      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-10-00040-CR




                                   Kenneth Knotts, Appellant

                                                 v.

                                  The State of Texas, Appellee



     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 427TH JUDICIAL DISTRICT
       NO. D-1-DC-09-204541, HONORABLE FRED A. MOORE, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Pursuant to a plea bargain, appellant Kenneth Knotts pleaded guilty to possession of

more than four grams of cocaine. See Tex. Health & Safety Code Ann. § 481.115(a), (d) (West

2010). The district court adjudged him guilty and assessed punishment at two years’ imprisonment.

Appellant’s sole contention on appeal is that the court erred by overruling his pretrial motion to

suppress evidence. We overrule this contention and affirm the conviction.

               A trial court’s ruling on a motion to suppress is reviewed for an abuse of discretion.

State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006). This means that the ruling will be

upheld if it is reasonably supported by the record and is correct under any applicable legal theory.

Id. The trial court is the sole trier of fact and judge of the credibility of the witnesses and the

weight to be given their testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000);

Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).                We give the trial court
almost complete deference in determining historical facts, but we review de novo the

trial court’s application of the law to those facts. Carmouche v. State, 10 S.W.3d 323, 327

(Tex. Crim. App. 2000).

              The motion to suppress was heard by a criminal magistrate, who prepared written

findings and recommendations for the court. The magistrate’s report contains this succinct and

accurate summary of the evidence, together with the magistrate’s findings and conclusions:


       Officer M. Schultheis of the Austin Police Department [the only witness] testified
       that he was on bicycle patrol in the Austin 6th Street entertainment area, at about
       dusk, targeting street sales of narcotics and burglary of vehicles. He saw the
       defendant standing in the middle of E. 4th Street. The officer had personally arrested
       street level dealers in this block, and the area is well documented as being a place
       where drugs are sold by persons on foot. When the defendant saw the officer he
       immediately moved rapidly to a parked car and attempted to enter it but his hand was
       shaking too badly to put the key in the lock. As the officer approached closer he saw
       that defendant had a pill bottle in his hand with small white cube shaped objects
       consistent with crack cocaine. The defendant was looking around rapidly as though
       looking for an avenue to run away from the officer. The officer grabbed his wrist and
       detained him to investigate. The items in the pill bottle were consistent with crack
       cocaine, so the officer arrested him on that charge, plus on an outstanding warrant.

       I find the officer was credible, and that he did not exercise any restraint upon
       defendant until he had seen what, in his training and experience, was consistent in
       appearance with crack cocaine, defendant’s behavior was consistent with him being
       a street dealer suddenly confronted with the presence of an officer, and defendant
       appeared to be looking for a path to run away from the officer. The officer’s actions
       were reasonable under the totality of the circumstances.


              Appellant agrees that he was not detained until the officer seized his wrist. Appellant

urges, however, that the officer at that point did not have a reasonable basis for suspecting

that appellant was committing a crime. See United States v. Cortez, 449 U.S. 411, 417-18 (1981);

Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001). Reasonable suspicion exists when an

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officer has specific articulable facts that, combined with rational inferences from those facts, lead

the officer to reasonably suspect that a person has, is, or soon will be engaged in criminal activity.

Garcia, 43 S.W.3d at 530.

               Appellant contends that Schultheis’s testimony “clearly indicated that he did not, in

fact, see the contents of the amber pill bottle before grabbing Appellant.” This assertion is

contradicted by the record. The officer testified that when he was about three feet from appellant,

he saw in appellant’s right hand a “[c]ell phone and a prescription bottle that had no label which

concealed white square chunks consistent with crack cocaine.” He was asked by the prosecutor,

“But before you grabbed him, you saw the prescription bottle with little rocks in it?” He answered,

“That is true.” During cross-examination, defense counsel asked, “You couldn’t tell those—that was

crack cocaine from that distance?” The officer replied, “You could see squares moving back and

forth—like I said he was nervous. So it was enough for me to suspect it was crack cocaine.”

               Appellant further argues that Schultheis could not identify the contents of the pill

bottle as crack cocaine rather than some other, legal substance until he seized the bottle. But it was

not necessary for the officer to know or even have probable cause to believe that the substance was

crack cocaine in order to detain appellant for further investigation. It was only necessary that the

officer reasonably suspected that the substance was crack cocaine. Considering what Schultheis saw

and the circumstances under which he saw it, we agree with the magistrate that the officer had a

reasonable, objective basis for suspecting that appellant possessed crack cocaine. See Crain v. State,

315 S.W.3d 43, 52 (Tex. Crim. App. 2010) (summarizing basis for investigative detention).




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              We conclude that appellant was lawfully detained on reasonable suspicion.

Therefore, the subsequent seizure of the crack cocaine was lawful.

              The judgment of conviction is affirmed.




                                            __________________________________________

                                            J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Henson and Goodwin

Affirmed

Filed: February 16, 2011

Do Not Publish




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