Robert Vance Murry v. State

• Court: Court of Appeals of Texas
• Decided: August 1, 2008
• Docket: 06-07-00183-CR
• Status: Published

Opinion

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-07-00183-CR ______________________________

ROBERT VANCE MURRY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 124th Judicial District Court Gregg County, Texas Trial Court No. 33993-B

Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Justice Moseley MEMORANDUM OPINION

Robert Vance Murry appeals his conviction for possession of one gram or less of a controlled

substance. On appeal, Murry contends there was no probable cause or reasonable suspicion for

Longview police officers to detain him; therefore, according to Murry, the trial court erred in denying

his motion to suppress evidence. We disagree and overrule Murry's sole point of error.

The standard for reviewing a trial court's ruling on a motion to suppress evidence is abuse

of discretion. Long v. State, 823 S.W.2d 259, 277 (Tex. Crim. App. 1991). At a hearing on a motion

to suppress, the trial court is the sole trier of fact and judge of the credibility of the witnesses as well

as the weight to be given their testimony. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App.

1990); Brooks v. State, 830 S.W.2d 817, 820 (Tex. App.—Houston [1st Dist.] 1992, no pet.). On

appellate review, the evidence presented at the suppression hearing is viewed in the light most

favorable to the trial court's ruling to determine whether the trial court abused its discretion in

denying the motion to suppress. Whitten v. State, 828 S.W.2d 817, 820 (Tex. App.—Houston [1st

Dist.] 1992, pet. ref'd).

Around 2:00 a.m., July 10, 2005, Officer Kurt Rhodes responded to a dispatch call report of

a suspicious person in the 2000 block of Sea Biscuit in Longview. The report described a white male

walking around with a baseball bat. Rhodes found Murry, who fit the reported description, carrying

a baseball bat. Murry complied with Rhodes' request to put down the bat on the side of the road.

Evidence was later adduced that Murry lived near the place he was stopped.

2 Sergeant Toby Laughlin arrived to assist Rhodes. Laughlin said that for officer safety, he

asked Murry whether he carried any weapons. Murry responded that he had a knife in one of his

front pockets. Laughlin asked Murry if Laughlin could retrieve the knife, and Murry said he would

do it himself. Murry reached into a pocket and started to pull out an unlabeled prescription

medication bottle; Laughlin inquired about the bottle, and Murry pushed the bottle back into his

pocket. Laughlin testified he was suspicious about the bottle because he had seen such bottles used

in the past to carry controlled substances. No knife was found among Murry's belongings. The

baseball bat was still in plastic wrapping; Murry said he had purchased the bat at the local Wal-Mart.

In the pill bottle was less than one gram of methamphetamine. Also found on Murry was a cigarette

package containing marihuana. Murry was convicted of possession of a controlled substance in an

amount less than one gram and sentenced to two years in a state-jail facility.

There are three distinct categories of interactions between police officers and citizens:

encounters, investigative detentions, and arrests. State v. Perez, 85 S.W.3d 817, 819 (Tex. Crim.

App. 2002). Encounters occur when police officers approach an individual in public to ask

questions. Harper v. State, 217 S.W.3d 672, 674 (Tex. App.—Amarillo 2007, no pet.). Encounters

do not require any justification whatsoever on the part of an officer. Id. Police officers "do not

violate the Fourth Amendment by merely approaching an individual on the street or in another public

place, by asking him if he is willing to answer some questions, by putting questions to him if the

3 person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers

to such questions." Perez, 85 S.W.3d at 819.

An officer may briefly stop a suspicious individual in order to determine his identity or to

maintain the status quo momentarily while obtaining more information. Adams v. Williams, 407

U.S. 143, 147 (1972); Terry v. Ohio, 392 U.S. 1, 21 (1968); Gurrola v. State, 877 S.W.2d 300, 302

(Tex. Crim. App. 1994). To justify a brief investigative detention, the officer must be aware of

specific, articulable facts which, in light of his experience and personal knowledge, together with

reasonable inferences therefrom, would warrant detaining the suspect. Adams, 407 U.S. at 147;

Martinez v. State, 29 S.W.3d 609, 611 (Tex. App.—Houston [1st Dist.] 2000, pet. ref'd) (citing

Terry, 392 U.S. at 21).

Here, officers stopped Murry on a public street in the wee hours of the morning. Murry was

carrying a baseball bat, albeit apparently recently purchased. Nonetheless, this encounter was proper

and legal. Officers had the right to ask Murry questions on a public street. When in the course of

their permissible questions Murry said he had a knife on his person, officers had articulable facts

which warranted further questioning: to-wit, investigating Murry's purported possession of a knife.

When Murry revealed the pill bottle and then tried to conceal it, the officers' suspicions were

reasonably raised.

Murry claims this incident was "[i]nitially. . . an investigative detention." We disagree; as

stated above, the police had the right to approach Murry on a public street and ask him questions.

4 "A police officer is just as free as any other citizen to stop and ask questions of a fellow citizen."

Hunter v. State, 955 S.W.2d 102, 104 (Tex. Crim. App. 1997). Despite Murry's contention that he

was "clearly not free to leave," we find no evidence to substantiate that claim. Our reading of the

record indicates a brief, fluid set of events: police stopped Murry on a public street; asked him to

put down his baseball bat; asked if he had any weapons. To this point officers are engaged in an

encounter with Murry. Officers had a right to investigate the knife Murry told them he had;1 when

he instead showed an unlabeled pill bottle and suspiciously tried to hide it, the officers had

reasonable suspicion to conduct an investigative detention. Upon examining the contents of the

bottle, officers had probable cause to arrest Murry.

We find the trial court acted within its discretion in denying Murry's motion to suppress

evidence. We affirm the trial court's judgment.

Bailey C. Moseley Justice

Date Submitted: July 31, 2008 Date Decided: August 1, 2008

Do Not Publish

1 See, e.g., TEX . PENAL CODE ANN . §§ 46.01, 46.02 (Vernon Supp. 2007) (regarding illegal knives).