeal is punishment evidence related to several of appellant's prior convictions and two extraneous offenses appellant committed while on bond for the instant offense.

The State introduced into evidence certified copies of seven judgments and sentences for prior offenses committed by appellant. Dallas District Attorney's Office Investigator Kenny Newton testified for the State and linked those judgments and sentences to appellant.^[2] Newton compared personal identifying information, including appellant's name, birthdate, social security number, offense dates, and cause numbers, in the judgments with the same information in a certified copy of appellant's Criminal History compiled by the Texas Department of Public Safety, which was admitted for record purposes only. From those comparisons, Newton concluded that appellant was the same person previously convicted of the offenses reflected in the seven judgments.

Allen Police Officer Kevin Ozols testified for the State regarding two extraneous offenses that appellant committed while on bond. The night of June 26, 2019, Ozols was patrolling near a Wal-Mart Super Center, which he described as a "higher . . . criminal activity area with . . . different crimes such as theft." He observed a car backed into a space near one of the Wal-Mart parking lot exits. The car's engine was running and its headlights were on. A sunshade covered the front windshield, which was strange to Ozols because it was almost 11:00 p.m. He approached the driver's side window, and appellant lowered the window. Ozols asked what appellant was doing, and appellant said he was waiting on his girlfriend, who was shopping. Ozols then asked appellant for his name and birthdate, but appellant "had to pause and think" before identifying himself as Juan Castillo. This struck Ozols as "fictitious."

Ozols asked appellant to step out of the car. As appellant exited, Ozols observed a glass pipe and a baggie containing a white, crystal-like substance in the car doorframe. Ozols searched appellant and found marijuana and alprazolam in his pockets. In appellant's vehicle, Ozols found more alprazolam, scales, a marijuana pipe, several small baggies, multiple cell phones, a second methamphetamine pipe, multiple weapons, and multiple license plates. Ozols ran the car's VIN, and it returned as stolen. The white, crystal-like substance found in the doorframe later tested positive for methamphetamine.

Motion to Suppress

In his first issue, appellant contends the trial court erroneously denied his motion to suppress evidence related to his June 2019 arrest. He asserts Officer Ozols lacked reasonable suspicion or probable cause to detain him by asking him to step out of the car.

We review a trial court's decision on a motion to suppress for an abuse of discretion. Martinez v. State, 348 S.W.3d 919, 922 (Tex. Crim. App. 2011). In doing so, we apply a bifurcated standard of review, giving almost total deference to the trial court's determination of historic facts and mixed questions of law and fact that rely upon witness credibility, but reviewing de novo pure questions of law and mixed questions of law and fact that do not require credibility determinations. Id. at 923. If, as in this case, a trial court does not make explicit findings of fact, we review the evidence in a light most favorable to the court's ruling, assuming the court made implicit findings supported by the record. Castro v. State, 227 S.W.3d 737, 741 (Tex. Crim. App. 2007). We may uphold the trial court's ruling if it is supported by the record and correct under any theory of law applicable to the case. State v. Stevens, 235 S.W.3d 736, 740 (Tex. Crim App. 2007).

There are three types of interactions between police officers and citizens: (1) consensual encounters, (2) investigative detentions, and (3) arrests. State v. Castleberry, 332 S.W.3d 460, 466 (Tex. Crim. App. 2011). An officer may initiate a consensual encounter with a person without any objective justification, and the person is free to terminate the encounter. Id. (an officer is free to stop and question a person and, without reasonable suspicion, request the person's identification and information).

An officer may conduct an investigative detention if the detention is justified by reasonable suspicion. Johnson v. State, 622 S.W.3d 378, 384 (Tex. 2021); State v. Kerwick, 393 S.W.3d 270, 273-74 (Tex. Crim. App. 2013).

"Reasonable suspicion to detain a person exists if an officer has specific, articulable facts that, combined with rational inferences from those facts, would lead him to reasonably conclude that the person detained is, has been, or soon will be engaged in criminal activity." Kerwick, 393 S.W.3d at 274. "The articulable facts need only show 'that some activity out of the ordinary has occurred, some suggestion to connect the detainee to the unusual activity, and some indication that the unusual activity is related to crime.'" Johnson, 622 S.W.3d at 384 (quoting Derichsweiler v. State, 348 S.W.3d 906, 916 (Tex. Crim. App. 2011)).

We review de novo "[w]hether the facts known to the officer at the time of the detention amount to reasonable suspicion." Kerwick, 393 S.W.3d at 273. An "officer can draw on his own experience and specialized training." Johnson, 622 S.W.3d at 385. The test for reasonable suspicion is objective, disregarding the officer's subjective intent. Kerwick, 393 S.W.3d at 274. We review the reasonable-suspicion determination by looking at the totality of the circumstances. Id.

Here, the trial court heard Ozols's testimony that the Wal-Mart was a higher criminal activity area. Appellant was sitting in a car backed into a parking lot space near a Wal-Mart exit. The car engine and headlights were running and, although it was almost 11:00 p.m., a sunshade covered the windshield. Because he considered that abnormal, Ozols approached the car. When he asked appellant for his name, appellant hesitated and appeared to think for a period before answering "Juan Castillo." This indicated to Ozols that appellant was providing false information. Ozols then asked appellant to step out of the car for further questioning.

Appellant made an oral motion to suppress any evidence obtained after appellant was asked to exit the car, arguing Ozols had no legal basis to detain appellant. On further questioning, Ozols testified that he asked appellant to exit the car because it was a safer way to conduct an interview. He did not have reasonable suspicion that "any specific crime" had been committed. According to Ozols, appellant was free to leave. The trial court noted that Ozols had "some articulable reasonable facts," but found that the contact was a consensual encounter and denied the motion to suppress.

Even assuming Ozols detained appellant by asking him to exit the car and the encounter was not consensual, we conclude considering the totality of the circumstances viewed in the light most favorable to the trial court's ruling, that the detention was supported by reasonable suspicion. Appellant had backed his car, with the engine and headlights running, into a parking space near an exit in a retail area with a high rate of theft. Appellant also covered his windshield, which Ozols considered abnormal and could have reasonably inferred therefrom that appellant was attempting to conceal his activity. Ozols also could have reasonably inferred that appellant was trying to conceal his identity based on appellant's hesitation when...