Potts, Eugene Melvin v. State

• Court: Court of Appeals of Texas
• Decided: January 2, 2003
• Docket: 01-02-00119-CR
• Status: Published

Opinion

Opinion issued January 2, 2003

In The

Court of Appeals

For The

First District of Texas

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NO. 01-02-00119-CR

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EUGENE MELVIN POTTS, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 209th District Court

Harris County, Texas

Trial Court Cause No. 874851

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M E M O R A N D U M O P I N I O N

           Eugene Melvin Potts, appellant, was charged by indictment with the felony offense of possession of a controlled substance. Appellant filed a motion to suppress. After the trial court denied his motion, appellant pled guilty to possession of a controlled substance. The trial court, following an agreed recommendation, sentenced appellant to four years’ community supervision, a $500 fine, and 10 days in Harris County jail as a condition of community supervision.

           Appellant claims the trial court erred and abused its discretion in denying appellant’s motion to suppress in violation of (1) the Fourth Amendment of the United States Constitution, (2) Article I, § 9 of the Texas Constitution, and (3) Article 38.23 of the Texas Code of Criminal Procedure.

Background

           Houston Police Sergeant Bobby Roberts was on routine patrol when he observed a car in which appellant was riding run a stop sign. Roberts stopped the car and called a back-up unit because he could see that there were three males in the car. Roberts approached the driver while Officer Cox approached appellant, who was the front-seat passenger. Officer Sweat approached the rear-seat passenger. Cox believed that appellant was intoxicated because Cox observed that appellant had glassy eyes, somewhat slurred speech, and difficulty answering simple questions. Sweat told Cox that a bottle of phencyclidine (PCP) had been found in the back seat of the vehicle where the third passenger was seated. Cox then asked appellant if he had smoked PCP, and appellant said he had. Cox testified that, during his tenure as a police officer, he had come in contact with people who were under the influence of PCP. Cox testified that appellant’s behavior was consistent with someone under the influence of PCP. Cox placed appellant under arrest for public intoxication. Appellant was then taken to the police station where a search was conducted. During that search, a small bottle, which was later determined to contain PCP, was found in appellant’s jacket.

Discussion

           In his first, second, and third points of error, appellant argues that the trial court violated his right under the Fourth Amendment of the United States Constitution, Article I, § 9 of the Texas Constitution, and Article 38.23 of the Texas Code of Criminal Procedure in denying his motion to suppress the narcotics found during the inventory search. Appellant contends the officers did not have probable cause to believe appellant had committed the crime of public intoxication because there was no evidence that he posed a danger to himself or others. Appellant claims that, because his arrest was without probable cause, the PCP should have been suppressed as a product of an illegal search.

           We review a trial court’s ruling on a motion to suppress evidence for an abuse of discretion. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996); Taylor v. State, 945 S.W.2d 295, 297 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d). We afford almost total deference to a trial court’s determination of historical facts that the record supports, especially when the findings are based on the evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). The fact finder is the sole judge of the witnesses’ credibility and may accept or reject any or all of a witnesses’ testimony. Taylor, 945 S.W.2d at 297. In reviewing a ruling on a question of application of law to facts, we review the evidence in the light most favorable to the trial court’s ruling. Guzman, 955 S.W.2d at 89.

           A police officer may make a warrantless arrest if (1) there is probable cause to believe that an offense has been committed or is being committed and (2) the arrest falls within one of the statutory exceptions to the warrant requirement specified in articles 14.01 through 14.04 of the Texas Code of Criminal Procedure. Stull v. State, 772 S.W.2d 449, 451 (Tex. Crim. App. 1989). Probable cause for a warrantless arrest exists when a police officer has reasonably trustworthy information, considered as a whole, that is sufficient to cause a reasonable, prudent officer to believe that a particular person has committed or is committing an offense. See Hughes v. State, 24 S.W.3d 833, 838 (Tex. Crim. App. 2000). A reviewing court is to consider the totality of the circumstances when determining whether the facts were sufficient to give the officer probable cause to arrest the defendant. Chilman v. State, 22 S.W.3d 50, 56 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d). Once a suspect is validly arrested, he may be properly searched incident to the arrest. Busby v. State, 990 S.W.2d 263, 270 (Tex. Crim. App. 1999).

           The offense of public intoxication occurs when an individual (1) appears in a public place while intoxicated and (2) is so intoxicated that he might endanger himself or another. See Tex. Pen. Code Ann. § 49.02(a) (Vernon Supp. 2002). The danger need not be immediate or apparent; it is sufficient if the defendant places himself or others in potential danger. See Dickey v. State, 552 S.W.2d 467, 468 (Tex. Crim. App. 1977). The only question is whether, under the facts and circumstances within the officer’s knowledge, he had reasonably trustworthy information that would warrant a prudent person in believing that the defendant or others were facing potential danger. Britton v. State, 578 S.W.2d 685, 689 (Tex. Crim. App. 1978) (op. on reh’g).

           Cox testified that he believed appellant was intoxicated based on appellant’s appearance: his glassy eyes, his somewhat slurred speech, and his difficulty in answering questions. After finding narcotics in the back seat of the car appellant was riding in, Cox asked appellant if he had smoked PCP, and appellant stated that he had. Cox also testified that on many occasions he had come into contact with individuals under the influence of PCP. Cox stated that appellant’s behavior was consistent with that of a person under the influence of PCP.

           Roberts testified that a person who is under the influence of PCP is very much a danger to himself or others. Roberts had, on many occasions, come into contact with persons who were under the influence of PCP, and those persons sometimes became extremely violent as they went through “peaks” and “valleys.” Roberts noted that individuals under the influence of PCP exhibit erratic actions, super strength, and resistance to pain, and they experience hallucinations. Roberts also noted that it is very common for persons under the influence of PCP to strip off their clothes, run into the middle of the street, or try to commit suicide. While at the scene, Roberts observed that appellant appeared to be in a “valley” and was not exhibiting signs of violent behavior, but there was no way to tell how long appellant would stay in that “valley” before reaching a “peak”—which would make appellant more violent and aggressive.

           Viewing the evidence in the light most favorable to the trial court’s ruling, we find that Cox had probable cause to believe appellant was intoxicated and that he was a danger to himself or others.

Conclusion

           We overrule appellant’s first, second, and third points of error.

                                                                  Sam Nuchia

                                                                  Justice

Panel consists of Justice Nuchia, Jennings, and Radack.

Do not publish. Tex. R. App. P. 47.4.