
NO. 07-03-0392-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

DECEMBER 8, 2003
______________________________

RAUL HERRERA,




		Appellant


v.

THE STATE OF TEXAS, 


		Appellee

_________________________________

FROM THE 242ND DISTRICT COURT OF CASTRO COUNTY;

NO. B2830-0207; HON. ED SELF, PRESIDING
_______________________________

 Order of Dismissal
_______________________________

Before JOHNSON, C.J., and QUINN and REAVIS, JJ.
	Pending before the court is the appeal of Raul Herrera (appellant).  We abated the
matter to the trial court on November 12, 2003, because appellant's brief was past due,
and neither the brief nor an extension of time to file the brief had been filed.  At the hearing
convened by the trial court per our directive, appellant informed the trial court that he no
longer cared to prosecute his appeal.  This representation was included in a motion to
dismiss signed by both appellant and his attorney and filed with the trial court (though the
motion was directed to the court of appeals).  The motion was included in a supplemental
clerk's record filed with this court.  The trial court also memorialized appellant's decision
to forego appeal in its findings of fact and conclusions of law which were included in the
supplemental clerk's record and received on December 5, 2003.
	Because appellant has clearly revealed his desire to forego appeal, we grant his
motion and dismiss the appeal.  Having dismissed the appeal on appellant's request, no
motion for rehearing will be entertained, and our mandate will issue forthwith.
 
							Brian Quinn 
							   Justice

 
Do not publish.

____________

FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY;

NO. 1060075D; HON. LOUIS E. STURNS, PRESIDING
_______________________________

Memorandum Opinion
_______________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
          Tyrone Green was convicted, after a guilty plea, of possessing a controlled
substance with intent to deliver.  His sole issue involves the trial court’s alleged abuse of
discretion in overruling his motion to suppress.  We affirm the judgment. 
          Background
          On March 18, 2007, around 1:00 a.m., Officer Sparks was patrolling the Butler
housing project in Fort Worth.  The area was considered one of high crime given the no
trespassing signs hung on several of the buildings, numerous calls about loitering, its
notoriety for drug trafficking, and its history of nighttime vandalism and theft. 
          As he patrolled, the officer observed three persons standing together.  The group
consisted of two men and a woman.  Upon seeing them, Sparks parked his marked patrol
car, exited it, and began walking toward the group.  The group, in turn, began walking
towards him.  They met several yards from the patrol car, and when they did, the officer
asked whether they lived in the area.  The woman and one man said yes.  The other
person, i.e. appellant, said no but that he was visiting the woman.  The officer then asked
the woman if that was true, and she denied it.  
          Appellant’s response coupled with the woman’s denial led the officer to believe that
appellant “was not supposed to be there.”  So, Sparks undertook to investigate whether
appellant was trespassing and asked appellant for his name.  Before responding, however,
appellant put his hands in the pockets of his sweatshirt.  That made the officer nervous
given the time of night, the location of the encounter, and the absence of any other officers.
Consequently, he asked appellant to remove his hands from the pockets.  Appellant initially
complied, removed his hands, and disclosed his name.  
          As the officer prepared to return to his vehicle and determine if appellant was the
subject 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.
               
 

