
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.   
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
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
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.    
  
	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).
	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.

  

 

 


 
 
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.
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.).

