Morgan v. State

304 S.W.3d 861

Randy Eric MORGAN, Appellant, v. The STATE of Texas, Appellee.

No. 07-08-0511-CR.

Court of Appeals of Texas, Amarillo, Panel C.

February 1, 2010.

Arnold N. Miller, Miller, Johnston, Blakley & Associates, LLC, Amarillo, TX, for Appellant.

C. Scott Brumley, Potter County Attorney, Kimberly Hendry, Assistant County Attorney, Amarillo, TX, for State.

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

OPINION

PATRICK A. PIRTLE, Justice.

Appellant, Randy Eric Morgan, pled guilty to possession of marihuana in an amount of two ounces or less, a Class B misdemeanor,¹ and was sentenced to confinement in the Potter County Detention Center for 150 days and fined $400. In a single issue, Appellant asks whether the trial court erred by denying his motion to suppress evidence of marihuana discovered in his vehicle. We affirm.

BACKGROUND

On April 22, 2008, Appellant was charged with possession of a useable quantity of marihuana in the amount of two ounces or less. On September 12, 2008, Appellant filed a motion to suppress evidence of marihuana found in his Sport Utility Vehicle (SUV) in plain view during a safety search by Officer James Clements.

At the suppression hearing, the primary issue was whether Officer Clements had reasonable suspicion to detain Appellant for investigatory purposes prior to discovering the marihuana. The State's first witness was Officer Douglas Glick. Since 1996, Officer Glick served as the Amarillo Police Department's school liaison officer at Caprock High School. In this capacity, he spoke with students on a daily basis and, over the years, determined the credibility of certain students based upon the reliability of information they provided.

During the latter part of March and early April 2008, the school was experiencing gang-related problems. Students had been involved in fights between alleged gang members and groups from outside the school campus. On March 31, Officer Glick responded to a call describing a large fight with a gathering of approximately 200 students in the parking lot of the school's activity center. He dispersed the crowd.² Later, the next day on April 1, his student sources reported witnessing a fight between Appellant (a former student) and another person in the parking lot of the activity center on March 31.

On April 2, Officer Glick received reports from students that a second fight would take place off campus at Glenwood Park. His student sources, who witnessed the fight on March 31, told Officer Glick that Appellant would be fighting on April 2 and 3. His sources asked to remain anonymous because they feared gang retaliation.

There were no reported fights on April 2. However, on April 3, Officer Glick investigated an assault on two students. One student was discovered unconscious, lying in the street. His injuries were serious and an ambulance was called. Although he suspected the students had been assaulted by Northside gang members, the victims were uncooperative. Shortly thereafter, he began hearing rumors that a big gang-related fight would be taking place after school the next day at Glenwood Park. His sources reported that Appellant would again be a participant.

When Officer Glick arrived at school on April 4, students approached him with reports that Northside gang members were coming to the school to shoot people.³ He was told that, if he attempted to intervene, he would also be shot. After hearing the rumors, he sought out sources he knew to be credible based on his past experience. He spoke with students, gang members, and administrators. His sources verified the reports and indicated that Appellant and another person would be involved in the fight.

Based upon this information, Officer Glick met with school administrators and members of the Amarillo Police Department (APD). He had a sense of urgency because of the serious assault that occurred the day before and reports that weapons would be involved. He told school administrators and APD officers that he had received reports a fight would take place that day at school between Northside and Eastside gang members. He also informed them there was the threat of weapons and shootings taking place at the school. Based upon his investigation, he requested APD's assistance.

APD responded with marked and unmarked patrol cars, motorcycle units, and liaison officers from other schools. Along with high school administrators, they positioned themselves around the school perimeter along adjacent streets. From his vantage point, an assistant principal observed Appellant's SUV driving on a street immediately adjacent to the school. He radioed Officer Glick.

Because of the timing of Appellant's appearance, his reported involvement in the March 31 fight on campus, the serious assault that occurred April 3, and the consistency and frequency with which Appellant's name was mentioned by credible sources as being involved in recent violence at the high school, Officer Glick radioed officers keeping watch over the school perimeter and asked them to stop Appellant. He requested that they identify him and find out what he was doing in the area.

Officer Clements was parked on the school perimeter looking for any unusual activity that might indicate possible gang activity or fights. After receiving Officer Glick's call, he spotted and proceeded to stop Appellant's SUV. He believed the stop was gang-related and there might be weapons involved. Although Officer Clements pulled behind Appellant's SUV and activated the emergency beacons on his motorcycle, Appellant continued traveling. Officer Clements considered this to be suspicious behavior. He also noticed Appellant making furtive movements-moving his right hand rapidly as though, in his experience, Appellant may have been attempting to gain access to a weapon or hide some object.

Appellant came to a stop two blocks from the school. Officer Clements approached the SUV and removed Appellant from the vehicle. Because he was concerned Appellant's furtive movements may have been intended to conceal a weapon, he handcuffed Appellant and patted him down. According to Officer Clements, Appellant was not placed under arrest but was merely being detained for further investigation. After Officer Clements turned Appellant over to Officer Ed Carroll, he returned to the SUV to search the interior driver's side for weapons and observed a clear plastic baggie tucked between the front driver's seat and the console. He also observed a marihuana cigarette in the SUV's door handle.

Officer Carroll walked Appellant to the patrol car and asked Appellant's name. Appellant identified himself and then, without questioning, said, "I'll be honest with you, I have marihuana in the vehicle." After placing Appellant in the backseat of the patrol car, Officer Carroll approached Officer Clements who had already located the marihuana in the SUV. Officer Carroll returned to the patrol car and placed Appellant under arrest for possession of marihuana. He asked Appellant why he was at the high school and Appellant responded he was there to pick up a friend.⁴ Subsequently, the trial court denied Appellant's motion to suppress.

On November 21, 2008, Appellant entered his guilty plea in open court while preserving his right to appeal the trial court's ruling on his motion to suppress. Thereafter, he was sentenced and this appeal followed.

Discussion

Appellant asserts Officer Clements improperly detained him for investigatory purposes because the officers lacked reasonable suspicion to detain him. He contends that, because his initial detention was improper, the trial court should have excluded the marihuana discovered in his SUV as the "fruit of the poisonous tree."

I. Standard of Review

A trial court's ruling on a motion to suppress is reviewed for abuse of discretion. Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App.2002); Hudson v. State, 247 S.W.3d 780, 783 (Tex.App.-Amarillo 2008, no pet.). In reviewing a trial court's determination of the reasonableness of a temporary investigative detention, appellate courts use a bifurcated standard of review. Ford v. State, 158 S.W.3d 488, 493 (Tex.Crim.App.2005). Almost total deference is given to a trial court's determination of the historical facts that the record supports especially when the trial court's fact findings are based on an evaluation of credibility and demeanor. St. George v. State, 237 S.W.3d 720, 725 (Tex.Crim.App.2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). The same level of deference is also afforded to a trial court's ruling on application of law to fact questions or mixed questions of law and fact if the resolution of those questions also turns on an evaluation of credibility and demeanor. Montanez v. State, 195 S.W.3d 101, 108-09 (Tex.Crim.App.2006). However, if mixed questions of law and fact do not fall within these categories, appellate courts may conduct a de novo review of the trial court's ruling. Guzman, 955 S.W.2d at 87.

When, as here, no findings of fact were requested nor filed, we view the evidence in the light most favorable to the trial court's ruling and assume the trial court made implicit findings of fact supported by the record. See State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App.2000). If the trial court's decision is correct on any theory of the law applicable to the case, it will be sustained. Armendariz v. State, 123 S.W.3d 401, 404 (Tex.Crim.App.2003); Ross, 32 S.W.3d at 855-56. Further, the legal question of whether the totality of the circumstances is sufficient to support an officer's reasonable suspicion underlying an investigatory detention is reviewed de novo. See State v. Sheppard, 271 S.W.3d 281, 286-87 (Tex.Crim.App.2008); Kothe v. State, 152 S.W.3d 54, 62-63 (Tex.Crim.App.2004).

Further, we interpret Appellant's rights under Article I, Section 9 of the Texas Constitution consistently with the interpretation of his Fourth Amendment rights under the federal...