James White v. State ( 2006 )

                             NUMBER 13-05-00673-CR

                         COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI B EDINBURG

JAMES WHITE,                                                                                 Appellant,

                                                             v.

THE STATE OF TEXAS,                                                                    Appellee.

                    On appeal from the 221st District Court

                                    of Montgomery County, Texas.

                      MEMORANDUM OPINION

               Before Justices Hinojosa, Rodriguez, and Garza

                         Memorandum Opinion by Justice Hinojosa

A jury found appellant, James White, guilty of the offense of robbery.  After appellant pleaded Atrue@ to five enhancement counts, the trial court assessed his punishment at twenty-five years= imprisonment.  In two issues, appellant contends the trial court erred in denying his motion to suppress (1) items seized from him at the time of his arrest, and (2) evidence that two witnesses picked him out of a photographic line-up. We affirm.

A.  Background

On December 10, 2003, at approximately 8:00 PM, the ADollar General@ store in Magnolia County, Texas was robbed by an African-American man wearing a blue windbreaker and a black ski mask pulled down over his face.  The robber pointed a gun at the cashier and demanded that she open the cash register; he then took $500 in cash from the register and fled. Tonika Washington and Velisa Jones, patrons of the Dollar General at the time of the robbery, told police that before the robbery, they had seen a man outside the store wearing the same clothing as the robber, but without the ski mask over his face.  A person wearing the same color windbreaker and ski mask was responsible for robbing four other stores in the same area during the months of November, December, and January.

At about 6:30 PM on January 28, 2004, Officer Doug Johnson was eating at a ASubway@ restaurant and noticed appellant, wearing a black ski cap and a blue windbreaker, loitering in the parking lot in front of the Subway. The officer was suspicious because the area was not generally frequented by pedestrian traffic, and the appellant=s clothing matched the description of the clothing worn by the suspect in the string of robberies, one of which Officer Johnson was investigating.  Appellant also matched the description of the man who had robbed that particular Subway.  Further, appellant was coming from an area that the robbery suspect had fled to following each of the robberies, and he was heading towards the general area where most of the robberies had occurred.

Officer Johnson left the restaurant, got into his patrol car, and drove in the direction that he had last seen appellant heading.  As he approached appellant, he turned on his overhead lights, stopped the car, and got out.  When appellant saw the officer get out, he turned and ran. The officer yelled AHey!@ and chased after him.  After apprehending appellant, Officer Johnson handcuffed him and patted him down; a realistic-looking toy gun was found.  More officers then arrived, and a thorough search was performed.  The officers found a ski mask with cut-out eye holes and plastic bags from one of the robbed stores on appellant=s person.  The subject was then interviewed.

After appellant=s arrest, Washington and Jones were each shown a photo line-up.  They both identified appellant as the robber of the Dollar General. Over appellant=s objection, the results of both photographic line-ups were admitted.

B.  Standard of Review

A trial court's ruling on a motion to suppress is generally reviewed for abuse of discretion.  See Ford v. State, 26 S.W.3d 669, 672 (Tex. App.BCorpus Christi 2000, no pet.) (citing Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App.1999)).  In a suppression hearing, the trial judge is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given to their testimony.  State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App.1999).  In reviewing a trial court's ruling on a motion to suppress, we afford almost total deference to the trial court's determination of the historical facts that the record supports, especially when the trial court's findings turn on evaluating a witness's credibility and demeanor.  State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App.1997).  We afford the same amount of deference to the trial court's ruling on Aapplication of law to fact questions,@ also known as Amixed questions of law and fact,@ if resolving those ultimate questions turns on evaluating credibility and demeanor.  Ross, 32 S.W.3d at 856; Guzman, 955 S.W.2d at 89.  However, we review de novo questions of law and Amixed questions of law and fact@ that do not turn on an evaluation of credibility and demeanor.  Ross, 32 S.W.3d at 856; Guzman, 955 S.W.2d at 89.  We uphold a trial court's ruling on a suppression motion if it is reasonably supported by the record and is correct on any theory of law applicable to the case.  Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App.1996).

C.  Discussion

In his first issue, appellant contends that the trial court erred in not suppressing the evidence found on him when he was arrested.  Appellant asserts that Officer Johnson did not have probable cause to arrest him.

Before we determine whether Officer Johnson lacked probable cause, we must determine whether the search was conducted during an arrest or an investigative detention. The United States Supreme Court has recognized the difference between an arrest and a brief Ainvestigative detention,@ or a Terry-stop.  See Terry v. Ohio, 392 U.S. 1, 11 n.5 (1968).  An investigative detention is Aone during which the police are allowed to briefly question a suspicious person respecting his identity, his reason for being in the area or location, and to make similar reasonable inquiries of a truly investigatory nature.@  Amores v. State, 816 S.W.2d 407, 412 (Tex. Crim. App. 1991).  An individual has been arrested when Ahe has been actually placed under restraint or taken into custody by an officer.@  Tex. Code Crim. Proc. Ann. art. 15.22 (Vernon 2005). 

There is no bright-line rule that differentiates between an arrest and an investigative detention, or provides that the act of handcuffing is always the equivalent of an arrest.  Rhodes v. State, 945 S.W.2d 115, 118 (Tex. Crim. App. 1997).  Whether the stop by an officer is an arrest or a mere investigative detainment depends on the circumstances present in each case;  there are several factors to consider, such as (1) the extent to which appellant was restrained and prevented from leaving, compared to the level of restraint necessary to secure the officer=s safety, (2) the officer=s belief regarding whether it was an arrest, and (3) whether the officer actually conducted an investigation in conjunction with the stop.  See Balentine v. State, 71 S.W.3d 763, 771 (Tex. Crim. App. 2002); Burkes v. State, 830 S.W.2d 922, 925 (Tex. Crim. App. 1991); Amores, 816 S.W.2d at 412.

We conclude that the trial court did not abuse its discretion in finding that Officer Johnson=s stop of appellant was an investigative detention and not an arrest.  Although Officer Johnson handcuffed appellant after chasing him down, the use of handcuffs is not determinative in and of itself. Furthermore, given the fact that it was dark outside and the stop took place in a particularly poorly-lit area, as well as the fact that Officer Johnson was alone at the time, handcuffing appellant was reasonably necessary for both the officer=s safety and to restrain appellant so that the officer could conduct his investigation. In addition, Officer Johnson testified that he did not believe the detention was anything more than a Terry-stop.

Appellant, relying heavily on Burkes v. State, contends that Officer Johnson=s stop must be an arrest because he did not immediately conduct an investigation.  See Burkes, 830 S.W.2d at 923.  However, we conclude that Burkes is distinguishable in several important respects.

In Burkes, the officer believed that he was arresting the subject; no investigation was ever done.  Id. After the officer handcuffed Burkes, he searched him and then took him back to his partner.  Id.  The partner conducted a more thorough search and then formally arrested him. Id.

In this case, Officer Johnson attempted to interview appellant prior to handcuffing him, but because appellant fled, Officer Johnson had no choice but to handcuff and search him prior to interviewing him.  As we noted above, the stop took place after dark in a poorly-lit area, and Officer Johnson conducted his investigation as soon as it was safe for him to do so.

Because Officer Johnson=s initial stop of appellant was an investigative detention, it was only required that he have reasonable suspicion of criminal activity to conduct the stop.  See Terry, 392 U.S. at 11.  AThe stopping of the individual to inquire is not an arrest and the ground upon which the police may make the inquiry may be less incriminating than the ground for an arrest.@  Id. The reasonableness of the detention will be evaluated by considering the totality of the circumstances Aand will be justified when the detaining officer has specific articulable facts, which, taken together with rational inferences from those facts, lead him to conclude that the person detained actually is, has been, or soon will be engaged in criminal activity.@  Woods v. State, 956 S.W.2d 33, 38 (Tex. Crim. App. 1997). These facts must amount to more than a mere hunch or suspicion.  Williams v. State, 621 S.W.2d 609, 612 (Tex. Crim. App.1981).

Officer Johnson saw appellant loitering in the parking lot in front of a Subway that recently had been robbed by someone wearing similar clothing and a ski cap of the same color.  Additionally, Officer Johnson observed appellant approach from an area that the suspect in the string of robberies had often fled to and saw him leave in the direction of several other stores, including the Dollar General, that was robbed by someone matching appellant=s description. These circumstances give rise to a reasonable suspicion of criminal activity.  Accordingly, we conclude that the trial court did not abuse its discretion in ruling that Officer Johnson=s suspicion of appellant was reasonable and justified his stop.

Appellant, relying on Balentine v. State, argues that stops may be premised only on reasonable suspicion that criminal activity has been committed in the immediate past. See Balentine, 71 S.W.3d at 768.  However, appellant=s argument has never been the law in Texas:  a search, when premised on Aa reasonable, articulable suspicion@ that the suspect Ahas been . . . involved in criminal activity,@ need not be regarding criminal activity in the immediate past.  Woods, 956 S.W.2d at 38.  This argument was also specifically overruled by the U.S. Supreme Court in United States v. Hensley, 469 U.S. 221, 229 (1985).

Accordingly, we hold that the trial court did not abuse its discretion in denying the appellant=s motion to suppress the evidence found on him at the time of his arrest.  Appellant=s first issue is overruled.

In his second issue, appellant contends that the trial court erred in allowing testimony that two witnesses had identified appellant in a photographic line-up as the man who robbed the Dollar General.  Specifically, appellant argues that the photographic line-ups were impermissibly suggestive.

To preserve a complaint for appellate review, a defendant must make his legal objection to the trial court, and the trial court must either rule on the objection, or the defendant must object to the trial court=s failure to rule on his objection.  Tex. R. App. P. 33.1.  Texas law requires that to complain of error to an appellate court, appellant must first make an objection that is specific and timely.  Geuder v. State, 115 S.W.3d 11, 13 (Tex. Crim. App. 2003).

Further, with two exceptions, the law in Texas requires a party to continue to object each time inadmissible evidence is offered.  The two exceptions require counsel to either (1) obtain a running objection, or (2) request a hearing outside the presence of the jury.

Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003). To preserve error for appellate review, a party must also state the specific grounds upon which the party seeks to exclude the evidence, and the complaint made on appeal must match the objection made at trial.  Thomas v. State, 723 S.W.2d 696, 700 (Tex. Crim. App. 1986).

Prior to trial, appellant filed a motion to suppress all pre-trial identifications until appellant=s counsel had an opportunity to test their reliability.  When the State called Officer James Graham, the police officer who had presented the two pre-trial photographic line-ups to Washington and Jones, the trial court removed the jury and allowed appellant to examine him about the line-ups.  During the hearing, no formal objection was made to the admissibility of the photographic line-up identifications. The next day, during Officer Graham=s testimony in front of the jury, appellant objected on the grounds of hearsay, the right to cross-examine, and discovery, all of which were overruled.  During trial, appellant did not object on the ground that the photographic line-ups were impermissibly suggestive.

Because appellant=s complaint on appeal differs from that at trial, we conclude that error is not properly preserved.  Appellant=s second 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 27th day of July, 2006.