Bobo v. State

805 S.W.2d 493, 1991 WL 1503
CourtCourt of Appeals of Texas
DecidedFebruary 7, 1991
DocketB14-89-00956-CR
StatusPublished
Cited by10 cases

This text of 805 S.W.2d 493 (Bobo v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bobo v. State, 805 S.W.2d 493, 1991 WL 1503 (Tex. Ct. App. 1991).

Opinions

OPINION

SEARS, Justice.

This is an appeal from a conviction of the felony offense of burglary of a habitation. Appellant pleaded not guilty to the charge and not true to the two enhancement paragraphs in the indictment. The jury found appellant guilty, found the allegations in the enhancement paragraphs true, and assessed punishment at 75 years in the Texas Department of Criminal Justice. In six points of error, appellant claims the trial court erred in overruling his motion to suppress evidence, denying his motion for new trial, and allowing the prosecutor to use [495]*495falsified documents during the punishment phase of his trial. We affirm in part and reverse and remand in part.

On November 10, 1988, Officer Monty Bradney was working an “off-duty” job as a security officer for the Memorial Club Townhomes. At approximately 11:00 a.m., Officer Bradney received a call over his radio from an office secretary regarding “suspicious persons milling around some [of the] townhomes.” Officer Bradney testified that the suspicious persons were described as a white male wearing a red plaid shirt and a white female with blond hair, white T-shirt and blue jeans. Four or five seconds later, he looked up from where he was sitting in his patrol car and observed a pick-up truck driven by a white male wearing a red plaid shirt accompanied by a white female with blond hair wearing a white shirt.

Officer Bradney turned to follow the truck and noticed that the truck “rolled through [a] stop sign without coming to a complete stop.” He stopped the truck and appellant got out and approached him. Officer Bradney asked appellant for his drivers license and asked him what he was doing in the neighborhood. Appellant replied that he was visiting a friend. When Officer Bradney asked him the name and address of his friend, appellant said that he did not know but that his female companion, Tammy Barksdale, did. Officer Brad-ney approached the passenger side of appellant's vehicle and observed “a pillowcase stuffed full of items sitting in between [Ms. Barksdale’s] legs.” He asked Ms. Barks-dale who they were visiting in the neighborhood but she could not give him the name or address of the friend they were allegedly visiting. He also asked her what she had in the pillowcase and she replied, “Oh, there’s two or three jewelry boxes with jewelry, calculators and some other things.” Officer Bradney then radioed for additional police assistance because he thought appellant and Ms. Barksdale were burglars.

When Officer R.C. Price responded to the call, Officer Bradney asked him to search appellant and check the police computer for any outstanding warrants on appellant. Officer Price discovered that appellant had an outstanding municipal warrant and he arrested him and placed him in the back of his patrol car.

In the meantime, Officer Bradney continued to talk with Ms. Barksdale. He again asked her what she and appellant were doing in the neighborhood and she stated that they had broken into a townhome. She directed him and other officers to the townhome she and appellant had broken into. Fingerprints were taken from the burglarized townhome and from the items in the pillowcase. A screwdriver was found on the floor of appellant’s vehicle. The owner of the townhome was called to the scene and she identified the items in the pillowcase as belonging to her and taken from her townhome.

In his first point of error, appellant claims the trial court committed reversible error in overruling his motion to suppress evidence because Officer Brad-ney’s traffic stop constituted an unlawful “pretext arrest”. The standard of review governing a trial court’s ruling on a motion to suppress is whether the court clearly abused its discretion. Maddox v. State, 682 S.W.2d 563, 564 (Tex.Crim.App.1985). In a hearing on a motion to suppress evidence, the trial judge is the sole fact finder and may choose to believe or disbelieve any or all of a witness’ testimony. Taylor v. State, 604 S.W.2d 175, 177 (Tex.Crim.App.1980); Fast v. State, 755 S.W.2d 515, 517 (Tex.App.—Houston [14th Dist.] 1988, pet. ref’d).

Appellant cites us to Black v. State, 739 S.W.2d 240 (Tex.Crim.App.1987), to support his contention that Officer Bradney’s traffic stop constituted an illegal pretext arrest. However, the court of criminal appeals recently overruled Black, holding that there is no “pretext arrest” doctrine in Texas. See Gordon v. State, 801 S.W.2d 899 (Tex.Crim.App.1990) (plurality opinion). The court recognized that when a police officer stops an individual for an offense committed in his view, his motives are irrelevant and not subject to inquiry as long as the officer does no more than he is objec[496]*496tively authorized and legally permitted to do. Id. at p. 911.

A police officer may stop a suspicious individual to determine the individual’s identification or to maintain the status quo while obtaining more information. Livingston v. State, 739 S.W.2d 311, 326 (Tex.Crim.App.1987), cert. denied, 487 U.S. 1210, 108 S.Ct. 2858, 101 L.Ed.2d 895 (1988). When a police officer observes suspicious activity, he or she not only has a right but has a duty to investigate. Also, circumstances short of probable cause may justify temporary detention for purposes of investigation. Garza v. State, 771 S.W.2d 549, 558 (Tex.Crim.App.1989). “To justify an investigative detention, a police officer must have specific articulable facts, which, premised upon his experience and personal knowledge, coupled with logical inferences from those facts would warrant an intrusion on the detainee.” Id.

Turning to the facts of the present case, Officer Bradney had a description of “suspicious individuals” in the area of the townhomes and observed persons matching their description in a pickup truck. He followed the vehicle, observed it run a stop sign, and stopped the vehicle and asked the driver, appellant, what he was doing in the neighborhood. This was simply good police work and not violative of any constitutional rights.

Appellant could not give the name or address of the friend he was “visiting” in the neighborhood and told Officer Brad-ney that his companion knew the name of the friend. When Officer Bradney approached Ms. Barksdale to ask her the name of the person they were visiting, he observed the pillowcase stuffed full of various items in plain view on the floor of appellant’s vehicle. Ms. Barksdale could not give the name or address of the person they were visiting and told Officer Bradney what the pillowcase contained. Based on the surrounding facts and his experience as a police officer, Officer Bradney believed appellant and Ms. Barksdale to be burglars. After reviewing the record, we fail to see how Officer Bradney did more than he was objectively authorized and legally permitted to do. We conclude that Officer Bradney did not exceed the constitutional and statutory limits applicable to the traffic stop and that his subjective intentions or motivations were irrelevant.

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Bobo v. State
805 S.W.2d 493 (Court of Appeals of Texas, 1991)

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805 S.W.2d 493, 1991 WL 1503, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bobo-v-state-texapp-1991.