Affirmed and Memorandum Opinion filed August 25, 2016.




                                      In The

                     Fourteenth Court of Appeals

                                NO. 14-15-00558-CR
                                NO. 14-15-00559-CR

                     DEREK R. WASHINGTON, Appellant
                                         V.

                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 179th District Court
                             Harris County, Texas
                    Trial Court Cause Nos. 1402737, 1402738

                  MEMORANDUM OPINION

      Appellant, Derek Washington, appeals his convictions for possession of a
firearm by a felon and evading arrest or detention as a second offender. In two
issues, appellant contends (1) the trial court erred by denying appellant’s motion to
suppress evidence regarding the firearms he possessed, and (2) the evidence is
insufficient to support his conviction for evading arrest or detention. We affirm.
                                  I. BACKGROUND

      According to the State’s evidence, at approximately 2:00 a.m. on September
26, 2013, two police officers observed a vehicle, in which appellant was a backseat
passenger, traveling the wrong way on a one-way street. The officers used the
lights and sirens on their patrol car to signal the vehicle to stop. While one officer,
dressed in police uniform, stepped out of the police car to approach the other
vehicle, appellant immediately exited the vehicle and fled on foot. The officer
yelled, “Houston police, stop,” but appellant continued running.          The officer
pursued appellant on foot but lost sight of him when he entered a hotel parking
garage. Additional units arrived, and a K-9 unit found appellant hiding under a
vehicle in the garage. The pursuing officer arrested appellant and returned to the
scene of the traffic stop where the other officer had detained the driver and the
other passenger. That officer seized a plastic bag which was open in the back seat
of the men’s vehicle. Inside the bag was an unlabeled pill bottle containing a
substance that tested positive for cocaine.

      Meanwhile, on the hotel’s surveillance recording, a hotel security guard
observed a man run through the parking garage, remove items from his waistband,
and place them in a trash can, so the guard called the police back out. The officers
returned to the garage and found two loaded handguns inside the trash can. The
officers subsequently reviewed the surveillance footage and saw appellant—
identifiable from his distinctive bright-green shirt—remove from his waistband and
place in the trash can what one officer described as “items” and the other officer
described more specifically as two “handguns.”

      Appellant was charged with possession of a controlled substance, evading
arrest or detention as a second offender, and possession of a firearm by a felon.
Appellant moved to suppress evidence regarding the handguns found in the trash

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can on, inter alia, the ground they were seized in violation of the Fourth
Amendment to the United States Constitution. During trial, the trial court held a
hearing on that motion outside the jury’s presence. After hearing testimony, the
trial court denied the motion but permitted a jury instruction on disregarding
evidence obtained in violation of the law. See Tex. Code. Crim. Proc. Ann. art.
38.23(a) (West 2005).

         The jury found appellant guilty of possession of a firearm by a felon and
evading arrest or detention as a second offender but not guilty of possession of a
controlled substance. After finding two enhancement paragraphs were “true,” the
trial court sentenced appellant to twelve years’ confinement for evading arrest or
detention and twenty-five years’ confinement for possession of a firearm by a
felon.

                                  II.     MOTION TO SUPPRESS

         In his first issue, appellant contends the trial court erred by denying
appellant’s motion to suppress. Appellant did not identify the challenged evidence
at the suppression hearing and does not identify on appeal what evidence he
contends was wrongfully admitted but generally refers to “all evidence seized.”
However, in his written motion to suppress, appellant expressed that he was
challenging only admission of evidence regarding the handguns. Accordingly, we
construe this issue as applicable only to appellant’s conviction for possession of a
firearm by a felon.1

         1
          In his appellate brief, appellant refers to a motion to suppress he purportedly filed, and
the trial court denied, in the evading-arrest-or-detention case. The trial court signed an order in
that case denying a “motion to suppress,” but appellant filed only a motion to dismiss—not a
motion to suppress—on the ground there was no lawful basis to detain appellant. Appellant did
not request the trial court to suppress any evidence in that case. Accordingly, we will consider
lawfulness of the attempted detention relative to that case when we address appellant’s second
issue challenging sufficiency of the evidence to support that conviction.

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       We review a trial court’s ruling on a motion to suppress under a bifurcated
standard. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007). We give
almost total deference to the trial court’s findings of historical fact that are
supported by the record and its application of the law to the facts if the resolution
of those questions turns on an evaluation of credibility and demeanor. Id. We
review de novo the trial court’s application of the law to the facts when the issue
does not turn on credibility and demeanor. See id.

       The Texas Code of Criminal Procedure provides:

       No evidence obtained by an officer or other person in violation of any
       provisions of the Constitution or laws of the State of Texas, or of the
       Constitution or laws of the United States of America, shall be admitted in
       evidence against the accused on the trial of any criminal case.
Tex. Code Crim. Proc. Ann. art. 38.23(a). Appellant contends the guns were
obtained in violation of the Fourth Amendment to the United States Constitution,
which prohibits unreasonable searches and seizures, because the guns were seized
as a result of an unlawful detention. See U.S. Const. Amend. IV. Specifically,
appellant argues the officers lacked a lawful basis to detain appellant upon
stopping the vehicle because he was merely a passenger and the officers did not
have reasonable suspicion that appellant was engaged in criminal activity.

       Assuming, without deciding, that appellant preserved his contention for
appellate review, the trial court did not err by denying the motion to suppress. 2

       2
          Arguably, appellant failed to preserve error because his appellate contention does not
comport with his complaint in the trial court. See Tex. R. App. P. 33.1(a); Rothstein v. State, 267
S.W.3d 366, 373–74 (Tex. App.—Houston [14th Dist.] 2008, pet. ref’d). In his written motion
to suppress, appellant asserted the guns were seized as a result of an illegal detention because
officers lacked probable cause to stop the vehicle as the driver had not committed a traffic
violation. During the suppression hearing, appellant presented only his own testimony, which
focused entirely on whether there was a traffic violation, and his counsel represented the
testimony was presented solely for determining whether probable cause existed to stop the
vehicle. In the motion and during the hearing, appellant never argued he could not be lawfully
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Contrary to appellant’s suggestion, the undisputed evidence established the officers
did not seize the handguns as a result of any detention. The officers did not search
appellant when they stopped the vehicle because he immediately fled.
Additionally, the officers did not seize the guns during the ultimate arrest of
appellant—after the pursuit.        Rather, appellant discarded the guns in a trash can
during the pursuit, and the officers later found them.

       When the police take possession of property that has been abandoned
independent of police misconduct, there is no seizure under the Fourth
Amendment. Swearingen v. State, 101 S.W.3d 89, 101 (Tex. Crim. App. 2003).
Further, no person can reasonably expect privacy in property he abandons.
Matthews v. State, 431 S.W.3d 596, 608 (Tex. Crim. App. 2014). Thus, when a
defendant voluntarily abandons property, he lacks standing to contest the
reasonableness of the seizure of the property. See id.; Swearingen, 101 S.W.3d at
101. But merely discarding property is not synonymous with abandonment; in
order to abandon property, the decision to abandon must be voluntary, and the
defendant must intend to abandon the property. Matthews, 431 S.W.3d at 608–09.
Abandonment is not voluntary if it is the product of police misconduct;
abandonment cannot be “‘coerced by unlawful police action such as approaching a
suspect with the intention to arrest without probable cause [or by] the initiation of
an illegal investigatory stop or search.’” Id. at 609 (quoting Comer v. State, 754
S.W.2d 656, 658 (Tex. Crim. App. 1988) (op. on reh’g)); see Swearingen, 101
S.W.3d at 101.

detained because he was merely a passenger—his sole appellate contention. However, in his
written motion, appellant also generically asserted that upon stopping the vehicle, the officers
lacked “articulable facts” warranting an intrusion on appellant’s freedom. Even if such assertion
may be construed as encompassing an argument that appellant could not be lawfully detained
because he was merely a passenger, the trial court did not err by denying the motion to suppress.


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      Appellant does not address whether the abandonment principle applies.
Regardless, to the extent appellant implicitly suggests any abandonment was
coerced because he discarded the guns during the officers’ allegedly unlawful
attempt to detain him, we reject his contention.

      When the police stop a vehicle for a traffic violation, the driver and all
passengers are lawfully seized, and the police need not have cause to believe any
occupants are involved in criminal activity. See Arizona v. Johnson, 555 U.S. 323,
327, 333 (2009) (citing Brendlin v. California, 551 U.S. 249, 255, 257, 258
(2007)). As the Johnson court held,

      A lawful roadside stop begins when a vehicle is pulled over for
      investigation of a traffic violation. The temporary seizure of driver
      and passengers ordinarily continues, and remains reasonable, for the
      duration of the stop. Normally, the stop ends when the police have no
      further need to control the scene, and inform the driver and passengers
      they are free to leave. . . . a traffic stop of a car communicates to a
      reasonable passenger that he or she is not free to terminate the
      encounter with the police and move about at will.
Id. at 333 (citing Brendlin, 551 U.S. at 257, 258).

      Before the suppression hearing, one officer testified that the vehicle in which
appellant was a passenger was stopped for traveling the wrong direction on a one-
way street. During the hearing, appellant suggested the vehicle was not traveling
the wrong direction. The trial court orally announced that it found the officer’s
testimony was credible, and we defer to the trial court’s finding. See Amador, 221
S.W.3d at 673. Thus, the officers had a lawful basis to detain appellant and pursue
him when he fled the vehicle. See Johnson, 555 U.S. at 327, 333. Accordingly,
appellant’s abandonment of the guns during the pursuit was not the product of
police misconduct, there was no Fourth Amendment violation in the officers
seizing the guns, and appellant lacks standing to challenge the seizure.         See


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Matthews, 431 S.W.3d at 608–09; Swearingen, 101 S.W.3d at 101. Therefore, the
trial court did not err by denying appellant’s motion suppress. We overrule his
first issue.

                           III.   SUFFICIENCY OF THE EVIDENCE

       In his second issue, appellant challenges sufficiency of the evidence to
support his conviction for evading arrest or detention as a second offender.3 When
reviewing sufficiency of the evidence, we view all evidence in the light most
favorable to the verdict and determine, based on that evidence and any reasonable
inferences therefrom, whether any rational fact finder could have found the
elements of the offense beyond a reasonable doubt. Gear v. State, 340 S.W.3d 743,
746 (Tex. Crim. App. 2011). We do not sit as the thirteenth juror and may not
substitute our judgment for that of the fact finder by re-evaluating weight and
credibility of evidence. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App.
2010). We defer to the jury’s responsibility to fairly resolve conflicts in testimony,
weigh the evidence, and draw all reasonable inferences from basic facts to ultimate
facts. Id. Our duty as reviewing court is to ensure the evidence presented actually
supports a conclusion that the defendant committed the crime. Williams v. State,
235 S.W.3d 742, 750 (Tex. Crim. App. 2007).

       As pertinent to this case, “[a] person commits an offense if he intentionally
flees from a person he knows is a peace officer . . . attempting lawfully to . . .
detain him.” Tex. Penal Code Ann. § 38.04(a) (West Supp. 2015). The offense is
a state jail felony if the actor has been previously convicted under the same statute.
Id. § 38.04(b)(1)(A) (West Supp. 2015). At trial, appellant stipulated he was
previously convicted of evading arrest or detention.

       3
         Appellant does not challenge sufficiency of the evidence to support his conviction for
possession of a firearm by a felon.

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      Appellant does not dispute that he intentionally fled a person he knew was a
police officer attempting to detain him. However, appellant contends the evidence
is insufficient to establish the officer was attempting lawfully to detain appellant.
See id. § 38.04(a). Appellant presents the same contention he made relative to his
motion to suppress: the officers lacked a lawful basis to detain appellant because
he was merely a passenger in the vehicle and the officers did not have reasonable
suspicion that appellant was engaged in criminal activity. As discussed above, the
police could lawfully detain appellant as a passenger in the vehicle stopped for a
traffic violation without suspicion he was engaged in criminal activity.         See
Johnson, 555 U.S. at 327, 333. We recognize the Johnson court applied this
concept when determining the legality of a search and seizure under the Fourth
Amendment relative to a motion to suppress.          See generally id. at 326–34.
However, our court has applied the concept to evaluate sufficiency of the evidence
to support a conviction when lawfulness of a detention was an element of the
offense. See Overshown v. State, 329 S.W.3d 201, 207–09 (Tex. App.—Houston
[14th Dist.] 2010, no pet.) (holding evidence was sufficient to support defendant’s
conviction for giving false name to a police officer while “lawfully detained”
because defendant was detained as the passenger in a vehicle stopped for a traffic
violation when he provided the false information).

      As discussed, the State presented evidence that appellant was a passenger in
a vehicle stopped by police for a traffic violation. Consequently, the jury could
have concluded beyond a reasonable doubt that appellant intentionally fled from a
person he knew was a peace officer lawfully attempting to detain appellant when
he immediately ran from the vehicle, continued fleeing on foot from a pursuing
officer who commanded him to stop, and hid in the parking garage. Accordingly,
we overrule appellant’s second issue.


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      We affirm the trial court’s judgment.




                                              /s/   John Donovan
                                                    Justice


Panel consists of Justices Busby, Donovan, and Wise.
Do Not Publish — Tex. R. App. P. 47.2(b).




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