
NO. 07-03-0374-CR



IN THE COURT OF APPEALS



FOR THE SEVENTH DISTRICT OF TEXAS



AT AMARILLO



PANEL A



APRIL 30, 2004



______________________________





GERARDO OJEDA, APPELLANT



V.



THE STATE OF TEXAS, APPELLEE





_________________________________



FROM THE 222ND DISTRICT COURT OF DEAF SMITH COUNTY;



NO. CR-02H-103; HONORABLE H. BRYAN POFF, JR., JUDGE



_______________________________



Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.

MEMORANDUM OPINION

Appellant Gerardo Ojeda filed a Motion to Dismiss Appeal on April 8, 2004, averring that he no longer wishes to prosecute his appeal.   The Motion to Dismiss is signed by both appellant and his attorney.  

Without passing on the merits of the case, appellant’s motion for voluntary dismissal is granted and the appeal is hereby dismissed.  Tex. R. App. P. 42.2.   Having dismissed 



the appeal at appellant’s personal request, no motion for rehearing will be entertained and our mandate will issue forthwith.  





Phil Johnson

    	Chief Justice































































Do not publish.

Ñsubject of any outstanding warrants, appellant again placed his hands into his sweatshirt pockets.  And, the gesture once again caused the officer concern for the reasons previously mentioned.  Thus, he again asked appellant to remove them from where they were.  The request went unheeded.  Instead, appellant grew “upset” and said, “I don’t have anything.”  Hearing this, the officer walked behind appellant, grabbed his right hand, and pulled it from the pocket.  When he did this, he noticed a plastic bag in appellant’s hand.  The bag contained a substance that appeared to be cocaine.  Seeing it, the officer arrested appellant, conducted a search incident to the arrest, and discovered 15 other packets of the drug.

In reviewing a ruling on a motion to suppress, we afford great deference to the trial court’s interpretation of historical facts.  
Ford v. State, 
158 S.W.3d 488, 493 (Tex. Crim. App. 2005).  That deference includes both the trial court’s authority to assess the credibility of the witnesses and the authority to disbelieve or believe controverted testimony.  
State v. Ross, 
32 S.W.3d 853, 855 (Tex. Crim. App. 2000).  However, we do not afford the same deference to the trial court’s application or interpretation of the law.  
Ford v. State, 
158 S.W.3d at 493.

As previously mentioned, appellant argues that the trial court erred in denying his motion to suppress because the officer had no probable cause to detain him.  That  Sparks may or may not have had probable cause is unimportant here.  This is so because an officer is free to walk up to people and ask them questions without any justification, so long as the individuals are at liberty to leave or refuse to answer.  
Harper v. State, 
217 S.W.3d 672, 674 (Tex. App.–Amarillo 2007, no pet.)
; see also State v. Perez, 
85 S.W.3d 817, 819 (Tex. Crim. App. 2002) (stating that police officers do not violate the Fourth Amendment by approaching individuals in public places, asking them to voluntarily answer questions, and posing questions to them if the persons are willing to answer).  So too may an officer detain an individual if the totality of the circumstances present would lead him to reasonably suspect that the detainee has engaged in or soon would be engaged in criminal activity.  
Garcia v. State, 
43 S.W.3d 527, 530 (Tex. Crim. App. 2001).  And, once legitimately detained, the person is subject to being frisked if the officer 
reasonably believes that his safety or the safety of others is endangered.  
Davis v. State, 
61 S.W.3d 94, 97 (Tex. App.–Amarillo 2001, no pet.).  And, those are the circumstances here.

Nothing before us suggests that Sparks directed the group of three to stop or approach him when he first saw them.  Rather, the record indicates that they walked towards him of their own volition.  Nor does the record suggest that he forced the three to answer any of his initial questions or prohibited them from leaving until they answered.  So, one could reasonably conclude that the initial exchange between the group and officer was nothing more than a consensual encounter.  

During the encounter, appellant opted to lie about the reasons for his being at the housing project at that hour.  The prevarication coupled with the time of night, the nature of the area and the criminal conduct historically associated with it, and the presence of no trespassing signs hanging from various buildings were sufficient basis to enable a reasonable officer to temporarily detain appellant and determine whether he was criminally trespassing.  To those circumstances, we add the evidence that no other police officers were present, Sparks was outnumbered, appellant’s effort to conceal his hands in his sweatshirt pockets, appellant’s nervousness and defiance, the truism that weapons can be hidden in pockets, and the officer’s training about reducing risk by assuring that a detainee’s hands are visible.  When all are combined, the sum of the indicia was enough to allow a policeman to conclude that his safety was at risk.  So, Sparks was entitled to frisk appellant.  And, while he simply removed appellant’s hand from the pocket rather than conduct a frisk, we cannot say that the former was materially different than a frisk under the circumstances.  In other words, the intrusion upon appellant’s person was minimal and limited to the area which posed the potential threat.  

Simply put, the officer had reasonable suspicion to undertake the temporary detention and search of appellant.  Furthermore, the drugs were discovered incident to that legitimate conduct.  Thus, the trial court did not err in denying the motion to suppress.  

The judgment of the trial court is affirmed.



Per Curiam



Do not publish.

     





