William Harold Denny v. State

• Court: Court of Appeals of Texas
• Decided: December 9, 2004
• Docket: 01-03-00670-CR
• Status: Published

Opinion

Opinion Issued December 9, 2004

In The

Court of Appeals

For The

First District of Texas

---

NO. 01-03-00670-CR

---

WILLIAM HAROLD DENNY, Appellant

V.

THE STATE OF TEXAS, Appellee

---

On Appeal from County Criminal Court at Law No. 2

Harris County, Texas

Trial Court Cause No. 1165501

---

MEMORANDUM OPINION

          The trial court convicted appellant, William Harold Denny, of possession of marihuana, under two ounces. The trial court assessed punishment at ninety days’ confinement, suspended for one year of community supervision. See Tex. Health & Safety Code Ann. § 481.121 (a), (b)(1) (Vernon 2003). In this appeal, Denny contends that the trial court erred in denying his motion to suppress evidence obtained as a result of an illegal search and seizure. We affirm.

Facts

          On March 29, 2003, Texas Game Warden Rick Snitkin responded to a report by Armand Bayou Nature Center coordinator, Mark Kramer, that he had observed trespassers on the nature center’s property. Although the property is not marked with no-trespassing signs, it is enclosed by a gated fence, and the gate area is marked with purple paint, by law indicating that entry is forbidden. Due to frequent trespassing on the nature center’s property, Kramer authorized Snitkin to issue warnings to any trespassers, which he keeps on file at the nature center. Upon a second incident of trespass, authorities may file criminal trespass charges.

          Pursuant to Kramer’s report, Snitkin drove to the area of the complaint in his patrol truck, where he encountered Denny and three other individuals with a four-wheeler, about one-half mile into the property. Snitkin inquired if they had permission to be on the property. Denny answered that neither he, nor anyone in his group, owned the property but that a man gave them permission to enter the area. Denny could not, however, tell Snitkin the man’s name or where he lived. Denny told Snitkin that the group entered the property from Denny’s backyard, at a place where the fence is partially collapsed.

          Upon approaching the group, Snitkin removed the key from the four-wheeler so that they could not leave. He also extinguished an ignited tire that the group was burning. He then proceeded to ask for identification and to issue trespass warnings. Snitkin requested that Denny remove his hands from his pockets. Denny complied with the request but, at the same time, he ran away from the officer. Snitkin asked him to stop and then pursued him about ten feet before bringing him to the ground, patting him down, and handcuffing him. Snitkin pulled a plastic baggy containing marihuana and a multicolored pipe out of Denny’s pocket. Denny admitted the substance was marihuana, that it belonged to him, and that the group had smoked it earlier that day. Snitkin arrested Denny for possession of marihuana. Standard of Review

          In his sole issue on appeal, Denny asserts that the trial court erred in denying his motion to suppress evidence because the marihuana was obtained as a result of an illegal search and seizure in violation of the United States and Texas Constitutions. See U.S. Const. amend. IV; Tex. Const. art. 1, § 9; see also Tex. Crim. Proc. Code Ann. § 38.23(a) (Vernon Supp. 2004-2005) (“No evidence obtained by an officer . . . 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.”).

          In reviewing a trial court’s ruling on a motion to suppress, we apply the bifurcated standard of review articulated in Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We defer to a trial court’s determination of historical facts, and review de novo the trial court’s application of the law of search and seizure. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000) (citing Guzman, 955 S.W.2d at 88-89); see also Guevara v. State, 97 S.W.3d 579, 582 (Tex. Crim. App. 2003) (almost total deference is given to a trial court’s determination of facts and the trial court’s application of law is reviewed de novo). If the issue involves the credibility of a witness, we defer to a trial court’s ruling, as a trial court is in a better position to evaluate the credibility of witnesses before it. Guzman, 955 S.W.2d at 87-89; see also Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002) (ruling that at suppression hearing, trial judge is sole trier of fact and judge of credibility of witnesses and weight of their testimony). The reviewing court may not disturb supported findings of fact absent an abuse of discretion. State v. Ballard, 987 S.W.2d 889, 892 (Tex. Crim. App. 1999). If the trial court is called upon to apply the law to the facts, and the ultimate resolution of the issue does not turn on an evaluation of credibility and demeanor of a witness, we review that issue de novo. Guzman, 955 S.W.2d at 89. Reasonable Suspicion to Detain

          In order to detain a person for investigation “[a] peace officer must have specific and articulable facts which, in light of his experience and personal knowledge, taken together with rational inferences from these facts, would reasonably warrant intrusion.” Livingston v. State, 739 S.W.2d 311, 326 (Tex. Crim. App. 1987); see also Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968). A temporary detention, however, is not permissible unless the officer has a reasonable suspicion that the person detained “actually is, has been, or soon will be engaged in criminal activity.” Crockett v. State, 803 S.W.2d 308, 311 (Tex. Crim. App. 1991). After reviewing the record, we conclude that Snitkin had a reasonable suspicion to detain and probable cause to arrest Denny for both criminal trespass and illegal burning.

Criminal Trespass

          Denny contends that Snitkin did not have reasonable suspicion to detain him. The State responds that Snitkin was properly investigating Kramer’s report of criminal trespass. We defer to the trial court’s finding that although Snitkin only intended to issue warnings to the group, he had the authority to arrest them for criminal trespass. See Tex. Pen. Code. Ann. § 30.05(a) (“A person commits criminal trespass if he enters or remains on or in property . . . of another without effective consent . . . and he had notice that the entry was forbidden; or received notice to depart but failed to do so.”). The fact that Snitkin found Denny on another person’s property gave Snitkin reasonable suspicion to detain and arrest him for criminal trespassing.

Burning Tire

          The trial court also found that Denny and his friends illegally burned a tire in violation of the Texas Clean Air Act. See 30 Tex. Admin. Code § 111.201 (2004) (prohibiting outdoor burning within the State of Texas unless an exception applies); see also Tex. Admin. Code § 111.219(7) (2004) (stating that “items containing natural or synthetic rubber must not be burned”). The trial court further found that the burning the tire gave Snitkin reasonable suspicion to detain, and probable cause to investigate and arrest Denny and his friends because they were committing an offense “in his presence or within his view.” Tex. Crim. Proc. Code Ann. art. 14.01(b) (Vernon 1977). If Snitkin chose to arrest Denny for violating the Clean Air Act, he would have been authorized to search Denny incident to that arrest. See Tex. Crim. Proc. Code Ann. art. 59.03(b)(4) (Vernon Supp. 2004-2005) (allowing officer to seize property without warrant if seizure was incident to lawful arrest or lawful search incident to arrest); see also Chimel v. California, 395 U.S. 752, 762-63, 89 S. Ct. 2034 (permitting officer, incident to arrest, to search defendant, or areas within defendant’s immediate control to seize weapons, or prevent concealment or destruction of evidence).Probable Cause to Arrest

           Once Snitkin detained Denny based upon a reasonable suspicion, probable cause then existed for Snitkin to arrest Denny for fleeing the area after Snitkin asked him to remove his hands from his pockets. Snitkin properly searched Denny incident to that arrest. See Ballard, 987 S.W.2d at 891-92 (once officer has probable cause to arrest, he may search vehicle incident to arrest); see also Chimel v. California, 395 U.S. 752, 762-63, 89 S. Ct. 2034, 2039-40 (1969) (permitting officer, incident to arrest, to search defendant, or areas within defendant’s immediate control).

          “A person commits an offense if he intentionally flees from a person he knows is a peace officer attempting lawfully to arrest or detain him.” Tex. Pen. Code Ann. § 38.04(a) (Vernon 2003). The trial court found that Snitkin, a duly organized peace officer under the laws of Texas, lawfully detained Denny and his friends while he investigated the criminal trespass complaint and the illegal burning of the tire. “When an officer is justifiably investigating a situation that aroused his articulable suspicions, he is entitled to proceed in a manner that minimizes his personal risk.” Simpson v. State, 668 S.W.2d 915, 918 (Tex. App.—Houston [1st Dist.] 1984, no pet.). Snitkin requested that Denny remove his hands from his pockets for officer’s safety. Denny testified at trial that he ran from the scene, even though he knew he was not supposed to, because he did not want to get caught with the marihuana in his pocket. The trial court found that Snitkin had to take assertive action in response; he pursued Denny, caught him, patted him down, and handcuffed him.

          Denny’s act of fleeing raised Snitkin’s suspicion and is sufficiently distinguishable from that of innocent people under the same circumstances. See Davis v. State, 947 S.W.2d 240, 242 (Tex. Crim. App. 1997). Denny’s friends did not attempt to flee, and set Denny apart from them. Id. Two of the individuals present during Denny’s arrest testified that they knew they were being detained by Snitkin, and they knew they could not leave.

          Pursuant to the Fourth Amendment of the United States Constitution a warrantless search of a person or property is “per se unreasonable subject to a ‘few specifically defined and well established exceptions.’” McGee v. State, 105 S.W.3d 609, 615 (Tex. Crim. App. 2003) (quoting Minnesota v. Dickerson, 508 U.S. 366, 372 (1993) (holding that search incident to arrest is among the exceptions)). A search incident to arrest permits an officer to search a defendant, or areas within the defendant’s immediate control in order to remove any weapons or to prevent the concealment or destruction of evidence. Chimel, 395 U.S. at 762-63. Denny’s pocket is an area within his immediate control, and therefore within the permissible scope of a search incident to arrest. We conclude that attempting to flee the area gave Snitkin probable cause to arrest Denny, and thus entitled him to search Denny’s pockets incident to the arrest. Id.; Simpson, 668 S.W.2d at 918.  

          Property may be seized by any peace officer without a warrant “if the seizure was incident to a lawful arrest . . . or lawful search incident to arrest.” Tex. Crim. Proc. Code Ann. § 59.03(c)(4) (Vernon Supp. 2004-2005). Denny asserts that he was not formally arrested when Snitkin searched his pockets and therefore the search and subsequent seizure was illegal. This assertion, however, fails because probable cause existed for Snitkin to arrest Denny for fleeing. Tex. Pen. Code Ann. § 38.04(a) (Vernon 2003); see also Williams v. State, 726 S.W.2d 99, 101 (Tex. Crim. App. 1986) (citing Rawlings v. Kentucky, 448 U.S. 98, 111 (1980) (ruling that it is irrelevant that search incident to arrest preceded the formal custodial arrest by a few moments because police had probable cause for arrest)). Probable cause existed for a lawful arrest for fleeing. The search of Denny’s pockets, and the subsequent seizure of the marihuana was incident to Denny’s arrest. We therefore conclude that the trial court properly denied Denny’s motion to suppress.Conclusion

          We conclude that the record supports the findings of fact made by the trial court that Snitkin’s discovery of the marihuana was incident to a lawful arrest. Thus, the trial court did not abuse its discretion in denying Denny’s motion to suppress. We therefore affirm the judgment of the trial court.                                           

                                                             Jane Bland

                                                             Justice

Panel consists of Justices Taft, Jennings, and Bland.

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