Porter v. State

¶1OPINION

¶2We overrule appellant, Ed Douglas Porter’s, motion for rehearing, but we withdraw our earlier opinion and substitute the following in its place.

¶3A jury found appellant guilty of the offense of possession of less than 28 grams of cocaine. The trial court found two enhancement allegations true and sentenced him to 40-years confinement. We affirm.

¶4In five points of error, appellant contends the trial court erred in denying his motion to suppress by violating his protection against unreasonable search and seizure granted by the United States1 and Texas Constitutions.2 He further contends the trial court abused its discretion in preventing his counsel from questioning the venire panel on the application of Tex.Code Crim.PROcANN. art. 38.23 (Vernon Supp.1996).

¶5Factual Background

¶6On March 19, 1994, Houston Police Department Officers D.C. Eckenrode (Ecken-rode) and Rick Thomas (Thomas) were on patrol in the Third Ward area of Houston. About 9:15 p.m., the officers were flagged down by a female, who described an incident that had just occurred.3 She gave the officers a description of the man involved in the incident. While talking to the officers, the female pointed to a vehicle and told the officers, “that’s the one, that’s the one that did it.” Eckenrode testified that he and Thomas immediately turned around and followed the vehicle with their lights and siren on. Eckenrode testified that they followed the vehicle at a medium rate of speed for a few blocks, when the vehicle stopped, the driver exited the vehicle, and fled from the officers into a wooded area between some houses.4 The officers chased the suspect, but lost sight of him. Eckenrode testified that approximately four minutes elapsed from the time they were flagged down until the time they lost the suspect. After losing the suspect, Eckenrode radioed a general broadcast to other officers in the area notifying them of what the man was wearing and the direction that he went.

¶7Officers J.E. Vigil (Vigil) and Marc Loera (Loera) were on patrol approximately five miles away when they heard the general broadcast and decided to help Eckenrode and Thomas with their search. Vigil testified that the description he received described *727the suspect as a black male, dressed in all black, approximately six feet tall with a salt and pepper beard. As the officers searched for the suspect, they saw a taxicab approaching from the opposite side of the street. Vigil testified that as the vehicles slowed down to pass each other on the narrow street, he saw a person in the cab, who appeared to be “sliding down in his seat.” He told Loera, “that was him. It looks like him.” Loera testified that he remembered the general broadcast description as “a black male running from the police with a salt and peppered beard and mustache” and noticed that the person in the cab fit this description.

¶8Loera got out of the patrol car and ran after the cab, while banging on the trunk for the driver to stop. When the cab stopped, Loera approached the passenger from one side with his gun drawn and ordered appellant out of the cab. At the same time, Vigil approached the cab from the other side and saw appellant stuffing what appeared to be a plastic baggie under the seat of the cab. Appellant was removed from the cab and placed in handcuffs. Eckenrode testified that appellant was sweating, breathing hard, had a high heart rate, and was cut and scratched on his legs and arms. After placing appellant in his patrol car, Loera returned to the cab and searched under the curvature of the rear seat where he recovered the plastic bag that contained a substance, which was later tested and determined to be crack cocaine. Appellant was later transported to the original scene of the incident where she positively identified appellant.

¶9Appellant filed a motion to suppress, alleging that the seizure of the cocaine was unconstitutional. The motion was carried with the trial. The State declined to stipulate that there was no warrant. Outside the presence of the jury, defense counsel, while questioning Vigil, established that the officers did not have a search warrant to seize the.cocaine. When the State offered the cocaine as evidence, defense counsel timely objected to its admission, based on the motion to suppress. The trial judge overruled the objection and denied the motion to suppress.

¶10Analysis

¶11In his first four points of error, appellant asserts that the trial court erred in overruling his motion to suppress evidence obtained in violation of both article I, section nine of the Texas Constitution and the fourth amendment of the United States Constitution.5 He argues that his warrantless arrest and the search were not supported by probable cause. We address these points of error together.

¶12A trial court’s ruling on a motion to suppress will not be set aside absent a showing of an abuse of discretion. Maddox v. State, 682 S.W.2d 563, 564 (Tex.Crim.App.1985). This Court should not engage in its own factual review. Instead, viewing the evidence in the light most favorable to the decision of the trial court’s ruling, this Court must consider only whether the judge improperly applied the law to the facts. Daniels v. State, 718 S.W.2d 702, 704 (Tex.Crim.App.) cert. denied, 479 U.S. 885, 107 S.Ct. 277, 93 L.Ed.2d 252 (1986); Covarrubia v. State, 902 S.W.2d 549, 553 (Tex.App.—Houston [1st Dist.] 1995, pet. ref'd). At the hearing on the motion to suppress, the trial judge is the sole finder of fact and may believe or disbelieve all or any part of a witness’ testimony. Taylor v. State, 604 S.W.2d 175, 177 (Tex.Crim.App.1980). A finding will not be reversed on appeal if there is evidence in the record to support the decision of the trial court. Id.

¶13In the warrantless search context, the burden of proof is initially on the accused to show that the search and seizure occurred and that no warrant was obtained. State v. Brunner, 917 S.W.2d 103, 105-06 (Tex.App.—San Antonio 1996, no writ). The state must then either produce evidence of a war*728rant or prove the legality of the search by establishing probable cause by a preponderance of the evidence. Gaines v. State, 888 S.W.2d 504, 508 (Tex.App.—El Paso 1994, no writ).

¶14For a warrantless arrest or search to be justified, the State must show the existence of probable cause at the time of the search or arrest. Brown v. State, 481 S.W.2d 106, 109 (Tex.Crim.App.1972). Probable cause exists when the facts and circumstances within the officer’s knowledge and about which he had reasonably trustworthy information are sufficient in themselves to warrant a person of reasonable caution in the belief that a crime has been or is about to be committed. Beck v. Ohio, 379 U.S. 89, 85 5.Ct. 223, 13 L.Ed.2d 142 (1964); Lunde v. State, 736 S.W.2d 665, 667 (Tex.Crim.App.1987); Cornejo v. State, 917 S.W.2d 480, 482 (Tex.App.—Houston [14th Dist.] 1996, no writ); Covarrubia, 902 S.W.2d at 553. The determination of probable cause at the time of the questioned event is viewed from the “totality of the circumstances.” Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983); Angulo v. State, 727 S.W.2d 276, 278 (Tex.Crim.App.1987). The reviewing court must look at the totality of the circumstances to determine if there exists a substantial basis for concluding that probable cause existed at the time of the questioned event. Id.

¶15In our case, defense counsel, out of the presence of the jury, asked Vigil if he had a warrant to arrest appellant, and he answered, no. Thus, the burden shifted to the State to prove the legality of the detention and search by establishing probable cause by a preponderance of the evidence. Although the State did not put on any evidence out of the presence of the jury regarding the underlying assault to prove probable cause, this did not prevent the State from meeting its burden.

¶16Looking at the totality of the circumstances involved in this case in the light most favorable to the decision of the trial court, the testimony of Eckenrode, Vigil, Thomas, and Loera, that was presented before the denial of appellant’s motion to suppress, established the following.

1. Around 9:15 p.m. Eckenrode and Thomas, with five and four and one-half years experience respectively, were flagged down by a female who described to the officers an incident that occurred and gave the officers a description of the suspect.6

2. While describing the incident to the officers, the female pointed out a vehicle and told Eckenrode and Thomas, “that’s the one. That’s the one that did it.”

3. Eckenrode and Thomas followed the suspect at a medium rate of speed with their lights and siren on.

4. The suspect stopped his vehicle and fled from the officers into a wooded area.

5. The officers gave chase but lost the suspect.

6. Eckenrode made a general broadcast over the police radio to other officers in the area of what the man was wearing and the direction that he fled.

7. Vigil and Loera were on patrol in the area, received the general broadcast, and proceeded to help in the search for the suspect.

8. As Vigil and Loera were in their patrol car searching for the suspect, they saw a taxi cab approaching them on the opposite side of the street. As the cab and the patrol car passed each other on the narrow street, Vigil testified he saw a man in the rear of the cab who fit the description of the suspect who appeared to be sliding down in the seat of the cab. Vigil told Loera, “that was him. It looks like him.”

9. Loera got out of the patrol car and ran after the cab while banging on the trunk for the driver to stop.

10. When the cab did stop, Loera approached from one side with his gun drawn and ordered appellant out of the cab. At the same time, Vigil approached the cab from the opposite side and saw appellant *729stuffing a plastic baggie under the seat of the cab.

11. Appellant was removed from the cab and placed in handcuffs. When removed from the cab, appellant was sweating, breathing hard, had a high pulse rate, and was cut and scratched on his legs and arms.

12. After appellant was placed in the patrol car, Loera searched under the curvature of the rear seat of the cab and recovered the plastic bag that contained a substance that was later identified as cocaine.

13. After the recovery of the cocaine, appellant was taken to the scene of the incident, and the female positively identified him.

¶17The concept of probable cause is a fluid one. It deals in probabilities, not certainties. Angulo, 727 S.W.2d at 279. In the instant case, we hold that the totality of the circumstances, as outlined above, when viewed in the light most favorable to the decision of the trial court, provided the officers probable cause to detain appellant and search the cab in which appellant was a passenger. Therefore, the trial court did not err in overruling appellant’s motion to suppress.

¶18We overrule appellant’s first four points of error.

¶19In his fifth point of error, appellant asserts the trial court abused its discretion in preventing defense counsel from questioning the venire panel on the provision of the Texas Code of Criminal Procedure that provides in relevant part that when the evidence raises an issue whether evidence was legally obtained, if the jury has a reasonable doubt whether it was legally obtained, the jury should disregard it. See Tex.Code CRIM. ProcANN. art. 38.23. (Vernon Supp.1996)

¶20During voir dire, defense counsel, Ms. Kahn, outlined to the venire panel the provisions of article 38.23 and the law that requires a search warrant to be signed by certain kinds of judges. She then described a hypothetical fact situation in which a judge, who did not have the power to sign a search warrant, did so, and the use of the search warrant led to discovery of evidence that linked a person to a terrible murder. Ms. Kahn then asked the question: “Could you as a juror disregard the evidence because it was obtained unlawfully even though you know that the person is guilty beyond a reasonable doubt?” The court sustained the prosecutor’s objection to the question. In its charge to the jury, the court gave an article 38.23 instruction.

¶21While it is. proper to use hypothetical fact situations to explain the application of the law, it is improper to inquire how a venireperson would respond to particular circumstances presented in a hypothetical question. Cadoree v. State, 810 S.W.2d 786, 789 (Tex.App.—Houston [14th Dist.] 1991, pet. ref'd) (citing Cuevas v. State, 742 S.W.2d 331, 336, n. 6 (Tex.Crim.App.1987)); White v. State, 629 S.W.2d 701, 706 (Tex.Crim.App.1981).

¶22In this case, appellant attempted to have venirepersons commit to how they would respond to particular circumstances presented in a hypothetical question. Under the preceding authorities, the trial court judge did not abuse his discretion in sustaining the State’s objection to such a question.

¶23Appellant’s fifth point of error is overruled.

¶24We affirm the judgment of the trial court.

¶25TAFT, J., concurs.