Richard Tucker v. State ( 2005 )

                             NUMBER 13-03-00691-CR

                         COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI B EDINBURG

RICHARD TUCKER,                                                                          Appellant,

                                                             v.

THE STATE OF TEXAS,                                                                    Appellee.

     On appeal from the 28th District Court of Nueces County, Texas.

                       MEMORANDUM OPINION

    Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

                         Memorandum Opinion by Justice Hinojosa

The trial court found appellant, Richard Tucker, guilty of the offense of possession of cocaine, and after finding an enhancement paragraph to be true, assessed appellant=s punishment at eight years= imprisonment.  The trial court has certified that this case Ais not a plea-bargain case, and the defendant has the right of appeal.@  See TEX. R. APP. P. 25.2(a)(2).  In a single issue, appellant contends the trial court erred in denying his motion to suppress the evidence.  We affirm.

As this is a memorandum opinion not designated for publication and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of our decision and the basic reasons for it.  TEX. R. APP. P. 47.4.

                                                     A.  Standard of Review

At a suppression hearing, the trial judge is the sole and exclusive trier of fact and judge of the credibility of the witnesses and their testimony.  Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002).  The appropriate standard for reviewing a trial court's ruling on a motion to suppress is a bifurcated standard of review, giving almost total deference to a trial court's determination of historical facts and reviewing de novo the court's application of the law.  Id.; Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). Because the trial court did not make explicit findings of fact, we will review the evidence in the light most favorable to the trial court's ruling and assume that the trial court made implicit findings of fact that support its ruling, as long as those findings are supported by the record.  State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).

                                                                  B.  Analysis

Appellant contends the trial court erred in denying his motion to suppress because the search of his person and seizure of the cocaine violated article 38.23 of the Texas Code of Criminal Procedure and the Fourth Amendment to the United States Constitution.  Appellant argues that the cocaine was inadmissible at trial because it was the product of an illegal search conducted by an off-duty constable.

                                                               1.  Off-duty Status

It is well-settled that Aan officer is for many reasons on duty 24 hours a day.@  Moore v. State, 562 S.W.2d 484, 486 (Tex. Crim. App. [Panel Op.] 1978).  A>A police officer=s >off-duty= status is not a limitation upon the discharge of police authority=@ in the presence of criminal activity.  Id. (citing Wood v. State, 486 S.W.2d 771, 774 (Tex. Crim. App. 1972)).

In the instant case, the officer was an off-duty constable, working as a private security guard, when he encountered criminal activity.  We conclude that the constable=s employment as a private security guard did not preclude him from carrying out his responsibilities as a certified law enforcement officer that encounters criminal activity.

                                                       2.  Investigative Detention

An officer may conduct a brief investigative detention when he has reasonable suspicion to believe that an individual is involved in criminal activity.  Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002).  Reasonableness of an investigative detention must be examined with regard to the totality of the circumstances.  Id.  Justification for an investigatory detention requires that the officer have specific articulable facts which, based upon the officer=s experience and knowledge, creates logical inferences warranting detention of an individual.  Garza v. State, 771 S.W.2d 549, 558 (Tex. Crim. App. 1989).  Circumstances which fall short of probable cause may permit temporary detention of a person for the purpose of investigation. Id. AA police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest.@  Terry v. Ohio, 392 U.S. 1, 22 (1968). 

The constable testified that he saw appellant engaged in suspicious activity of a possible criminal nature.  During the early morning hours, appellant was sitting in an illegally-parked vehicle in a dark and isolated area of downtown.  The military had been storing vehicles and equipment in the area for shipment overseas.  The constable had seen a person running away from the vehicle and, as he approached, observed appellant making suspicious movements inside the vehicle.  Because the constable had a reasonable belief that he was in the presence of possible criminal activity, we conclude the constable was justified in exercising his authority as a certified peace officer to briefly detain appellant for the purpose of investigation.

                                                            3.  Weapons Search

AIn the course of an investigative detention, an officer may conduct a limited search for weapons where it is reasonably warranted for the officer=s safety or the safety of others.@ Carey v. State, 855 S.W.2d 85, 87 (Tex. App.BHouston [14th Dist.] 1993, pet. ref=d). The constable testified that his initial questioning of appellant resulted in unsatisfactory responses, including appellant=s inability to produce any identification.  Furthermore, the circumstances surrounding appellant=s presence in a parked car on a dark, narrow downtown street led the constable to believe that a limited pat-down search for weapons was necessary for his safety. Given these facts, we conclude the constable was justified in performing a pat-down search of appellant for weapons during the investigative detention.

                                                                      4.  Arrest

AIt is axiomatic that an arrest must be accompanied by probable cause to believe that a person has engaged in or is engaging in criminal activity.@ Francis v. State, 922 S.W.2d 176, 178 (Tex. Crim. App. 1996).  Probable cause requires more than mere suspicion, but not as much evidence as is necessary to secure a conviction.  Guzman, 955 S.W.2d at 87.

During the pat-down search, appellant reached into his back pocket, took out a clear plastic bag containing rocks of cocaine, and placed it in plain view. Based on experience and training, the constable believed the substance in the plastic bag was cocaine and placed appellant under arrest.  An investigative detention may escalate into a full-blown arrest.  See State v. Moore, 25 S.W.3d 383, 385‑86 (Tex. App.‑‑Austin 2000, no pet.).  We conclude that the constable, having probable cause that appellant was in possession of a controlled substance, made a lawful arrest.

We hold the trial court did not err in denying appellant=s motion to suppress.  Appellant=s sole issue is overruled.

The judgment of the trial court is affirmed.

FEDERICO G. HINOJOSA

Justice

Do not publish.  See Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed this

the 7th day of July, 2005.