Fritz Earl Hicks, Jr. v. State

• Court: Court of Appeals of Texas
• Decided: April 29, 2008
• Docket: 06-07-00109-CR
• Status: Published

Opinion

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-07-00109-CR

FRITZ EARL HICKS, JR., Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 40th Judicial District Court

Ellis County, Texas

Trial Court No. 31371-CR

Before Morriss, C.J., Carter and Cornelius,* JJ.

Opinion by Justice Cornelius

________________________

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

O P I N I O N

Fritz Earl Hicks, Jr., appeals his conviction for possession of cocaine with intent to deliver. He was convicted by a jury in the 40th Judicial District Court of Ellis County. ⁽¹⁾ The jury made an affirmative finding that Hicks used a deadly weapon in the commission of the offense and set Hicks' punishment at fifteen years' confinement.

Hicks raises three issues in five points of error: (1) the trial court erred in overruling Hicks' motion to suppress evidence obtained as the result of a traffic stop; (2) the evidence is legally and factually insufficient to show that Hicks committed the offense; and (3) the evidence is legally and factually insufficient to support the jury's affirmative finding that Hicks used a deadly weapon in the commission of the offense. We overrule all these contentions and affirm the judgment.

We first address Hicks' contention that the trial court erred in overruling his motion to suppress.

We review a trial court's ruling on a motion to suppress for an abuse of discretion. State v. Ross, 32 S.W.3d 853, 857 (Tex. Crim. App. 2000). At a hearing on a motion to suppress, the trial court is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Carmouche v. State, 10 S.W.3d 323 (Tex. Crim. App. 2000). In reviewing the trial court's ruling on a motion to suppress, we give almost total deference to the trial court's finding of historical facts that are supported by the record, while reviewing de novo the trial court's application of the law to the facts. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997); Bilyeu v. State, 136 S.W.3d 691 (Tex. App.--Texarkana 2004, no pet.).

At the suppression hearing, Officer Chase Huckabee of the Waxahachie Police Department testified that, at about midnight on September 4, 2006, he saw a green Chevrolet Cavalier automobile stopped in the middle of the intersection of Farley and Russo Streets. Huckabee observed the vehicle for three to five seconds before he executed a traffic stop and detention of the vehicle for violating Section 545.302(a)(3) of the Texas Transportation Code (stopping, standing, or parking a vehicle in an intersection). Only one person, Hicks, was in the vehicle. When Huckabee approached the vehicle to speak to Hicks, he detected a strong odor of burnt marihuana coming from the vehicle. Hicks told Huckabee that he did not have a driver's license and that his name was James Hill, which later proved to be a false identification. When Huckabee asked Hicks to step out of the vehicle, he noticed the odor of burnt marihuana coming from Hicks' clothes. When the officer began to pat down the outside of Hicks' clothing, he heard what sounded like the rustling of a cellophane wrapper and felt something in Hicks' right front pocket. Thinking that what he felt might be marihuana, Huckabee reached inside Hicks' right front pocket and found two cellophane wrappers. One contained eight and one-half white pills and the other contained three multicolored pills. Huckabee called for a backup officer who identified the white pills as Xanax and the multicolored pills as Ecstasy. Huckabee arrested Hicks for possession of a controlled substance. He conducted a search incident to arrest and found crack cocaine, marihuana, and a digital scale under the right floorboard mat in the back seat of the car. He also found a loaded .40 caliber handgun underneath the back seat cushion. The vehicle was not registered to Hicks. Evidence later showed it belonged to Hicks' girlfriend. Huckabee did not find any burnt marihuana in the car or on Hicks' person.

It is a violation of the Texas Transportation Code for an operator to stop, stand, or park a vehicle in an intersection. Tex. Transp. Code Ann. § 545.302(a)(3) (Vernon Supp. 2007). Any peace officer may arrest, without a warrant, a person found committing a violation of Section 545.302(a)(3). See Tex. Transp. Code Ann. § 543.001 (Vernon 1999). Additionally, any peace officer may arrest, without a warrant, any person who commits an offense in view of the officer. Tex. Code Crim. Proc. Ann. art. 14.01(b) (Vernon 2005). Moreover, a peace officer may stop and briefly detain a person for investigative purposes if the officer has reasonable suspicion, based on articulable facts, that the person detained is, has been, or soon will be engaged in criminal activity. Woods v. State, 956 S.W.2d 33, 38 (Tex. Crim. App. 1997); Garcia v. State, 827 S.W.2d 937, 944 (Tex. Crim. App. 1992).

The facts recited earlier show that, when Officer Huckabee personally observed Hicks' vehicle stopped and standing in the middle of the intersection, Huckabee was authorized to detain Hicks and investigate the traffic violation. When he detected the strong odor of burnt marihuana, he was authorized to detain Hicks further, and when he discovered the controlled substances on Hicks' person, he had probable cause to place Hicks under arrest. The subsequent search was authorized as a search incident to arrest, and the evidence found in that search was properly admitted in evidence.

Hicks argues that his detention was not legal because Huckabee testified only that he "believed" he saw Hicks drive the car. Huckabee actually testified that he saw Hicks drive the car, but driving the car is not an element of the offense Huckabee observed. The offense was stopping in an intersection. Huckabee testified positively that he saw the vehicle stopped and standing in the middle of the intersection. A positive statement that one saw a vehicle stopped and standing in the middle of an intersection is not a mere opinion that a violation was in progress, which must be supported by articulable facts raising a reasonable suspicion. It is a positive, unequivocal statement of fact that a violation of the law was occurring. See Ford v. State, 158 S.W.3d 488 (Tex. Crim. App. 2005) (relied on by Hicks). In Ford v. State, the officer testified that a motorist was following a vehicle at a distance "[he] believed was insufficient." Id. at 492. The court held that the State failed to elicit any testimony showing what facts would allow the officer to objectively determine that Ford was following too closely. In our case, the officer testified objectively that Hicks was stopped in the middle of the intersection.

Hicks also argues that stopping or standing in an intersection for the brief time of three to five seconds does not constitute "stopping, standing, or parking" in an intersection as prohibited by Section 545.302(a)(3) of the Texas Transportation Code. We disagree. The statute defining the offense does not prescribe a minimum time the vehicle must be stopped for the act to constitute an offense. Moreover, there is no evidence that the vehicle Hicks was driving was stopped in the intersection for only three to five seconds. Huckabee said he watched the vehicle stopped in the middle of the intersection for three to five seconds, but he initially saw the vehicle when he first approached the intersection. There is no evidence showing how long the vehicle was stopped in the intersection before Huckabee arrived at the point where he could see it. Additionally, proof that an offense was actually committed is not necessary to justify the investigative detention as long as Huckabee reasonably believed that a violation was in progress. Drago v. State, 553 S.W.2d 375 (Tex. Crim. App. 1977); Plummer v. Edgar, 845 S.W.2d 452, 454 (Tex. App.--Texarkana 1993, no pet.).

We find there is both legally and factually sufficient evidence to support the trial court's overruling Hicks' motion to suppress and that the trial court did not abuse its discretion in doing so.

Hicks also challenges the sufficiency of the evidence to support his conviction for possession of cocaine with intent to deliver.

In reviewing the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2002). In reviewing the factual sufficiency of the evidence, we view all the evidence in a neutral light. The evidence is factually insufficient when, although it is legally sufficient, it is so weak that the verdict appears to be clearly wrong or manifestly unjust, or the verdict is against the great weight and preponderance of the evidence. Watson v. State, 204 S.W.3d 404, 414-15, 417 (Tex. Crim. App. 2006); Castillo v. State, 221 S.W.3d 689, 693 (Tex. Crim. App. 2007).

We find there is legally and factually sufficient evidence to sustain the conviction. Hicks was found in the car where the controlled substances were discovered. There is testimony showing sufficient links connecting Hicks to the contraband to show he knew of its presence and exercised control over it, e.g.: the amount of contraband present was greater than the typical quantity possessed for a user's personal use; a digital scale with cocaine and marihuana residue on it was hidden in the car and the scale was the type commonly used in weighing and packaging narcotics for delivery; Hicks was arrested in a high crime, high drug area; a loaded firearm was hidden in the car close to the drugs and scale; and an experienced narcotics officer testified that, in his opinion, the amount of drugs found, along with the digital scale and loaded firearm indicated that Hicks intended to deliver the drugs. There was no contradictory evidence. This evidence is legally and factually sufficient to authorize the jury to find that Hicks possessed the contraband with the intent to deliver it.

We also find legally and factually sufficient evidence to support the jury's affirmative finding that Hicks used a deadly weapon in the commission of the offense.

The officers found a loaded .40 caliber handgun under the back seat cushion of the vehicle Hicks was using. The handgun was concealed in close proximity to the drugs, the scale, and Hicks himself. In these circumstances, the jury could reasonably believe and find that the handgun protected and facilitated Hicks' care, custody, and management of the contraband, and thus constituted his use of the handgun in the commission of the offense. See Patterson v. State, 769 S.W.2d 938, 942 (Tex. Crim. App. 1989); see also Gale v. State, 998 S.W.2d 221, 225 (Tex. Crim. App. 1999); Charles v. State, 915 S.W.2d 238, 241 (Tex. App.--Beaumont 1995, pet. ref'd).

For all the reasons stated, we affirm the judgment of the trial court.

William J. Cornelius

Justice*

*Chief Justice, Retired, Sitting by Assignment

Date Submitted: March 6, 2008

Date Decided: April 29, 2008

Publish

1. This case has been transferred to this Court as part of the Texas Supreme Court's docket equalization program.

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                                                         In The

                                                Court of Appeals

                        Sixth Appellate District of Texas at Texarkana

                                                             No. 06-11-00077-CR

                           SCOTT PATRICK MACQUARRIE, Appellant

                                            On Appeal from the County Court at Law

                                                             Fannin County, Texas

                                                            Trial Court No. 44271

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

                                            Memorandum Opinion by Justice Moseley

                                                      MEMORANDUM OPINION

            Scott Patrick MacQuarrie, charged with driving while intoxicated (DWI), requested a suppression hearing.  MacQuarrie alleged that the officer who had initially pulled him over for speeding did not properly use the radar device which showed that he was exceeding the speed limit.  Absent a showing of the proper use of the radar device to gauge his speed as being excessive, MacQuarrie maintains, there was no probable cause to have stopped and detained him.  After a hearing, the trial court refused to suppress the evidence obtained after the traffic stop, prompting MacQuarrie to enter a plea of guilty.  After being sentenced to a penalty of six months in county jail with a $750.00 fine, suspended upon his placement on community supervision for eighteen months, MacQuarrie has appealed his conviction.  MacQuarrie’s sole point on appeal is that the trial court erred in refusing to suppress the evidence gained after the traffic stop.  We affirm the trial court’s judgment.

I.          Fact Summary

            Officer George Robinson was driving at approximately fifty miles per hour on State Highway 121 in Fannin County when he spotted MacQuarrie approaching him from the other direction of travel in the northbound lane.  Robinson employed a Bee brand radar that was “calibrated before shift” to determine MacQuarrie’s speed.  Robinson, who had attended a radar certification class, explained, “When I see the vehicle, I will let it get to a certain distance from me before I turn the radar unit on.”  To obtain an accurate reading with such a Bee radar unit, it is Robinson’s practice to allow approximately a twenty-five to thirty-yard distance between the speeding vehicle and his patrol unit before using the radar unit to gauge the speed of other automobiles.  After obtaining a reading of MacQuarrie’s speed from the radar at that distance, Robinson stopped him “for speeding, for 77 miles in a 65-mile-an-hour zone.” 

            Upon his approach to MacQuarrie, Robinson “could smell an odor of alcoholic beverage emitting on or about [MacQuarrie’s] person,” and “could tell that his eyes were bloodshot.”  MacQuarrie admitted that he had been drinking with friends.  After this admission, Robinson contacted Trooper Ricardo Landeros, who conducted field-sobriety tests and arrested MacQuarrie for DWI. 

            The basis for MacQuarrie’s motion to suppress rested on the claim that Robinson did not have reasonable suspicion to stop his automobile.

II.        Standard of Review

            We review a trial court’s decision on a motion to suppress evidence by applying a bifurcated standard of review.  Graves v. State, 307 S.W.3d 483, 489 (Tex. App.—Texarkana 2010, pet. ref’d); Rogers v. State, 291 S.W.3d 148, 151 (Tex. App.—Texarkana 2009, pet. ref’d).  While we defer to the trial court on its determination of historical facts and credibility, we review its application of the law and determination on questions not turning on credibility de novo.  Carmouche v. State, 10 S.W.3d 323, 332 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997); Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996); Graves, 307 S.W.3d at 489.  We also afford deference to a trial court’s “application of law to fact questions,” also known as “mixed questions of law and fact,” if the resolution of those questions turns on an evaluation of credibility and demeanor.  Guzman, 955 S.W.2d at 89.  Since all the evidence is viewed in the light most favorable to the trial court’s ruling, we are obligated to uphold the denial of MacQuarrie’s motion to suppress if it was supported by the record and was correct under any theory of law applicable to the case.  Carmouche, 10 S.W.3d at 327–28; State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999).

III.       The Radar Evidence

            An officer conducts a lawful stop when he has reasonable suspicion to believe that an individual is violating the law.  Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005).  Reasonable suspicion exists if the officer has specific, articulable facts that when combined with rational inferences from those facts, would lead him to reasonably conclude that a particular person actually is, has been, or soon will be engaged in criminal activity.  Id.; Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001).^[1]  This is an objective standard that disregards any subjective intent of the officer making the stop and looks solely to whether an objective basis for the stop exists.  Ford, 158 S.W.3d at 492.  “If an officer has a reasonable basis for suspecting that a person has committed a traffic offense, the officer may legally initiate a traffic stop.”  Zervos v. State, 15 S.W.3d 146, 151 (Tex. App.—Texarkana 2000, pet. ref’d); Graves, 307 S.W.3d at 489; see Tex. Code Crim. Proc. Ann. art. 14.01(b) (West 2005). 

            Robinson’s reasonable suspicion to conduct the traffic stop was based on the radar device’s reading of the speed of MacQuarrie’s vehicle, a speed detected to be excessive.  However, MacQuarrie argues that the State failed to establish a sufficient predicate for admitting the results of the radar speed calculation device into evidence under Kelly v. State, 824 S.W.2d 568, 573 (Tex. Crim. App. 1992).  In Maysonet v. State, we recited the Kelly factors, which require the proponent of evidence based on a scientific theory to show that (1) the underlying scientific theory is valid; (2) the technique applying the theory is valid; and (3) the technique was properly applied on the occasion in question.  Maysonet v. State, 91 S.W.3d 365, 369 (Tex. App.—Texarkana 2002, pet. ref’d) (citing Kelly, 824 S.W.2d at 573).  Because the scientific validity of radar “is well settled in both the relevant scientific community and in Texas jurisprudence,” we stated in Maysonet that “we view the underlying scientific principles of radar as indisputable and valid as a matter of law.”  Id. at 371 (citing Masquelette v. State, 579 S.W.2d 478, 481 (Tex. Crim. App. [Panel Op. 1979) (“[T]he officer’s testimony that he had been both trained to operate the radar set and to test it for accuracy is a sufficient predicate to support admission of radar evidence.  Thus, . . . the State is not required to call expert witnesses to establish the accuracy of the radar.”) (citations omitted)).  However, we cautioned that “the State must still establish that officers applied a valid technique and that it was correctly applied on the particular occasion in question.”  Id.

            Here, MacQuarrie complains that Robinson’s technique in employing the radar device (maintaining that the distance between the two automobiles at the time the testing took place was too short to render an accurate reading), demonstrated that Robinson did not employ the proper technique in utilizing the device.  In support of this argument, MacQuarrie cites to a hypothetical given to Landeros:

            Q.        . . . . I want you to assume a hypothetical.  Okay?

            A.        Okay.

            Q.        You’ve got a vehicle coming towards you travelling 77 miles per hour.  Okay?

            Q.        You’re going 65 miles per hour.

            Q.        Assume a distance between the two vehicles of 25 yards.

            . . . .

            Q.        Assume a distance between the two vehicles of 30 yards.

            A.        Before I even think, it’s going to be on me.

            A.        . . . . But I don’t personally check a car when it’s that close.

            Q.        Why?

            A.        Why?  Because when I see a car coming, it is -- it’s from a half mile to -- a half a mile in front of me when I check its speed.  I don’t check the speed right there right on top of me.

            Q.        So, would it be appropriate to check the speed of a vehicle for radar purposes when it’s right there on top of you?

            A.        No.

            A.        Because I need distance.

This hypothetical contradicted Robinson’s statement that he was travelling at a speed of fifty miles per hour and that he waited for the vehicle to reach within twenty-five to thirty yards of his unit prior to checking its speed with the radar device at that distance.^[2]  Additionally, Landeros’ practice with regard to the use of a radar speed checking device was based upon the radar in his trooper patrol car, not shown to be the same type employed by Robinson.  Robinson testified that with respect to radar systems in the Fannin County Sheriff’s Office patrol cars, “[d]ifferent vehicles had different radars.”  Robinson’s statement that he allows “25 to 30 yards” between his patrol car and a suspected speeding vehicle to obtain an accurate speed was specific to the Bee unit.

            MacQuarrie next relies on an affidavit from Brandi Holcomb, a Bonham High School math teacher, who “was requested to calculate the amount of time that would elapse between two vehicles meeting each other at varying distances and varying speeds.”  The results of her calculations suggested it would take less than half a second for MacQuarrie’s vehicle to meet Robinson’s vehicle, assuming the distance between the two vehicles was anywhere from twenty-five to thirty yards at the commencement of the speed test.  Based upon Holcomb’s calculations, MacQuarrie argues that it would have been impossible for Robinson to perceive MacQuarrie and deploy the radar device in under half a second.  However, this calculation ignores Robinson’s testimony that he recorded MacQuarrie’s speed at a time when Robinson was twenty-five to thirty yards away from MacQuarrie’s vehicle.  That it took less than half a second for the two vehicles to then meet is of little consequence.

            During the hearing, MacQuarrie’s counsel asked Robinson, “[Y]ou observed no bad driving on his part?,” to which Robinson replied, “The only thing was the speeding.”  Robinson testified that he was certified to operate the radar device, that the device had been properly calibrated, and that he employed the device properly by waiting for MacQuarrie’s vehicle to reach within a certain distance to ensure accuracy with the Bee radar.  We reiterated in Maysonet that “[t]he determination of the presence of reasonable suspicion is a factual one and is made by considering the totality of the circumstances at the time of the stop.”  Maysonet, 91 S.W.3d at 372.  The trial judge is the exclusive trier of fact at a suppression hearing.  State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).  The trial court could have found that the radar reading obtained by Robinson provided him with a factual basis to determine and/or confirm his suspicion that MacQuarrie was speeding.  Therefore, as in Maysonet, we determine here that the trial court did not abuse its discretion by denying MacQuarrie’s motion to suppress based on lack of reasonable suspicion.  Maysonet, 91 S.W.3d at 372; see Mills v. State, 99 S.W.3d 200, 202–03 (Tex. App.—Fort Worth 2002, pet. ref’d).  MacQuarrie’s point of error is overruled.

IV.       Conclusion

            We affirm the trial court’s judgment.

                                                                        Bailey C. Moseley

                                                                        Justice

Date Submitted:          September 14, 2011

Date Decided:             September 15, 2011

Do Not Publish

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^[1]One might observe that Robinson may have entertained a reasonable suspicion that MacQuarrie was speeding; otherwise, he would likely not have had a reason to clock the speed of MacQuarrie’s car by use of the radar apparatus.  However, that was not developed at the suppression hearing.

^[2]Instead, the trial court could have found that this hypothetical situation incorrectly assumed that the officer first spotted MacQuarrie’s vehicle when it was twenty-five to thirty yards away, and could have disregarded Landeros’ answer to the hypothetical.