                        COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                             NO. 02-14-00041-CR


DEZMONE PINKSTON                                                  APPELLANT

                                      V.

THE STATE OF TEXAS                                                     STATE


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     FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY
                   TRIAL COURT NO. 1329761D

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                       MEMORANDUM OPINION1

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                               I. INTRODUCTION

      In two issues, appellant Dezmone Pinkston appeals his conviction for

possession of cocaine in an amount of less than one gram. See Tex. Health &

Safety Code Ann. § 481.115(b) (West 2010). Because we hold that the trial court

erred by denying Pinkston’s motion to suppress, we reverse the trial court’s


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      See Tex. R. App. P. 47.4.
judgment and remand the cause for further proceedings consistent with this

opinion.

                                 II. BACKGROUND

      After the State charged Pinkston with possession of cocaine, he filed a

motion to suppress. At the suppression hearing, the State stipulated that the

officers in this case did not have a warrant to arrest or detain Pinkston prior to

searching his person and discovering cocaine.

      Fort Worth Police Officer Barrett Galbraith testified that on June 7, 2013,

he and fellow officers conducted a walk-through of the Regency Oaks

Apartments, an area that, according to Galbraith, is “very problematic” and

known as an area where “violent crimes [and] narcotics crimes” occur with

frequency. Galbraith also said that the area is known as a place where domestic

and violent family crimes occur. Galbraith did not state at what time he and

fellow officers conducted their walk-through, but he did testify that his shift that

night was from 8:00 p.m. until 6:00 a.m. and that his encounter with Pinkston

occurred while it was “dark”; and the parties’ agreed-to proposed findings of fact

and conclusions of law reflect that Galbraith’s encounter with Pinkston occurred

“at approximately midnight.” There is, however, no evidence that the trial court

adopted these proposed findings and conclusions.

      By Galbraith’s account, he and fellow officers had been at the apartment

complex for more than twenty minutes and most of the people around had begun

to “go inside because they saw [the police] walking around” when he heard


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“arguing . . . to the north” of his location.   Galbraith testified that although he

could not see who was arguing, the arguing was loud enough that he could hear

it despite the location of the argument occurring a building over from where he

was. Galbraith said that in his report from that night he described the argument

as “yelling and screaming.” According to Galbraith, the tenor of the argument led

him to believe that he needed to investigate “an assault [or] something of that

nature.” He also described the argument as being consistent with “a domestic

assault.” Galbraith averred that as he approached the area where the argument

was occurring, he witnessed Pinkston and a female arguing but that once the

couple saw him, “they stopped arguing and began to walk away.”

      Galbraith said that the couple’s conduct of ceasing their argument and

walking away led him to believe that “they were trying to get away from [him] so

that they didn’t have to talk to [him].” Galbraith stated to the couple that they

should come back and talk to him, but as the couple continued their retreat,

Galbraith declared, “Stop, police.”    At that moment, the female stopped, but

Pinkston continued walking away. From there, Galbraith and his fellow officers

chased down Pinkston and arrested him for “[e]vading arrest or detention.” After

patting down Pinkston, Galbraith found “an off white rock-like substance” on

Pinkston’s person that Galbraith believed to be crack cocaine.

      The trial court denied Pinkston’s suppression motion, and he later entered

into a plea bargain with the State whereby he pleaded guilty to possession of




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less than one gram of cocaine. The State recommended sixty days’ jail time.

The trial court entered judgment accordingly, and this appeal followed.

                                  III. DISCUSSION

      In two issues, citing both state and federal principles of search and

seizure, Pinkston argues that the trial court abused its discretion by denying his

motion to suppress because Galbraith lacked reasonable suspicion to detain him

at the moment Galbraith announced, “Stop, police.” In support of his position,

Pinkston cites the court of criminal appeals’s decision in Gurrola v. State. 877

S.W.2d 300, 303 (Tex. Crim. App. 1994). The State argues that this case is

distinguishable from Gurrola. Furthermore, the State argues that Gurrola “seems

to be simply outdated” as a touchstone for determining reasonable suspicion.

We agree with Pinkston.

      A.     Standard of Review

      We review a trial court’s ruling on a motion to suppress evidence under a

bifurcated standard of review.    Amador v. State, 221 S.W.3d 666, 673 (Tex.

Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

In reviewing the trial court’s decision, we do not engage in our own factual

review. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Best v.

State, 118 S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, no pet.). The trial

judge is the sole trier of fact and judge of the credibility of the witnesses and the

weight to be given their testimony. Wiede v. State, 214 S.W.3d 17, 24–25 (Tex.

Crim. App. 2007); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000),


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modified on other grounds by State v. Cullen, 195 S.W.3d 696 (Tex. Crim. App.

2006). Therefore, we give almost total deference to the trial court’s rulings on

(1) questions of historical fact, even if the trial court’s determination of those facts

was not based on an evaluation of credibility and demeanor, and (2) application-

of-law-to-fact questions that turn on an evaluation of credibility and demeanor.

Amador, 221 S.W.3d at 673; Montanez v. State, 195 S.W.3d 101, 108–09 (Tex.

Crim. App. 2006); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App.

2002). But when application-of-law-to-fact questions do not turn on the credibility

and demeanor of the witnesses, we review the trial court’s rulings on those

questions de novo. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d

604, 607 (Tex. Crim. App. 2005); Johnson, 68 S.W.3d at 652–53.

      Stated another way, when reviewing the trial court’s ruling on a motion to

suppress, we must view the evidence in the light most favorable to the trial

court’s ruling. Wiede, 214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808, 818

(Tex. Crim. App. 2006).

      B.     No Reasonable Suspicion to Detain Pinkston

      The Fourth Amendment, and its corresponding state principles codified in

the Texas Code of Criminal Procedure, protects against evidence being used at

trial when it was obtained through unreasonable searches and seizures by

government officials. U.S. Const. amend. IV; Tex. Code Crim. Proc. Ann. art.

38.23 (West 2005); Wiede, 214 S.W.3d at 24. To suppress evidence because of

an alleged Fourth Amendment violation, the defendant bears the initial burden of


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producing evidence that rebuts the presumption of proper police conduct.

Amador, 221 S.W.3d at 672; see Young v. State, 283 S.W.3d 854, 872 (Tex.

Crim. App.), cert. denied, 558 U.S. 1093 (2009).        A defendant satisfies this

burden by establishing that a search or seizure occurred without a warrant.

Amador, 221 S.W.3d at 672. Once the defendant has made this showing, the

burden of proof shifts to the State, which is then required to establish that the

search or seizure was conducted pursuant to a warrant or was reasonable. Id. at

672–73; Torres v. State, 182 S.W.3d 899, 902 (Tex. Crim. App. 2005); Ford v.

State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005).

      A detention, as opposed to an arrest, may be justified on less than

probable cause if a person is reasonably suspected of criminal activity based on

specific, articulable facts. Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880

(1968); Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000). An

officer conducts a lawful temporary detention when he has reasonable suspicion

to believe that an individual is violating the law. Crain v. State, 315 S.W.3d 43,

52 (Tex. Crim. App. 2010); Ford, 158 S.W.3d at 492. Reasonable suspicion

exists when, based on the totality of the circumstances, the officer has specific,

articulable facts that when combined with rational inferences from those facts,

would lead him to reasonably conclude that a particular person is, has been, or

soon will be engaged in criminal activity. Ford, 158 S.W.3d at 492. This is an

objective standard that disregards any subjective intent of the detaining officer

and looks solely to whether an objective basis for the detention exists. Id.


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      Here, the circumstances that Galbraith testified about that gave him

reasonable suspicion to detain Pinkston were that Pinkston’s argument with his

female companion was of such volume and nature that he believed that “a

possible offense” in the nature of an “assault” was transpiring. Galbraith also

testified that this argument occurred in an area known for domestic violence and

that this all transpired while it was “dark” outside. And, according to Galbraith’s

testimony, because Pinkston and the female stopped arguing and began to walk

away upon seeing the police, the totality of this conduct provided him with

reasonable suspicion that a crime had been committed.

      We agree with Pinkston that the Court’s decision in Gurrola is instructive in

this case. 877 S.W.2d at 304. In Gurrola, during the afternoon, an unknown

man reported to a patrol officer that there was a disturbance at a nearby

apartment complex. Id. at 301. The officer knew the apartment complex to be

“an unsafe location that had incurred several complaints of disturbances from

area residents.” Id. The officer drove over to the parking lot of the complex and

saw three men and a woman engaged in what appeared to be an argument. Id.

The officer approached the individuals to find out “what was going on,” but as he

did so, they all began to leave. Id. After the individuals began to disperse, the

officer ordered them to stop and the officer then conducted a pat-down search

and discovered cocaine on Gurrola’s person. Id. The Court held that the officer

lacked reasonable suspicion to detain Gurrola even though the officer had

received an uncorroborated complaint of a disturbance; the argument the officer


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witnessed occurred in a “high-crime” area; and the individuals involved in the

argument dispersed upon seeing the officer. Id. at 303, 305.

      Here, Galbraith lacked even more articulable facts than the officer in

Gurrola. In this case, like in Gurrola, the argument Galbraith witnessed occurred

in a high-crime area and the participants of the argument dispersed upon seeing

the police. But unlike in Gurrola, the officers in this case had not received an

uncorroborated complaint of a disturbance. The only distinction that this court

can detect that differs in this case from Gurrola is that in Gurrola the argument

occurred during the day, and in this case, the argument occurred while it was

“dark.” But time of night alone is not sufficient to rise to the level of reasonable

suspicion. See Crain, 315 S.W.3d at 53 (“Neither time of day nor level of criminal

activity in an area are suspicious in and of themselves.”).

      Furthermore, we are unpersuaded by the State’s argument that Gurrola is

no longer good law. First, it is not this court’s prerogative to refuse to follow the

court of criminal appeals’s decisions. See Wiley v. State, 112 S.W.3d 173, 175

(Tex. App.—Fort Worth 2003, pet. ref’d) (“It is axiomatic that a Court of Appeals

has no power to ‘overrule or circumvent [the] decisions, or disobey [the]

mandates,’ of the Court of Criminal Appeals.”). Moreover, the court of criminal

appeals has recently cited Gurrola in its analysis of what constitutes reasonable

suspicion to detain an individual. Crain, 315 S.W.3d at 49, n.16. Crain is also

instructive to this case. In Crain, the Court held that an officer lacked reasonable

suspicion to detain Crain even though Crain was walking at night in a residential


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area known for night-time burglaries and Crain had exhibited the “suspicious”

conduct of “grabb[ing] at his waist” upon seeing a police officer. Id. at 53. Like in

Crain, in this case, the circumstances of an argument at night in an area known

for crime coupled with Pinkston’s constitutional right to walk away from police

also do not rise to the level of reasonable suspicion. See Zone v. State, 84

S.W.3d 733, 738–39 (Tex. App.—Houston [1st Dist.] 2002), aff’d, 118 S.W.3d

776 (Tex. Crim. App. 2003) (“An individual has the right to refuse to answer a

police officer’s questions and walk away unless the officer has reasonable

suspicion to detain that person.”). We hold that Galbraith lacked reasonable

suspicion to detain Pinkston. Thus, we hold that the trial court erred by denying

Pinkston’s motion to suppress the evidence found on his person after Galbraith

detained him, and we sustain both of Pinkston’s issues on appeal.

      C.     Was the Denial of Pinkston’s Motion to Suppress Harmful?

      Galbraith’s unlawful stop of Pinkston violated his Fourth Amendment

rights, and thus the cocaine discovered from that detention should have been

suppressed. Because the trial court committed constitutional error by denying

Pinkston’s motion to suppress, we must reverse his conviction unless we

determine beyond a reasonable doubt that the error did not contribute to his

conviction. See Tex. R. App. P. 44.2(a). We hold that the trial court’s denial of

Pinkston’s motion to suppress was harmful error because it “undoubtedly

contributed in some measure to the State’s leverage in the plea bargaining

process and may well have contributed to [Pinkston’s] decision to relinquish [his]


                                         9
constitutional rights of trial and confrontation in exchange for a favorable

punishment recommendation.” See Castleberry v. State, 100 S.W.3d 400, 404

(Tex. App.—San Antonio 2002, no pet.) (citing McKenna v. State, 780 S.W.2d

797, 799 (Tex. Crim. App. 1989)). Indeed, the cocaine found on Pinkston during

Galbraith’s illegal detention is the only evidence that Pinkston possessed

cocaine.

                               IV. CONCLUSION

      Having sustained both of Pinkston’s issues on appeal, we reverse the trial

court’s judgment and remand this cause for further proceedings consistent with

this opinion.



                                                 /s/ Bill Meier

                                                 BILL MEIER
                                                 JUSTICE

PANEL: LIVINGSTON, C.J.; MEIER and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: March 19, 2015




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