Robert Vance Murry v. State

In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-07-00183-CR ______________________________ ROBERT VANCE MURRY, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 124th Judicial District Court Gregg County, Texas Trial Court No. 33993-B Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Justice Moseley MEMORANDUM OPINION Robert Vance Murry appeals his conviction for possession of one gram or less of a controlled substance. On appeal, Murry contends there was no probable cause or reasonable suspicion for Longview police officers to detain him; therefore, according to Murry, the trial court erred in denying his motion to suppress evidence. We disagree and overrule Murry's sole point of error. The standard for reviewing a trial court's ruling on a motion to suppress evidence is abuse of discretion. Long v. State, 823 S.W.2d 259, 277 (Tex. Crim. App. 1991). At a hearing on a motion to suppress, the trial court is the sole trier of fact and judge of the credibility of the witnesses as well as the weight to be given their testimony. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Brooks v. State, 830 S.W.2d 817, 820 (Tex. App.--Houston [1st Dist.] 1992, no pet.). On appellate review, the evidence presented at the suppression hearing is viewed in the light most favorable to the trial court's ruling to determine whether the trial court abused its discretion in denying the motion to suppress. Whitten v. State, 828 S.W.2d 817, 820 (Tex. App.--Houston [1st Dist.] 1992, pet. ref'd). Around 2:00 a.m., July 10, 2005, Officer Kurt Rhodes responded to a dispatch call report of a suspicious person in the 2000 block of Sea Biscuit in Longview. The report described a white male walking around with a baseball bat. Rhodes found Murry, who fit the reported description, carrying a baseball bat. Murry complied with Rhodes' request to put down the bat on the side of the road. Evidence was later adduced that Murry lived near the place he was stopped. Sergeant Toby Laughlin arrived to assist Rhodes. Laughlin said that for officer safety, he asked Murry whether he carried any weapons. Murry responded that he had a knife in one of his front pockets. Laughlin asked Murry if Laughlin could retrieve the knife, and Murry said he would do it himself. Murry reached into a pocket and started to pull out an unlabeled prescription medication bottle; Laughlin inquired about the bottle, and Murry pushed the bottle back into his pocket. Laughlin testified he was suspicious about the bottle because he had seen such bottles used in the past to carry controlled substances. No knife was found among Murry's belongings. The baseball bat was still in plastic wrapping; Murry said he had purchased the bat at the local Wal-Mart. In the pill bottle was less than one gram of methamphetamine. Also found on Murry was a cigarette package containing marihuana. Murry was convicted of possession of a controlled substance in an amount less than one gram and sentenced to two years in a state-jail facility. There are three distinct categories of interactions between police officers and citizens: encounters, investigative detentions, and arrests. State v. Perez, 85 S.W.3d 817, 819 (Tex. Crim. App. 2002). Encounters occur when police officers approach an individual in public to ask questions. Harper v. State, 217 S.W.3d 672, 674 (Tex. App.--Amarillo 2007, no pet.). Encounters do not require any justification whatsoever on the part of an officer. Id. Police officers "do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions." Perez, 85 S.W.3d at 819. An officer may briefly stop a suspicious individual in order to determine his identity or to maintain the status quo momentarily while obtaining more information. Adams v. Williams, 407 U.S. 143, 147 (1972); Terry v. Ohio, 392 U.S. 1, 21 (1968); Gurrola v. State, 877 S.W.2d 300, 302 (Tex. Crim. App. 1994). To justify a brief investigative detention, the officer must be aware of specific, articulable facts which, in light of his experience and personal knowledge, together with reasonable inferences therefrom, would warrant detaining the suspect. Adams, 407 U.S. at 147; Martinez v. State, 29 S.W.3d 609, 611 (Tex. App.--Houston [1st Dist.] 2000, pet. ref'd) (citing Terry, 392 U.S. at 21). Here, officers stopped Murry on a public street in the wee hours of the morning. Murry was carrying a baseball bat, albeit apparently recently purchased. Nonetheless, this encounter was proper and legal. Officers had the right to ask Murry questions on a public street. When in the course of their permissible questions Murry said he had a knife on his person, officers had articulable facts which warranted further questioning: to-wit, investigating Murry's purported possession of a knife. When Murry revealed the pill bottle and then tried to conceal it, the officers' suspicions were reasonably raised. Murry claims this incident was "[i]nitially. . . an investigative detention." We disagree; as stated above, the police had the right to approach Murry on a public street and ask him questions. "A police officer is just as free as any other citizen to stop and ask questions of a fellow citizen." Hunter v. State, 955 S.W.2d 102, 104 (Tex. Crim. App. 1997). Despite Murry's contention that he was "clearly not free to leave," we find no evidence to substantiate that claim. Our reading of the record indicates a brief, fluid set of events: police stopped Murry on a public street; asked him to put down his baseball bat; asked if he had any weapons. To this point officers are engaged in an encounter with Murry. Officers had a right to investigate the knife Murry told them he had; (1) when he instead showed an unlabeled pill bottle and suspiciously tried to hide it, the officers had reasonable suspicion to conduct an investigative detention. Upon examining the contents of the bottle, officers had probable cause to arrest Murry. We find the trial court acted within its discretion in denying Murry's motion to suppress evidence. We affirm the trial court's judgment. Bailey C. Moseley Justice Date Submitted: July 31, 2008 Date Decided: August 1, 2008 Do Not Publish 1. See, e.g., Tex . Penal Code Ann. §§ 46.01, 46.02 (Vernon Supp. 2007) (regarding illegal knives). Tex. R. App. P. 33.1(a). Dickerson did not raise this issue at the trial court level. Accordingly, he has failed to preserve this issue for our review. We further note that a challenge to a trial court's bail setting is more properly presented by way of an application for writ of habeas corpus. See, e.g., Ex parte Lewis, Nos. 2-06-018-CR, 2-06-081-CR, 2006 Tex. App. LEXIS 4976, at *1–3 (Tex. App.—Fort Worth June 8, 2006, no pet.) (mem. op.) (not designated for publication) (appeal of habeas application seeking bond reduction); Smith v. State, 161 S.W.3d 191, 192 (Tex. App.—Texarkana 2005, no pet.) (appeal of pretrial habeas application seeking bond reduction). The record contains no evidence that Dickerson ever applied for an application for writ of habeas corpus to challenge the trial court's bail setting. Instead, Dickerson waited until after forty days from the trial court's action declaring the personal bond insufficient, until after the trial court had conducted a hearing on the State's motion to adjudicate guilt, and until Dickerson had filed his notice of appeal regarding the trial court's decision to adjudicate guilt, before he first attempted to raise this issue. Finally, the decision to grant a personal bond lies within the sound discretion of the reviewing magistrate. Tex. Code Crim. Proc. Ann. art. 17.03(a) (Vernon 2005). Dickerson has presented no argument or authority regarding why, in his case, the trial court's decision constitutes an attempt to use bail as an instrument of oppression. Such a showing on appeal would, however, be a prerequisite to finding error in the trial court's decision. Cf. Hayden v. State, 155 S.W.3d 640, 648 (Tex. App.—Eastland 2005, pet. ref'd). For these reasons, we overrule Dickerson's first point of error. III. The Propriety of Dickerson's Conditions of Personal Bond In his final point of error, Dickerson challenges the legality of the conditions of pretrial release imposed by the trial court on Dickerson and other defendants who appear in the 336th Judicial District Court of Texas. The purpose of bail is to assure the presence of the accused at trial. Tex. Code Crim. Proc. Ann. art. 17.01 (Vernon 2005); Stack v. Boyle, 342 U.S. 1, 5 (1951). Therefore, "the fixing of bail for any individual defendant must be based upon standards relevant to the purpose of assuring the presence of that defendant." Stack, 342 U.S. at 5. Dickerson's appellate brief contains a laundry list of conditions he claims were placed on his release pending a hearing on the State's motion to adjudicate. Dickerson has also included in his brief's appendix what appears to be a page of bond conditions imposed by the 336th Judicial District Court in a case styled State of Texas v. Kirk Jarrell. However, neither the laundry list nor the Jarrell bond conditions appear in the official record of this case. Appellate issues should be confined to alleged errors evidenced by the actual, official record in the case. Accordingly, these alleged facts are not a part of the record before us, and we may not consider them for any purpose. We now turn to a review of the true contents of the official appellate record. The record before us does not include the personal bond contract between the trial court and Dickerson. Instead, the only evidence in the record before us of any bond conditions imposed by the trial court comes from the trial court's docket sheet. That instrument records that the court required Dickerson to, as a condition of his release, (1) be accepted by, and attend, a Veteran's Affairs program for post-traumatic stress disorder, bipolar disorder, and drug rehabilitation; (2) report periodically to a community supervision officer; and (3) have no contact with his wife. With respect to the first condition, a magistrate may, in appropriate cases, release a defendant on a personal bond with the condition that the defendant submit to inpatient or outpatient mental health treatment. Tex. Code Crim. Proc. Ann. art. 17.032(b) (Vernon 2005). The record also affirmatively shows Dickerson wanted to attend the V.A. treatment program. With respect to the second condition, the trial court could have reasonably assumed that requiring Dickerson to continue to report to his community supervision officer (which was already a proper requirement of community supervision) would enable the court to keep abreast of Dickerson's progress with the V.A. treatment program, as well as any changes in Dickerson's employment or residency. With respect to the final condition, a magistrate may impose "any reasonable condition of bond related to the safety of a victim of the alleged offense or to the safety of the community." Tex. Code Crim. Proc. Ann. art. 17.40 (Vernon 2005). Dickerson's wife, Deneen Dickerson, is the complainant in this case. In short, we cannot say the record before us supports a finding that the trial court imposed any illegal or unconstitutional conditions of pretrial release. We overrule Dickerson's final point of error. We affirm the judgment. Donald R. Ross Justice Date Submitted: August 4, 2006 Date Decided: August 25, 2006 Do Not Publish