Affirmed and Opinion filed March 7, 2013.




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-11-01117-CR

               MARCUS DEWAYNE CHAMBERS, Appellant,
                                        V.

                      THE STATE OF TEXAS, Appellee.

                    On Appeal from the 400th District Court
                              Fort Bend County
                    Trial Court Cause No. 10-DCR-055518A

                                 OPINION


      A jury convicted appellant Marcus Dewayne Chambers of possession of
cocaine and sentenced him to 28 years’ imprisonment in the Texas Department of
Criminal Justice, Institutional Division. Chambers appeals, arguing: (1) the
evidence was legally insufficient to support the conviction, and (2) the trial court
erred by denying his motion to suppress. We affirm.
                                          I

      On September 11, 2010, Officers Francisco Javier Sanchez and Eric Sutton
of the Houston Police Department were patrolling a high-crime area in southwest
Houston. Driving past a nightclub called Tasso’s, where they had previously made
numerous arrests, they noticed a group of people loitering in the parking lot behind
the club. Before that night, while making traffic stops in the vicinity, the officers
had noticed people lingering in that area who routinely scattered upon seeing the
patrol car. After one such incident, Sanchez and Sutton inspected the parking lot
and found narcotics on the ground. Although the officers suspected the loiterers
had dropped the narcotics, the high visibility of the patrol car had afforded the
potential suspects plenty of time to flee. Because of those experiences, the officers
decided to park their vehicle in a nearby field and continue their patrol on foot.
Both officers were in uniform.

      At about 2:00 a.m., Sanchez and Sutton walked by the front of Tasso’s and
saw no suspicious activity. They then walked along the side of the building toward
the back parking lot, where several people were still lingering around a parked car.
When Sutton was roughly fifteen yards away, one male in the group saw him
approaching. Sutton saw the male drop a clear, plastic baggie as he turned to walk
away. Suspecting the baggie contained narcotics, Sutton announced himself as a
police officer and detained the male. As he did so, Sanchez saw Chambers, who
was standing nearby, drop a beer can and quickly put both hands behind his back.
Concerned that Chambers may be reaching for a weapon, Sanchez announced
himself as a police officer, drew his gun, and pointed it at Chambers, instructing
him not to move.

      Sanchez walked behind Chambers and saw his hands inside the waistband of
his shorts. He told Chambers to put his hands on top of the car, and Chambers

                                         2
complied. Sanchez holstered his weapon and secured Chambers’s hands behind his
back with handcuffs before patting down the outside of Chambers’s t-shirt and
shorts, which were “halfway beneath his butt crack.” Sanchez then pulled back the
waistband of Chambers’s shorts to determine whether he was concealing a knife or
other sharp object in the fold of his waistband. Although Sanchez saw no weapons,
he immediately noticed a clear, plastic baggie protruding several inches out of
Chambers’s buttocks. Sanchez told Chambers he saw the baggie and asked Sutton
to come look at it. Chambers acknowledged that Sanchez had “got” him and said
he knew he had “messed up.” Although Sanchez could not see the contents of the
baggie, its location coupled with Chambers’s comment led him to suspect it
contained narcotics.

      By that time, Sutton had recovered the baggie that the first male dropped,
which contained marijuana. Sutton then retrieved the officers’ patrol car and drove
it back to the parking lot. Sanchez asked Chambers to remove the baggie,
explaining that Sanchez would do it if Chambers declined. Chambers removed the
baggie, which contained a white, powdery substance that appeared to be cocaine.
Sanchez secured it in a latex glove and arrested Chambers. Subsequent testing
confirmed the white substance contained cocaine.

      A grand jury indicted Chambers for possession of more than one gram but
less than four grams of cocaine. After a pretrial hearing, the trial judge denied
Chambers’s motion to suppress. Following the trial on the merits, a jury convicted
Chambers of the charged offense and, finding two enhancement paragraphs true,
sentenced him to 28 years’ imprisonment.

      On appeal, Chambers argues: (1) the evidence was legally insufficient to
support the conviction and (2) the trial court erred by denying his motion to
suppress. We affirm.

                                        3
                                          II

      We begin with Chambers’s second issue, in which he contends the trial court
erred by denying his motion to suppress. Specifically, he argues the initial
detention was an arrest rather than an investigatory detention and further that
Sanchez did not have reasonable suspicion to make the initial detention.

      We review the trial court’s ruling on a motion to suppress under an abuse-of-
discretion standard. Swain v. State, 181 S.W.3d 359, 365 (Tex. Crim. App. 2005);
Thomas v. State, 297 S.W.3d 458, 460 (Tex. App.—Houston [14th Dist.] 2009,
pet. ref’d). We afford almost total deference to the trial court’s determination of
historical facts but review the court’s application of search-and-seizure law de
novo. Guzman v. State, 955 S.W.2d 85, 87–88 (Tex. Crim. App. 1997); Morrison
v. State, 132 S.W.3d 37, 42–43 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d).
Here, the trial court did not make explicit findings of historical facts, so we review
the evidence in the light most favorable to the ruling and assume the court made
implicit findings of fact supported in the record. Carmouche v. State, 10 S.W.3d
323, 327–28 (Tex. Crim. App. 2000).

                                          A

      The United States Supreme Court has determined that there are three distinct
types of interactions between police and citizens: (1) consensual encounters, (2)
investigatory detentions, and (3) arrests. State v. Castleberry, 332 S.W.3d 460, 466
(Tex. Crim. App. 2011) (citing Florida v. Bostick, 501 U.S. 429, 434 (1991)
(consensual encounters); Terry v. Ohio, 392 U.S. 1, 30–31 (1968) (investigatory
detentions); Gerstein v. Pugh, 420 U.S. 103, 111–12 (1975) (arrests)). “A person is
arrested when he has been actually placed under restraint or taken into custody by
an office or person executing a warrant of arrest, or by an officer or person
arresting without a warrant.” Tex. Code. Crim. Proc. art. 15.22; Mount v. State,
                                          4
217 S.W.3d 716, 724 (Tex. App.—Houston [14th Dist.] 2007, no pet.). But this
restraint-of-liberty standard is not adequate when distinguishing between and arrest
and a detention because it is a characteristic common to both. Mount, 217 S.W.3d
at 724. Rather, the distinction is a matter of degree depending on the length of the
detention, the amount of force employed, and whether the officer actually
conducted an investigation. Id.; Woods v. State, 970 S.W.2d 770, 775 (Tex. App.—
Austin 1998, pet. ref’d). Additionally, the reasonableness of the intrusion under all
of the facts is a relevant factor. Mount, 217 S.W.3d at 724; see Rhodes v. State, 945
S.W.2d 115, 118 (Tex. Crim. App. 1997).

      Specifically, during an investigatory detention, “an officer may employ the
force reasonably necessary to effect the goal of the detention: investigation,
maintenance of the status quo, or officer safety.” Mount, 217 S.W.3d at 724. But
the use of force exceeding that which is reasonably necessary to achieve those
goals may transform an investigatory detention into a full-blown arrest. Id. at 724–
25. A court must determine reasonableness from the perspective of a reasonable
officer at the scene, making allowances for the fact that officers must often make
quick decisions under tense, uncertain, and rapidly changing circumstances.
Rhodes, 945 S.W.2d at 118. Relevant factors in the reasonableness inquiry are the
nature of the crime under investigation, the degree of suspicion, the location of the
stop, the time of day, the reaction of the suspect, and whether the officer actually
conducted an investigation after seizing the suspect. Mount, 217 S.W.3d at 725;
State v. Moore, 25 S.W.3d 383, 385–86 (Tex. App.—Austin 2000, no pet.).
Although the officer’s opinion is also relevant, it is not determinative. Amores v.
State, 816 S.W.2d 407, 413 (Tex. Crim. App. 1991).

      During the suppression hearing in this case, Sanchez testified that he saw
Chambers quickly put his hands in the back of his shorts “as if he was stuffing

                                          5
something in the back of his shirt or reaching for something in the back of his
pants,” which caused Sanchez to suspect Chambers had a weapon. Sanchez felt
concerned for his safety as well as that of his partner, who was preoccupied
detaining another suspect. Sanchez detained Chambers for the purposes of
protecting himself and his fellow officer and investigating whether Chambers was,
in fact, armed. In doing so, Sanchez announced himself as a police officer, drew
his weapon, pointed it at Chambers, and told him not to move. Sanchez walked
behind Chambers and instructed him to put his hands on top of the nearby vehicle.
After Chambers complied, Sanchez holstered his weapon and secured Chambers’s
hands behind his back with handcuffs. Sanchez testified that Chambers was not
under arrest at that time and that the purpose of the handcuffs was merely to secure
Chambers’s hands in case there were weapons concealed in his waistband. Sanchez
then proceeded to conduct a “high[-]risk search” of Chambers, which involved
patting down Chambers’s outer clothing and checking his waistband. Sanchez
testified that he was looking for a weapon, not for contraband or other evidence of
criminal activity, and he had no reason to believe Chambers had narcotics on his
person.

      Further, although Sanchez used a weapon and handcuffs to detain Chambers,
this amount of force was reasonable under the circumstances. Sanchez was on
heightened alert while his partner was preoccupied with another suspect when he
saw Chambers reach for what Sanchez suspected may have been a weapon.
Further, this took place after 2:00 a.m. in a parking lot in a high-crime area where
Sanchez had previously handled numerous incidents involving narcotics, weapons,
and fighting, including one shooting. It was therefore reasonable for Sanchez to
draw his weapon for safety’s sake. Sanchez’s decision to handcuff Chambers was
also reasonable under these circumstances. Sanchez testified that he handcuffed


                                         6
Chambers “in case, there was [sic] any weapons in his waistband . . . to make sure
his hands were secure.” The handcuffs were therefore used to ensure Sanchez’s
safety during his investigation, which is particularly reasonable given that Sutton
was not available to assist him at the time. See Rhodes, 945 S.W.2d at 119
(Meyers, J., concurring and dissenting) (“[O]ur law does not require the finding of
an arrest whenever an accused is handcuffed. Indeed, such a bright-line rule would
hardly comport with recent Supreme Court case-law emphasizing the importance
of police officer safety.”); cf. Moore, 25 S.W.3d at 387 (concluding that
handcuffing the suspect was not reasonably necessary to protect officer safety in a
brightly lit store when a second officer was available to watch the suspect while
another searched the suspect’s backpack for weapons).
       Therefore, we conclude that during the initial detention, Sanchez did not use
more force than reasonably necessary to protect himself and those around him. He
in fact conducted an investigation to determine whether Chambers was armed, and
he testified that the initial detention was not an arrest. Further, considering the facts
from the perspective of a reasonable officer at the scene acting under tense,
uncertain, and rapidly changing circumstances, the amount of force used was
reasonable.1 See Rhodes, 945 S.W.2d at 118. Accordingly, the initial seizure was
an investigatory detention rather than an arrest.

                                                 B

       Having determined that the initial seizure was an investigatory detention

       1
          It is well settled that Sanchez was entitled to pat down Chambers’s outer clothing to feel
for potential weapons. See Terry, 392 U.S. at 30–31. It is less clear, however, whether it was
reasonable for Sanchez to pull back the waistband of Chambers’s shorts even though he did not
feel anything suspicious during the initial pat-down search. Although the use of force exceeding
that which is reasonably necessary to achieve the goals of an investigatory detention may
transform the seizure into an arrest, see Mount, 217 S.W.3d at 724, that is not to say the seizure
was a full-blown arrest from the outset. And in this appeal, Chambers confines his objection to
the initial detention.

                                                 7
rather than an arrest, we address Chambers’s contention that Sanchez did not have
reasonable suspicion to make the initial seizure.

       To warrant an investigatory detention, an officer must have reasonable
suspicion that the citizen is connected to criminal activity. State v. Larue, 28
S.W.3d 549, 553 n.8 (Tex. Crim. App. 2000). Additionally, if an officer reasonably
suspects that a person is armed, a limited pat down of that person is permissible,
even absent probable cause to arrest the person for a crime. Terry, 392 U.S. at 27;
Castleberry, 332 S.W.3d at 467. This does not mean the officer must be absolutely
certain that the person is armed; rather, the issue is whether a reasonably prudent
officer in the circumstances would be warranted in the belief that his safety or that
of others was in danger. Terry, 392 U.S. at 27; Morrison, 132 S.W.3d at 45.

       In this case, Sanchez reasonably suspected Chambers was armed based on
seeing Chambers quickly put both of his hands into the back of his shorts. This is
particularly true given that this occurred in the early morning and in a high-crime
area. See Castleberry, 332 S.W.3d at 469 (concluding that a suspect reaching for
his waistband “could be reasonably construed as reaching for a weapon” when the
encounter took place behind a closed business in a high-crime area). Therefore,
Sanchez had a reasonable suspicion that Chambers was armed, and the initial
detention was lawful.2

       In sum, we conclude that the initial seizure was an investigatory detention
rather than an arrest and that Sanchez reasonably suspected Chambers was armed.
Accordingly, we overrule Chambers’s issue.



       2
         We note that, on appeal, Chambers argues only that Sanchez lacked the requisite
reasonable suspicion to make the initial seizure. He does not challenge the scope of the search,
and therefore we do not address that issue.

                                               8
                                        III

      Chambers also contends that the evidence at trial was legally insufficient to
support his conviction, arguing the State failed to prove the “possession” element
of the charged offense.

      In a legal-sufficiency case, we examine all the evidence in the light most
favorable to the verdict to determine whether a rational fact finder could have
found the essential elements of the offense beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 319 (1979); Merritt v. State, 368 S.W.3d 516, 525 (Tex.
Crim. App. 2012). This standard of review applies to cases involving both direct
and circumstantial evidence. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.
App. 2007); Uyamadu v. State, 359 S.W.3d 753, 757 (Tex. App.—Houston [14th
Dist.] 2011, pet. ref’d). We consider all the evidence presented at trial, but we do
not substitute our judgment regarding the weight and credibility of the evidence for
that of the fact finder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App.
2007); Bradley v. State, 359 S.W.3d 912, 916 (Tex. App.—Houston [14th Dist.]
2012, pet. ref’d). We presume the jury resolved conflicting inferences in favor of
the verdict, and we defer to that determination. Clayton, 235 S.W.3d at 778;
Uyamadu, 359 S.W.3d at 757. We further determine whether the necessary
inferences are reasonable based upon the combined and cumulative force of all the
evidence when viewed in the light most favorable to the verdict. Clayton, 235
S.W.3d at 778; Bradley, 359 S.W.3d at 912.

      In this case, the State had the burden of proving beyond a reasonable doubt
that Chambers intentionally and knowingly possessed cocaine. Tex. Health &
Safety Code § 481.115(a). To prove the defendant “possessed” the cocaine, the
State was required to prove he exercised actual care, custody, control, or
management over it. Id. § 481.002(38); see Blackman v. State, 350 S.W.3d 588,

                                         9
594 (Tex. Crim. App. 2011).3

       In this case, Sanchez testified that the cocaine was in a clear, plastic baggie
protruding from between the cheeks of Chambers’s buttocks. Sanchez testified that
he called Sutton over “to have a second set of eyes to see exactly where it was”
because “it’s always better to have another officer observe what’s going on.” Both
officers testified that when Sanchez told Chambers he saw the baggie, Chambers’s
response was that Sanchez got him and that he knew he messed up. At Sanchez’s
request, Chambers removed the baggie from his buttocks and handed it to Sanchez,
who saw that it contained a white, powdery substance that appeared to be cocaine.
Sanchez secured the baggie inside a latex glove, and subsequent laboratory testing
confirmed that the substance contained cocaine. The record contains no evidence
to contradict the officers’ testimonies.

       We conclude that a rational jury could have believed the officers’ undisputed
testimonies and found beyond a reasonable doubt that Chambers exercised actual
care, custody, control, or management over the cocaine by having it in his
buttocks. We overrule this issue.

                                           ***

       Accordingly, we overrule both of Chambers’s issues and affirm the trial
court’s judgment.


                                           /s/    Jeffrey V. Brown
                                                  Justice
Panel consists of Chief Justice Hedges and Justices Brown and Busby.
Publish — TEX. R. APP. P. 47.2(b).

       3
        Although the State was also required to prove Chambers knew the substance was
cocaine, see Blackman, 350 S.W.3d at 594, Chambers does not contest the evidence proving that
element of the offense.

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