Grisham v. State

Christopher Grisham, Appellant v. The State of Texas, Appellee

NO. 03-14-00137-CR

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

March 23, 2017

FROM THE COUNTY COURT AT LAW NO. 3 OF BELL COUNTY, NO. 2C130-2656, THE HONORABLE NEEL RICHARDSON, JUDGE PRESIDING

MEMORANDUM OPINION

A jury convicted appellant Christopher Grisham of the misdemeanor offense of interference with public duties and assessed a $2,000 fine as his punishment. See Tex. Penal Code §§ 38.15(a)(1) (providing that "[a] person commits an offense if the person with criminal negligence interrupts, disrupts, impedes, or otherwise interferes with . . . a peace officer while the peace officer is performing a duty or exercising authority imposed or granted by law"), 12.22 (setting forth punishment range for Class B misdemeanor). On appeal, appellant challenges the denial of his motion to suppress evidence and asserts that the trial court erred by denying his requested defensive jury-charge instructions. We affirm the trial court's judgment of conviction.

BACKGROUND¹

Steve Ermis, a police officer with the Temple Police Department, was dispatched in response to a 911 call reporting an armed man walking down the roadway. Officer Ermis responded to the location reported and found appellant and his son walking nearby. They were walking in the roadway on the wrong side of the road—that is, on the right-hand side, traveling in the direction of traffic with their backs to oncoming cars. The officer observed that appellant was carrying a rifle in an "offensive-combat ready position"—across his chest, immediately accessible, and ready to be fired—as opposed to slung across his back. Officer Ermis pulled up behind appellant and his son to initiate contact. As he exited his patrol car and approached, he instructed appellant not to touch the weapon. The officer began questioning appellant about his activities and his reason for having the weapon. Officer Ermis examined the gun and determined that it was a real weapon and that it was loaded. He moved to disarm appellant by releasing the clasp holding the firearm to the shoulder strap of appellant's backpack. As he did so, appellant grabbed the weapon and told the officer not to disarm him. Unsure of appellant's intentions and fearful for his safety, Officer Ermis drew his service weapon and ordered appellant not to touch the weapon. He placed appellant against the hood of his patrol car and attempted to place appellant's hands behind his back to handcuff him.Appellant repeatedly refused to comply with the officer's instructions and "forcibly" resisted the officer's efforts to handcuff him. Eventually, appellant was handcuffed and arrested for resisting arrest.

Appellant was subsequently charged by information with the misdemeanor offense of interference with public duties. Prior to trial, appellant moved to suppress "the arrest" and any statements he made during the encounter. After conducting a hearing, the trial court denied the motion to suppress, and the case proceeded to a jury trial. The jury found appellant guilty of interference with public duties as charged and assessed a $2,000 fine as punishment. This appeal followed.

DISCUSSION

Denial of Motion to Suppress

Prior to trial, appellant filed a motion to suppress. In his written motion to suppress, appellant asserted that he was unlawfully arrested without probable cause. He referenced the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, Article I, Sections 9, 10, and 19 of the Texas Constitution, and articles 38.22 and 38.23 of the Texas Code of Criminal Procedure. No arguments were presented in the written motion regarding a violation of his constitutional or statutory rights based on the absence of reasonable suspicion for his detention.

A hearing was held on the motion. Officer Ermis testified, and the exhibits included the patrol car dash-cam video recording depicting the encounter. Appellant's questioning of the officer focused primarily on whether the officer had probable cause to arrest him without a warrant, not whether the officer had reasonable suspicion to detain him. At the conclusion of the hearing,appellant maintained that the officer lacked probable cause to arrest him. However, in response to the State's questioning of the officer, appellant also referenced the absence of reasonable suspicion to detain him. The trial court took the case under advisement. Subsequently, the trial court denied the motion to suppress without making any findings of fact or conclusions of law.

In his first point of error, appellant contends that the trial court erred in denying his motion to suppress because the arresting officer lacked probable cause to arrest him or reasonable suspicion to detain him.²

We review a trial court's ruling on a motion to suppress evidence for an abuse of discretion, Arguellez v. State, 409 S.W.3d 657, 662 (Tex. Crim. App. 2013); State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006), and overturn the ruling only if it is outside the zone of reasonable disagreement, State v. Story, 445 S.W.3d 729, 732 (Tex. Crim. App. 2014); Dixon, 206 S.W.3d at 590. We apply a bifurcated standard of review, giving almost total deference to a trial court's findings of historical fact and credibility determinations that are supported by the record, butreview questions of law de novo. Delafuente v. State, 414 S.W.3d 173, 177 (Tex. Crim. App. 2013); Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010). We view the evidence in the light most favorable to the trial court's ruling, State v. Robinson, 334 S.W.3d 776, 778 (Tex. Crim. App. 2011), and uphold the ruling if it is correct on any theory of law applicable to the case, Absalon v. State, 460 S.W.3d 158, 162 (Tex. Crim. App. 2015); Young v. State, 283 S.W.3d 854, 873 (Tex. Crim. App. 2009), even if the trial judge made the ruling for a wrong reason, Story, 445 S.W.3d at 732. In our review, "[t]he prevailing party is afforded the strongest legitimate view of the evidence and all reasonable inferences that may be drawn from it." Matthews v. State, 431 S.W.3d 596, 601 n.5 (Tex. Crim. App. 2014) (citing Wade v. State, 422 S.W.3d 661, 666-67 (Tex. Crim. App. 2013)).

Reasonable suspicion that a person may be involved in criminal activity permits an officer to stop and briefly detain the person to take additional steps to investigate further. Guerra v. State, 432 S.W.3d 905, 911 (Tex. Crim. App. 2014) (citing State v. Kerwick, 393 S.W.3d 270, 273 (Tex. Crim. App. 2013)). A police officer has reasonable suspicion for a detention if he has specific, articulable facts that, when 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. Matthews, 431 S.W.3d at 603; Wade, 422 S.W.3d at 668 (citing Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011)); see United States v. Sokolow, 490 U.S. 1, 7 (1989); Terry v. Ohio, 392 U.S. 1, 21-22 (1968)). "[T]he likelihood of criminal activity need not rise to the level required for probable cause." Kerwick, 393 S.W.3d at 273-74. The reasonable-suspicion standard requires only "some minimal level of objective justification" for the stop. Hamal v. State,390 S.W.3d 302, 306 (Tex. Crim. App. 2012) (quoting Foster v. State, 326 S.W.3d 609, 614 (Tex. Crim. App. 2010)).

A reasonable-suspicion determination requires consideration of the totality of the circumstances. Matthews, 431 S.W.3d at 603; Kerwick, 393 S.W.3d at 274. The test for reasonable suspicion is an objective standard that disregards the subjective intent of the arresting officer and focuses, instead, on whether there was an objectively justifiable basis for the detention. Wade, 422 S.W.3d at 668 (citing Derichsweiler, 348 S.W.3d at 914); Kerwick, 393 S.W.3d at 274. "It is enough to satisfy the lesser standard of reasonable suspicion that the information is sufficiently detailed and reliable—i.e., it supports more than an inarticulate hunch or intuition—to suggest that something of an apparently criminal nature is brewing." Wade, 422 S.W.3d at 668 (quoting Derichsweiler, 348 S.W.3d at 917). Whether the facts known to the officer amount to reasonable suspicion is a mixed question of law and fact subject to de novo review. Hamal, 390 S.W.3d at 306; State v. Mendoza, 365 S.W.3d 666, 669-70 (Tex. Crim. App. 2012) (noting historical fact findings subject to abuse of discretion review whereas ultimate legal rulings such as probable cause subject to de novo review).

Evidence at the suppression hearing showed that police received a call from a woman who reported seeing an individual walking down the roadway armed with "a big black gun." The responding officer, Officer Ermis, testified that he was dispatched in response to the call and found appellant and his son walking near the location reported by the caller. When he encountered them, the officer observed that they were walking in the roadway on the wrong side of the road—on the right-hand side, traveling in the direction of traffic with their backs to oncoming cars. At thehearing, the officer testified that he knew this conduct to be a violation of the Transportation Code. See Tex. Transp. Code § 552.006(b) (specifying that if sidewalk is not provided, pedestrian must walk on left side of roadway or on shoulder of roadway facing oncoming traffic). Officer Ermis's testimony demonstrated that he had specific, articulable facts establishing that appellant had committed a pedestrian traffic offense. See McBride v. State, 359 S.W.3d 683, 692-93 (Tex. App.—Houston [14th Dist.] 2011, pet. ref'd) (testimony established officer had belief, based on specific facts, that defendant had committed pedestrian traffic offense); see also Trevino v. State, Nos. 03-14-00009-CR & 03-14-00010-CR, 2016 WL 463658, at *6 (Tex. App.—Austin Feb. 5, 2016, pet. ref'd) (mem. op., not designated for publication) ("If an officer has...