




02-10-267&268&269-CR





















COURT
  OF APPEALS
SECOND
  DISTRICT OF TEXAS
FORT
  WORTH
 



 
 
NOS. 02-10-00267-CR
         02-10-00268-CR
         02-10-00269-CR
 
 



LESLIE WALLACE


 


APPELLANT



                                                                                                                             
V.
 



THE
  STATE OF TEXAS


 


STATE



 
 
------------
 
FROM THE 362ND DISTRICT COURT OF DENTON COUNTY
 
------------
 
MEMORANDUM OPINION[1]
 
------------
I.  Introduction
In two points, Appellant Leslie
Wallace appeals the trial court’s denial of his motion to suppress in his
convictions for assault against a public servant, tampering with physical
evidence, and possession of a controlled substance, and he challenges the
sufficiency of the evidence to support his assault against a public servant
conviction.  We affirm.
II.  Factual and Procedural
Background
The State charged Wallace with
assault against a public servant, possession of a controlled substance
(cocaine) of less than one gram, and tampering with physical evidence (cocaine).
 Wallace moved to suppress all of the evidence discovered after a traffic stop,
and the trial court denied the motion, found Wallace guilty of all three
charges, and sentenced him to seven years’ confinement each for the tampering
and assault convictions and to twenty months’ confinement for the possession
conviction, to be served concurrently.
Wallace requested that the trial
court make findings of fact and conclusions of law.  In response, the trial
court made the following findings of fact:
1.       On or about February 16, 2008, at around 6:00
a.m.[,] Officer Olson and Officer Collins both of the Denton Police Department
were dispatched to 239 Mockingbird Lane, Denton, Texas.  Officer Olson and
Officer Collins made contact with Laurie McClung at this address.  Laurie
McClung and her daughter [K.M.] both resided at this address.  Officer Olson
and Officer Collins both testified at the suppression hearing.  Officer Collins
and Officer Olson testified that they were told that the Defendant had touched
[K.M.] in a sexual manner inside this residence during the early morning hours
of February 16, 2008.  Officer Collins testified that after speaking to Laurie
McClung that he believed there was reasonable suspicion to believe that the
Defendant had committed the offense of Indecency with a Child.  Officer Collins
testified that he was told by Laurie McClung that the Defendant had touched
[K.M.’s] “butt” that evening.  Officer Collins also testified that [K.M.] told
him that the Defendant touched her and that she saw the Defendant use the
restroom.
 
2.       Officer Collins also spoke to C.J. Batiste. 
At the time, Mr. Batiste was Laurie McClung’s boyfriend and he also resided in
the residence.  While speaking with Mr. Batiste and Laurie McClung, Officer
Collins was given a description of the Defendant’s vehicle.  Officer Collins
was under the belief that the Defendant would be driving back to the location
of the residence, because Mr. Batiste had called the Defendant after the
Defendant left the residence and asked the Defendant to return.  Based on the
information that Officer Olson and Officer Collins obtained, Officer Olson gave
the Denton Police Department dispatch unit the description of the Defendant’s
vehicle, told dispatch that the Defendant was driving the vehicle, and the area
in which the Defendant would be located.
 
3.       The Court finds the testimony of Officer
Olson to be credible and convincing.  The Court finds the testimony of Officer
Collins to be credible and convincing.
 
4.       Officer Cose of the Denton Police Department
also testified at the suppression hearing.  Officer Cose was working patrol
during this time, and he was driving a Denton Police Department patrol
vehicle.  Denton Police Officer Sween[e]y was riding in the patrol vehicle with
Officer Cose.  Officer Cose was informed by dispatch that the Defendant’s
vehicle would be in the area of 239 Mockingbird Lane.  Shortly after hearing
the dispatch information, Officer Cose saw the Defendant’s vehicle near the
intersection of East McKinney St. and Mockingbird Ln.  This location is near
and in the area of 239 Mockingbird.  Officer Sweeney also testified that the
Defendant’s vehicle was headed back in the direction that dispatch informed it
would be heading.  Officer Cose initiated a traffic stop of the Defendant’s vehicle. 
During the traffic stop, Officer Cose made contact with the Defendant.  The
Defendant told Officer Cose that he did not have his driver’s license with
him.  Therefore, the Defendant did not provide Officer Cose with his driver’s
license.  Officer Cose also noticed that the motor vehicle inspection sticker
on the Defendant’s vehicle had expired.  Officer Cose arrested the Defendant
for failure to display a driver’s license and for an expired motor vehicle
inspection [sticker].  The Defendant was then driven to the Denton City Jail.
 
5.       The Court finds the testimony of Officer Cose
to be credible and convincing.  The Court also finds the testimony of Officer
Sweeney to be credible and convincing.
 
6.       While at the Denton City Jail during the
arrest and book-in process, the Defendant was searched by Detention Officer
Stevenson.  During the search of the Defendant[,] a crack rock-like substance
fell out of the pocket of the clothing that the Defendant was wearing.  This
occurred in the presence of Officer Stevenson and Officer Sweeney.  Officer
Sweeney placed the “crack rock” in a plastic bag on the counter.  Moments
later[,] the Defendant grabbed the plastic bag and attempted to swallow it
while running away from the officers.  Officer Sweeney and Officer Stevenson
took the Defendant to the ground.  Officer Sweeney was wearing gloves, and he
attempted to get the Defendant to spit the bag out.  Officer Sweeney’s finger
was in the Defendant’s mouth at some point during this incident, and the
Defendant bit Officer Sweeney’s finger.  Officer Sweeney and Officer Stevenson
and several other Denton Police Officers finally restrained the Defendant. 
Officer Keith Martin of the Denton Police Department ran into the jail upon
hearing a call for help.   Officer Martin testified that the Defendant was so
combative that Officer Martin had to use his “taser” and apply a “drive stun”
to the Defendant in order to get the Defendant under control.  The Defendant
was brought under control and was then placed in a “detox” cell in the jail. 
The bag with the “crack rock” was not recovered at this point.  Several minutes
later, Denton Police Officer Deweber walked by the Defendant’s cell and saw the
Defendant with what looked like a bloody paper towel in his hand.  Officer
Deweber testified that once the Defendant saw that Deweber was looking at him,
that the Defendant pushed the “paper towel” back into his mouth.  Officers
Deweber and Sweeney along with other officers entered the Defendant’s cell and
restrained the Defendant.  Officer Deweber was yelling at the Defendant to spit
the bag out.  Officer Deweber testified that the Defendant was combative. 
Officer Sweeney testified that the Defendant attempted to bite him.  During
this struggle in the cell, Officer Deweber used his taser gun to apply a drive
stun to the Defendant.  Officer Deweber testified that the Defendant began
choking, and that as a result that an officer performed the Heimlich maneuver
on the Defendant.  The Defendant was then taken to Denton Regional Medical
Center.
 
7.       The Court finds the testimony of Officers
Stevenson, Martin[,] and Deweber to be credible and convincing.
 
8.       Officer Deweber rode with the Defendant in an
ambulance to Denton Regional Medical Center.  Officer Deweber testified that
while the Defendant was lying down at Denton Regional Medical Center that the
Defendant spit out of his mouth a bloody plastic bag along with blood onto the
floor.  The Defendant spit the bloody plastic bag along with blood onto the
floor completely on his own.  No force was used against the Defendant at Denton
Regional Medical Center.  A nurse put the plastic bag into another plastic bag
and handed it to Officer Deweber.  The contents of the bloody bag were later
tested, and it was confirmed that the contents of the bloody bag were cocaine.
 
9.       At no time did anyone attempt to place any
instruments into the defendant’s mouth.  No one ever put anything deep into the
defendant’s mouth or down his throat.  The police did nothing more than attempt
to grab the bag out of the defendant’s mouth.
The trial court made the following
conclusions of law:
1.       The Court finds that Officer Cose had
reasonable suspicion to initiate the traffic stop of the Defendant’s vehicle
based on the information that had been provided to Officer Olson and Officer
Collins and relayed by the officers.
 
2.       The Court finds that Officer Cose had
probable cause to arrest the Defendant for the offense of Failure to Display
Inspection Certificate.  Tex. Transp. Code Ann. § 548.602.  The Court
also finds that Officer Cose had probable cause to arrest the Defendant for
[the] offense of Failure to Display a Driver’s License.  Tex. Transp. Code
Ann. § 521.025.
 
3.       The Court finds that none of the law
enforcement officers conducted or attempted to conduct any unreasonable search
or seizure.  The Court further finds that the Defendant spit out the bloody bag
and its contents at Denton Regional Medical Center on his own.  The Court finds
that Officer Deweber’s gaining possession of the bloody bag and its contents
were not the result of any search.
These appeals followed.
III.  Discussion
In his first point, Wallace complains
that trial court erred by denying his motion to suppress, arguing that the
police officers had no reasonable suspicion to initially stop and detain him so
all evidence procured after the stop should have been suppressed and that his
subsequent search and seizure at the jail was unreasonable and intrusive.  In
his second point, Wallace challenges the sufficiency of the evidence to support
his conviction of assault against a public servant.
A.  Preservation of Error
In part of his first point, Wallace
contends that K.M.’s outcry lacked a solid identification of him as the
perpetrator and was insufficient to originate the “BOLO”[2]
issued by Officer Olson and to stop him.  The State responds that Wallace did
not preserve this argument because it does not comport with the one he made in
the trial court.
At trial, Wallace argued as follows
after Officers Collins and Cose testified:
I would move to suppress all the evidence subsequent
to the traffic stop.  It’s an illegal detention.  They didn’t have enough
reasonable suspicion to make that stop even briefly.
 
They knew who the person was.  That they didn’t need for identification purposes. 
They had already named the person.  [C.J.] had even actually called him
on the phone.  So there was no issue about any flight.
 
They could have obtained a warrant based on the
information they had or on information that they could have investigated and
compiled.  They didn’t do that.  Yet they arrested this man on the street and
didn’t notice any violations until after his movement had been ceased.  He had
been seized, arrested, not free to leave according to the officer who pulled
him over.  It wasn’t until after he did that that he discovered that he didn’t
have a driver’s license or any identification, and then it was subsequent— . .
. 
 
[H]e didn’t realize that there
was an expired motor vehicle inspection until after he had pulled him over. 
And, Judge, I think we have an illegal detention here, and I would ask for you
to suppress all the evidence subsequent to that.  [Emphasis added.]
The State then responded that there
was sufficient evidence to support reasonable suspicion for the stop based on
the information the officers gathered from the seven-year-old child and her
mother.  At the close of evidence, with regard to the initial stop, Wallace
again argued, “The officer at the time of the stop didn’t have reasonable
suspicion or enough articulable facts to continue the detention or to even
detain him to begin with, to stop him initially.  And I would just ask you to
reconsider your previous ruling on that issue.”[3]
The complaint made on appeal must
comport with the complaint made in the trial court or the error is forfeited.  Lovill
v. State, 319 S.W.3d 687, 691–92 (Tex. Crim. App. 2009) (“A complaint will
not be preserved if the legal basis of the complaint raised on appeal varies
from the complaint made at trial.”); Pena v. State, 285 S.W.3d 459, 464
(Tex. Crim. App. 2009) (“Whether a party’s particular complaint is preserved
depends on whether the complaint on appeal comports with the complaint made at
trial.”); see Tex. R. App. P. 33.1.  To determine whether the complaint
on appeal comports with that made at trial, we consider the context in which
the complaint was made and the parties’ shared understanding at that time.  Resendez
v. State, 306 S.W.3d 308, 313 (Tex. Crim. App. 2009); Pena, 285
S.W.3d at 464.  A reviewing court should not address the merits of an issue
that has not been preserved for appeal.  Wilson v. State, 311 S.W.3d
452, 473 (Tex. Crim. App. 2010) (op. on reh’g).
Because Wallace’s complaint on appeal
about identification does not comport with the one he raised at trial, we
overrule this portion of his first point.[4]
B.  The “Second” Search
Wallace also argues that the “second”
search—“the subsequent expulsion of rock cocaine”—was unreasonable because it
was conducted in a very violent manner in an unsanitary place when the officers
“wrestl[ed] around” with him in the detox cell and then stunned him with a
taser.  The State responds that the cocaine was obtained by a nurse after
Wallace coughed it up at the hospital on his own, attenuating any taint from any
alleged police misconduct.  See Wong Sun v. United States, 371
U.S. 471, 487–88, 83 S. Ct. 407, 417 (1963); see also Crosby v. State,
750 S.W.2d 768, 780 (Tex. Crim. App. 1987) (“[E]ven assuming the acquisition of
the indirectly acquired evidence was illegal it should not be excluded if it
was obtained independent of the initial illegality.”), cert. denied, 486
U.S. 1055 (1988).  If there are satisfactory intervening events that attenuate
the taint of the initial illegality, then the indirectly obtained evidence will
usually be deemed admissible.  Crosby, 750 S.W.2d at 780 (citing Miller
v. State, 736 S.W.2d 643, 651 (Tex. Crim. App. 1987) (op. on reh’g)).
The record, which supports the trial
court’s fact findings set out above, reflects that during the book-in process,
a detention officer was searching Wallace when a white, rock-like substance
fell from Wallace’s sweatshirt pocket onto the book-in counter.  Officer
Sweeney retrieved the substance, which he believed to be crack cocaine based on
its appearance,[5]
put it in an evidence bag, and set the bag on the other side of the counter
before starting to read Wallace his Miranda warnings.
When Officer Sweeney paused to ask
Wallace if he understood his rights, Wallace reached over the counter, grabbed
the bag, and tried to run away while stuffing the bag into his mouth.  Officer
Sweeney grabbed Wallace but was unsuccessful in trying to stop him from
swallowing the bag.  Officer Sweeney said that swallowing crack cocaine could
be fatal, as could choking on a plastic bag; that Wallace was “in a rage,”
swinging his arms and trying to get away; and that five or six officers were
needed to subdue him.  Officer Keith Martin described Wallace as combative and
out of control, and he stunned Wallace with a taser after warning him several
times that he would stun him if Wallace did not put his arms behind his back.  Wallace
was stripped of his clothing, placed in a detox cell, and given an orange cell
suit.  Officer Sweeney said that Wallace was placed in a detox cell because of
his combativeness.  The rock was not recovered at that time.
Officers subsequently saw Wallace
holding something in the detox cell, and when Wallace noticed this, he shoved
the item in his mouth.  Another altercation ensued.  Officer Deweber testified
that Wallace tried to bite Officer Sweeney during the struggle and that he had
to tase Wallace three times.  Officer Sweeney said Wallace tried to bite him
again.  After Officer Deweber stunned Wallace, Wallace began to choke, and Officer
Cose performed the Heimlich maneuver.  The rock was not recovered at that time.
Officer Deweber accompanied Wallace
to the hospital because Wallace had been combative.  Wallace started coughing
as he was rolled into a hospital room.  Officer Deweber testified that Wallace
“threw up a big pile of blood, and in the middle of the blood was a plastic
bag,” which landed on the floor of the hospital.  A nurse bagged the item in a
biohazard bag and gave it to Officer Deweber.
As noted by the trial court, nothing
in the record indicates that anyone ever tried to place any instruments in
Wallace’s mouth or down his throat or that anyone did anything more than
attempt to get the bag out of Wallace’s mouth, both to keep him from choking
and to preserve it as evidence.  The trial court concluded that none of the law
enforcement officers conducted or attempted to conduct any unreasonable search
or seizure, that Wallace spit out the bloody bag and its contents at the
hospital on his own, and that Officer Deweber gained possession of the bloody
bag and its contents without a search.  We agree because it is clear from the
record that the police officers’ second failed attempt to recover the evidence
had ceased by the time Wallace left for the hospital, was wheeled into a
hospital room, and literally purged himself of the evidence; then, a nurse
wearing gloves picked up the evidence, bagged it, and handed it to Officer
Deweber.  See Crosby, 750 S.W.2d at 780.
Because any alleged police misconduct
had ceased by the time Wallace reached the hospital, we reach the same
conclusion that the trial court did:  that Officer Deweber’s gaining possession
of the evidence was not the result of any search.  Cf. Hereford v. State,
339 S.W.3d 111, 114, 123–25, 126 (Tex. Crim. App. 2011) (noting that Officer
Arp used excessive force when he deliberately chose to administer numerous
electrical shocks to appellant’s groin area in his attempt to make appellant
relinquish the crack cocaine in his mouth long after the initial arrest was
made and when there was no ongoing attempt by appellant to destroy the
evidence, there was little concern of a drug overdose, and appellant was
restrained in handcuffs behind his back); Davis v. State, No.
04-10-00632-CR, 2011 WL 4088449, at *4–5 (Tex. App.—San Antonio Sept. 14, 2011,
no pet.) (mem. op., not designated for publication) (distinguishing Hereford
and concluding that officer’s action in seizing cocaine was reasonable when
officer saw appellant place drugs in his mouth and grabbed appellant, applied
pressure to appellant’s jaw while ordering him to open his mouth—in compliance
with what he was taught at the police academy—and, within moments of applying
pressure, successfully recovered one of the packages from appellant’s mouth by
scooping it out with his pen).  We overrule the remainder of Wallace’s first
point.
C.  Sufficiency
Wallace argues that the evidence was
insufficient to support his conviction of assault against a public servant
because he had already been arrested by the time he bit Officer Sweeney.  In
our due-process review of the sufficiency of the evidence to support a
conviction, we view all of the evidence in the light most favorable to the
verdict to determine whether any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.  Jackson v.
Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Isassi v.
State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).
Wallace was charged with assaulting a
public servant by intentionally, knowingly, or recklessly causing bodily injury
to Marc Sweeney, a person Wallace knew to be a public servant, by biting him
while he “was then and there lawfully discharging an official duty, to-wit:
making an arrest.”  See Tex. Penal Code Ann. § 22.01(a)(1), (b)(1) (West
2011) (stating that the offense is a third-degree felony if the offense is
committed against a person the actor knows is a public servant while the public
servant is lawfully discharging an official duty).
“[W]here the original arrest is
lawful[,] the arresting officer is authorized to make an additional arrest for
any other offense unexpectedly discovered during the course of investigation
and incident to the newly discovered offense conduct an additional search for
physical evidence.”  Byrd v. State, 447 S.W.2d 936, 937 (Tex. Crim. App.
1969).  Further, within the context of the escape statute, the court of
criminal appeals has stated that an “arrest”
“is complete when a person’s liberty of movement is successfully
restricted or restrained, whether this is achieved by an officer’s physical
force or the suspect’s submission to the officer’s authority.  Furthermore, an
arrest is complete only if ‘a reasonable person in the suspect’s position would
have understood the situation to constitute a restraint on freedom of movement
of the degree which the law associates with formal arrest.’”
Warner v. State, 257 S.W.3d 243, 247 (Tex. Crim.
App. 2008) (emphasis added) (quoting Medford v. State, 13 S.W.3d 769, 773
(Tex. Crim. App. 2000)); cf. Tex. Code Crim. Proc. Ann. art. 15.22 (West
2005) (stating that a person is arrested “when he has been actually placed
under restraint or taken into custody by an officer or person executing a
warrant of arrest, or by an officer or person arresting without a warrant”).  The
terms “arrest” and “custody” are not interchangeable; rather, “arrest” is “a
subset of custody,” Warner, 257 S.W.3d at 247, and “effecting an arrest”
entails a process or transaction with a beginning and an end.  Lewis v.
State, 30 S.W.3d 510, 512 (Tex. App.—Amarillo 2000, no pet.) (discussing
sufficiency in the context of a resisting arrest conviction under penal code
section 38.03).  An officer no longer effectuates an arrest once his efforts to
actually restrain or control the suspect are completed.  Id. (citing Bruno
v. State, 922 S.W.2d 292, 294 (Tex. App.—Amarillo 1996, no pet.); Schrader
v. State, 753 S.W.2d 733, 735 (Tex. App.—Austin 1988, pet. ref’d)).  “The
legislature intended the expression ‘effecting an arrest’ to encompass the
reasonable actions or process of a peace officer bringing a person under the
officer’s control for purposes of the law.”  Latham v. State, 128 S.W.3d
325, 329 (Tex. App.—Tyler 2004, no pet.) (discussing penal code section 38.08).
Officer Cose testified that he
arrested Wallace for failure to identify and for having an expired inspection
sticker, placed him in handcuffs, and took him to jail.  Officer Sweeney, who
was with Officer Cose when he stopped Wallace, agreed that Wallace was arrested
at the scene for these offenses, and he agreed during cross-examination that
Officer Cose made the arrest by handcuffing Wallace, putting Wallace in the
patrol car, and making it obvious that Wallace was not free to leave.  Officer
Sweeney also agreed that Wallace did not resist or assault him at that point,
that Wallace had already been arrested at the time he resisted the officers’
attempts to seize the evidence from him, and that Officer Cose wrote the arrest
report because he was the arresting officer.  Therefore, it is undisputed that
Wallace had been arrested for not having a driver’s license and for having an
expired inspection sticker by the time he was being booked-in at the jail.  See
Warner, 257 S.W.3d at 246; Lewis, 30 S.W.3d at 512.
However, at that point, Wallace had
not yet been found to have committed possession of a controlled substance, and
he had not yet committed tampering with evidence, so he could not have been
under arrest or in custody for either of these offenses.  Rather, as set out
above, Wallace was being booked-in under the initial arrest when the crack rock
was discovered and when he grabbed the crack rock in its evidence bag and tried
to swallow it while attempting to flee.  He became combative and out of control,
and Officer Deweber said that when he arrived to help subdue Wallace, officers
were trying “to place [Wallace] back into handcuffs.”
Wallace bit Officer Sweeney while
Officer Sweeney attempted to re-apprehend him and to stop him from swallowing
the bag containing the crack rock.  That is, when the bite occurred, Officer
Sweeney was trying to restrict or restrain Wallace’s liberty again, and
he could do so within the context of the new offenses that had been committed
in his view.  See Tex. Code Crim. Proc. Ann. art. 14.01(b) (West 2005); Byrd,
447 S.W.2d at 937; see also Warner, 257 S.W.3d at 247 (noting
statutory distinctions between the offenses of escape, evading arrest, and
resisting arrest, which are offenses a person commits when an officer has not
successfully restrained or restricted a suspect); Polk v. State, 170
S.W.3d 661, 664 (Tex. App.—Fort Worth 2005, pet. ref’d) (noting that the
invocation of an appellant’s right to remain silent is case-specific and
related only to the offenses for which he is arrested).  Therefore, we conclude
that Wallace bit Officer Sweeney while he was making a second arrest for the
offenses Wallace committed at the police station and that the evidence is therefore
sufficient to support Wallace’s conviction for assault against a public servant.
 We overrule Wallace’s second point.
IV.  Conclusion
Having overruled both of Wallace’s
points, we affirm the trial court’s judgments.
 
 
                                                                             PER
CURIAM
 
PANEL:  MCCOY, J.;
LIVINGSTON, C.J.; and GABRIEL, J.
 
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
 
DELIVERED:  December 15, 2011




[1]See
Tex. R. App. P. 47.4.


[2]“BOLO”
is an acronym for “be on the lookout.”  Amores v. State, 816 S.W.2d 407,
424 n.17 (Tex. Crim. App. 1991).


[3]Wallace
did not file a written motion to suppress.


[4]Further,
based on the information known to the police officers at the time, Officers
Cose and Sweeney had reasonable suspicion to stop Wallace’s vehicle.  Officer
Olson issued the description of Wallace’s vehicle to dispatch after he and
Officer Collins spoke with the complainant, her mother, and her mother’s
boyfriend, who identified Wallace as the individual who touched the complainant
“on her butt” that day and described Wallace’s vehicle.  And Officers Cose and
Sweeney heard the dispatch about the suspect of the indecency with a child
offense and stopped Wallace’s vehicle, which matched the description in the
dispatch, while he was on his way back to the scene.  See Ford v.
State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005) (stating that reasonable
suspicion exists when, based on the totality of the circumstances, the officer
has specific, articulable facts that when combined with rational inferences
from those facts, would lead him to reasonably conclude that a particular
person has been engaged in criminal activity); see also Derichsweiler
v. State, 348 S.W.3d 906, 914 (Tex. Crim. App.), cert. denied, 132
S. Ct. 150 (2011) (stating that the cumulative information known to the
cooperating officers at the time of the stop is to be considered in determining
whether reasonable suspicion exists).


[5]The
parties stipulated that the item contained a trace amount of cocaine.


