Opinion issued January 7, 2014
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-12-00404-CR ——————————— SHERON GABRIEL TERRELL, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 56th District Court Galveston County, Texas Trial Court Case No. 11CR1752
MEMORANDUM OPINION
A jury convicted appellant Sheron Gabriel Terrell of possession of cocaine
in an amount between one and four grams. See TEX. HEALTH & SAFETY CODE ANN.
§§ 481.102(3)(D), 481.115 (West 2010). The jury found it true that Terrell was
previously convicted of the felony offense of tampering with physical evidence, and it imposed a sentence of thirteen years in prison accompanied by a $2,500 fine.
See TEX. PENAL CODE ANN. § 12.42(a) (West 2011). In two appellate issues,
Terrell challenges the qualifications of the testifying officer as an expert witness on
high crime areas and the legitimacy of the investigative detention that resulted in
discovery of the cocaine. We affirm.
Background
Officer Hassan Mustafa of the Galveston Police Department was patrolling
near the intersection of 27th Street and Avenue K, a frequent site of criminal drug
transactions. He was standing outside his car, a “blacked out” patrol unit, when he
observed Terrell and an unidentified white man walk up to each other and
exchange something quickly, hand-to-hand. Mustafa recognized Terrell, as he had
previously stopped him for minor misbehavior, “like walking in the roadway,” and
knew that he was involved in the drug trade.
Terrell and the white man parted ways. Mustafa reentered his car and made a
U-turn to approach Terrell from behind. When Terrell saw him, he jumped to the
sidewalk, behind a parked car. Mustafa told him, “Hey, come here.” Terrell then
reached down with his hands and threw something on the ground. Since Mustafa
could not see Terrell’s hands during this motion, he pulled out his taser and
switched commands, telling Terrell to place himself on the ground. Terrell
complied and was placed in handcuffs. Once a backup unit arrived, Mustafa found
2 a small plastic bag five or six feet away from where he had detained Terrell. The
bag contained a beige rock that proved to be crack cocaine. After the rock was
discovered, Terrell addressed the officer by name, saying: “Mustafa, you pulled a
magical maneuver on me.”
Before his trial, Terrell moved to suppress evidence of the crack rock. The
trial judge held a hearing and denied the motion. At trial, a jury convicted Terrell
of possessing between one and four grams of cocaine. It found true the
prosecution’s enhancement allegation—that Terrell previously had been convicted
of felony evidence tampering—and sentenced him to thirteen years imprisonment
and a $2,500 fine. This appeal followed.
Analysis
I. Waiver of evidentiary objection
In his first issue, Terrell argues that Mustafa should not have been allowed
to testify that the area he was patrolling was a high crime area. He contends that
the trial judge should not have admitted the evidence without a hearing to test
Mustafa’s qualifications as an expert under Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993), and Kelly v. State,
824 S.W.2d 568 (Tex. Crim. App. 1992).
To preserve error regarding the admission of evidence, a party must make a
specific and timely objection. TEX. R. APP. P. 33.1(a)(1); Penry v. State, 903
3 S.W.2d 715, 763 (Tex. Crim. App. 1995). This is as true of failure to hold a
Daubert hearing as it is of other evidentiary issues. See, e.g., Stephens v. State, 276
S.W.3d 148, 153 (Tex. App.—Amarillo 2008, pet. ref’d) (appellant did not
preserve error when he neither objected to expert’s testimony at trial nor requested
a Daubert hearing). Since Terrell neither requested a Daubert hearing nor objected
to the lack of one, he preserved nothing for our review.
II. Reasonable suspicion for temporary detention
In his second issue, Terrell urges that his initial detention by Mustafa was
not supported by a reasonable suspicion of criminal activity. He argues that as the
cocaine was discovered in consequence of this detention, the trial court erred in
refusing his motion to suppress this evidence.
Terrell and the State disagree about when Mustafa detained Terrell. This
question can be significant because not all contacts between the police and citizens
are subject to the limitations of the Fourth Amendment. See, e.g., Wade v. State,
No. PD-1710-12, 2013 WL 4820299, at *2 (Tex. Crim. App. Sept. 11, 2013). The
State argues that Terrell was not seized prior to tossing the bag of cocaine on the
ground and that, therefore, the cocaine is not the fruit of an unlawful detention.
Terrell argues that he was improperly seized prior to dropping the cocaine.
Assuming without deciding that Mustafa seized Terrell when he said, “Hey, come
4 here,” we conclude that Mustafa’s actions were supported by a reasonable
suspicion of criminal activity.
“[P]olice can stop and briefly detain a person for investigative purposes if
the officer has a reasonable suspicion supported by articulable facts that criminal
activity ‘may be afoot,’ even if the officer lacks probable cause.” United States v.
Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585 (1989). “[T]he reasonableness of a
temporary detention must be examined in terms of the totality of the circumstances
and will be justified when the detaining officer has specific articulable facts, which
taken together with rational inferences from those facts, lead him to conclude that
the person detained actually is, has been, or soon will be engaged in criminal
activity.” Woods v. State, 956 S.W.2d 33, 38 (Tex. Crim. App. 1997); accord
Curtis v. State, 238 S.W.3d 376, 380–81 (Tex. Crim. App. 2007).
When we review a trial court’s ruling on a motion to suppress evidence, we
apply a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327
(Tex. Crim. App. 2000). We afford “almost total deference to a trial court’s
determination of historical facts,” but we review the law and its application to
those facts de novo. Id. If the trial court did not make express findings of fact, then
we assume that the court found any facts necessary to support its decision so long
as they have a basis in the record. Flores v. State, 177 S.W.3d 8, 14 (Tex. App.—
5 Houston [1st Dist.] 2005, pet. ref’d) (citing Maxwell v. State, 73 S.W.3d 278, 281
(Tex. Crim. App. 2002)).
Mustafa testified to three facts at the suppression hearing that, taken
together, established reasonable suspicion. Mustafa witnessed Terrell and a white
man approach each other in the street, quickly exchange something, and walk
away. See Wiley v.
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Opinion issued January 7, 2014
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-12-00404-CR ——————————— SHERON GABRIEL TERRELL, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 56th District Court Galveston County, Texas Trial Court Case No. 11CR1752
MEMORANDUM OPINION
A jury convicted appellant Sheron Gabriel Terrell of possession of cocaine
in an amount between one and four grams. See TEX. HEALTH & SAFETY CODE ANN.
§§ 481.102(3)(D), 481.115 (West 2010). The jury found it true that Terrell was
previously convicted of the felony offense of tampering with physical evidence, and it imposed a sentence of thirteen years in prison accompanied by a $2,500 fine.
See TEX. PENAL CODE ANN. § 12.42(a) (West 2011). In two appellate issues,
Terrell challenges the qualifications of the testifying officer as an expert witness on
high crime areas and the legitimacy of the investigative detention that resulted in
discovery of the cocaine. We affirm.
Background
Officer Hassan Mustafa of the Galveston Police Department was patrolling
near the intersection of 27th Street and Avenue K, a frequent site of criminal drug
transactions. He was standing outside his car, a “blacked out” patrol unit, when he
observed Terrell and an unidentified white man walk up to each other and
exchange something quickly, hand-to-hand. Mustafa recognized Terrell, as he had
previously stopped him for minor misbehavior, “like walking in the roadway,” and
knew that he was involved in the drug trade.
Terrell and the white man parted ways. Mustafa reentered his car and made a
U-turn to approach Terrell from behind. When Terrell saw him, he jumped to the
sidewalk, behind a parked car. Mustafa told him, “Hey, come here.” Terrell then
reached down with his hands and threw something on the ground. Since Mustafa
could not see Terrell’s hands during this motion, he pulled out his taser and
switched commands, telling Terrell to place himself on the ground. Terrell
complied and was placed in handcuffs. Once a backup unit arrived, Mustafa found
2 a small plastic bag five or six feet away from where he had detained Terrell. The
bag contained a beige rock that proved to be crack cocaine. After the rock was
discovered, Terrell addressed the officer by name, saying: “Mustafa, you pulled a
magical maneuver on me.”
Before his trial, Terrell moved to suppress evidence of the crack rock. The
trial judge held a hearing and denied the motion. At trial, a jury convicted Terrell
of possessing between one and four grams of cocaine. It found true the
prosecution’s enhancement allegation—that Terrell previously had been convicted
of felony evidence tampering—and sentenced him to thirteen years imprisonment
and a $2,500 fine. This appeal followed.
Analysis
I. Waiver of evidentiary objection
In his first issue, Terrell argues that Mustafa should not have been allowed
to testify that the area he was patrolling was a high crime area. He contends that
the trial judge should not have admitted the evidence without a hearing to test
Mustafa’s qualifications as an expert under Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993), and Kelly v. State,
824 S.W.2d 568 (Tex. Crim. App. 1992).
To preserve error regarding the admission of evidence, a party must make a
specific and timely objection. TEX. R. APP. P. 33.1(a)(1); Penry v. State, 903
3 S.W.2d 715, 763 (Tex. Crim. App. 1995). This is as true of failure to hold a
Daubert hearing as it is of other evidentiary issues. See, e.g., Stephens v. State, 276
S.W.3d 148, 153 (Tex. App.—Amarillo 2008, pet. ref’d) (appellant did not
preserve error when he neither objected to expert’s testimony at trial nor requested
a Daubert hearing). Since Terrell neither requested a Daubert hearing nor objected
to the lack of one, he preserved nothing for our review.
II. Reasonable suspicion for temporary detention
In his second issue, Terrell urges that his initial detention by Mustafa was
not supported by a reasonable suspicion of criminal activity. He argues that as the
cocaine was discovered in consequence of this detention, the trial court erred in
refusing his motion to suppress this evidence.
Terrell and the State disagree about when Mustafa detained Terrell. This
question can be significant because not all contacts between the police and citizens
are subject to the limitations of the Fourth Amendment. See, e.g., Wade v. State,
No. PD-1710-12, 2013 WL 4820299, at *2 (Tex. Crim. App. Sept. 11, 2013). The
State argues that Terrell was not seized prior to tossing the bag of cocaine on the
ground and that, therefore, the cocaine is not the fruit of an unlawful detention.
Terrell argues that he was improperly seized prior to dropping the cocaine.
Assuming without deciding that Mustafa seized Terrell when he said, “Hey, come
4 here,” we conclude that Mustafa’s actions were supported by a reasonable
suspicion of criminal activity.
“[P]olice can stop and briefly detain a person for investigative purposes if
the officer has a reasonable suspicion supported by articulable facts that criminal
activity ‘may be afoot,’ even if the officer lacks probable cause.” United States v.
Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585 (1989). “[T]he reasonableness of a
temporary detention must be examined in terms of the totality of the circumstances
and will be justified when the detaining officer has specific articulable facts, which
taken together with rational inferences from those facts, lead him to conclude that
the person detained actually is, has been, or soon will be engaged in criminal
activity.” Woods v. State, 956 S.W.2d 33, 38 (Tex. Crim. App. 1997); accord
Curtis v. State, 238 S.W.3d 376, 380–81 (Tex. Crim. App. 2007).
When we review a trial court’s ruling on a motion to suppress evidence, we
apply a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327
(Tex. Crim. App. 2000). We afford “almost total deference to a trial court’s
determination of historical facts,” but we review the law and its application to
those facts de novo. Id. If the trial court did not make express findings of fact, then
we assume that the court found any facts necessary to support its decision so long
as they have a basis in the record. Flores v. State, 177 S.W.3d 8, 14 (Tex. App.—
5 Houston [1st Dist.] 2005, pet. ref’d) (citing Maxwell v. State, 73 S.W.3d 278, 281
(Tex. Crim. App. 2002)).
Mustafa testified to three facts at the suppression hearing that, taken
together, established reasonable suspicion. Mustafa witnessed Terrell and a white
man approach each other in the street, quickly exchange something, and walk
away. See Wiley v. State, 388 S.W.3d 807, 817–18 (Tex. App.—Houston [1st
Dist.] 2012, pet. ref’d) (finding reasonable suspicion when, inter alia, officer
witnessed hand-to-hand transaction). Mustafa knew that this transaction was
occurring in an area frequented by narcotics traders. See Illinois v. Wardlow, 528
U.S. 119, 124, 120 S. Ct. 673, 676 (2000) (“[W]e have . . . noted the fact that the
stop occurred in a ‘high crime area’ among the relevant contextual considerations .
. . .”). Finally, Mustafa knew that Terrell was involved in the drug trade. See Fields
v. State, 932 S.W.2d 97, 105 (Tex. App.—Tyler 1996, pet. ref’d) (holding officer
had reasonable suspicion when, among other things, officer knew defendant had
history of drug offenses).
These three facts, taken together with reasonable inferences therefrom, were
sufficient to furnish Mustafa with reasonable suspicion to detain Terrell. See Zone
v. State, 84 S.W.3d 733, 739 (Tex. App.—Houston [1st Dist.] 2002) (deeming
three facts—informant’s tip that accurately described the scene, handoff between
suspects, and defendant’s attempted evasion—sufficient to establish reasonable
6 suspicion), aff’d, 118 S.W.3d 776 (Tex. Crim. App. 2003). The resulting discovery
of the cocaine could not have been the consequence of an unlawful investigatory
detention, and the trial court did not err in denying Terrell’s motion to suppress.
Conclusion
We affirm the judgment of the trial court.
Michael Massengale Justice
Panel consists of Justices Keyes, Higley, and Massengale.
Do not publish. TEX. R. APP. P. 47.2(b).