Charles Gibson v. State ( 2007 )

NO. 07-06-0099-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
OCTOBER 9, 2007
______________________________
CHARLES RAY GIBSON, JR., APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 121ST DISTRICT COURT OF TERRY COUNTY;
NO. 5273; HONORABLE KELLY G. MOORE, JUDGE
_______________________________
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
OPINION
Appellant, Charles Ray Gibson, Jr., appeals his conviction for possession of a
controlled substance (cocaine) and sentence of 99 years incarceration in the Institutional
Division of the Texas Department of Criminal Justice. We reverse.
Background
On October 1, 2004 at around 11:15 p.m., Rose Waitman called the Brownfield
Police Department out of concern that her daughter (C.W.), who was 15 years old at the
time, had not returned home from a high school football game. Officer Carrillo was
dispatched to the Waitman residence. Rose told Carrillo that C.W. may be in a blue 1989
“Pontiac Oldsmobile (sic)” and she gave him the license plate number of the vehicle. Rose
requested that Carrillo find her daughter and bring her home.
At approximately 11:45 p.m., Carrillo spotted a vehicle that matched the description
of the vehicle given by Waitman. Carrillo could not identify its occupants or even how
many occupants were in the vehicle. Carrillo pulled behind the vehicle, activated his
emergency lights, and followed the vehicle to effectuate the stop. At no time after Carrillo
spotted the vehicle did he observe the driver violate any traffic laws. After the vehicle
stopped, Carrillo spoke with the driver, who he identified as appellant, told him that he had
been stopped “for the juvenile,” and asked appellant to exit the vehicle. After appellant
exited the vehicle, Carrillo asked him for his driver’s license and proof of insurance.
Another officer, who was assisting Carrillo, removed C.W. from the vehicle. Appellant told
Carrillo that he did not have a license or proof of insurance. Carrillo ran a license inquiry
through dispatch and was able to verify that appellant did not have a valid driver’s license.
As a result, Carrillo placed appellant under arrest. Following appellant’s arrest, the vehicle
was searched incident to the arrest. Cocaine and marijuana were discovered in or next to
the vehicle.
Appellant filed a pre-trial Motion to Suppress the drugs contending that they were
discovered as a result of an illegal search and seizure. A hearing was held on the motion
with Carrillo being the only testifying witness. Carrillo testified that he was aware that
appellant did not have a driver’s license based on a past encounter with him, however, he
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expressly stated that he did not pull the vehicle over for this reason. Rather, Carrillo
testified that he stopped the vehicle because it matched the description given by C.W.’s
mother, who was concerned about her daughter’s welfare. The trial court denied the
Motion to Suppress the evidence.
At trial, C.W. testified regarding the events of October 1, 2004. She testified that
she and appellant left the football game before it ended. Appellant stopped by a house for
a brief period while C.W. waited in the car. Appellant took C.W. back to the football game,
but the game had ended and C.W. could not find the person that was to give her a ride
home. As a result, appellant agreed to take C.W. home. As appellant was attempting to
give C.W. a ride home, Carrillo pulled appellant over. As Carrillo approached the vehicle,
appellant pulled drugs out of his pocket, handed them to C.W., and told her to “chunk them
out the window.” However, because another officer approached the passenger’s side
window at the same time that Carrillo approached the driver’s side, C.W. testified that she
laid the drugs beside the seat.
Also, at trial, C.W.’s mother, Rose, testified that she called the police to look for her
daughter because she was “concerned” when she did not come home with the people that
she went to the game with. Rose had been informed that C.W. was with appellant, but she
“didn’t want her in the car with him.”
Carrillo testified that he went and spoke with Rose and that she was very concerned
about her daughter. He testified that Rose told him that C.W. had left the football game
around 10:20 with appellant. Carrillo spotted appellant’s vehicle driving in the direction of
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C.W.’s home at 11:48. After Carrillo stopped the vehicle, he testified that he approached
the driver, identified himself, and advised the driver that he was being stopped “for the
juvenile.” At the same time, another officer made contact with C.W. on the passenger’s
side of the vehicle. Carrillo asked appellant to step out of the vehicle and for his driver’s
license and proof of insurance. When appellant failed to produce these documents,
Carrillo called in a driver’s license check that indicated that appellant’s driver’s license had
expired in 1993. As a result, Carrillo arrested appellant. After appellant was placed under
arrest, his vehicle was searched and cocaine and marijuana were found on the floorboard
of the front passenger’s area.
At the close of evidence, the court took up the issue of the jury charge. The court’s
proposed charge included an instruction that an accomplice witness’s testimony must be
corroborated. The State objected to the inclusion of this instruction on the basis that the
evidence was insufficient to establish that C.W. was an accomplice, but the court overruled
the objection. Appellant then objected to the charge not including an instruction under
Texas Code of Criminal Procedure article 38.23, which was overruled by the court. See
TEX . CODE CRIM . PROC . ANN . art. 38.23 (Vernon 2005).1
The jury returned a verdict finding appellant guilty of possession of a controlled
substance, cocaine, in an amount more than four grams but less than 200 grams. The
indictment included enhancement allegations of two prior felony convictions to which
appellant pled true. The jury heard the punishment evidence and assessed a sentence of
1
Further reference to provisions of the Texas Code of Criminal Procedure will be
by reference to “article __.”
4
incarceration in the Institutional Division of the Texas Department of Criminal Justice for
a period of 99 years. Appellant filed a Motion for New Trial, which was overruled by
operation of law.
Appellant presents four issues on appeal. Appellant’s first issue contends that the
trial court erred in denying appellant’s Motion to Suppress. By his second issue, appellant
contends that the evidence was insufficient to corroborate the testimony of C.W., who
appellant contends was an accomplice. Appellant’s third issue contends that the trial court
erred in failing to include an instruction under article 38.23 in the jury charge. Finally, by
his fourth issue, appellant contends that the evidence was legally insufficient to support his
conviction. We will address only appellant’s first and fourth issues. See TEX . R. APP. P.
47.1.
Legality of the Stop
By his first issue, appellant contends that the trial court erred in denying his Motion
to Suppress the cocaine found by the police when they searched his vehicle incident to
arrest because the initial stop of his vehicle was illegal in that it was not supported by
reasonable suspicion. The State contends that the initial stop of appellant was justified by
the community caretaking function of the officers.
When reviewing a motion to suppress, we are to give great deference to a trial
court’s determination of historical facts and on mixed questions of law and fact that require
an evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89
(Tex.Crim.App. 1997). However, mixed questions of law and fact not turning on an
5
evaluation of credibility and demeanor are reviewed de novo. Id. See also Villareal v.
State, 935 S.W.2d 134, 139 (Tex.Crim.App. 1996) (McCormick, P.J., concurring) (if trial
court “is not in appreciably better position” than the appellate court in deciding an issue,
the appellate court may independently determine the issue while affording deference to the
trial court’s finding on subsidiary factual questions). Where the facts relating to a motion
to suppress are undisputed and the trial court’s ruling does not turn on the credibility of the
witnesses, an appellate court reviews an order overruling the motion de novo. Johnson
v. State, 146 S.W.3d 719, 721 (Tex.App.–Texarkana 2004, no pet.).
While not all encounters with the police implicate the Fourth Amendment’s
protection against unreasonable seizures, stopping an automobile and detaining its
occupants constitutes a seizure, even though the purpose of the seizure is limited and the
resulting detention brief. Del. v. Prouse, 440 U.S. 648, 653, 99 S. Ct. 1391, 59 L. Ed. 2d 660
(1979); Corbin v. State, 85 S.W.3d 272, 276 (Tex.Crim.App. 2002). Under the Fourth
Amendment, a seizure must be objectively reasonable in light of the particular
circumstances of the case. Terry v. Ohio, 392 U.S. 1, 21-22, 88 S. Ct. 1868, 20 L. Ed. 2d
889 (1968); Corbin, 85 S.W.3d at 276. Assessing the reasonableness of a search or
seizure requires a balancing of the public interest and the individual’s right to be free from
arbitrary interference by law enforcement. Prouse, 440 U.S. at 654; Corbin, 85 S.W.3d at
276. A seizure based on reasonable suspicion or probable cause will generally be
reasonable. Whren v. United States, 517 U.S. 806, 818, 116 S. Ct. 1769, 135 L. Ed. 2d 89
(1996); Corbin, 85 S.W.3d at 276. However, even without reasonable suspicion or
probable cause that an offense has been committed, a police officer may reasonably seize
6
an individual through the exercise of his community caretaking function. Corbin, 85 S.W.3d
at 276; Wright v. State, 7 S.W.3d 148, 151-52 (Tex.Crim.App. 1999). For a seizure to be
justified by the community caretaking function, it must have been primarily motivated by
the need to assist and the officer’s belief that the need exists must have been reasonable.
See Corbin, 85 S.W.3d at 277.
As part of a police officer’s duty to “serve and protect,” an officer “may stop and
assist an individual whom a reasonable person, given the totality of the circumstances,
would believe is in need of help.” Wright, 7 S.W.3d at 151. However, the community
caretaking function is “totally divorced” from the detection, investigation, or acquisition of
evidence relating to the violation of a criminal statute. Corbin, 85 S.W.3d at 276-77. Thus,
for the exercise of the community caretaking function to justify a seizure, its primary
purpose must be for the welfare of the individual in need of assistance. Id. at 277.
If it is determined that a seizure was primarily motivated to fulfill the community
caretaking function, it must then be determined whether the officer’s belief that the person
needed help was reasonable. Corbin, 85 S.W.3d at 277; Wright, 7 S.W.3d at 151-52. In
evaluating the reasonableness of the officer’s belief that help was needed, courts may look
to four non-exclusive factors (hereafter, “the Wright factors”): (1) the nature and level of the
distress exhibited by the individual; (2) the location of the individual; (3) whether the
individual was alone and/or had access to assistance other than that offered by the officer;
and (4) to what extent the individual, if not assisted, presented a danger to himself or
others. Id. In reviewing these factors, the nature and level of distress exhibited is entitled
to the greatest weight. Corbin, 85 S.W.3d at 277.
7
In the present case, it is undisputed that Carrillo lacked reasonable suspicion or
probable cause to stop appellant’s vehicle. Carrillo provided no testimony that he was
aware of or suspected that appellant was involved in the commission of a crime at the time
Carrillo stopped his vehicle. Further, Carrillo specifically testified that he did not observe
appellant violate any traffic laws prior to the stop. Therefore, appellant contends that the
initial stop was illegal and that any evidence discovered as a result of the stop was tainted
by the illegality of the stop and the trial court erred in allowing this evidence over
appellant’s objection.
The State, however, contends that the stop of appellant’s vehicle was legal because
the stop was effectuated in furtherance of the officer’s community caretaking function.2
The record reflects that C.W.’s mother contacted the police when C.W. failed to return
home from the football game at the expected time. Carrillo testified that his “biggest
concern” in stopping appellant’s vehicle was “[t]he child’s safety being that she was a
juvenile and he was in his 30's (sic).” However, Carrillo further testified that he was aware
that appellant did not have a valid driver’s license, based on prior encounters with
appellant. Therefore, we conclude that this testimony raised a fact question as to the
primary motivation for the stop. This fact issue was impliedly resolved by the trial court in
favor of the valid exercise of the community caretaking function. In reviewing a trial court’s
ruling on a motion to suppress, we may not sit as a second trier of fact determining the
2
In analysis of the trial court’s ruling on the Motion to Suppress, we will assume,
without deciding, that the community caretaking function justifies a seizure of an individual
other than the individual believed to be in need of assistance. But see Wright, 7 S.W.3d
at 151-52 (may stop and assist the individual exhibiting distress and believed to be in need
of assistance).
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credibility and demeanor of witnesses. See State v. Ross, 32 S.W.3d 853, 858
(Tex.Crim.App. 2000). Thus, we must accept the trial court’s implied determination that
Carrillo effectuated the stop of appellant based on a primary motivation to fulfill his
community caretaking function.3
For a seizure to be justified as an exercise of the community caretaking function, an
officer’s subjective belief that the seizure is necessary to render assistance to a person in
need must be shown to have been objectively reasonable. Id. In assessing the
reasonableness of the officer’s belief, we look to the four Wright factors.
The first, and most important, Wright factor is the nature and level of the distress
exhibited by the individual. Id. In the present case, Rose testified that she was
“concerned” about her daughter not returning home from the football game at the
designated time and in the designated manner. Rose also testified that she told the police
that she did not want her daughter in a car with appellant, but she provided no further
elaboration as to why she did not want her daughter with appellant. The only evidence of
the nature and level of C.W.’s distress at the time that appellant was stopped was that
C.W. was no more than one and a half hours late and that, for some unstated reason,
3
While Carrillo specifically testified that he did not stop appellant’s vehicle based
on his knowledge that appellant did not have a driver’s license, we agree with appellant
that, at trial, this testimony was sufficient to raise a fact question as to the true motivation
for the stop. Therefore, we agree with appellant’s third issue that the trial court erred in
failing to submit an instruction in the jury charge in accordance with article 38.23. See
Murphy v. State, 640 S.W.2d 297, 299 (Tex.Crim.App. 1982) (jury instruction required
when evidence raises a fact question regarding the legality of the search or seizure).
However, because we conclude that the trial court erred in denying appellant’s Motion to
Suppress, the trial court’s erroneous failure to instruct the jury in accordance with article
38.23 is rendered moot.
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Rose did not want C.W. in a vehicle with appellant. We conclude that this evidence is
insufficient to establish that C.W. exhibited a nature and level of distress sufficient to
independently justify the stop of appellant as an objectively reasonable exercise of the
community caretaking function.
However, while the first Wright factor is entitled to the greatest weight, it is not
always dispositive. Id. The three remaining factors help to give more definition to the first
factor and may reveal that a particular level of distress is more or less serious depending
on the presence or absence of these factors. Id. In looking at the second factor, the
location of the individual, the record reflects that appellant was stopped a couple of houses
before he reached C.W.’s home and that Carrillo was aware of the proximity of the stop to
C.W.’s home as a result of his having recently spoken with Rose at the house. The
proximity of the stop to C.W.’s home and the reasonable inference that appellant was in
the process of taking C.W. home mitigates against C.W. being in sufficient distress to
justify the stop. The third factor asks whether the individual in distress was alone and/or
had access to assistance other than that offered by the officer. As to the initial stop,
Carrillo testified that he could not identify any individuals in appellant’s vehicle nor could
he identify the number of individuals in the vehicle. Therefore, this factor could not support
the initial stop. Finally, the fourth factor, the extent to which the individual, if not assisted,
posed a danger to himself or others, weighs against the stop. The record provides no
evidence of how C.W. was placed in danger by getting a ride home from appellant. To the
extent that the fourth factor is to be applied to appellant, there is no evidence that appellant
was driving erratically or in a manner that would pose a danger to himself or to others on
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the roadways. Also, there was no evidence that appellant posed a threat to C.W, rather,
the only evidence was that Rose did not want C.W. with appellant.
Considering the Wright factors in light of the totality of the circumstances, we
conclude that the evidence failed to establish that the stop of appellant’s vehicle was an
objectively reasonable exercise of the community caretaking function. As the State does
not dispute that the stop was not supported by probable cause or reasonable suspicion
and because we conclude that the stop was not shown to have been a valid exercise of the
community caretaking function, we conclude that the stop was illegal and, therefore, the
cocaine which was subsequently found was the fruit of the illegal stop. See Crosby v.
State, 750 S.W.2d 768, 780 (Tex.Crim.App. 1987). Therefore, we conclude that the trial
court erred in denying appellant’s Motion to Suppress this evidence.
Harm
Having found error in the denial of appellant’s Motion to Suppress, we must also
conduct a harm analysis to determine whether the error calls for reversal of the judgment.
TEX . R. APP. P. 44.2. The harm analysis for the erroneous admission of evidence obtained
in violation of the Fourth Amendment is Rule 44.2(a)'s constitutional standard. Hernandez
v. State, 60 S.W.3d 106, 108 (Tex.Crim.App. 2001). Accordingly, we must reverse the trial
court's judgment, unless we determine beyond a reasonable doubt that the error did not
contribute to appellant's conviction or punishment. TEX . R. APP. P. 44.2(a). The question
is whether the trial court's denial of Appellant's Motion to Suppress and its admission of the
evidence were harmless beyond a reasonable doubt. See Williams v. State, 958 S.W.2d
11
186, 194 (Tex.Crim.App. 1997). In applying the "harmless error" test, we ask whether
there is a "reasonable possibility" that the error might have contributed to the conviction.
Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998), cert. denied, 526 U.S. 1070,
119 S. Ct. 1466, 143 L. Ed. 2d 550 (1999).
In the present case, the evidence obtained as a result of the illegal stop formed the
basis of appellant’s conviction. After carefully reviewing the record and performing the
required harm analysis under Texas Rule of Appellate Procedure 44.2(a), we are unable
to determine beyond a reasonable doubt that the erroneous admission of the cocaine did
not contribute to appellant’s conviction. Therefore, because the trial court’s error in
denying appellant’s Motion to Suppress was harmful to appellant, we will reverse the
judgment.
Legal Sufficiency
By his fourth issue, appellant contends that the evidence was legally insufficient to
support his conviction. Appellant’s argument concerning the sufficiency of the evidence
is that there were insufficient links to establish that appellant possessed the narcotics if
C.W.’s testimony had been properly excluded as insufficiently corroborated accomplice
testimony.
However, even were we to determine that C.W. was an accomplice and her
testimony was not sufficiently corroborated, an issue we need not address in this opinion
due to our resolution of appellant’s challenge of the trial court’s denial of his Motion to
Suppress, see TEX . R. APP. P. 47.1, we would have to consider her testimony in
12
determining whether the evidence was legally sufficient. See Green v. State, 893 S.W.2d
536, 540 (Tex.Crim.App. 1995) (when sufficiency of evidence is challenged following a jury
trial, appellate courts consider all of the evidence, whether properly or improperly
admitted). While not expressly challenged by his legal sufficiency issue, we must also
consider the cocaine that we have previously concluded was improperly admitted in
assessing the legal sufficiency of the evidence. See id.
Considering all of the evidence, whether properly or improperly admitted, in the light
most favorable to the verdict, we conclude that the evidence was sufficient to establish that
appellant intentionally and knowingly possessed a controlled substance, cocaine, in an
amount of four grams or more, but less than 200 grams. We overrule appellant’s legal
sufficiency challenge.
Conclusion
Having determined that the trial court committed reversible error in denying
appellant’s Motion to Suppress, we reverse the trial court’s judgment and remand for
further proceedings consistent with this opinion.
Mackey K. Hancock
Justice
Publish.
Pirtle, J., concurring.
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