Pennywell, Brian Keith v. State

In The

Court of Appeals

For The

First District of Texas

______ ______

NO. 01-00-01226-CR

____________

BRIAN KEITH PENNYWELL, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 337th District Court

Harris County, Texas

Trial Court Cause No. 826044

OPINION ON REMAND FROM THE

COURT OF CRIMINAL APPEALS

A jury found appellant, Brian Keith Pennywell, guilty of burglary of a

habitation. The trial court assessed punishment at 35 years’ confinement, having

found true enhancement allegations that appellant had previously been convicted of

burglary of a building and burglary of a motor vehicle. On May 23, 2002, this Court

affirmed the trial court’s judgment. On September 4, 2002, we withdrew our May 23,

2002 opinion and held that appellant had no standing to contest the search of a stolen

bag and that appellant’s 35-year punishment was permissible because he had

stipulated to the two enhancement paragraphs. See Pennywell v. State , 84 S.W.3d

841 (Tex. App.—Houston [1st Dist.] 2001), remanded on other grounds , No. 1182-02 (Tex. Crim. App. Apr. 23, 2003). The Texas Court of Criminal Appeals granted

appellant’s petition for discretionary review and remanded the cause so that this Court

could address the sole remaining issue of the propriety of appellant’s detention to

determine whether the fruits of the seizure and search of the bag should have been

suppressed. See Pennywell v. State , No. 1182-02, slip op. at 2 (Tex. Crim. App. Apr.

23, 2003). On remand, we determine whether the search and seizure of the bag that

appellant was carrying were illegal because the investigating officer lacked

reasonable suspicion sufficient to justify detaining appellant to investigate. We

affirm.

Facts

Allen Foster had previously pleaded guilty to committing the charged burglary,

along with appellant, and had been sentenced to five years in prison. Foster then

testified as an accomplice witness against appellant at appellant’s trial. Foster

identified appellant as having suggested that they “make some money” at an

apartment complex. After “scoping out” a few apartments, they broke into the

complainant’s apartment. Foster took a black bag that contained some of the property

that they stole, while appellant took a second, brown bag containing other stolen

property. Foster identified the bags at trial.

Foster’s accomplice-witness testimony was corroborated by a maintenance

worker, who observed Foster and appellant on the same day as the burglary. The

worker saw the two men suspiciously trying to enter a different apartment in the same

complex and saw them leave as the worker approached. Foster’s testimony was also

corroborated by the arrest of appellant, within the complex premises, in possession

of the complainant’s brown bag containing other property stolen in the burglary.

Foster also testified that, prior to trial, appellant had slipped a note under Foster’s cell

door, in which appellant asked Foster to invoke his privilege against self-incrimination and to let appellant know if he needed any money while in prison.

Motion to Suppress Evidence

We first consider whether the trial court erred in denying appellant’s oral

motion to suppress evidence. In his first point of error, appellant claims the search

and seizure of the bag that he was carrying were illegal under the federal and Texas

Constitutions and article 38.23 of the Code of Criminal Procedure because the

investigating officer lacked either probable cause to arrest appellant or reasonable

suspicion sufficient to justify detaining appellant to investigate. See U.S. Const .

amend. IV; Tex. Const. art. I, § 9; Tex. Code Crim. Proc. Ann. art. 38.23 (Vernon

Supp. 2003). We previously determined this issue in our withdrawn May 23, 2002

opinion, as follows.

A. Standard of Review

When, as here, the pertinent facts are undisputed, we review the trial court’s

resolution of a motion to suppress evidence de novo, as a legal ruling. See Oles v.

State , 993 S.W.2d 103, 106 (Tex. Crim. App. 1999); State v. Cardenas , 36 S.W.3d

243, 245 (Tex. App.—Houston [1st Dist. 2001], pet. ref’d). In applying this standard,

we may infer all findings necessary to support the trial court’s ruling, must defer to

those findings, and must sustain the trial court’s ruling if the record reasonably

supports the ruling and the ruling is correct on any theory of law applicable to the

case. State v. Ross , 32 S.W.3d 853, 855-56 (Tex. Crim. App. 2000). In conducting

our review, we consider the evidence before the trial court when it ruled on the

motion to suppress evidence. Weatherred v. State , 15 S.W.3d 540, 542 (Tex. Crim.

App. 2000).

B. Temporary Investigative Detention

Interactions between police and civilians are divided into three categories: (1)

encounters, (2) detentions, and (3) seizures. See Terry v. Ohio , 392 U.S. 1, 19 , 88

S. Ct. 1868, 1879 (1968); Citizen v. State , 39 S.W.3d 367, 370 (Tex. App.—Houston

[1st Dist.] 2001, no pet.); Francis v. State , 896 S.W.2d 406, 408 (Tex.

App.—Houston [1st Dist.] 1995), pet. dism’d, improvidently granted , 922 S.W.2d

176 (Tex. Crim. App. 1996). In determining the reasonableness of an officer’s

intrusion, we objectively examine all of the facts and circumstances surrounding the

incident, based on the information that the officer possessed at the time, taken

together with rational inferences from those facts and circumstances. See Citizen , 39

S.W.3d at 370 ; Francis , 896 S.W.2d at 408 .

An encounter occurs when a law enforcement officer approaches an individual

in public to ask questions. Citizen , 39 S.W.3d at 370 ; Stoutner v. State , 36 S.W.3d

716, 719 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d); Francis , 896 S.W.2d at

408 . An officer needs no justification for an encounter, which triggers no

constitutional protections. Citizen , 39 S.W.3d at 370 ; Francis , 896 S.W.2d at 408 .

Merely asking questions does not transform an encounter into a detention. Stoutner ,

36 S.W.3d at 720 . The test of whether the interaction has progressed beyond an

encounter is whether the officer “would have communicated to a reasonable person

that the individual was not free to refuse the officer’s requests or otherwise terminate

the encounter.” Citizen , 38 S.W.3d at 370.

Here, a police dispatcher provided information to Officer Leos, the

investigating officer, that the burglary suspect was a black male travelling on foot.

On noticing appellant, a black male, walking toward the officer’s patrol car, Officer

Leos got out of the car, approached appellant, and asked if he lived in the apartment

complex. When appellant replied that he was “just visiting,” Officer Leos asked

whom he was visiting. When appellant replied that he was visiting “a friend,” Leos

asked the “friend’s” apartment number. No evidence, nor any inference from any

evidence, suggests that appellant was not free to decline to answer Officer Leos’s

questions. Accordingly, the facts and circumstances at this point of the interaction

between appellant and Officer Leos amounted to a mere encounter.

Officer Leos then temporarily detained appellant in the back seat of the patrol

car to investigate further. An investigative detention occurs when a law enforcement

officer confronts an individual, who then yields to a display of authority and is

temporarily detained without a warrant. See Johnson v. State , 912 S.W.2d 227, 235

(Tex. Crim. App. 1995); Citizen , 39 S.W.3d at 370 . Placing appellant in the patrol

car constituted an investigative detention.

Whether an investigative detention is permissible depends on whether the

officer reasonably suspects that the individual is, has been, or soon will be engaged

in criminal activity. See Citizen , 39 S.W.3d at 370 . Reasonable suspicion requires

a “particularized and objective basis,” id. , and exists when the officer can point to

specific and articulable facts that, taken together with rational inferences from those

facts, reasonably warrant the intrusion. See Terry , 392 U.S. at 21, 27 , 88 S. Ct. at

1880, 1883 ; Carmouche v. State , 10 S.W.3d 323, 328 (Tex. Crim. App. 2000); Davis

v. State , 947 S.W.2d 240, 244 (Tex. Crim. App. 1997). The testimony of the

detaining officer as to his motives is a factor to be considered, among all the facts and

circumstances. Rhodes v. State , 945 S.W.2d 115, 117 (Tex. Crim. App. 1997).

Officer Leos explained that he was suspicious of appellant because of

appellant’s vague answers to questions. During the encounter stage of his interaction

with Officer Leos, appellant first said that he was “just visiting,” which precluded his

living at the complex. When asked whom he was visiting, appellant then stated only

“a friend,” but could not give the friend’s name or the number of the friend’s

apartment unit. This left no explanation for appellant’s presence at the complex,

which, the record indicates, had a locked security gate that had to be triggered to

permit cars to enter and to leave the parking area. Officer Leos knew from his

dispatcher that he and his fellow officers were responding to a report of a burglary and

that they were looking for a black, male suspect, who would be on foot. Although

there was no information from the dispatcher that the suspect might be carrying

anything, Officer Leos noticed the large bag that appellant was carrying and described

the bag as large enough to contain a weapon or items taken during a burglary.

Appellant’s inability to explain his presence at the gated complex, his vague

answers in the encounter with Officer Leos, and the fact that he was carrying a bag

combined to provide a basis for Officer Leos’s reasonable suspicion that appellant

might have committed the burglary that Officer Leos had been called to investigate.

There is no evidence of force, and the restraint was minimal. See Francis , 896 S.W.2d

at 411-12 . These facts and circumstances combined to justify Officer Leos’s

temporarily detaining appellant in the back seat of the patrol car to investigate the

incident further. See id. ; see also Rhodes , 945 S.W.2d at 117-18 (holding that the

officer was justified in temporarily handcuffing suspect and that the investigative

detention did not advance to the level of an arrest requiring probable cause).

Accordingly, we hold that the search and seizure of the brown bag were not the

fruit of an unlawful detention or arrest. Therefore, we overrule appellant’s first point

of error.

Conclusion

We affirm the judgment of the trial court.

Tim Taft

Justice

Panel consists of Justices Taft, Jennings, and Hanks .

Justice Taft, concurring.

Publish. Tex. R. App. P. 47.4.