Chad E. Johnston v. State

• Court: Court of Appeals of Texas
• Decided: January 24, 2003
• Docket: 06-02-00088-CR
• Status: Published

Opinion

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-02-00088-CR

CHAD EVERETT JOHNSTON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 188th Judicial District Court

Gregg County, Texas

Trial Court No. 29086-A

Before Ross, Cornelius* and Grant,** JJ.

Opinion by Justice Cornelius

______________

*William J. Cornelius, Chief Justice, Retired, Sitting by Assignment

**Ben Z. Grant, Justice, Retired, Sitting by Assignment

O P I N I O N

Chad Everett Johnston pleaded guilty to possession of more than four grams but less than 200 grams of methamphetamine. A jury assessed his punishment, enhanced by a prior felony conviction, at sixty years' imprisonment and a $10,000.00 fine. In two related points of error, Johnston contends the trial court erred in overruling his motion to suppress evidence because: 1) police lacked sufficient probable cause to search his vehicle, and 2) his written statement was a product of the illegal search of his vehicle.

On May 9, 2001, a confidential informant notified Sheriff's Deputy Floyd Wingo, then assigned to the Drug Enforcement Administration (DEA) task force in Tyler, Texas, that Johnston was in possession of methamphetamine. Wingo testified that the confidential informant was well known to him and had provided reliable narcotics information in the past. Wingo also testified that he previously knew Johnston through Wingo's work as a narcotics investigator. On the occasion in question, the informant told Wingo that Johnston possessed methamphetamine and would be traveling in a green Mazda Navajo on Highway 259 en route to Street Creations, a Longview car-customizing business. Based on this tip, Wingo and another officer set up surveillance on Highway 259 in an unmarked police car.

Later that afternoon, the officers saw the green Mazda Navajo and began a "rolling surveillance." They followed the vehicle for several miles to the parking lot of Street Creations. The driver stopped the vehicle in the parking lot, and the officers approached. Wingo identified Johnston as a passenger in the vehicle. The driver had no identification. According to Wingo, Johnston was "visibly agitated," his heart was racing, he was very nervous, and he was clenching his fists. Wingo testified that, for officer safety and out of a concern that Johnston might flee, he placed handcuffs on Johnston and conducted a pat-down search. During the pat-down search, Wingo found a knife on Johnston's person.

The officers then searched the vehicle and found approximately fourteen grams of methamphetamine, syringes, and several ecstasy pills. The officers placed Johnston under arrest, gave him Miranda ⁽¹⁾ warnings, and took him to jail. While in custody, Johnston gave the officers a written statement.

Both points of error raised by Johnston complain of the denial of his motion to suppress. The standard for reviewing the trial court's ruling on a motion to suppress is abuse of discretion. Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999); Maysonet v. State, No. 06-01-00024-CR, 2002 WL 31306609, at *1 (Tex. App.-Texarkana Oct. 16, 2002, no pet. h.). In a suppression hearing, the trial court is the sole trier of fact and the exclusive judge of the witnesses' credibility and the weight to be given their testimony. The evidence must be viewed in the light most favorable to the trial court's ruling. State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999); Maysonet v. State, 2002 WL 31306609, at *3. We afford almost total deference to the trial court's determination of historical facts that the record supports, especially when the fact-findings are based on an evaluation of the witnesses' credibility and demeanor. State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000); Maysonet v. State, 2002 WL 31306609, at *1.

We review the trial court's application of the law of search and seizure to those facts de novo. State v. Ross, 32 S.W.3d at 856. Further, when the trial court does not file findings of fact, we assume that the trial court made implicit findings that support its ruling, if those implied findings are supported by the record. Id. at 855. If the trial court's decision is correct on any theory of law applicable to the case, we will affirm the decision. Id. at 855-56.

Johnston first contends the police lacked sufficient probable cause to search his vehicle for narcotics. The State insists the police had probable cause based on a tip from a confidential informant that was corroborated by other evidence.

A confidential tip, standing alone, does not constitute probable cause. See State v. Steelman, No. 1022-00, 1023-00, 2002 WL 31398545, at *5 (Tex. Crim. App. Oct. 23, 2002) (citing Ebarb v. State, 598 S.W.2d 842, 845 (Tex. Crim. App. 1980)). But probable cause may arise from information supplied by a confidential informant provided the information is corroborated. Eisenhauer v. State, 678 S.W.2d 947 (Tex. Crim. App. 1984), overruled on other grounds, Heitman v. State, 815 S.W.2d 681 (Tex. Crim. App. 1991).

Eisenhauer v. State provides the substantive law governing informant-based probable cause. In Eisenhauer, the Texas Court of Criminal Appeals held that the totality of the circumstances approach adopted by the United States Supreme Court in Illinois v. Gates, 462 U.S. 213 (1983), also applies to appellate review of probable cause for warrantless searches. Eisenhauer v. State, 678 S.W.2d at 952; see also Eisenhauer v. State, 754 S.W.2d 159, 164 (Tex. Crim. App. 1988) (restating that the "totality of the circumstance" approach, as outlined in Eisenhauer v. State, 678 S.W.2d at 952, is the correct standard for appellate review for warrantless searches).

Under the totality of the circumstances approach, an informant's veracity, reliability, and basis of knowledge are all highly relevant in determining the value of a tip. Illinois v. Gates, 462 U.S. at 230. These elements, however, are not entirely separate and independent requirements to be rigidly exacted in every case. Rather, they are simply closely intertwined issues that may usefully illuminate the commonsense, practical question of whether there is probable cause to believe that contraband or evidence is located in a particular place. Id.

The Texas Court of Criminal Appeals in Eisenhauer observed that seemingly innocent activities might become suspicious in the light of an initial tip. Quoting Gates, the court wrote:

[P]robable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity. By hypothesis, therefore, innocent behavior frequently will provide the basis for a showing of probable cause; to require otherwise would be to sub silentio impose a drastically more rigorous definition of probable cause than the security of our citizens [sic] demands . . . In making a determination of probable cause the relevant inquiry is not whether particular conduct is "innocent" or "guilty," but the degree of suspicion that attaches to particular types of non-criminal acts.

Eisenhauer v. State, 678 S.W.2d at 954 (quoting Illinois v. Gates, 462 U.S. at 243 n.13) .

In considering the totality of the circumstances in this case, we find that the trial court did not abuse its discretion in finding probable cause. The following facts were known to the officers when they searched Johnston's vehicle: The confidential informant told Officer Wingo that Johnston would be traveling in a green Mazda Navajo, that he would be heading south from Lake of the Pines en route to Street Creations in Longview, and that he possessed methamphetamine. According to Wingo, the informant had provided reliable information in the past. In addition, Wingo testified that he knew Johnston from his work as a narcotics investigator. Wingo and other officers had also independently corroborated the informant's tip by sighting the green Mazda Navajo, following it to Street Creations, and identifying Johnston.

This information, especially when combined with the other information known to Wingo, was suffucient to raise a high degree of suspicion and created a reasonable belief that methamphetamine was located in the vehicle, thus providing the officers with probable cause to search the vehicle. Illinois v. Gates, 462 U.S. at 230.

In his second point, Johnston contends the written statement taken after his arrest was the fruit of an illegal search of the vehicle and, therefore, the trial court erred in admitting it in evidence. Johnston does not challenge the voluntariness of his statement. Because the officers had probable cause to search the vehicle, Johnston's subsequent voluntary statement was properly admitted. See Balentine v. State, 71 S.W.3d 763, 774 (Tex. Crim. App. 2002).

The judgment is affirmed.

William J. Cornelius*

Justice

*Chief Justice, Retired, Sitting by Assignment

Date Submitted: September 11, 2002

Date Decided: January 24, 2003

Publish

1. Miranda v. Arizona, 384 U.S. 436 (1966).

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                                                         In The

                                                Court of Appeals

                        Sixth Appellate District of Texas at Texarkana

                                                             No. 06-11-00072-CR

                                DAVID RAMON MITCHELL, Appellant

                                       On Appeal from the 159th Judicial District Court

                                                           Angelina County, Texas

                                                         Trial Court No. CR-29649

                                          Before Morriss, C.J., Carter and Moseley, JJ.

                                        Memorandum Opinion by Chief Justice Morriss

                                                      MEMORANDUM OPINION

            The testimony at David Ramon Mitchell’s bench trial for deadly conduct^[1] portrayed him, in drunken anger, discharging a firearm a few times in the direction of an occupied building in an apartment complex in Lufkin, Angelina County,^[2] Texas.  From his conviction and the subsequent imposition of a sentence of seven years’ confinement, Mitchell appeals.

            Mitchell’s attorney on appeal has filed a brief which discusses the record and reviews the proceedings in detail.  Counsel has thus provided a professional evaluation of the record demonstrating why, in effect, there are no arguable grounds to be advanced.  This meets the requirements of Anders v. California, 386 U.S. 738 (1967); Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1981); and High v. State, 573 S.W.2d 807 (Tex. Crim. App. [Panel Op.] 1978).

            Counsel mailed a copy of the brief and a letter to Mitchell May 31, 2011, informing Mitchell of his right to file a pro se response and of his right to review the record.  No response has been filed.  Counsel has also filed a motion with this Court seeking to withdraw as counsel in this appeal. 

            We have determined that this appeal is wholly frivolous.  We have independently reviewed the clerk’s record and the reporter’s record, and find no genuinely arguable issue.  See Halbert v. Michigan, 545 U.S. 605, 623 (2005).  We therefore agree with counsel’s assessment that no arguable issues support an appeal.  See Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005). 

            We affirm the judgment of the trial court.^[3]

                                                                                    Josh R. Morriss, III

                                                                                    Chief Justice

Date Submitted:          August 12, 2011        

Date Decided:             August 15, 2011

Do Not Publish

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^[1]See Tex. Penal Code Ann. § 22.05(b)(2), (e) (West 2011) (knowingly discharging firearm in direction of habitation, reckless as to occupancy; felony of third degree).

^[2]Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts.  See Tex. Gov’t Code Ann. § 73.001 (Vernon 2005).  We are unaware of any conflict between precedent of the Twelfth Court of Appeals and that of this Court on any relevant issue.  See Tex. R. App. P. 41.3.

^[3]Since we agree this case presents no reversible error, we also, in accordance with Anders, grant counsel’s request to withdraw from further representation of appellant in this case.  No substitute counsel will be appointed.  Should appellant wish to seek further review of this case by the Texas Court of Criminal Appeals, appellant must either retain an attorney to file a petition for discretionary review or appellant must file a pro se petition for discretionary review.  Any petition for discretionary review must be filed within thirty days from the date of either this opinion or the last timely motion for rehearing that was overruled by this Court.  See Tex. R. App. P. 68.2.  Any petition for discretionary review must be filed with this Court, after which it will be forwarded to the Texas Court of Criminal Appeals along with the rest of the filings in this case.  See Tex. R. App. P. 68.3.  Should a petition for discretionary review be filed after September 1, 2011, it should be filed directly with the Texas Court of Criminal Appeals.  See Texas Court of Appeals Misc. Docket No. 11-004, July 12, 2011.  Any petition for discretionary review should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure.  See Tex. R. App. P. 68.4.