Homer Ray Washington v. State

• Court: Court of Appeals of Texas
• Decided: June 13, 2006
• Docket: 14-05-00614-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed June 13, 2006

Affirmed and Memorandum Opinion filed June 13, 2006.

In The

Fourteenth Court of Appeals

_______________

NO. 14-05-00614-CR

HOMER RAY WASHINGTON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 209th District Court

Harris County, Texas

Trial Court Cause No. 993,344

M E M O R A N D U M   O P I N I O N

Homer Ray Washington appeals a conviction for possession of heroin weighing more than one gram and less than 4 grams^[1] on the ground that the trial court erred by denying his motion to suppress because: (1) the State failed to introduce any evidence that a crime had been committed in the arresting officer=s presence so as to establish probable cause; (2) the arresting officer did not testify that he had a warrant to arrest or search appellant, or that appellant consented to the search; and (3) there was nothing in the record to justify a stop of appellant.  We affirm.

We review a trial court's ruling on a motion to suppress evidence for abuse of discretion.  Swain v. State, 181 S.W.3d 359, 365 (Tex. Crim. App. 2005).  We afford almost total deference to the trial court's determinations of historical facts that involve an evaluation of the credibility and demeanor of the witnesses^[2] and review the court=s application of search and seizure law de novo.^[3]        

A warrantless arrest by a police officer is reasonable under the Fourth Amendment to the United States Constitution^[4] where there is probable cause to believe that a criminal offense has been or is being committed.  Devenpeck v. Alford, 543 U.S. 146, 152 (2004). Probable cause requires that the officer have a reasonable belief that, based on facts and circumstances within the officer=s personal knowledge, or of which the officer has reasonably trustworthy information, an offense has been committed.  Torres v. State, 182 S.W.3d 899, 902 (Tex. Crim. App. 2005).  Additionally, when an officer makes an arrest, he may search the arrestee to seize any evidence on his person.  Chimel v. California, 395 U.S. 752, 762-63 (1969).

In this case, Officer Scoggins, who had worked in the narcotics division for the past ten years, testified that: (1) he and his partner, Officer Wood, went to a mainly residential area with a vacant lot known for heavy narcotics trafficking to conduct an investigation; (2) the targets of the investigation were a suspect named Kevin Bolding and an unnamed one-armed individual, whose description matched appellant=s appearance; (3) after Wood detained Bolding and other police officers arrived in marked police cars, appellant briskly walked away from the scene; (4) when appellant saw Scoggins following him, appellant started to run, appeared nervous, and looked over his shoulder; (5) while directly behind appellant, Scoggins observed appellant place a ziplock bag containing other ziplock bags into his left pocket; (6) Scoggins had a good view of the bag and, based on his training and experience, believed that the bags contained heroin; and (7) he pushed appellant down, handcuffed appellant, and recovered the bag containing heroin from appellant=s left front pocket.

When Scoggins saw appellant, who matched the targeted suspect=s description, in a known drug trafficking area nervously walking away from a scene where another suspect was being detained and as other police officers arrived, he had reasonable suspicion to pursue and detain appellant.  See Illinois v. Wardlow, 528 U.S.119, 121,124-25 (2000).  When Scoggins then observed appellant apparently possessing heroin while fleeing under these circumstances, there was probable cause to arrest appellant without a warrant and conduct a search of appellant=s person incident to the arrest.  Therefore, appellant=s issue does not show that the trial court erred in denying appellant=s motion to suppress and is overruled. The judgment of the trial court is affirmed.

/s/        Richard H. Edelman

Justice

Judgment rendered and Memorandum Opinion filed June 13, 2006.

Panel consists of Justices Anderson, Edelman, and Frost.

Do not publish C Tex. R. App. P. 47.2(b).

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^[1]           A jury found appellant guilty and the trial court assessed punishment at 25 years= confinement.

^[2]           Masterson v. State, 155 S.W.3d 167, 170 (Tex. Crim. App. 2005), cert. denied, 74 U.S.L.W. 3471 (U.S. Feb. 21, 2006).

^[3]           Ballentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002).

^[4]           Because appellant does not contend that article I, section 9 of the Texas Constitution provides greater protection than the United States Constitution, we review this issue only under the Fourth Amendment.  See Manns v. State, 122 S.W.3d 171, 192 n.97 (Tex. Crim. App. 2003).