Teddy Lee Murph v. State ( 2010 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-135-CR
TEDDY LEE MURPH APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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I. INTRODUCTION
Appellant Teddy Lee Murph appeals his conviction for the unlawful
possession of a firearm by a felon. See Tex. Penal Code Ann. § 46.04 (Vernon
Supp. 2009). After the trial court denied his motion to suppress, Murph
pleaded guilty to the offense. Pursuant to a plea agreement, the trial court
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… See Tex. R. App. P. 47.4.
sentenced Murph to four years' confinement. In one point, Murph argues that
the trial court erred by denying his motion to suppress. We will affirm.
II. B ACKGROUND
Fort Worth police officer G. C. Bates testified that he was patrolling the
east side of Fort Worth on December 4, 2008. At roughly noon, Bates said he
observed Murph walking east on the south side of Rosedale Street. What
originally brought Murph to Bates’s attention was the peculiar way he was
walking and holding his side. According to Bates, Murph “had his left hand
pressed up against his upper right side of his body against the outside of the
jacket, and his right hand down near the -- the bottom seam of the jacket.”
Bates said it appeared that Murph was “attempting to conceal a large object
underneath his jacket.” Although Bates testified that he never fully saw the
object Murph attempted to conceal, Bates said that “[s]everal times I observed
something black slip from beyond the bottom seam of the jacket and observed
[Murph] each time push it back up underneath the jacket.” Bates said that
utilizing his thirteen years of experience, he believed the object to be “the butt
or stock of some type of long gun, either a shotgun or a rifle” because of the
way Murph would cup his hand each time the object would fall.
Concerned that Murph had a weapon, Bates radioed for assistance. Bates
said that before assistance arrived, Murph walked into a convenience store.
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Bates also said that the convenience store sold liquor and that it would be
unlawful to carry a weapon into the premises. Although he did not stop Murph,
Bates said that he was concerned that Murph was going to commit a robbery.
Bates testified that unless a suspect is “pointing a weapon at someone or [is]
firing the weapon,” Fort Worth Police Department procedure requires an officer
to wait for assistance before stopping someone suspected of having a weapon.
Once assistance arrived, Bates said he and a fellow officer walked into
the store. Murph was nowhere to be found. Using Murph’s description, Bates
asked the store clerk about Murph’s whereabouts. The clerk responded that
Murph had left the store. Concerned that Murph was carrying a weapon, Bates
again radioed other officers to inform them of Murph’s description and also
inform them that Murph had walked out of the store and eluded officers’
attempts to confront him. Murph did not attempt a robbery. Bates did not see
Murph again until Murph was contacted by another officer.
Fort Worth police officer Sean Green responded to Bates’s call for
assistance. Green testified that although he knew it might take him several
minutes to get to Bates’s location, he responded because “[a]nytime an officer
calls out any type of weapon related [issue], most officers respond.” Green
said it did take him several minutes to respond. Guided by Bates’s description,
Green spotted Murph near where Bates had reported. Green also observed that
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Murph appeared to be concealing something in his jacket by holding one hand
across his chest with the other hand cupping the object. Green pulled in front
of Murph and”block[ed] all [] westbound traffic.” Green then got out of his
vehicle and shouted at Murph to get his hands in the air. At that time, Murph
announced, “I have a sword.” Green recalled that Murph’s hands “started
going towards his jacket, which [at that] time I did pull my weapon . . . and told
him to get his hands back in the air and get on the ground.” As Murph
complied, he said, “I also have a gun.” Once Murph was on the ground, Green
discovered a sword with a seventeen-inch blade, a butterfly knife, a fully loaded
magazine, and a pistol. The State charged Murph with the unlawful possession
of a firearm by a felon. Murph filed a motion to suppress the weapons found
on him. The trial court denied the motion to suppress, and Murph pleaded
guilty. This appeal followed.
III. D ISCUSSION
In one point, Murph argues that the trial court erred by denying his motion
to suppress. Specifically, Murph argues that the officers did not possess a
proper basis for stopping him but rather were relying on a “hunch” when they
ordered him to stop. We disagree.
We review a trial court’s ruling on a motion to suppress evidence under
a bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex.
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Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App.
1997). We give almost total deference to a trial court’s rulings on questions
of historical fact and application-of-law-to-fact questions that turn on an
evaluation of credibility and demeanor, but we review de novo application-of-
law-to-fact questions that do not turn on credibility and demeanor. Amador,
221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App.
2005); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002).
The Fourth Amendment protects against unreasonable searches and
seizures by government officials. U.S. Const. amend. IV; Wiede v. State, 214
S.W.3d 17, 24 (Tex. Crim. App. 2007). To suppress evidence because of an
alleged Fourth Amendment violation, the defendant bears the initial burden of
producing evidence that rebuts the presumption of proper police conduct.
Amador, 221 S.W.3d at 672; see Young v. State, 283 S.W.3d 854, 872 (Tex.
Crim. App. 2009). A defendant satisfies this burden by establishing that a
search or seizure occurred without a warrant. Amador, 221 S.W.3d at 672.
Once the defendant has made this showing, the burden of proof shifts to the
State, which is then required to establish that the search or seizure was
conducted pursuant to a warrant or was reasonable. Id. at 672–73; Torres v.
State, 182 S.W.3d 899, 902 (Tex. Crim. App. 2005); Ford v. State, 158
S.W.3d 488, 492 (Tex. Crim. App. 2005).
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A police officer may stop and briefly detain a person for investigative
purposes if the officer has a reasonable suspicion to believe that the detained
person is violating the law. Terry v. Ohio, 392 U.S. 1, 29–30, 88 S. Ct. 1868,
1884 (1968); Davis v. State, 947 S.W.2d 240, 244 (Tex. Crim. App. 1997).
Reasonable suspicion exists if the officer has specific articulable facts that,
when combined with rational inferences from those facts, would lead him to
reasonably suspect that a particular person has, or soon will be, engaged in
criminal activity. Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001).
These articulable facts must amount to more than a mere hunch or suspicion.
Davis, 947 S.W.2d at 244 (citing Williams v. State, 621 S.W.2d 609, 612
(Tex. Crim. App. [Panel Op.] 1981)). An officer is entitled to rely on
information provided by another officer to justify a stop so long as the officer
reasonably relied on the informing officer’s information and, based on the
information provided, the arresting officer had a sufficient level of suspicion to
ask for the stop. Hayes v. State, 132 S.W.3d 147, 154 (Tex. App.—Austin
2004, no pet.) (citing United States v. Hensley, 469 U.S. 221, 228, 105 S. Ct.
675, 680). In determining whether there is a legitimate basis for reasonable
suspicion, the facts may be viewed from the viewpoint of a trained law
enforcement officer; facts that have no meaning to the untrained may provide
the basis for the deduction and inference that caused the officer to focus his
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attention on the accused. Gilbert v. State, 874 S.W.2d 290, 295 (Tex.
App.—Houston [1st Dist.] 1994, pet. ref'd). We consider the totality of the
circumstances at the time of the detention to determine whether a reasonable
suspicion existed to justify the officer’s action. Garcia, 43 S.W.3d at 530.
When officers possess a reasonable suspicion justifying a temporary
investigative detention, they may use such force as is reasonably necessary to
effect the goal of the stop: investigation, maintenance of the status quo, or
officer safety. Rhodes v. State, 913 S.W.2d 242, 247 (Tex. App.—Fort Worth
1995), aff'd, 945 S.W.2d 115, 117 (Tex. Crim. App.), cert. denied, 522 U.S.
894 (1997). Reasonableness must be judged from the perspective of a
reasonable officer at the scene, rather than with the advantage of hindsight.
Rhodes, 945 S.W.2d at 118. Allowances must be made for the fact that
officers must often make quick decisions under tense, uncertain, and rapidly
changing circumstances. Id.
In this case, Green—the officer who detained Murph—possessed a
reasonable suspicion that Murph was engaged in criminal activity. Green
observed that Murph appeared to be concealing something in his jacket by
holding one hand across his chest and cupping the object with his other hand.
Green said that whatever Murph was hiding under his jacket was “large [and]
could have been a weapon.” Furthermore, Bates had relayed to Green that he
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believed Murph was hiding a weapon and had gone into a store that sold liquor
with that weapon—a violation of the law. See Tex. Penal Code Ann. § 46.02
(Vernon Supp. 2009). Bates’s conviction about what Murph possessed caused
him to call for backup. And when backup arrived, Bates tried to investigate;
but Murph had slipped away. Green was aware that Bates had seen Murph
with what appeared to be a weapon, that Bates was concerned enough to call
for backup, and that Murph had eluded Bates’s attempts to detain him. By this
time, Green possessed articulable facts that, when combined with rational
inferences in the mind of a trained law enforcement agent, led him to
reasonably suspect that Murph had, or soon would be, engaged in criminal
activity. Thus, upon spotting Murph, Green was justified in attempting to
detain him by telling him to stop and to “get his hands in the air.” At that
moment, Murph informed Green that he had a weapon and started reaching
toward his jacket. Green then pulled his handgun and ordered Murph to again
put his hands in the air and to “get on the ground.” Viewed from the
perspective of a reasonable officer and giving proper allowances to Green, we
conclude that Green’s show of force was reasonably necessary to effect the
goal of his stopping Murph to determine whether he was involved in criminal
activity. Rhodes, 945 S.W.2d at 118 (reasoning that allowances must be made
for the fact that officers must often make quick decisions under tense,
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uncertain, and rapidly changing circumstances). We hold that Green was
justified in detaining Murph and overrule Murph’s sole point.
IV. C ONCLUSION
Having overruled Murph’s sole point, we affirm the trial court’s judgment.
BILL MEIER
JUSTICE
PANEL: GARDNER, WALKER, and MEIER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: January 28, 2010
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