Keys, Al Jerome v. State

• Court: Court of Appeals of Texas
• Decided: April 8, 2004
• Docket: 14-03-00856-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed April 8, 2004

Affirmed and Memorandum Opinion filed April 8, 2004.

In The

Fourteenth Court of Appeals

____________

NO. 14-03-00856-CR

AL JEROME KEYS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 339th District Court

Harris County, Texas

Trial Court Cause No. 935,439

M E M O R A N D U M   O P I N I O N

After a jury trial, appellant was convicted of the offense of possession of more than four grams, but less than 200 grams, of cocaine.  On July 30, 2003, the trial court sentenced appellant to confinement for six years in the Institutional Division of the Texas Department of Criminal Justice.  Appellant filed a pro se notice of appeal.

Appellant=s appointed counsel filed a brief in which he concludes the appeal is wholly frivolous and without merit.  The brief meets the requirements of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967), presenting a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced.  See High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978).

A copy of counsel=s brief was delivered to appellant.  Appellant was advised of the right to examine the appellate record and file a pro se response.  See Stafford v. State, 813 S.W.2d 503, 510 (Tex. Crim. App. 1991).  Appellant has filed a response in which he asserts his arrest was pretextual.  See Garcia v. State, 827 S.W.2d 937, 939‑940 (Tex. Crim. App. 1992) (defining a pretext arrest as one in which an individual is validly arrested for one offense only because law enforcement officials wanted to investigate that individual for a different offense for which they do not have valid legal grounds to arrest).  He argues his warrantless arrest lacked probable cause and was followed by an illegal search in violation of his Fourth Amendment rights.  Appellant also asserts his Fifth Amendment rights were violated when he was coerced into an admission of possessing drugs.  He also challenges the sufficiency of the evidence and the effectiveness of his appointed trial counsel=s representation.

Appellant=s appointed counsel reviewed the evidence supporting appellant=s conviction and accurately recited the relevant facts in his brief.  Late January 7th and early January 8th, 2003, off-duty police officers working security at a Motel 6 approached Room 339 to investigate a noise disturbance complaint.  Neither officer was in uniform, but both were wearing badges and carrying guns.  After the officers knocked twice and identified themselves as police officers, the door was opened.  The room was occupied by five black males, and the floor was strewn with hollowed out cigars used for smoking marijuana.  The officers did not enter the room, but for their safety, asked all the room=s occupants to go into the hallway, face the wall, kneel, and show their hands.  The officers testified they did not have their weapons drawn, no arrests were made, and no probable cause for arrest existed at that time.  The officers asked all the men if there were weapons or narcotics in the room, and they responded there were not.  Then the men were asked if anyone had Adope,@ and appellant responded, AYeah.  I=m holding weight.@  The officers then took him into custody, handcuffed him, and searched him.  In his jacket pocket, they found a glass pipe and eleven baggies containing a white powdery substance that field-tested positive for cocaine.  Subsequent lab tests confirmed that the baggies contained 13.5 grams of 56% pure cocaine.

Appellant was charged with possession with intent to deliver a controlled substance.  After a jury trial, he was convicted of the lesser-included offense of possession of more than four grams, but less than 200 grams, of cocaine.  Appellant=s appointed trial counsel filed a motion to suppress, which was carried with the case and heard during trial.  The trial court overruled the motion, and appellant=s counsel repeatedly renewed his objection to the evidence during trial.

Appellant=s potential issues raised in response to counsel=s Anders brief stem from the denial of his motion to suppress the cocaine recovered from his jacket pocket.  Appellant testified outside the jury=s presence that he thought he was under arrest when he made the comment about carrying Aweight.@  Therefore, he argues that his oral statement was admitted in error because the officers failed to comply with Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).  He asserts the evidence seized was inadmissible as the fruit of the poisonous tree.  See Tex. Code Crim. Proc. Ann. art. 38.23(a) (Vernon 2003) (ANo evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.@)

Appellant=s appointed appellate counsel analyzed the evidence at trial and concluded that the trial court correctly determined appellant was subjected to a noncustodial investigative detention at the time he made the statement in question.  An officer who lacks probable cause but whose observations lead to a reasonable suspicion that a particular person has committed, is committing, or is about to commit a crime, may detain that person briefly in order to investigate the circumstances that provoke the suspicion.  Berkemer v. McCarty, 468 U.S. 420, 439, 104 S. Ct. 3138 (1984).  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). 

The record supports the trial court=s finding that appellant=s detention was merely investigative and not the result of a custodial interrogation.  See, e.g., Mays v. State, 726 S.W.2d 937, 944 (Tex. Crim. App. 1986) (holding that officer=s conduct in handcuffing two men did not constitute arrest and was reasonable under circumstances as investigative detention).  The trial court, in its evaluation of the witnesses= credibility, believed the officers= testimony that they briefly detained appellant and the other men to investigate the noise complaint, and their actions were only to ensure officer safety during the detention.  The officers were suspicious that appellant and the other men were engaged in drug activity after they saw the hollowed-out cigars used to smoke marijuana.  Appellant was not the focus of the investigation until after he made the admission he possessed drugs.  The other men, who made no statements, were later released.  Because appellant was not in custody, Miranda warnings were not required.  Thus, the trial court did not abuse its discretion in denying appellant=s motion to suppress. 

Appellant=s admission, the testimony of the arresting officers, the recovery of the cocaine, and the circumstantial evidence at trial clearly constituted sufficient evidence to support appellant=s conviction.  Accordingly, appellant=s appointed counsel correctly concluded the evidence was sufficient, appellant=s constitutional rights were not violated, and trial counsel=s performance was not deficient.  We have carefully reviewed the record, counsel=s brief, and appellant=s pro se response, and agree there are no arguable grounds for appeal.  Our independent review reveals no reversible error in the record.  Further discussion of the brief and response would add nothing to the jurisprudence of the state.

Accordingly, the judgment of the trial court is affirmed.

PER CURIAM

Judgment rendered and Memorandum Opinion filed April 8, 2004.

Panel consists of Chief Justice Hedges and Justices Frost and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).