Hendrickson, Mark Wayne v. State

• Court: Court of Appeals of Texas
• Decided: October 24, 2002
• Docket: 14-02-00070-CR
• Status: Published

Opinion

Affirmed and Opinion filed _____________, 2002

Affirmed and Opinion filed October 24, 2002.                                                

In The

Fourteenth Court of Appeals

____________

NO. 14-02-00070-CR 

MARK WAYNE HENDRICKSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court at Law No. 1

Harris County, Texas

Trial Court Cause No. 1064591

O P I N I O N

            Appellant pleaded guilty to possession of less than two ounces of marijuana after the trial court denied his motion to suppress.  He was sentenced to fifty days’ confinement.  In his sole point of error, he contends the trial court erred in denying his motion to suppress a hand-rolled marijuana cigarette.  We affirm.

Statement of Facts

            While patrolling a Wal-Mart parking lot, Officer Mark Lentini noticed two cars parked side-by-side well away from the store.  It appeared to him some sort of child-custody exchange was taking place between a man and a woman.  Concerned over a possible domestic violence situation, and suspicious of the cars’ location at a spot remote from any stores, he made his way toward them. 

As Lentini approached, he saw appellant cover his ear with his hand and toss a hand-rolled cigarette into the front seat of one car.  Lentini detained appellant, frisked him for weapons, and put him in the back seat of his patrol car.  Lentini then saw the woman leaning into the car where appellant had tossed the cigarette, and he told her to get out.  She did, holding a plastic bag filled with trash.  Lentini looked in the bag and saw the cigarette in a zip-lock bag.  The cigarette smelled like marijuana, and proved to be so in later tests.  When asked about the cigarette, appellant said “It was a pen behind my ear.” 

Standard of Review

            Motions to suppress are subject to a bifurcated standard of review.  Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000).  We give “almost total deference to the lower court’s determination of historical facts supported by the record.”  Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).  If the trial court does not make findings of fact, we view the evidence in the light most favorable to the trial court’s ruling.  See Carmouche, 10 S.W.3d at 328.  We then review de novo the trial court’s application of the law.  See id. at 327.

Analysis

            In his sole point of error, appellant argues Officer Lentini had no reasonable suspicion to detain him, and thus the trial court should have suppressed the cigarette as the fruit of an unlawful detention.  Reasonable suspicion is an objective standard, determined under the totality of the circumstances.  Woods v. State, 956 S.W.2d 33, 38 (Tex. Crim. App. 1997); Garcia v. State, 827 S.W.2d 937, 943-944 (Tex. Crim. App. 1992). 

            Appellant argues that Lentini could not see what was in the hand-rolled cigarette, and thus had no basis for suspicion.  First, this ignores appellant’s furtive behavior when the officer approached.  Second, Lentini testified that the cigarette was completely white without any markings, was tapered at the ends, and had a rough finish, and that based on his experience, he suspected it was a marijuana cigarette. 

            An officer is not required to know that certain items are contraband before seizing them.  Texas v. Brown, 460 U.S. 730, 740-42, 103 S.Ct. 1535, 1542-43; Johnson v. State, 720 S.W.2d 239, 240 (Tex. App.—Houston [14th Dist.] 1986, no pet.) (finding probable cause when officer saw half-smoked, hand-rolled cigarette in plain view).  An officer may rely on training and experience to draw inferences and make deductions.  Id.  Under the totality of the circumstances, Lentini had reasonable suspicion to believe the cigarette was marijuana.  Appellant’s point of error is overruled.

            The judgment is affirmed.

                                                            /s/        Scott Brister

                                                                        Chief Justice

Judgment rendered and Opinion filed October 24, 2002.

Panel consists of Chief Justice Brister and Justices Hudson and Fowler.

Do Not Publish — Tex. R. App. P. 47.3(b).