Akins v. State

al, reconsideration, Accordingly, modify paragraph H-5 of motion for and motion modify corrected divorce decree to delete the decree corrected divorce language “as replace QDRO date” affirmed. first corrected are with “as of June 2004.” Mr. Mullins’s

request modify the second corrected

QDRO is moot because we determined the jurisdiction

trial court lacked enter QDRO typo

second corrected and the

graphical complained ap errors of do not QDRO.

pear the first corrected Dewayne AKINS, Appellant, H. CONCLUSION The Court strikes the second supple-

mental clerk’s record from record Texas, The STATE State.

appeal. No. 2-05-263-CR. jurisdiction The trial court did not have Texas, Court Appeals QDRO. to enter the second corrected The Fort Worth. trial QDRO court’s second is- corrected sued on December 2004 is vacated. Aug. The trial court’s first QDRO corrected is- September sued on 2004 is reinstated.

The trial court did not err en- when it

tered the corrected final decree divorce.

The trial court’s corrected final decree

divorce is modified so that H-5 paragraph

reads as follows: sums,

H-5. 50% all whether ma- unmatured,

tured or accrued or

unaccrued, otherwise, vested

together with all increases there-

of, proceeds therefrom, rights other related to Teach- System

ers Retirement of Texas

or other existing by benefits rea-

son of past [Ms. em- Mullins’s]

ployment as of June 2004 and particularly

more defined in a

[QDRO] signed Court day Di- this Final Decree of signed. is

vorce final corrected decree of divorce

affirmed, as modified.

The trial court’s Ms. denying orders

Mullins’s motion rescind the mediated tri- agreement,

settlement motion for new

OPINION McCOY, BOB Justice.

I. INTRODUCTION H. con- Dewayne Akins was Appellant possession victed intent to deliver a with sen- controlled substance. The trial court years’ him to confinement. tenced nine Akins contends that trial court erred by admitting obtained the re- evidence illegal sult of an We arrest. affirm. II. Background Facts 15, 2004, Davis, Stanley On December investigator narcotics division Department, the Mansfield Police received tipa from a confidential informant. The informant told Davis she had seen possession methamphetamine Akins previous day, just and that to prior calling police, had spoken she to Akins again and confirmed that Akins still methamphetamine infor- with him. The provided mant also Davis with information present about Akins’s location. said She that Akins could at a be found convenience Highway store located at 8475 Mansfield Arlington, Texas. Within an hour of receiving tip, other Davis and three investigators drove convenience up store and set surveillance of Akins. investigators talking The observed Akins gas with another man he exited as vehicle, station. When Akins entered his blocked it from police behind with one investigators ap- their cars. The then Factor, Campbell & Shepherd, L.L.P. drawn, proached Akins with their weapons Worth, Campbell, and Kim Fort for Appel- placed ground, him on the and handcuffed lant. him. Davis testified Akins was Curry, Atty., Tim Crim. Dist. Charles investigators free leave. to One Mallín, M. Sharon A. Johnson and Sherri any methamphet- asked Akins if he had Wagner, Attys., Asst. Crim. Dist. Forth an- possession. amine in his After Akins Worth, Appellee. methamphetamine swered he had investigator pocket,

his into reached C.J.; CAYCE, pocket drug. Panel A: LIVINGSTON Akins’s and removed the McCOY, investigators JJ. The not read Akins his did 884 857, rights they Best v. S.W.3d App.1990);

Miranda v. Arizona1 before 118 2003, questioned (Tex.App.-Fort pet.). him. Worth judge trial is the sole trier of fact and trial, to Prior Akins filed a motion credibility of the witnesses judge statement he made as a re- suppress the testimony. weight given and the investigator’s sult of the as questioning Ross, 853, v. State S.W.3d the methamphetamine as seized from well Ballard, 987 Crim.App.2000); State A pocket. hearing was held on the (Tex.Crim.App.1999). motion, and Davis testified to the occur- Therefore, give almost total deference trial rences discussed above. The court (1) questions rulings on to the trial court’s subsequently denied Akins’s motion. (2) application-of-law- of historical fact and SuppRess III. questions an evaluation to-fact that turn on Motion credibility Johnson demeanor. points essentially Because Akins’s six (Tex.Crim. 652-53 raise the same issue and combined in are Ballman, 157 S.W.3d App.2002); State v. brief, points all Akins’s we too address will (Tex.App.-Fort Worth together. argues Akins the trial ref'd). rulings trial court’s But when the by failing court erred to exclude state- and demean- credibility do not turn on the admitting ment made witnesses, de novo we review or of methamphetamine he was possession questions rulings on mixed trial court’s methamphetamine in his found law and fact. Estrada pocket because evidence was obtained Johnson, 68 (Tex.Crim.App.2005); an illegal Specifi- the result of arrest. at 652-53. S.W.3d cally, argues Akins the arrest was a illegal police because the did not have trial reviewing a court’s When the did not fall warrant and arrest within fact, law and ruling question on a mixed of the exceptions one of to the warrant re- novo may court review de appeals the of quirement 14 the chapter as set forth of the law application the trial court’s However, procedure. of criminal code the of the case. facts search seizure legal, we hold the arrest then Estrada, there at 607. 154 S.W.3d When alternative, argues Akins that the evi- fact, findings of historical explicit are no at dence issue was inadmissible because light in the must be viewed the evidence as result of custodial was obtained ruling. to the trial court’s most favorable interrogation police ap- after failed to Id. prise rights. him of his Miranda ruling court’s uphold the trial We must A. Standard of Review and correct by the record supported if it is ruling a trial court’s We review theory applicable of law under a on a motion to evidence under suppress wrong gave even if the trial court ease standard review. Car bifurcated v. ruling. Armendariz reason for its (Tex. State, 323, v. 10 327 mouche S.W.3d 401, State, (Tex.Crim.App.2003), 404 123 S.W.3d State, 955 Crim.App.2000); Guzman v. 974, denied, 124 541 S.Ct. rt. U.S. ce 85, In re (Tex.Crim.App.1997). S.W.2d 89 (2004); Ross, 1883, 32 469 158 L.Ed.2d decision, viewing trial court’s do Romero, 856; 543. 800 at S.W.2d S.W.3d own factual engage our review. Rome (Tex.Crim. State, 539, Arrest B. The ro v. 800 S.W.2d 543 1602, 436, (1966). 1. U.S. 86 16 L.Ed.2d 694 384 S.Ct.

885 argues illegal purpose stop Akins that his arrest was of the and must involve State, investigation. See v. actual Davis because it was made without warrant 240, (Tex.Crim.App. 947 244-45 S.W.2d ex- without benefit one of the 1997). ceptions requirement to the warrant set out in 14 chapter of the code of criminal Distinguishing between the two

procedure. Tex.Code Ann. CRiM. PRoc. difficult, particu can be types seizures (Vernon §§ & Supp.2006- 14.01-.04 2005 on a larly the distinction rests because 07). that, therefore, He contends the evi- clearly inquiry rather than de fact-specific dence obtained as a result of the arrest State, criteria. lineated Johnson v. brief, suppressed. should been In have its 227, 235 Zo (Tex.Crim.App.1995); S.W.2d the State concedes that Akins was arrest- State, 779, yas ed without warrant when police 'd). App.-Corpus Christi ref For Akins, pointed guns handcuffed at purposes analysis, of constitutional both him, him placed ground, on the and investigative detentions and arrests are car in parking blocked his lot.2 We by seizures of a citizen law enforcement hold that the arrested Akins when Zayas, officers. 972 S.W.2d 789. The they initially approached him re- differences between the two are the de strained him. grees of intrusion involved and the differ justifications ent legal required each. v. Investigative Arrest Detention Id. is an or an Whether seizure An arrest when a person’s occurs investigative depends detention on the rea liberty of movement re is restricted or sonableness of the intrusion under all of strained person executing officer or the facts. See Rhodes v. 913 S.W.2d a warrant of arrest or without a warrant. 1995), aff'd, 247 (Tex.App.-Fort Worth (Ver art. 15.22 Tex.Code CRiM. PRoc. Ann. 115 (Tex.Crim.App.), cert. de 2005); non Medford nied, 522 U.S. 118 S.Ct. 769, 772-73 (Tex.Crim.App.2000); Amores (1997). L.Ed.2d The nature of the (Tex.Crim. investigation, crime under the behavior of App.1991). However, stop deemed individual, degree suspicion, investigative police detention when a offi day, of stop, location the the time of and cer person reasonably detains a suspected testimony the officer’s whether concerning activity of criminal to determine his identi the defendant free to was leave the scene ty or to momentarily maintain the status all are factors that bear the issue. See quo garner to more information. v. Hoag 119, Wardlow, 124-25, 528 Illinois U.S. State, 375, (Tex.Crim.App. 728 S.W.2d 673, 676, (2000); 380 120 145 S.Ct. L.Ed.2d 570 1987). Wayne investigative An detention must 4 LaFave, see R. also and Seakch 9.2(d) (3d ed.1996). necessary § last no than longer to effectuate SeizuRE arrest, support applied We note that as for its assertion to the warrantless State legal, despite that arrest provided Akins's was fact that "[biased asserts information informant, police that by had not obtained an arrest the confidential ... whose in- warrant, argues Appellant State regarding "[b]ecause that offi- formation was verified given by every respect cers verified all the details the infor- the officers in save whether for except question Appellant actually drugs person, mation of whether had on his suspect carrying they drugs, probable Appel- had reason- officers cause to arrest grounds remaining to felony [Emphasis able believe that the lant for Hence, offense.” added.] item of unverified information was also true.” the State concedes Akins's [Emphasis support added.] As further for occurred before the officer asked Akins proposition statutory that a exception drugs warrant he had on him. whether 886 in two men at the address p.m. court also and found reviewing

A should did and officer testified that he question to degree of force used effect examine the protection this for his own “[d]ue investigative In detention the seizure. an way they call were nature of the and situation, may officers use such force is they acting maybe scared like had been necessary goal to reasonably effect alone, caught something, and I was bright- there no stop. example, For is them, they bigger both [were] two always handcuffing suspect line rule that State, was”); Goldberg I 95 S.W.3d than Rhodes, an arrest. See 945 constitutes 345, (Tex.App.-Houston Dist.] [1st Handcuffing not ordi at 118. S.W.2d ref'd), denied, 2002, pet. cert. 540 U.S. narily investigative in de proper a mere (2004) 1436, 158 1190, 124 S.Ct. L.Ed.2d tention, may special resorted to in but reasonable, light (holding that it was circumstances, necessary to such as when just murder had oc fact that a brutal safety officer thwart maintain curred, defen officer to handcuff in suspect’s attempt to frustrate further safety attempt own dant for officer’s while However, if the force quiry. Id. at 117. who whether defendant ing ascertain stop, such goal utilized exceeds the driving get person had been identified as investigative stop transform an may force car, had, fact, away driving been Moore, See, e.g., into an State v. arrest. Nargi day); car that particular 2000, (Tex.App.-Austin 385-86 (Tex.App.-Houston 895 S.W.2d although pos pet.) (holding that no 1995) dism’d, improvi Dist.] [14th reasonable, justify articulable facts sessed (Tex.Crim. dently granted, handcuffing of ing investigative stop, de (holding handcuffing App.1996) under excessive force constituted did not during investigatory stop fendant transformed deten the circumstances and arrest; stop potentially into transform arrest); tion Gordon v. into displayed by defen dangerous behavior (Tex.App.-El Paso no red two speeding running dant (holding that in the absence pet.) anxious and excited lights and defendant’s to demonstrate the proof the record inference supported reasonable demeanor actions, what necessity for officer’s control police officer needed obtain deten may investigative valid have been safely). question him over defendant arrest); tion became an the outset 435, 441 Flores v. court Additionally, reviewing pet.) (holding App.-San Antonio investigation must to see if an look was ar initial detention defendant actually undertaken. Burkes deten investigative rest rather than mere (Tex.Crim.App.1991). An S.W.2d was to exit tion defendant forced because the ob investigative implies detention that a spread-eagle gunpoint, car at assume actually purpose is for the of trusive act car, his on roof of his position with hands Therefore, Id. a re investigating. when was not and officer testified that defendant investigative that no viewing court can find Rhodes, leave); compare free to occurred, the detention cannot questioning (holding officer’s at 117-18 that rises to investigatory and considered be of men was reasonable handcuffing two arrest. Id. the level of an deten investigative and did not transform Taylor of the case responded to We believe tion arrest when officers into “spotted dog” or this court is a from burglary progress 9:45 State report of a horse in resolving “white case” this issue.3 412. The court that under reasoned those (Tex.App.-Fort 874 S.W.2d 362 facts, Worth the defendant had been restricted or ref'd). Based a tip on from an liberty to such a degree restrained his informant, police officers believed as to constitute an arrest. Id. Taylor possession methamphet was in of Additionally, ap- the court criminal amine. Id. at As a tip, 363. result of the peals’s provides guid- decision Burkes

police officers drove to a carwash where resolving ance in issue. they Taylor. found Id. at 364. offi Burkes, 925. In the court held that Taylor’s car in cers blocked stall carwash seizure the defendant was an arrest by parking police cars in front of and an investigative rather than detention un- behind her vehicle. Id. Officers then drew der similar to case facts before us. Id. guns pointed Taylor. and them at case, In police a tip Id. One of the then received Taylor officers asked any drugs stating she with her. After that a “pit-bulldog drugs Id. with Taylor yes, answered an officer reached taped belly to its found at could be an area ” Taylor’s car, grabbed into purse, her city Front,’ of the known as ‘The an area it, opened methamphetamine. and found nightclubs composed and rundown Id. One of the officers testified at the buildings. The area was notorious for ille- questioning, Taylor time not gal drug trafficking use. and Id at 923. free leave. Id. at 365. This court held police Four officers went area to that the restraint Taylor’s liberty was the call. investigate squad Id. When the a degree such that it constituted custo car in front one of night- arrived dy this was not an investigative clubs, persons several ran from the back of detention situation. Id. building. Id. was one of Burkes these Similarly, Amores, in the case of persons. Id. caught One of the officers court of appeals criminal held that as he to run attempted away. Burkes Id. detention a defendant was an arrest The officer Burkes commanded to lie on rather than investigative detention. the ground. He then rolled Burkes over Amores, 816 S.W.2d at 411. In on a based placed ques- handcuffs on him without tip, acting alone with- why running him as to tioning out assistance from other officers ease, away. Id. In that court reasoned blocked the car in defendant’s a parking that the amount of used to force effect lot, drew weapon, ordered the defen- stop combined with the fact that the inves- dant out of at gunpoint, the car ordered tigative questioning occurred after Burkes him to lie pavement, face-down and was handcuffed rendered detention an him told that he would shot if he not did investigative arrest rather than an deten- obey the officer’s orders. Id. Further- tion. at 925. Id. more, the officer did ask the defendant Application 2. any questions to Facts seizing before him. Id. at Law century elderly lady [A]round of the turn a Texas who had fallen in the street company’s law firm had a case in which a horse a white after taxi black horse had by owned the client’s taxi service in front When reared reared in of her. the associate street, causing elderly partner the an to fall this partner, woman took case to the the said, injure partner handling try, go and The herself. “Nice a son. Now find me young case the asked a a associate to find white horse case.” Arnold, point. case on The associate came back Hilland 856 S.W.2d n. 1 1993, writ). involving (Tex.App.-Texarkana several hours with a case an later no him, ground, him on the placed this case are similar facts of the his car in the lot. parking in cases discussed above. See blocked See those Burkes, Amores, 407; at Fur- 816 S.W.2d CRiM. PROC. Ann. art. 15.22. Tex.Code 925; ther, at at 362. Taylor, 874 S.W.2d do that the circum- not believe here, Taylor, police As in Amores and in level suggest stances this case in Akins’s such a officers blocked vehicle by investigators force used way he leave area. safety was unable to necessary to or to maintain officer Furthermore, all the officers in three like to frustrate suspect’s attempt thwart cases, case police point officers in this Rhodes, at inquiry. further 945 S.W.2d Akins, placed him on the guns ed their at Therefore, reviewing the totali- after Moreover, ground, and handcuffed him. case, in we hold ty of circumstances Burkes, Taylor as in the officers restriction on Akins’s freedom that the any investiga this case did not ask Akins degree associ- movement amounted they had until hand questions tive arrest, to an opposed ated with after him. cuffed id. There- investigative detention. See fore, Akins was arrested without because Additionally, although Davis testified warrant, we must the benefit an arrest his pointed that he handcuffed Akins and exceptions if the warrant decide one of gun Akins he was aware of because applied. charges, previous weapons we note Akins’s by at the scene that Davis was assisted Exception C. Warrant there

three other officers. Because were States Con Although the United suspect, one four officers on the scene and an arrest without stitution authorizes overpower Akins would likelihood that Texas, cause, probable warrant on minimal. See officers was Wel a a without authority arrest 128, 133 come v. 865 S.W.2d by statute. See governed warrant 'd). ref App.-Dallas 559, 564, White, Florida U.S. Further, no that at the there is evidence (1999); 1555, 1559, 143 L.Ed.2d 748 S.Ct. seizure, had the officers reason time of Parson, State a that Akins was in possession believe In pet.). no Antonio (Tex.App.-San from the weapon. There was indication arrested Texas, may legally person a possession informant that Akins was (1) the only if arrest without warrant any of the officers weapon, nor statutory provi of the falls within one display weapon exhib- observed Akins arrest, authorizing a warrantless sions Additionally, violent behavior. applicable (2) meets the arrest is no that Akins was at- there evidence See requirement. probable cause investigator’s ques- evade tempting Anderson, at 506. he even could have driven tioning or that had wanted to. away from the scene case, argues the State In this seized, sitting in he was Akins was Before excep Akins's two fell within arrest ignition. yet started car but had of the code chapter tions contained Moreover, that Akins’s ve- Davis testified ar Initially, the State procedure. criminal lot parking in the one was blocked hicle gues that Akins’s warrantless investigator’s cars. of the exception it fell under valid because 14.01(b). Article facts, in article clear that contained it is Based on these 14.01(b) peace provides “[a] the officers arrested when Akins was without warrant Akins, guns may arrest offender pointed handcuffed

889 information, which, trustworthy for offense committed in when cou presence his pled or within his view.” Tex.Code with the observa personal officer’s PROC. Crim. 14.01(b). tions, art. probable probable The test for cause to establishes believe Ann. for cause a warrantless arrest that offense is or has being under an been com mitted, is provision exception apply. that moment the the warrant will “[w]hether within facts and Beverly, (holding circumstances the officer’s See 792 S.W.2d at 104-05 knowledge reasonably no although and which had offense was committed in the trustworthy officer, information to presence were sufficient warrantless ar 14.01(b) prudent justified man in believing warrant that rest article under person the arrested had reasonably committed or was because the officer had trust State, which, committing information, an Beverly worthy offense.” when coupled 103, observations, (Tex.Crim.App. 792 S.W.2d 104-05 personal with the officer’s 1990) added) (emphasis (citing probable Beck v. to established cause believe that Ohio, 89, 223, 13 being U.S. 85 S.Ct. L.Ed.2d an or had been offense commit (1964)). ted). words, totality In other look although of the cir We statute states that the probable offense must be one if cumstances determine cause pres that committed within the tip. officer’s existed based on an informant’s See view, Gates, 242-43, ence or an can make a war- 462 U.S. at 103 S.Ct. at rantless 2339-40; arrest based on an offense Adkins v.

was committed at an earlier fur time and 785 (Tex.Crim.App.1988).

ther, the officer does not even have case, In the instant Davis testified personally see the offense committed be that he received information from a confi fore the justified warrantless arrest is un dential informant whom he had worked 14.01(b). der article Id. than twenty with on more occasions in the

This means that in past determin that he and had found the informant’s ing probable whether cause to be exists information to be rehable credible. lieve an offense was committed within tips Davis stated the informant’s had presence view, officer’s an officer’s resulted number of arrests and con knowledge trustworthy Further, information drug possession. victions for may come from facts and circumstances Davis that the informant testified told him lay obtained from citizens. in possession Id. For had she seen Akins stance, the law is that probable clear cause of methamphetamine previ ounce arrest can exist tip based of a day, kept drugs ous Akins in a reliable informant if the bag infor plastic pocket, just informant’s his and that detailed, highly mation is and the prior calling spoken details Davis she by given the informant are verified Akins and Akins told her that he was making officers before carrying arrest. See still drugs person. Whaley gave also Davis a physical informant Crim.App.1985) (relying on description previous Illinois Akins. Based on Gates, 213, 232-33, Akins, recognized U.S. 103 S.Ct. with Davis encounters 2317, 2329-30, (1983), 76 L.Ed.2d 527 physical description the informant pro States, Draper v. United in possession 358 U.S. vided of individual 313-14, 329, 333-34, 79 S.Ct. description L.Ed.2d narcotics an accurate (1959)); Curry v. 34 Akins. The informant also told Davis (Tex.App.-Houston located, [1st Akins Dist.] where could be described Thus, reasonably pet.). driving an officer has he would including vehicle number, legal, not plate license and stated that that the arrest was we do reach his in the a company Aldns would be of wom- Akins’s assertion that the evidence should Robles, driving

an named Maria who was suppressed have as the result of an been Tex.R.App. a maroon minivan. illegal P. 47.1. arrest. See receiving of informa- Within hour the Subsequent D. Evidence Obtained tion, Davis the proceeded to convenience the Arrest had store where the informant said Akins alternative, argues In Akins that the vehicle and a could be found. Akins’s the arrest the statement after obtained parked maroon minivan were in front of ques- Davis was inadmissible because began store. A short time after Davis advising tioned him first him of without store, surveying he observed Akins Further, he his con- rights.4 Miranda description matched the and woman who denying tends that the trial court erred provided by Maria Robles informant to suppress methamphet- his motion exit the store. methamphet- amine evidence because the Thus, provid- after receiving information as result amine was discovered informant, ed aby confidential that unwarned He contends statement. independently giv- corroborated the details methamphetamine be excluded should by en the informant Davis when identified activity in accordance illegal as fruits designated Aims and his vehicle at the States, 371 Wong with U.S. Sun v. United in- place. time and the reliable Because (1963), 9 L.Ed.2d 83 S.Ct. provided formant detailed information of criminal and article 38.23 of the code officers, by law was verified enforcement disagree. procedure. We probable we conclude that cause existed Whaley, for the this case. See arrest Application E. of Miranda (holding 686 S.W.2d at 951 that officers Arizona, probable cause for warrantless arrest In Miranda given all because officers verified details held that a United Court Supreme States except question informant whether offi person questioned by law enforcement carrying drugs; consequently, or being custody into cers after “taken they grounds had reasonable to believe deprived action otherwise freedom remaining item of unverified informa- any way” must first “be significant true). Therefore, tion was we hold also right he to remain warned that has totality that under of the circum- silent, does make he statement stances, probable cause to officers had him, and may against be used evidence justify the arrest warrantless of Akins. of an presence right has a appointed.” either retained attorney, hold Because we warrantless at 1612. State 86 S.Ct. 384 U.S. of Akins fell the warrant within with this 14.01(b) noncompliance ments elicited article exception contained in certain pur for may rule not be admitted of criminal and as a procedure the code See, e.g., Harris arrest, in a criminal trial. poses legal we need not result York, 222, 226, 91 S.Ct. ar- v. New U.S. that the address State’s contention (1971) 643, 646, (admitting 28 L.Ed.2d fell warrant ex- rest under additional defendant’s Additionally, purposes impeachment because we hold ception. Therefore, brief, address that issue. State that the will not In its does claim investigator’s interrogation. question was not

891 Having statement that was without trial elicited Mi found that the court However, randa warning). statement, while the admitting erred in Akins’s we in statement taken violation of Miranda analysis must conduct a harm to determine must be suppressed, other evidence subse whether the error calls for reversal of the quently as a Tex.R.App. obtained result of state If judgment. P. 44.2. the er (i.e., statement) ment “fruits” of the constitutional, 44.2(a) ror is we rule apply need not suppressed. Michigan v. beyond unless we determine reverse Tucker, 4B3, 452, 2357, 417 U.S. 94 S.Ct. reasonable doubt that did not error 2368, (1974); 41 L.Ed.2d 182 Oregon v. contribute appellant’s pun conviction Elstad, 298, 314, 1285, 470 U.S. 105 S.Ct. Tex.R.App. 44.2(a). ishment. P. Other 1296, (1985); 84 222 L.Ed.2d also Bak see 44.2(b) wise, apply disregard we rule (Tex. State, 19, v. er 23-24 the error if did not appellant’s affect Crim.App.1997) (holding mere violations of Tex.R.App. 44.2(b); rights. substantial P. by Miranda rule are not covered state State, 249, Mosley see 259 exclusionary rule contained article (Tex.Crim.App.1998) (op. reh’g), cert. 38.23). requires The rule Wong Sun denied, 1070, 1466, 526 119 U.S. S.Ct. 143 suppressing the fruits of a defendant’s (1999); L.Ed.2d Coggeshall 550 only statement when the statement was 639, 961 (Tex.App.-Fort 642-43 Tucker, obtained actual through coercion. 'd). 1998, Worth ref pet. 448-49, 2365-67; 417 U.S. at 94 at S.Ct. Elstad, 314, 470 at U.S. 105 at S.Ct. 1296. respect With to the erroneous ad evidence,

Because not Akins did receive mission or exclusion of constitu his warnings Miranda being ques before tional error if the presented only is correct by tioned investigators, his statement ruling required, constitutionally was be regarding possession his methamphet misapplication cause a mere the rules Miranda, amine was inadmissible. See evidence error. is not constitutional See 492, 494, 384 U.S. at 86 S.Ct. 1637-38. 669, Alford Accordingly, hold we that the trial court ref'd). 2000, App.-Fort Worth by erred failing suppress the statement. Supreme that, United States held Court However, also hold that because the Miranda, down it laid concrete constitu methamphetamine merely was a “fruit” guidelines tional agen law enforcement obtained as a result of ques the unwarned cies and courts follow. Dickerson v. See tioning, the trial court err did not re States, 439-40, United 530 U.S. fusing to suppress methamphetamine 2333-34, S.Ct. 147 L.Ed.2d 405 evidence.5 See McGee v. 105 S.W.3d (2000). guidelines These established that denied, (Tex.Crim.App.), cert. given the admission of statement dur U.S. 124 S.Ct. 157 L.Ed.2d 410 ing interrogation a suspect custodial (2003) (holding warrantless search inci would depend pro whether the dent to arrest to search permits officers constitutionally vided the with the defendant, or areas within the defendant’s required warnings. Miranda Id. We have control, prevent immediate the conceal held that the trial court did case evidence). ment or destruction guidelines. follow those constitutional Analysis

F. Harm we hold the error Consequently, is brief, means, 5. In his only Akins does not contend that his statement obtained regarding possession statement meth- the result of unwarned custodial inter- amphetamine through rogation. was obtained coercive appellant was arrested with Alford, conceded constitutional error. See However, ma unlike the Because we determine out warrant. 5.W.3d 44.2(a) constitutional, jority, rule I not read the brief to that the error is do State’s Tex.R.App. 44.2(a). P. arrested as applicable. appellant concede that approached him and soon as the officers Here, charged Akins with was gas ground at the sta placed him the deliver possession with intent to offense conceded tion. I believe State a controlled substance. “Possession” arrested, but did not appellant was care, control, custody, actual means timing appellant’s arrest concede Safety management. Tex. Health & Code (when him, initially approached the officers (Vernon 481.002(38) § Supp.2006-07). Ann. approached him and or after the officers admitted statement went improperly The him, appellant talked told the offi to possession of Akins’s only issue An drugs pocket). cers that he methamphetamine. Inadmissible evidence liberally court must construe appellate if other evidence can be rendered harmless Tex.R.App. 38.9; 38.1(e), P. party’s brief. overwhelming. guilt defendant’s (Tex. 312, 315 Burke v. See Anderson v. pet.) (op. on App.-Fort Worth no methamphet (Tex.Crim.App.1986). P.D.R.). Thus, the State did because pocket found in abun amine Akins’s was occurred, arrest we concede when the possession of metham dant evidence of his appel should not assume it conceded phetamine jury could have from which immediately. lant was arrested possession Akins concluded that was Therefore, care methamphetamine. after Similarly, argument, appel oral during performing fully reviewing the record investiga that the lant’s counsel conceded analysis under rule required harm suspicion approach tors had reasonable 44.2(a), beyond we hold a reasonable doubt Therefore, un investigate. appellant and trial error did not contrib that the court’s inquiry majority, I believe our sole like the punishment. conviction or ute to Akins’s de appellant was is to determine whether Tex.R.App. 44.2(a). Thus, disregard we P. investiga investigation tained when id. the error. See truck, appellant’s drew tors blocked ground, weapons, placed appellant on IV. Conclusion handcuffs, him or whether placed Having points, Akins’s six we overruled If ini immediately under arrest.6 was judgment. affirm the trial court’s as investigative an detention stop tial arrest, nothing an we have opposed to LIVINGSTON, J., concurring filed prelimi regarding the further to review opinion. appellant nary conceded seizure because Justice, LIVINGSTON, TERRIE investigate. See suspicion reasonable concurring. 771, 772 Hill v. pet.) (holding ap App.-Beaumont majority respectfully I concur conceding in oral pellant waived issue dis separately only I opinion. write Then, only proceed would argument). analysis majority opinion’s agree with the investigative de to determine whether As appellant’s arrest. timing cause probable above, brief, tention revealed sufficient in its the State majority notes suspicion probable and reasonable only probable cause both cause Appellant addresses its brief. argument The State addresses in his brief. reasonable, However, although possessed to arrest without warrant. stop the preliminary truly investigative facts arrest justifying articulable contends, appellant we must determine detention, handcuffing constitut whether the was a proper warrant- ed excessive force under the circumstances less arrest under article 14.01 of the code and transformed the detention into an ar of criminal procedure at that in time. point rest).

See Tex.Code CRiM.PRoc. Ann. 14.01 art.

(Vernon 2005). Analysis I believe that the reliance on majority’s Applicable Law State is misplaced. Burkes v. uphold ruling We must the trial court’s 922 in (Tex.Crim.App.1991). our Unlike if it supported by is the record correct case, in not police the Burkes did receive a under theory applicable law person call that named in pos- a would be case even if gave wrong the trial court the drugs, merely session the that but the reason ruling. for its v. Armendariz Further, drugs taped dog. be would to a State, 401, (Tex.Crim.App.2003), 123 S.W.3d 404 police anony- the Burkes an received denied, 974, rt. 541 U.S. 124 S.Ct. ce call, phone police mous whereas the 1883, (2004); 158 469 L.Ed.2d State phone case a a received call from known Ross, 853, 32 (Tex.Crim.App. S.W.3d 856 Additionally, confidential informant. dur- 2000); State, 539, Romero v. 800 S.W.2d ing trial, arresting the testified that officer 543 (Tex.Crim.App.1990). When officers the defendant was under arrest when he possess suspicion reasonable justifying a was handcuffed. Id. at 925. The court of temporary investigative detention, they appeals criminal stated that “it must cer- may use such force neces reasonably tainly considered persuasive be when the sary to goal effect the stop: the investi arresting suspect admits that was gation, maintenance the quo, status Here, arresting under arrest.” Id. the State, officer safety. Morris v. 50 S.W.3d not testify appellant officer did that was 89, 95 2001, (Tex.App.-Fort pet.); Worth no handcuffed, when arrested he was he State, 115, see Rhodes v. 117 merely that appellant stated was not free denied, (Tex.Crim.App.), cert. 522 U.S. to leave. 894, 118 (1997). 236, S.Ct. 139 L.Ed.2d 167 Additionally, majority’s the “white horse Reasonableness must be judged from the distinguishable pres- case” is also from the perspective of a at reasonable officer the ent Taylor case. See 874 scene, S.W.2d advantage rather than with the 1994, (Tex.App.-Fort 362 pet.). Worth no Rhodes, hindsight. 118; at S.W.2d In Taylor, police tip the from a received 47, McCraw v. person, opinion say but not ref'd). does App.-Fort Worth Allow they whether had credible infor- received ances must be made the fact offi that person mation from that Id. cers before. quick must make under decisions tense, uncertain, police 363. the defen- rapidly When blocked changing cir Rhodes, in the car bay, dant’s car wash she was cumstances. 118. S.W.2d at However, herself, case, unlike the present the force utilized that where exceeds reasonably necessary appellant with Maria Robles and an goal effect the the stop, may Additionally, such force man. transform unidentified record investigative stop Taylor into a contains no that full-blown arrest. indication Moore, area, See State v. was in a high crime/drug 385-86 defendant (Tex.App.-Austin pet.) (holding previous weapons no or that charges, him, informant told and he of offi- the confidential police weapons their because drew approaching appellant, confirmed before safety. cer appellant gas that would be at the station Here, appel- investigators blocked infor with Maria Robles. The confidential lot, parking lant’s car in drew a de gave Investigator mant also Davis ground, weapons, placed appellant vehicle, including scription appellant’s Appellant and handcuffed him. contends number, plate and that Robles the license offi- police was arrested when the him in a maroon minivan. would be with However, truck. approached cers these gas He confirmed facts sta draw cannot said that whenever ap tion. He stated officers resulting weapons person appellant thought proached they because than an seizure must be an arrest rather drugs person that he had on his and was investigatory detention. Morris He leave location. stated about (Tex.App.-Amarillo they would he did not think be able Rhodes, pet.); see 945 S.W.2d at because it a semi- appellant follow Similarly, ordering likely appellant would most rural area and necessarily ground convert does get away. Investigator Davis testified into an arrest. investigatory detention ap get that he did not a warrant before 745; Morris, Nargi v. at not appellant because he did proaching (Tex.App.- 895 S.W.2d the get appel have warrant before time 1995), pet. Houston dism’d as [14th DistJ Investigator gas lant left the station. improvidently granted, 922 S.W.2d ap Davis testified that the officers stated (Tex.Crim.App.1996). As weapons proached appellant with above, as may use such force is officers safety. for officer drawn out of concern goal of reasonably necessary to effect the recovered, I weapons there were While including handcuffing the the defen- stop, totality circum that the would hold Morris, 95. Fur- dant. 50 S.W.3d at See justified the actions police officers’ stances ther, judged must not reasonableness be necessary protect the offi reasonably advantage hindsight, rath- from the but cers. of the officer perspective er testified Additionally, Investigator Davis McCraw, 117 time of the detention. See handcuffing appellant, an officer that after S.W.3d at 52. if he to determine patted appellant down suspect A that a is police officer’s belief is no on him. Because there weapons had nature of may predicated armed patted down appellant evidence that Morris, activity. criminal suspected any weapons on his if he had determine weapons Because are 195 S.W.3d 745. handcuffed, being I would person before a rea closely drug dealing, associated with appellant in these handcuffing hold that suspect suspicion dealing that a sonable and did circumstances was reasonable drugs supports a reasonable inference into an arrest. See convert the detention Id.; is armed. see Carmouche Morris, Additionally, at 746. 195 S.W.3d (Tex.Crim. investigated appellant’s Investigator Davis testified App.2000). Investigator Davis But Amores possible drug possession. cf. lengthy (Tex.Crim. appellant that he knew weapons history prior arrest criminal was an App.1991) (holding detention from charges, appellant that he knew blocked defendant’s after Investigator car, the defen weapon, ordered prior drug investigations. drew his ordered gunpoint, in an car at gas dant out of the Davis stated station him and told pavement, him to drug activity. lie on high area of He stated shot, that if obey he did not he would be

when officer ask In re did not defendant ALLSTATE TEXAS LLOYDS questions). Investigator Davis testified Radigan, and David Relators. he asked he had appellant metham No. 13-06-00245-CV.

phetamine, appellant stated that he did. Texas, Appeals Court of above, opinion As stated offi Christi-Edinburg. Corpus cer conclusively does not determine the McCraw, Sept. nature of the detention. See S.W.3d at 52. The that Investigator fact

Davis appellant stated that was not “free investigative leave” does not convert the

detention into an arrest. The officer’s

statements, together when taken with the evidence,

other appellant demonstrate that

was not under when investiga

tors him handcuffed and asked him ques

tions.

Thus, reviewing after Investigator

Davis’s testimony, I would hold that

investigators reasonably necessary used

force they appellant’s when blocked car in lot, parking drew their weapons,

placed appellant ground, on the and hand-

cuffed I him. investiga- believe

tors did not probable have cause to arrest appellant until appellant stated that after

he had methamphetamine in his pocket.

Thus, that, I would hold under the present circumstances,

facts and such force was

necessary to safely conduct the investiga-

tion investigative and that detention

did not become an until appel- after

lant possessed admitted that he metham-

phetamine and was then searched. At point, it became a warrantless arrest offense committed within the offi-

cer’s view. See Penal Tex. Code Ann. 14.01(b)(Vernon 2005).

§

While the result remain would the same my

under analysis majority’s, or the I

respectfully upon concur based the forego-

ing.

Case Details

Case Name: Akins v. State

Court Name: Court of Appeals of Texas

Date Published: Aug 31, 2006

Citation: 202 S.W.3d 879

Docket Number: 2-05-263-CR

Court Abbreviation: Tex. App.