Donald E. Nelson v. State

Opinion issued April 22, 2010 In The Court of Appeals For The First District of Texas ———————————— NO. 01-08-00390-CR ——————————— Donald E. Nelson, Appellant V. The State of Texas, Appellee On Appeal from the 185th District Court Harris County, Texas Trial Court Case No. 1137524 MEMORANDUM OPINION Appellant Donald E. Nelson was convicted by a jury of possession of cocaine weighing less than one gram. See Texas Controlled Substances Act, Tex. Health & Safety Code Ann. §§ 481.102(3)(D), 481.115(a), (b) (Vernon Supp. 2009). Nelson pleaded true to two prior felony convictions for aggravated assault with a deadly weapon and theft, and the trial court assessed punishment at imprisonment for six years. See Tex. Penal Code Ann. § 12.42(a)(2) (Vernon Supp. 2009). Nelson brings two issues, claiming (1) the trial court erred in denying his motion to suppress evidence and (2) the evidence is factually insufficient to support his conviction. We affirm. Background Houston Police Office C. Cayton testified at trial that he was an undercover narcotics officer. He was approached by a person who wanted to be a confidential informant, and the informant offered to call a drug dealer she knew and set up a purchase. The informant told Officer Cayton the amount of the drug purchase, the location of the sale, the name of the dealer, and a description of the dealer’s car. Officer Cayton and the informant set up surveillance down the road from the motel where the sale was to take place. When the informant saw Nelson’s car, she identified Nelson as the drug dealer. Officer Cayton followed Nelson’s car and observed two lane changes without signaling, which is a traffic violation. See Tex. Transp. Code Ann. § 545.104(a) (Vernon 1999). Officer Cayton asked his partner, Officer R. Gardner, who was in a marked police car, to conduct a traffic stop of Nelson’s car because of the traffic violation Officer Cayton observed. See id. § 543.001 (“Any peace officer may arrest without warrant a person found committing a violation of this subtitle.”). After Officer Gardner arrested Nelson and found cocaine in his car, Officer Gardner gave the cocaine to Officer Cayton. Officer W. McPherson testified at trial that he assisted Officer Cayton with this case. Officer McPherson confirmed that the confidential informant told them in advance the amount of the drug purchase, the location of the sale, the name of the dealer, and a description of the dealer’s car. After Nelson’s car was stopped by Officer Gardner, Officer McPherson went to the scene and read Nelson his rights. Officer McPherson testified that Nelson waived his rights and asked if there was anything he could do “to make this go away.” Officer Gardner testified at trial that he assisted Officers Cayton and McPherson with this case, driving separately in a marked police car. After Officer Cayton observed Nelson change lanes without signaling, Officer Gardner pulled over Nelson’s car. Once Nelson stopped his car, Officer Gardner testified that he saw Nelson “place his hands underneath his seat area. Then he came up and I saw him making some kind of movements around his mouth, like he was putting something in his mouth.” Officer Gardner also testified that he did not see the passenger in Nelson’s car reach under the seats or make any movements toward Nelson. Officer Gardner testified that he asked Nelson to step outside of the car because he saw him put something under the seat, which he thought could have been a weapon. Officer Gardner thought that Nelson might have put contraband in his mouth, but Nelson refused to open his mouth. After handcuffing Nelson, Officer Gardner asked the passenger to get out of the car. Once both Nelson and the passenger were handcuffed and under the control of other police officers, Officer Gardner searched the car and found a plastic bag containing several rocks of crack cocaine under the driver’s seat. Paul Burson testified at trial that on the day of the incident Nelson gave him a ride to work. Before taking Burson to work, Nelson went to a motel, which was where the police stopped the car. Burson testified that before he got out of the car he put a bag of crack cocaine under the driver’s seat. Burson further testified that the crack cocaine belonged to him and that Nelson did not know that Burson had the cocaine. Burson said he later went to the District Attorney’s office and gave a statement, but he never heard back from that office. On cross‑examination, Burson admitted that he did not tell the arresting police officers that the cocaine belonged to him. At trial, Nelson moved to suppress the introduction of the cocaine into evidence. The ground for the motion to suppress was that the search of Nelson’s car was an unreasonable search and seizure because the police purportedly had no probable cause. Nelson’s written motion to suppress claimed that that the police “did not observe any criminal activity committed by the Defendant.” At trial, Nelson argued that the movements Officer Gardner testified about were also consistent with Nelson looking for his identification to give to the police officer. Analysis Motion to suppress In his first issue, Nelson claims the trial court erred in denying his motion to suppress evidence of the cocaine in violation of the United States Constitution, Texas Constitution, and Code of Criminal Procedure. See U.S. Const. amend. IV; Tex. Const. art. I, § 9; Tex. Code Crim. Proc. Ann. art. 38.23(a) (Vernon 2005). Nelson acknowledges that the police stopped his car for failure to signal a turn and that the police saw him make movements in the car. Nelson, however, does not make a specific argument with citations to authority to explain why this search was unlawful. The trial court had before it evidence of the information the confidential informant gave to the police, testimony that Nelson committed a traffic violation, and testimony that Officer Gardner saw Nelson put something under the seat, which Gardner thought could have been a weapon. On appeal of a trial court’s ruling on a motion to suppress, we must give almost total deference to the trial court’s findings of facts. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). When a police officer stops a defendant without a warrant and without the defendant’s consent, the State has the burden at a suppression hearing of proving the reasonableness of the stop. Amador v. State, 221 S.W.3d 666, 672–73 (Tex. Crim. App. 2007); Russell v. State, 717 S.W.2d 7, 9–10 (Tex. Crim. App. 1986). A police officer can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity may be afoot, even if the officer lacks evidence rising to the level of probable cause. Ornelas v. United States, 517 U.S. 690, 693, 116 S. Ct. 1657, 1660 (1996); Terry v. Ohio, 392 U.S. 1, 27–30, 88 S. Ct. 1868, 1883–84 (1968); Woods v. State, 956 S.W.2d 33, 35 (Tex. Crim. App. 1997); Citizen v. State, 39 S.W.3d 367, 370 (Tex. App.—Houston [1st Dist.] 2001, no pet.). The reasonableness of a temporary detention must be examined in terms of the totality of the circumstances and will be justified when the detaining officer has specific articulable facts which, taken together with rational inferences from those facts, lead the officer to conclude that the person detained actually is, has been, or soon will be engaged in criminal activity. Woods, 956 S.W.2d at 38. Based on the information the confidential informant gave to the police, testimony that Nelson committed a traffic violation, and testimony that Officer Gardner saw Nelson put something under the seat, which Officer Gardner thought could have been a weapon, we conclude that Officer Gardner was justified in temporarily detaining and arresting Nelson. See Tex. Code Crim. Proc. Ann. art. 14.01(b) (Vernon 2005) (authorizing peace officer to arrest offender without warrant for any offense committed in officer’s presence or within officer’s view); Tex. Transp. Code Ann. § 543.001 (Vernon 1999); Atwater v. City of Lago Vista, 532 U.S. 318, 354, 121 S. Ct. 1536, 1557 (2001) (“If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender.”); State v. Gray, 158 S.W.3d 465, 469–70 (Tex. Crim. App. 2005). Officer Gardner then searched Nelson’s car, which at the time of the incident was widely understood to be fully consistent with the Fourth Amendment. See New York v. Belton, 453 U.S. 454, 460, 101 S. Ct. 2860, 2864 (1981) (“when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile”); Gray, 158 S.W.3d at 470. We are aware that the United States Supreme Court on April 21, 2009 held that “[p]olice may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or if it is reasonable to believe the vehicle contains evidence of the offense of arrest.” Arizona v. Gant, 129 S. Ct. 1710, 1723 (2009). Appellant, however, did not preserve this argument at trial by challenging the application of Belton to his arrest, nor does he argue Gant in his January 4, 2010 appellant’s brief. We overrule Nelson’s first issue. Sufficiency of the evidence In the second point of error, Nelson claims the evidence is factually insufficient to support his conviction because Burson testified that the cocaine was his and that he put the cocaine under the driver’s seat. When conducting a factual‑sufficiency review, we view all of the evidence in a neutral light. Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim. App. 1997). We will set the verdict aside only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the verdict is against the great weight and preponderance of the evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). Under the first prong of Johnson, we cannot conclude that a conviction is “clearly wrong” or “manifestly unjust” simply because, on the quantum of evidence admitted, we would have voted to acquit had we been on the jury. Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006). Under the second prong of Johnson, we cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury’s resolution of that conflict. Id. Before finding that evidence is factually insufficient to support a verdict under the second prong of Johnson, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury’s verdict. Id. In conducting a factual‑sufficiency review, we must also discuss the evidence that, according to the appellant, most undermines the jury’s verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). We may not substitute our judgment for that of the fact‑finder. King v. State, 29 S.W.3d 556, 563 (Tex. Crim. App. 2000). The fact‑finder alone determines what weight to place on contradictory testimonial evidence because that determination depends on the fact‑finder’s evaluation of credibility and demeanor. Cain, 958 S.W.2d at 408–09. As the judge of the credibility of the witnesses, the fact‑finder may choose to believe all, some, or none of the testimony presented. Id. at 407 n.5. The standard for reviewing the factual sufficiency of the evidence is whether, after considering all of the evidence in a neutral light, the jury was rationally justified in finding guilt beyond reasonable doubt. Watson, 204 S.W.3d at 415. The jury chose to not believe Burson’s testimony. It is the jury’s role to judge the credibility of witnesses. See Cain, 958 S.W.2d at 407 n.5. After considering all of the evidence in a neutral light, including the information from the confidential informant and Officer Gardner’s testimony that he saw Nelson place his hands underneath the driver’s seat, we cannot say that the jury’s verdict is against the great weight and preponderance of the evidence. We overrule Nelson’s second issue. Conclusion We affirm the trial court’s judgment. Michael Massengale Justice Panel consists of Justices Keyes, Sharp, and Massengale. Do not publish. Tex. R. App. P. 47.2(b).