Robert McNair Cooper v. State

Affirmed and Memorandum Opinion filed November 18, 2008 Affirmed and Memorandum Opinion filed November 18, 2008. In The Fourteenth Court of Appeals ____________ NO. 14-07-00974-CR ____________ ROBERT MCNAIR COOPER, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 178th District Court Harris County, Texas Trial Court Cause No. 1100887 M E M O R A N D U M   O P I N I O N Appellant Robert McNair Cooper appeals the trial court=s denial of his motion to suppress evidence of an unadjudicated extraneous drug offense. During the punishment phase of his trial for the offense of aggravated robbery of a person over sixty-five years old, the jury heard evidence of the extraneous offense. Appellant=s punishment was assessed at twenty years= confinement in prison. In his sole issue, appellant contends that the trial court erred in denying his motion to suppress because there was no reasonable suspicion to detain him or probable cause to arrest him for possession of a controlled substance. We affirm. I. Facts While on patrol one afternoon, Deputy Herman Eagleton observed a car pull onto a driveway on a vacant lot. He watched appellant approach the open driver=s window with his hand clenched. Officer Eagleton had made arrests at this particular driveway before, and based on his training and experience, he knew how drugs were sold there: a car would pull onto the driveway, someone would sell drugs, and the car would back out. Although he had not observed any illegal activity, Officer Eagleton pulled onto the driveway behind the car and got out. Appellant began to walk away with his hand still clenched. Believing, based on his training and experience, that a drug transaction had been about to occur, Officer Eagleton ordered appellant to stop and identify himself and repeatedly asked what was in his hand. When appellant failed to answer, continued to clench his hand, and backed away slowly, Officer Eagleton told him to put his hands on the car for Officer Eagleton=s safety. Appellant complied, opening his clenched hand to reveal a plastic bag containing cocaine. He was then arrested for possession of a controlled substance. After appellant was arrested for the drug offense described above, the State brought him to trial on an unrelated aggravated robbery charge. During that trial, appellant sought to exclude evidence of the extraneous drug offense, which was unadjudicated at that time. The motion was carried with the trial, and a hearing was held outside the jury=s presence at the punishment phase. The trial court denied the motion, and evidence of the drug offense was presented to the jury. In his sole issue, appellant contends that the trial court erred in denying his motion because there was no reasonable suspicion to detain him or probable cause to arrest him for the unadjudicated extraneous offense of possession of a controlled substance. II. Analysis We review the denial of a motion to suppress for abuse of discretion, giving almost total deference to a trial court=s determination of historical facts and reviewing de novo the court=s application of search and seizure law. Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002). Here, the trial court did not make explicit fact findings, so we review the evidence in the light most favorable to the trial court=s ruling and assume that the trial court made implicit fact findings supported in the record. Carmouche v. State, 10 S.W.3d 323, 327B28 (Tex. Crim. App. 2000). In reviewing a trial court=s ruling, we generally consider only evidence adduced at the suppression hearing because the ruling was based on it rather than evidence introduced later. Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim. App. 1996); Turner v. State, 252 S.W.3d 571, 577 (Tex. App.CHouston [14th Dist.] 2008, pet. ref=d). This general rule, however, is inapplicable when the parties consensually relitigate the suppression issue before the jury. See Rachal, 917 S.W.2d at 809 (considering evidence outside the suppression hearing when the issue is relitigated during the trial on the merits). When the State raises the issue at trial, either without objection or with subsequent participation by the defense, the defendant has made an election to reopen the evidence, and consideration of the relevant testimony is appropriate in our review. See id. Here, the parties relitigated the search and seizure issue by examining and cross-examining Officer Eagleton before the jury at punishment as they had during the motion to suppress hearing. Because appellant fully participated in that relitigation, we will consider the evidence adduced both at the suppression hearing and before the jury at punishment. See id. In this case, we must determine whether Officer Eagleton=s detention of appellant constituted an unreasonable search and seizure under Article I, Section 9 of the Texas Constitution and Chapter 14 of the Texas Code of Criminal Procedure. Under Texas law, the fact that a detainee=s activity was as consistent with innocent activity as with criminal activity has no bearing on the reasonableness of the detention. Woods v. State, 956 S.W.2d 33, 38B39 (Tex. Crim. App. 1997) (stating that the Aas consistent with innocent activity as with criminal activity@ construct is no longer viable and expressly overruling any cases holding to the contrary). Rather, we examine the reasonableness of a temporary detention in light of the totality of the circumstances, including the detaining officer=s knowledge and experience. See id. at 37B38. Viewed through that lens, a temporary detention is justified when specific articulable facts and reasonable inferences therefrom lead the detaining officer to reasonably suspect that the prospective detainee actually is, has been, or soon will be engaged in criminal activity. Id. at 38; Hill v. State, 135 S.W.3d 267, 269 (Tex. App.CHouston [14th Dist.] 2004, pet. ref=d). Therefore, a trained officer=s permissible deductions from observing legal activity can support a reasonable suspicion that an observed participant is about to commit a crime. See Woods, 956 S.W.2d at 37B38. However, an investigative detention based on reasonable suspicion must be temporary, last no longer than is necessary to effectuate the purpose of the detention, and involve the least intrusive means reasonably available to verify or dispel the officer=s suspicion in a short period of time. Davis v. State, 947 S.W.2d 240, 243B45 (Tex. Crim. App. 1997). Here, Officer Eagleton ordered appellant to stop, detaining him on the suspicion that he was about to engage in a drug transaction. See Michigan v. Chesternut, 486 U.S. 567, 573 (1988) (a seizure occurs where a reasonable person would have believed he was not free to leave given the circumstances). Officer Eagleton knew from experience that drugs were sold on the driveway where appellant was detained. The high-crime reputation of the area is a factor we consider in determining the reasonableness of his suspicion. Klare v. State, 76 S.W.3d 68, 74 (Tex. App.CHouston [14th Dist.] 2002, pet. ref=d). Also, Officer Eagleton knew from experience that the activity he observed appellant engage in was consistent with drug transactions that occurred on the driveway. We take his inference that illegal activity was imminent into consideration in determining the reasonableness of his suspicion. Woods, 956 S.W.2d at 38. Moreover, appellant=s nervous, evasive behavior in walking away with his hand clenched also supported the reasonableness of Officer Eagleton=s suspicion. Illinois v. Wardlow, 528 U.S. 119, 124 (2000). Finally, while the occurrence of the activity in daylight hours lessens its inherent suspiciousness, Gurrola v. State, 877 S.W.2d 300, 303 (Tex. Crim. App. 1994), the vacant nature of the lot supports the reasonableness of Officer Eagleton=s suspicion. Klare, 76 S.W.3d at 74 (car parked near closed building is a factor effecting the reasonableness of an officer=s suspicion). Based on the totality of the circumstances, the specific facts that Officer Eagleton articulated, and his inferences therefrom given his experience with drug transactions on this very driveway, we conclude that he reasonably suspected that a drug transaction involving appellant was about to occur. Given that suspicion, his investigative detention of appellant was justified. Furthermore, Officer Eagleton=s initial questions regarding the contents of appellant=s hand was the least intrusive means reasonably available to verify or dispel his suspicion in a short period of time. Officer Eagleton=s initial suspicion was reasonably heightened when appellant failed to answer repeated inquiries, continued to clench his hand, and slowly backed away at Eagleton=s questioning. In light of appellant=s nervous, evasive, and nonresponsive behavior and tightly clenched hand, Officer Eagleton=s subsequent request that appellant place his hands on the car for Eagleton=s safety was justified and reasonable, either as the least intrusive means available to investigate Eagleton=s heightened suspicion or to initiate a frisk for weapons. See Dixon v. State, 187 S.W.3d 767, 769B70 (Tex. App.CAmarillo 2006, no pet.) (officer was justified in requesting appellant to open his mouth to dispel concern for concealed weapon where suspect was mumbling responses to questions). When appellant exposed the plastic bag of cocaine by placing his hands on the car, reasonable suspicion ripened into probable cause to arrest appellant, without a warrant, for cocaine possession. See Gaines v. State, 99 S.W.3d 660, 669 (Tex. App.CHouston [14th Dist.] 2003, no pet.). Appellant=s reliance on cases from this court decided under the Aas consistent with innocent activity as with criminal activity@ construct is inapposite. See Woods, 956 S.W.2d at 38B39 (stating that the Aas consistent with innocent activity as with criminal activity@ construct is no longer viable and expressly overruling any cases holding to the contrary). Appellant also contends that his detention was unreasonable because Officer Eagleton did not observe appellant commit any illegal acts prior to detaining him. We disagree. See id. at 37B38 (trained officer=s permissible deductions from observing legal activity can support reasonable suspicion of imminent criminal activity). We conclude that the trial court did not err in denying appellant=s motion to suppress evidence of the unadjudicated extraneous offense because the evidence was obtained through a lawful detention and arrest. We therefore overrule appellant=s sole issue and affirm the trial court=s judgment. /s/ Leslie B. Yates Justice Judgment rendered and Memorandum Opinion filed November 18, 2008. Panel consists of Justices Yates, Seymore, and Boyce. Do Not Publish C Tex. R. App. P. 47.2(b).