Alzarka, Loubaba v. State

• Court: Court of Appeals of Texas
• Decided: March 16, 2004
• Docket: 14-00-00837-CR
• Status: Published

Opinion

Affirmed and Opinion on Remand filed March 16, 2004

Affirmed and Opinion on Remand filed March 16, 2004.

In The

Fourteenth Court of Appeals

____________

NO. 14-00-00837-CR

LOUBABA ALZARKA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 21^st District Court

Washington County, Texas

Trial Court Cause No. 13,166

OPINION  ON  REMAND

Appellant, Loubaba Alzarka, appeals from the denial of her motion to suppress.   On original submission, this court dismissed appellant=s appeal on the theory that her right to appeal had been waived as part of her plea agreement.  Alzarka v. State, 60 S.W.3d 203, 206 (Tex. App.CHouston [14th Dist.] 2001, pet. granted).  On discretionary review, the Court of Criminal Appeals disagreed and held that the appellant had not waived her right to appeal.  Alzarka v. State, 90 S.W.3d 321, 324 (Tex. Crim. App. 2002) (en banc).  We now consider the merits of appellant=s appeal on remand. 

Appellant was indicted for two counts of (1) possession of more than one but less than four grams of cocaine and (2) possession of more than four grams but less than 200 grams of Aphencylidine.@^[1]  Subsequently, appellant pled guilty to both counts.  Pursuant to the plea agreement, the trial court assessed appellant=s punishment in both cases at five years= deferred adjudication and a $1,500 fine.  Appellant presents three points of error for review: (1) the trial court erred under the Fourth Amendment to the United States Constitution in overruling appellant=s motion to suppress, (2) the trial court erred under Article I, Section 9 of the Texas Constitution in overruling appellant=s motion to suppress, and (3) the evidence was legally insufficient to sustain the allegations as to the second count of the indictment.  We affirm.   

Both appellant and the State stipulated to the facts set out in the offense report prepared by Investigator Barnett (ABarnett@) of the Narcotics Task Force.  The report sets out the facts leading up to and surrounding the challenged search.   Barnett received a telephone call from a confidential informant advising that a female known to the informant wanted to sell Awater,@ also known as PCP (phencyclidine).  In addition to giving a description of appellant, the informant told Barnett that the appellant was known as Lulu.  Barnett already knew of appellant.  He had been in a barbershop the previous March where he witnessed a black man come into the barbershop asking a woman, who matched the description of appellant, for Awater.@  The informant arranged for Barnett and appellant to meet. 

The informant advised Barnett that appellant was en route to meet him at the Winkleman Village on S.H. 290 East.  Further, the informant explained that appellant would be traveling as a passenger in a maroon Buick with faded paint driven by a black male.   While driving on 290 East, Barnett was passed by a car matching the informant=s description.  Barnett began following the car.  While keeping pace with the car, Barnett observed it was  traveling 80 miles per hour; the posted speed limit, however, was 70 miles per hour.  Having observed the traffic violation, Barnett requested assistance from the Washington County Sheriff=s Department to engage in a traffic stop.  Before a stop could be made, the driver began slowing and turned into the parking lot of a convenience store.  Both the driver and appellant exited the car and entered the store.  Subsequently, both Barnett and the deputy entered the store.  The driver was told that he had been observed speeding.  The driver was identified as Leroy Henderson, and appellant was identified as Loubaba Alzarka. 

Henderson told the officers that he was traveling to Andrews Café in Chappell Hill.  Barnett noted that this destination is known as a high drug traffic and high drug activity area.  Barnett asked Henderson if he was transporting or possessed any illegal drugs.  When Henderson answered negatively, Barnett asked him if he would consent in writing to a search of the vehicle.  About two to three minutes into the search, appellant said she was on her menstrual cycle and needed to use the restroom.  She also stated that she needed her purse located on the floor of the car.

Barnett told appellant that he would need to search the purse for weapons before giving it to her.  Barnett noted that appellant became very nervous as he began to search the purse.  He opened the purse and saw a small leather bag with pull strings. It was four to six inches in height and three inches in width, which would have made it large enough to conceal a small handgun or large knife.  When Barnett picked up the bag he felt a heavy object.  A search of the bag revealed a plastic bag with several white rocks of crack cocaine and a brown glass bottle labeled as vanilla extract.  Barnett opened the bottle and noticed that the liquid did not smell like vanilla.  No sanitary napkins or other feminine hygiene products were found in the purse.

Appellant was handcuffed and given her Miranda warnings.  She was questioned about the identity of the liquid, but she did not respond.  The rocks tested positive for cocaine in a field test. The liquid was confiscated and sent to the Department of Public Safety Laboratory.  The laboratory subsequently reported the liquid was phencyclidine. 

 In her first and second points of error appellant contends the trial court erred in denying her motion to suppress in violation of both the Fourth Amendment to the United States Constitution and Article I, Section 9 of the Texas Constitution.  In reviewing a trial court=s ruling on a motion to suppress, we apply a bifurcated standard, giving almost total deference to the trial court=s determination of historical facts and reviewing de novo the court=s application of the law of search and seizure.  Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000); Guzman v. State,  955 S.W.2d 85, 89 (Tex. Crim. App. 1997).  Where the trial court did not make explicit findings of historical fact, we review the evidence in the light most favorable to the trial court=s ruling, assuming that the court made implicit findings of fact supported in the record that buttress its conclusion.  Camouche, 10 S.W.3d at 328.  

Appellant asserts that Barnett was not justified in searching her purse in the absence of objective, articulable facts that would suggest she was armed or dangerous.  Accordingly, our analysis is confined to Areasonableness,@ not probable cause.  Worthey v. State, 805 S.W.2d 435, 436 (Tex. Crim. App. 1991) (citing Terry v. Ohio, 382 U.S. 1 (1968)).  The Supreme Court has explained that Athere is narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime.@  Terry, 382 U.S. at 27.  The Court has also indicated that the Asearch for weapons may extend beyond the person in the absence of probable cause.@  Worthey, 805 S.W.2d at 437-38 (citing Michigan v. Long, 463 U.S. 1032 (1983)).  Before an officer may search the interior of a purse, Aspecific and articulable facts@ must appear in the record to indicate that a weapons search is warranted.  Id. at 438.

Judging the evidence in a light most favorable to the trial court=s ruling, we find the evidence supports a conclusion that Barnett was concerned for his safety when he conducted the search of appellant=s bag. Notwithstanding appellant=s arguments, we find it determinative that appellant was under investigation for narcotics trafficking.  Barnett pursued appellant based upon an articulable suspicion that she was trafficking in illegal drugs.  The information provided by the confidential informant was shown by subsequent events to be highly credible. For example, the informant correctly identified the route appellant would be taking and described with some degree of specificity the car in which she would be riding.  Moreover, the informant=s basis for knowledge was not the product of hearsay or conjecture.  The informant personally arranged the meeting between Barnett and appellant.  Therefore, Barnett was justified in approaching appellant with caution.  A[W]eapons and violence are frequently associated with drug transactions@; therefore, officers may reasonably believe that such individuals are armed and dangerous.  Carmouche, 10 S.W.3d at 330 (citations omitted). 

The scope of the search of the purse in the instant case was valid.  In such an instance, the least restrictive search necessarily begins by Afrisking@ the outside of the bag.  See Worthey, 805 S.W.2d at 439.  The offense report reveals that Barnett entered the small leather bag only after feeling a heavy object and surmising that the bag was large enough to contain a handgun or knife. At this point, Barnett did what was minimally necessary to investigate the presence of a weapon by looking in the bag.  See id. 

Additionally, appellant argues that even if we could conclude that Barnett was authorized to view the contents of the leather bag, the search relative to the vanilla extract bottle went too far.  The Fourth Amendment does not require the suppression of contraband that is discovered while conducting a legitimate search for weapons.  See Parham v. State, 76 S.W.3d 60, 64 (Tex. App.CHouston [14th Dist.] 2002, pet. ref=d) (citing Michigan v. Long, 463 U.S. 1032, 1050 (1983)). Moreover, the discovery of the rocks of cocaine gave Barnett probable cause to believe the bag contained additional contraband.  See Cunningham v. State, 11 S.W.3d 436, 440 (Tex. App.CHouston [14th Dist.] 2000, no pet.) (explaining that the discovery of what the police officer Abelieved to be marijuana residue gave him probable cause to believe the vehicle contained a larger quantity of marijuana@).   Therefore, Barnett was authorized to search the other contents of the bag.  Alternatively, Barnett was authorized to search appellant incident to the arrest. 

We overrule appellant=s first and second points of error.^[2]

Appellant argues in his third point of error that the evidence is legally insufficient to sustain the allegations in the second count of the indictment.  The crux of appellant=s argument is that the indictment alleged that appellant was in possession of Aphencylidine,@ which is not listed as a controlled substance under the Texas Controlled Substances Act.  However, the Court of Criminal Appeals has recognized as a Arule that the misspelling of a word does not render invalid an otherwise good indictment or information if the sense is not affected and the meaning cannot be mistaken.@  Ablon v. State, 537 S.W.2d 267, 269 (Tex. Crim. App. 1976) (indicating that the misspelling of  Aheroin@ as Aherion@ did not vitiate the validity of an indictment in a prior case). The spelling of these words is very similar; the spelling error involves only the omission of the letter Ac.@  The misspelling in the indictment is fatal if it prejudicially misleads appellant in the preparation of her defense; however, Athe law does not consider as fatal the use of an incorrect letter.@ In re Cockrell, 493 S.W.2d 620, 625 (Tex. App.CAmarillo 1973, writ ref=d n.r.e.).

It is difficult to see how appellant could have associated Aphencyldine@ with anything other than phencyclidine.  It is plain from the record that these proceedings concerned the possession of phencyclidine.^[3]  Barnett=s investigation report, to which appellant stipulated, reveals that appellant was under investigation for phencyclidine.  Moreover, the Department of Public Safety=s lab results identified the substance in the vanilla extract bottle as phencyclidine.  Faced with this evidence, appellant pleaded guilty to the second count in the indictment.^[4]  Accordingly, we overrule appellant=s third point of error.      

The judgment of the trial court is affirmed.

/s/      J. Harvey Hudson

Justice

Judgment rendered and Opinion on Remand filed March 16, 2004.

Panel consists of Justices Yates, Anderson, and Hudson.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  The misspelling of Aphencyclidine@ serves as the basis for appellant=s third point of error. 

^[2]  Although our discussion has focused exclusively on the Fourth Amendment, appellant failed to demonstrate how the result would be any different under Article I, Section 9 of the Texas Constitution.  Johnson v. State, 864 S.W.2d 708 (Tex. App.CDallas 1993), aff=d, 912 S.W.2d 227 (Tex. Crim. App. 1995) (en banc) (indicating that it is appellant=s burden to show how the Fourth Amendment conflicts with the Texas Constitution). The Court of Criminal Appeals held in Heitman v. State, 815 S.W.2d 861, 690 (Tex. Crim. App. 1991) that it is not expressly bound by the Supreme Court=s holdings when analyzing Article I, Section 9.  However, the court advised attorneys addressing multiple constitutional issues to Acarefully separate federal and state issues into separate grounds and provide substantive analysis or argument on each separate ground.@  Id. at 691n.23.     

^[3]  Phencyclidine is listed in the Texas Controlled Substances Act as a controlled substance.  Tex. Health & Safety Code Ann. ' 481.102 (Vernon 2003)

^[4]  Interestingly, the judicial confession signed by appellant also contains the misspelled Aphencyldine.@