Gregory Joseph Freeman v. State ( 1997 )

Freeman v. State TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-94-00754-CR



Gregory Joseph Freeman, Appellant

v.

The State of Texas, Appellee



FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 277TH JUDICIAL DISTRICT NO. 94-472-K277, HONORABLE JOHN R. CARTER, JUDGE PRESIDING

Appellant, Gregory Joseph Freeman, was convicted by a jury of murder. ⁽¹⁾ See Tex. Penal Code Ann. § 19.02 (West 1994). The jury assessed punishment at life imprisonment. On appeal, appellant contends that evidence was obtained after police illegally detained and frisked him and should have been suppressed; he also contends that his statement to police was taken in violation of the Texas Family Code. We will affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In the early morning hours of April 20, 1994, Bettie Gay Beall was found shot to death in her truck in Williamson County. According to the medical examiner, the victim was shot in the face at a range of three to six inches. After conducting an investigation of the scene, police were able to place the victim at a local grocery store shortly before the murder. As the investigation continued, they were also able to place appellant at the same grocery store at or near the time the victim was there.

Appellant had been attending classes at Round Rock High School since late March 1994. After assaulting and threatening to kill another student, appellant was banned from school. On April 20, 1994, however, appellant was allowed to return.

Based on his knowledge of appellant's background and presence at the grocery store where the victim was last seen, Lieutenant Dan Lemay, the investigator assigned to Beall's homicide, concluded that appellant was a suspect in the murder. At the request of Lieutenant Lemay, Richard Johnson, an investigator with the Round Rock Police Department, initiated surveillance of appellant at appellant's home on April 27, 1994.

On that same day, at approximately 11:00 a.m., Johnson witnessed appellant leave his home, walk down the street, and enter the front door of a home at which he did not reside. Appellant was supposed to be in school. A couple of hours later, a van pulled up to the house and an older couple went inside. Less than a minute later, appellant left the house from the rear and began walking toward his home. Appellant appeared nervous as he walked away from the house, repeatedly looking over his shoulder. Appellant's actions caused Johnson to wonder whether appellant had a lawful right to be in the home. As appellant walked back toward his home he did not use the sidewalk, but instead jumped fences and cut through ditches and yards. Johnson believed appellant was looking for a house to burglarize or was trying to avoid being seen.

Johnson telephoned Rod Hampton, an investigator with the Round Rock Police department and department liaison to Round Rock High School who was familiar with appellant's history, and relayed to him what he had witnessed. Hampton, who had been driving nearby, located appellant and stopped his car near him. Hampton asked appellant why he was not in school and why he was jumping fences. Hampton knew appellant was supposed to be in school and that he was a suspect in Beall's murder.

Having been told that appellant carried a gun and had threatened the life of another student, Hampton frisked appellant and discovered a gun under his shirt. ⁽²⁾ Hampton then arrested appellant for unlawfully carrying a gun; Lieutenant Lemay took him to the juvenile processing office of the Round Rock Police Department. ⁽³⁾ Afterwards, appellant was taken to a juvenile detention facility for the night.

Early the next day, Lemay went to the juvenile detention facility and had appellant sign a written explanation of his juvenile rights. Appellant was later taken to the police department and placed in an interview room authorized for the detention of juveniles. A magistrate later came to the interview room and informed appellant of his rights under the Texas Family Code; appellant waived those rights. ⁽⁴⁾ Appellant then wrote a statement admitting to being present during Beall's murder and witnessing a Hispanic man shoot the victim. Appellant further stated that after the murder he picked up the gun and fled the scene. The magistrate warned appellant that his written statement placed him at the scene of a murder in which he was a suspect and asked appellant if he wished to destroy his written statement. Appellant refused the magistrate's offer and proceeded to sign the statement.

Before trial, appellant filed a motion to suppress evidence, alleging he was detained and searched in violation of the search and seizure provisions of the state and federal constitutions, and that the unlawful detention and search led to the discovery of the gun. Following a pretrial hearing on the motion to suppress, appellant also claimed his written statement was inadmissible. The trial court denied both appellant's motion to suppress the gun and his oral objection to the written statement. A jury later found appellant guilty of murder and assessed punishment at life imprisonment. Appellant appeals the trial court's denial of his motions to suppress the gun and his written statement.

DISCUSSION

In his first point of error, appellant claims that evidence used to convict him was obtained as a result of an illegal "stop and frisk" because Hampton's detention and search of appellant violated the Fourth Amendment of the United States Constitution. In a suppression hearing, the trial court is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). We may reverse the trial court's decision only upon a showing of an abuse of discretion, i.e., if the decision is unsupported by the record. Upton v. State, 853 S.W.2d 548, 552 (Tex. Crim. App. 1993).

A police officer may briefly stop a suspicious person to determine his identity or to maintain the status quo momentarily while obtaining more information. Gearing v. State, 685 S.W.2d 326, 327-28 (Tex. Crim. App. 1985). In order to justify even such a brief intrusion, however, an officer must have specific articulable facts that, in light of his experience and personal knowledge, together with other inferences from those facts, warrant the intrusion. Terry v. Ohio, 392 U.S. 1, 21 (1968); Anderson v. State, 701 S.W.2d 868, 873 (Tex. Crim. App. 1985), cert. denied, 479 U.S. 870 (1986); Schwartz v. State, 635 S.W.2d 545, 547 (Tex. Crim. App. 1982). There must be a reasonable suspicion by the officer that some activity out of the ordinary is occurring or has occurred, some suggestion to connect the detained person with the unusual activity, and some indication that the activity is related to a crime. Hoag v. State, 728 S.W.2d 375, 380 (Tex. Crim. App. 1987); Daniels v. State, 718 S.W.2d 702, 705 (Tex. Crim. App. 1986).

In the instant case, Hampton had ample information to justify an investigatory stop: ⁽⁵⁾ appellant was absent from school, appeared to have been in an elderly couple's home without their permission, appeared unnecessarily nervous, was trespassing across the yards of other houses, and had been present at a local grocery store where a murder victim was last seen alive. Clearly, Hampton had a reasonable articulable suspicion that some activity out of the ordinary involving appellant was occurring or was about to occur justifying his investigatory detention of appellant.

A frisk, however, is not permitted solely because the detention was justified. Maryland v. Buie, 494 U.S. 325, 334 (1990). A police officer must reasonably fear for his safety or the safety of others before he can conduct a limited search of outer clothing for weapons during an investigatory detention. See Terry v. Ohio, 392 U.S. 1, 21 (1968); Davis v. State, 829 S.W.2d 218, 221 (Tex. Crim. App. 1992). This reasonableness standard is satisfied by specific and articulable facts that, if taken with rational inferences, reasonably warrant the further intrusion of a frisk or "pat-down." Terry, 392 U.S. at 21; Davis v. State, 576 S.W.2d 378, 380 (Tex. Crim. App. 1979). When an officer is justified in believing a suspect may be armed, the officer is permitted to take necessary measures to neutralize the potential threat to the officer and others. Davis v. State, 794 S.W.2d 123, 125 (Tex. App.Austin 1990, pet. ref'd) (citing Terry, 392 U.S. at 24); see also Goodwin v. State, 799 S.W.2d 719, 727 (Tex. Crim. App. 1990).

In the present case, Investigator Hampton testified that he was aware of the possibility that appellant was carrying a gun ⁽⁶⁾ and that for his own safety he needed to frisk appellant. Additionally, Hampton knew that appellant had recently been involved in a shooting incident and had threatened to kill another student at Round Rock High School.

Courts have looked to the totality of the circumstances to determine if frisks conducted for the safety of a police officer were reasonable. See Brown v. State, 830 S.W.2d 171, 175 (Tex. App.Dallas 1992, pet. ref'd); United States v. Micheletti, 13 F.3d 838, 844 (5th Cir. 1994). The factors surrounding a "stop and frisk," taken as a whole, may justify an officer's actions even where one factor alone might not suffice to create a reasonable suspicion. Davis, 829 S.W.2d at 220. In Davis, the court of criminal appeals stated that the fact that the suspect was wearing a trench coat on a warm day may not have been enough alone to create a reasonable suspicion for the detention and subsequent frisk. Id. However, taken in context with the specific dispatch that the officers received and the subject's attempt to flee at the sight of the officers, the court of criminal appeals found both the stop and initial frisk reasonable. ⁽⁷⁾ Id. at 220-21.

We conclude that, even if certain factors alone might not have been sufficient to support Hampton's frisk of appellant, the circumstances in this case, taken as a whole, support a finding of reasonableness. See Montano v. State, 843 S.W.2d 579, 582 (Tex. Crim. App. 1992). Considering the whole of Hampton's observations and knowledge, therefore, we cannot say that the trial court abused its discretion by denying appellant's motion to suppress the evidence obtained by Hampton's "stop and frisk" of appellant. We overrule point of error one.

In his second point of error, appellant contends that Hampton's "stop and frisk" was not legally justified under the Texas Constitution. See Tex. Const. art. I, § 9. However, there is no material difference in the constitutional language of the state and federal search and seizure clauses that would require greater protection under the state constitution. See Johnson v. State, 912 S.W.2d 227, 232 (Tex. Crim. App. 1995); State v. Sailo, 910 S.W.2d 184, 187 n.1 (Tex. App.Fort Worth 1995, pet. ref'd). Therefore, in light of our disposition of point of error one, we also overrule point of error two.

In his third point of error, appellant claims that the trial court erred in not suppressing his written statement to police because it was taken in violation of the Texas Family Code. Specifically, appellant contends that: (1) the State did not take him before a magistrate without unreasonable delay and (2) the magistrate did not warn appellant that his prior oral statements were not admissible. ⁽⁸⁾ We disagree.

The Texas Family Code does not require an officer to take a juvenile before a magistrate without unnecessary delay, and magistrates are statutorily required to warn juveniles that any statement the juvenile makes may be used in evidence against him. When an officer deems it necessary to take a child into custody, section 52.02(a) of the Family Code dictates certain procedures that the officer must follow. ⁽⁹⁾ State v. Langley, 852 S.W.2d 708, 709 (Tex. App.Corpus Christi 1993, pet. ref'd). While the procedures in section 52.02(a) must be met "without unnecessary delay," they do not include a requirement that an officer take a juvenile before a magistrate without unnecessary delay.

Even if a juvenile detainee were required to be taken before a magistrate "without unnecessary delay," the result of the present case would be the same. It is well settled that the failure to take an adult arrestee before a magistrate in a timely manner will not invalidate a confession unless there is proof of a causal connection between the delay and the confession. ⁽¹⁰⁾ Cantu v. State, 842 S.W.2d 667, 679 (Tex. Crim. App. 1992), cert. denied, 509 U.S. 926 (1993); Boyd v. State, 811 S.W.2d 105 (Tex. Crim. App.), cert. denied, 502 U.S. 971 (1991). The defendant has the burden to show a causal connection between the confession and the failure to take him before a magistrate without unreasonable delay. Wagner v. State, 687 S.W.2d 303, 307 (Tex. Crim. App. 1984); Niehouse v. State, 761 S.W.2d 491, 493 (Tex. App.Dallas 1988, no pet.). In the present case, the record does not show any causal connection between the signing of appellant's statement and a delay in bringing him before a magistrate. Thus, even if appellant was required to be taken before a magistrate without undue delay, and even if undue delay was established, there is no evidence that the delay resulted in appellant's written statement.

Appellant also claims the Family Code was violated when the magistrate failed to warn appellant that his oral statements were not admissible. A magistrate is required to warn a juvenile about several consequences of talking to a peace officer, including "that any statement that the child makes may be used in evidence against the child." Tex. Fam. Code Ann. § 51.09(b)(1)(A) (West 1996) (emphasis added). There is no requirement, however, statutory or otherwise, that a magistrate warn a juvenile that oral statements may not be used against him. To the contrary, the Family Code expressly states that oral statements may be admissible under particular circumstances. See Tex. Fam. Code Ann. § 51.09(b)(2)-(3) (West 1996) (incriminating oral statements found to be true and oral statements that are res gestae of delinquent conduct are admissible). We are not aware of any statutory or case authority that would preclude the application of section 51.09 to this case. We overrule point of error three.

CONCLUSION

Having overruled appellant's points of error, we affirm the judgment of conviction.

J. Woodfin Jones, Justice

Before Justices Powers, Aboussie and Jones

Affirmed

Filed: January 9, 1997

Do Not Publish

1.   Appellant was a juvenile when the State charged him with murder. After a certification hearing, the juvenile court waived its jurisdiction and ordered that appellant be tried as an adult. This Court affirmed the trial court's order. See In re G.J.F., No. 3-94-00401-CV (Tex. App.Austin Aug. 16, 1995, writ denied) (not designated for publication).

2.   Ballistics tests later determined that it was the gun used to shoot the victim.

3.   See Tex Fam. Code Ann. § 52.02(a)(2) (West 1996).

4.   See Tex. Fam. Code Ann. § 51.09 (West 1996).

5.   The sum of the information known to law enforcement officers at the time of an arrest or search by any of the officers involved is to be considered in determining whether there was sufficient probable cause therefor. Woodward v. State, 668 S.W.2d 337, 344 (Tex. Crim. App. 1982), cert. denied, 469 U.S. 1181 (1984).

6.   Hampton had learned from a school counselor that appellant carried a gun at school. The counselor obtained the information from a secretary who had provided credible information to Hampton on previous occasions. The court of criminal appeals has authorized the use of "hearsay-upon-hearsay" in situations such as this. See Hennessy v. State, 660 S.W.2d 87, 91 (Tex. Crim. App. 1983); see also Kelley v. State, 807 S.W.2d 810, 814 (Tex. App.Houston [14th Dist.] 1991, pet. ref'd).

7.   The court found that the proper scope of the initial search was exceeded, however, when the officers opened a matchbox found in the subject's pocket, because it was not reasonable to believe that the matchbox contained a weapon. Davis, 829 S.W.2d at 221.

8.   On appeal, appellant alleges three additional violations of the Family Code. However, because these points were not objected to before the trial court, they were not preserved for appellate review. See Tex. R. App. P. 52(a); Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990) (objection stating one legal basis may not be used to support different legal theory on appeal).

9.   Section 52.02(a) provides as follows:

A person taking a child into custody, without unnecessary delay and without first taking the child to any place other than a juvenile processing office designated under Section 52.025 of this code, shall do one of the following:

(1) release the child to a parent . . . ;

(2) bring the child before the office or official designated by the juvenile court if there is probable cause to believe that the child engaged in delinquent conduct or conduct indicating a need for supervision; . . .

(3) bring the child to a detention facility designated by the juvenile court;

(4) bring the child to a medical facility if the child is believed to suffer from a serious physical condition or illness that requires prompt treatment; or

(5) dispose of the case [without referral to court] under Section 52.03 of this code.

Tex. Fam. Code Ann. Sec. 52.02(a) (West 1996) (emphasis added).

10.   See Tex. Code Crim. Proc. Ann. art. 14.06(a) (West Supp. 1997) (requiring officer to take adult arrestee before magistrate without unnecessary delay).

s points of error, we affirm the judgment of conviction.

J. Woodfin Jones, Justice

Before Justices Powers, Aboussie and Jones

Affirmed

Filed: January 9, 1997

Do Not Publish

1.   Appellant was a juvenile when the State charged him with murder. After a certification hearing, the juvenile court waived its jurisdiction and ordered that appellant be tried as an adult. This Court affirmed the trial court's order. See In re G.J.F., No. 3-94-00401-CV (Tex. App.Austin Aug. 16, 1995, writ denied) (not designated for publication).

2.   Ballistics tests later determined that it was the gun used to shoot the victim.

3.   See Tex Fam. Code Ann. § 52.02(a)(2) (West 1996).

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