                                  NO. 07-00-0544-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL D

                                OCTOBER 11, 2001
                         ______________________________

                                  FENNELL M. DAVIS,

                                                       Appellant

                                            v.

                               THE STATE OF TEXAS,

                                               Appellee
                       _________________________________

            FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;

                 NO. 99-429,515; HON. WELDON KIRK, PRESIDING
                       _______________________________

Before BOYD, C.J., QUINN and REAVIS, JJ.

      Fennell M. Davis (appellant) appeals his conviction for possessing a controlled

substance. Of the six issues raised, we only address the fifth and sixth for they are

dispositive. And, through those particular issues, appellant contends that the trial court

erred by admitting evidence obtained via an illegal search. We reverse and remand the

judgment.

                                      Background
       Appellant was charged with possessing a controlled substance, namely cocaine.

A motion to suppress the evidence of that cocaine was filed. At the hearing on the motion,

the State called the officer who conducted the search of appellant who was Officer Blakney

(Blakney). Via questioning, the officer stated that

        “[he] and Officer Jordan, which [sic] worked this area in the 1500 Block of
       21st, were patrolling around. And this house is in a high drug area-type
       situation. We went to that location. There was several people around the
       sidewalk in front of the house, I believe, 1504 21st. We pulled up and
       stopped to check the people that were on the sidewalks, since this is a
       known drug area for us."

Blakney further testified that 1) it was around midnight when they noticed the group of

people, 2) the two officers stopped at the scene and approached the group, 3) "[a]t this

time, as we were walking up, [appellant] became very nervous acting . . . would walk from

the group of people towards the house . . . turn around and walk back towards the group

. . . very nervous and jittery acting," 4) he had dealt with appellant during “some domestic

calls” and when appellant “climb[ed] in the window to the next door before that house

burned,” 5) because of appellant’s actions the officer confronted him and asked for

identification and appellant provided his wallet, 6) “due to his [appellant’s] actions, being

nervous, I [the officer] felt for my safety, [and] . . . went ahead and did a protective patdown

on him for weapons,” and 7) a crack pipe was discovered in appellant’s pants’ pocket. The

discovery of the pipe allegedly provided the officer probable cause to arrest appellant,

which the officer did. And, while conducting a search incident to the arrest, cocaine also

was discovered on appellant. The contraband discovered on appellant’s person was later

used as basis for the prosecution he underwent and to support his conviction.



                                               2
                                   Standard of Review

       Whether the trial court erred in denying a motion to suppress depends upon

whether it abused its discretion. Benitez v. State, 5 S.W.3d 915, 918 (Tex. App. --Amarillo

1999, pet. ref’d). Whether it abused its discretion depends upon whether, given the record

before it and the applicable law, the decision fell outside the zone of reasonable

disagreement. Id.

       Next, while questions of law are subject to unfettered de novo review, the same is

not necessarily true with regard to mixed questions of law and fact. That is, the application

of law to fact is a mixed question of law and fact. Guzman v. State, 955 S.W.2d 85, 89

(Tex. Crim. App. 1997). Furthermore, when the resolution of the ultimate question turns

on an evaluation of the credibility and demeanor of the witnesses, then we afford almost

total deference to the manner in which the trial court applied the law to the facts before it.

The same deference is afforded the trial court’s determination of the historical facts

involved. Id. In all other situations, we review, de novo, the manner in which the law is

applied. Id.

       Next, it is beyond gainsay that the United States and Texas Constitutions prohibit

unreasonable searches. U.S. Const. amend. IV; Tex. Const. Ann. art. I, §9 (Vernon 1997).

Furthermore, a warrantless search is per se unreasonable. Reyes v. State, 910 S.W.2d

585, 589 (Tex. App.-- Amarillo 1995, pet. ref’d). However, exceptions have been allowed

by case law dispensing with the need for a warrant. For instance, an investigative

detention is justified under both the state and federal constitutions if the officer, based on

specific and articulable facts, reasonably surmises that the detained person may be


                                              3
associated with a crime. Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d

889 (1968); Davis v. State, 829 S.W.2d 218, 219 (Tex. Crim. App.1992); Graham v. State,

893 S.W.2d 4, 7 (Tex. App. – Dallas 1994, no pet.) (holding that once a traffic violation

was observed, the officers acted reasonably when they stopped the vehicle in which

appellant was a passenger.)

       A pat-down search during a detention is permissible when the police officer

reasonably suspects he is dealing with an armed and dangerous individual. Maldonado

v. State, 853 S.W.2d 746, 748 (Tex. App.--Houston [1st Dist.] 1993, no pet.) (citing Terry

v. Ohio, 392 U.S. at 27, 88 S.Ct. at 1883). The officer does not have to be absolutely

certain that the individual is armed, nor does he have to have probable cause to arrest. Id.

Rather, the issue is whether a reasonably prudent person in the same circumstances

would be warranted in the belief that his or her safety or that of others is in danger. Id.

The record must contain "specific and articulable facts" that, when taken together with

rational inferences from those facts, would warrant a self-protective search for weapons.

Worthey v. State, 805 S.W.2d 435, 438 (Tex. Crim. App. 1991).

                                         Analysis

       In appellant’s issues five and six, he claims that the evidence was seized in violation

of 1) the Fourth Amendment to the United States Constitution and 2) article 1, § 9 of the

Texas Constitution. We agree.

       The facts upon which the officer based his supposed need to search consisted of

seeing four to five people gathered at midnight in someone’s yard in a neighborhood

known for drug activity while also witnessing the appellant, who appeared nervous, walk

                                              4
to and from the group several times. Absent is any evidence that anyone including

appellant made any furtive gestures at the time or that appellant attempted to flee.1 Absent

is testimony from the officers suggesting that they saw anyone in the group commit a

criminal act.2 Absent is testimony that the officers were directed to the area in response

to any reported criminal activity; indeed, neither officer testified that they had ever arrested

anyone in the area for purportedly dealing in drugs.

        Also absent is any testimony by either officer illustrating that they had reason to

suspect that appellant dealt with controlled substances or had a propensity for violence.

To the extent either had come in contact with him before, that contact involved “some

domestic calls” and appellant “climbing in the window to the next door before that house

burned” (whatever the latter means). Whether any of those instances involved drug

activity or violent behavior appears nowhere in the record. And, because such evidence

appears nowhere, one is not free to infer that they did entail such activity or behavior.




        1
          We recognize that the State attempted to characterize appellant’s walking to and from the group
as evasive behavior or attempted flight. Yet, how can that rationally be considered evasive conduct or flight
when appellant never left the scene, returned to the group after walking away, and approached the officer
when directed to do so. Simply put, it cannot. Indeed, had appellant attempted to walk away, that act would
not have been enough to create reasonable suspicion. Gurrola v. State, 877 S.W.2d 300, 303 (Tex. Crim.
App. 1994). One has a right to leave when approached by officers unless the officer has reasonable
suspicion of criminal activity before approaching. Id. Leaving cannot supply the missing articulable facts
justifying suspicion. Id.
        2
          To the extent appellant stated he wanted the others to leave the yard because they were “doing
things that they was doing,” no one asked what those things that “they was doing” were. And, without any
indication about the tenor of those acts, one cannot reasonably infer that they were suggestive of criminal
conduct. That would be tantamount to creating non-existent facts. Moreover, nothing of record indicates
that the officers perceived or could have perceived what, if anything, the group was supposedly doing. The
officers never said they saw the group doing anything other than standing in the yard. And, if the supposed
acts could not be perceived by a reasonable person in the position of the officers, they could hardly form the
basis for reasonable suspicion.

                                                      5
        It is beyond dispute that being in a high crime area does not alone create

reasonable suspicion justifying a search. Gurrola v. State, 877 S.W.2d 300, 303 (Tex.

Crim. App. 1994). Nor does one’s acting nervous alone permit an officer to reasonably

suspect that his safety may be in jeopardy; rather, there must be other circumstances

which suggests the presence of a weapon. Horton v. State, 16 S.W.3d 848, 853 (Tex.

App.–Austin 2000, no pet.). Similarly, nervousness alone does not constitute grounds to

reasonably suspect criminal activity is afoot. Munera v. State, 965 S.W.2d 523, 531 (Tex.

App.–Houston [14th Dist.] 1997, pet. ref’d.). Rather, the totality of the circumstances

control, and the totality at bar consists of nothing more than a gathering of several

individuals at midnight in a yard in an area known for drug use and wherein one of the

individuals walks to and fro and appears nervous. Those circumstances are nothing more

that the indicia appearing in Gamble v. State, 8 S.W.3d 452 (Tex. App. – Houston [1st

Dist.] 1999, no pet.).3 And, since they did not give rise to reasonable suspicion there, they

do not here. The search was illegal.

        Next, the fruits of the illegal search were admitted into evidence at trial and

constituted the basis of appellant’s conviction.                  In other words, had the trial court

suppressed the evidence as it should have, there would have been no basis upon which

the State could have prosecuted appellant. Consequently, we cannot but hold that the trial

court’s error was harmful under Texas Rule of Appellate Procedure 44.2(a).


        3
          According to the Gamble court, “the sole bases for the detention were (1) the area had a history of
drug sales; (2) the police had had frequent calls to the area or the residence over the last year; (3) it was 3:00
a.m.; (4) [defendant] was either standing in the street near, or walking in the street toward, a residence to
which the officers had been called in [the] past, but at which they had never made arrests for drugs or
weapons; and (5) appellant watched the marked police car and walked away from it when it turned around.”
Gamble v. State, 8 S.W.3d 452, 453-54 (Tex. App.–Houston [1st Dist.] 1999, no pet.).

                                                        6
       Given their economic status, some families cannot afford to live in places other than

high crime neighborhoods. To hold that their gathering outside at night, walking to and fro,

and becoming nervous when police approach justifies a search of their person is to further

injure them for circumstances beyond their control. We will not facilitate that by upholding

the search at bar. Accordingly, the judgment is reversed and the cause remanded to the

trial court for further proceedings.




                                                        Brian Quinn
                                                          Justice


Publish.




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