*1 367 tution was intended to adequately compen- requiring appellant court’s order pay sate the victim of an offense “in the course court costs is reversed. The remainder of offender”). punishing of the criminal judgment its is affirmed.9 We also note requiring a convicted pay costs,
defendant court like entry of
a deadly-weapon finding, “does not alter range punishment of to which the de-
fendant subject, is years the number of
assessed.”7 We further note that a trial
court’s assessment of court against costs Jeremy Wayne BALDWIN, Appellant convicted defendant in its written judg- ment orally without pronouncing these at sentencing is not at all like a trial court The of STATE Texas. orally pronouncing that a defendant’s mul- No. PD-1630-07. tiple sentences would run concurrently and then, any without defendant, notice to the Court of Appeals Criminal of Texas. running these sentences consecutively in its judgment.8 written Based on the fore- March going, we hold that court costs are not
punitive and, therefore, did not have to be
included in the oral pronouncement of sen-
tence this precondition case as a to their
inclusion in the trial court’s judg- written
ment. judgment of the court appeals is
affirmed in part and part. reversed in part
That judgment its deleting the trial Huskins, 7. See 176 S.W.3d (deadly- at 821 ferent and more severe sentence than the oral weapon finding sentence, part is not of the sentence any violates notion of constitutional because it does not alter the process defendant’s due and fair notice. A defendant has range punishment years or the process ‘legitimate number of expectation' due that the assessed); Ross, State v. 953 S.W.2d orally pronounced sentence he heard in the (same). (Tex.Cr.App.1997) courtroom is the same sentence that he will serve."); Ross, required 953 S.W.2d at (sentence includes, (trial Madding, among things, 8. See other S.W.3d at 135-36 pronouncement imprisonment court's that a oral defendant’s term of is defendant’s concurrent). multiple concurrently sentences would run running and then these sentences consecu- tively judgment in its written violates due 9.We note that the trial court also ordered process legal proposition $14,090.59 under the pay that “a in restitution in defendant constitutionally judgment entitled to due orally pronounc- its written minimum, process. At a bare process part due appellant's this as sentence and requires given that a defendant be appeals notice of that the court of modified trial punishment to which he judgment has been sen- court’s written to delete the assess- tenced. orally pro- [Footnote To omitted] ment of restitution in addition to the court Weir, nounce one sentence to a $530. defendant’s face costs of See S.W.3d sign and then judgment a written challenged more 90. The State has not the court of later, than month when appeals' the defendant is not respect decision with to the restitu- present, extravagantly that embodies an dif- tion issue. *2 Antonio,
Jesus San Vargas, Appel- lant. Atty.,
Eric District Kugler, Assistant *3 Horn, Houston, Jeffrey L. Van State’s Atty., Austin, for State. PJ.,
KELLER, opinion delivered the the unanimous court. question
The here is officer whether authority during suspect’s exceeded his asking detention. After the handcuffed suspect where his identification was locat- ed, suspect’s the reached the into pocket to retrieve his We hold that wallet. authority, the officer did exceed his and we reverse judgments the of the courts below.
I. BACKGROUND The A. Incident The trial denied appellant’s court motion suppress making any evidence without express findings fact. Viewed in the light most favorable to the trial court’s ruling,1 the following: the evidence shows Deputy Tommy Smith patrolling the subdivision, Turtle Lake a “medium” crime neighborhood, at about on p.m. 10:30 No- vember when he was “flagged down a citizen” outside with standing phone in hand. middle-aged her The woman, Deputy had previous- whom ly neighborhood, seen in told him the she was surprised arrived so quickly. thought he had She been dispatched she police. after called the said that had spotted woman “she white male dressed all in black walking looking houses,” around into and she did recognize neighbor- him to be the from hood. Smith did not know wheth- er person the woman meant that the looking houses from sidewalk into State, 1997). (Tex.Crim.App. 955 S.W.2d 87-89 Guzman walking up sponse permission windows look inside. constitute to reach knew, Smith, did, The woman as did appellant’s pocket, into so and he in burglaries that there had been several Appellant’s retrieved a small wallet. driv- neighborhood, and she told er’s inside a clear license was the wallet if Smith that she didn’t know the white case, plastic took not, part male “was a it or but he it. At license out of case examine conversation, After Dep- have been.” this point, he saw a small baggie in the uty Smith drove off direction it powder in behind the license. white which the had seen man walk- woman baggie When Smith took out ing. case, said, “That dope *4 powder mine. it.” The found white away, Deputy
A few blocks Smith en- positive field-tested for cocaine. de- appellant, countered matched the who given Ap- scription the woman had him. and
pellant was dressed all black Opinion Appeals B. Court walking seeing the down sidewalk. After suppress After de- the motion to was eye contact, Deputy making Smith and nied, appellant pled pursuant to an guilty “began very walking pace fast appellant agreement. appealed. Uphold- He then away the officer. Deputy from” the to ruling the court’s on motion trial car, out, got and stopped patrol his that suppress, appeals the court found The told up appellant. deputy walked to to the the circumstances that were related call, appellant about the citizen’s asked by by the officer the citizen and observed lived, and for identifi- where he asked his handcuffed appellant officer before was respond to the Appellant cation. did to give sufficient to rise reasonable were lived, but he question about where suspicion to detain him for further investi- why the officer wanted to see his asked appeals also found gation.3 The court of identification, and he looked “nervous.”2 momentary appel- that the intrusion into past experience, Based on his pants pocket lant’s to retrieve his wallet appellant was anx- determined minimal, necessary, “was a reasonable to degree ious that “usual- nervous liberty un- upon appellant’s encroachment ly fight or he is going means he the der circumstances.”4 going Appellant’s to run.” behavior was uncoopera- that of other consistent with persons Smith had encoun- II. ANALYSIS
tive tered, result, “in deputy and as a the was Depu- do whether We not need decide life.” fear [his] arrest or an inves- ty Smith effectuated an detention, de- do we need to tigative nor At Smith handcuffed point, Deputy suspicion existed cide whether reasonable safety” appellant for “officer and asked investigative detention. support an Appellant was. where his identification arrest, There no basis right pants pock- it valid replied that was in his and, arguendo that there was assuming re- et. Smith considered State, 808, 812-14 2.Deputy appellant’s ner- 237 S.W.3d Smith described 3. Baldwin v. hands, 2007). being (Tex.App.-Houston "nervous with his [14th Dist.] vousness as hands, fast, speaking lot movement eyes looking, eyes turning, but not—head not Id. at 814. addition, scanning appellant the area.” In during eye in the did not look this interaction. (1) detention, lowing basis for an information: a woman he knew investigative valid reaching there was no valid basis for into by so concerned about an un- sight was pocket procure his wallet. walking in neighborhood man known (2) fit police, appellant that she called arrest, Had there been valid description given by general the wom- appel Smith’s act of into reaching (3) black, an, was dressed all in appellant pocket qualified lant’s would have as a (4) houses, but appellant looking into “search incident to arrest.”5 But to effec had not ascertained from what tuate valid officer must (5) vantage place, this took there point “probable have that a time cause to believe area, burglaries been recent in the several being criminal com offense has been or is (6) neigh- was a “medium” crime area person mitted” question.6 (7) (8) borhood, it upon 10:30 at night, proba ultimate determination of whether seeing deputy, appellant began to de novo re cause walk subject ble exists is (9) appeal.7 on ner- quickly, very view is a “fluid more Probable cause concept” around, area, “readily, vous, that cannot be glancing scanning even *5 usefully, reduced to legal a neat set of eye and to make contact refusing with Though pre (10) evades concept rules.”8 deputy, why asked definition, cise it involves “a reasonable present needed to identification. We ground for of guilt” “particu belief that is these conclude that circumstances did respect larized with to person to the be give relatively high rise to level or searched seized.”9 “Probable cause” is suspicion would probable constitute greater suspicion level of than “reason cause to arrest. Because Smith suspicion” able information requires probable did not cause to arrest have that is more quality substantial in or con time, reaching into appellant’s pocket a greater reliability respect tent and cannot justified “search incident the source information.10 At least in to arrest” doctrine. searches, the context of probable cause
involves “a fair probability that contraband valid investigative A detention or evidence of a crime found.”11 will be upon authority can confer an officer the Probable cause a relatively high level of pat weapons.13 down the Un suspicion, though it falls far short of a doctrine, “plain der the feel” an officer preponderance the evidence standard.12 pat-down may object seize an conducting a identity
At the time
into
or mass
appel
he reached
“whose contour
makes its
pocket, Deputy
lant’s
the fol-
immediately apparent”
as contraband.14
752, 762-63,
California,
5.
v.
Chimel
395
11.
U.S.
Id.
2034,
(1969).
S.Ct.
89
We
Bald-
to detain
suspicion
lacked reasonable
case to the trial
and remand the
below
Hicks,
that
statement
"okay”
response
in
to officer’s
(discussing
U.S.
v.
480
15. Id.
Arizona
1149,
321,
a "mere sub-
go
appellant for “officer He “I safety.” for safety handcuffed him because OPINION my past experience when an individual COCHRAN, becomes in the man- J., nervous anxious filed concurring acting ner that scanning he was opinion. area, usually means is going he join I majority opinion although it fight or going he is to run.” specifi- resolves this case on a basis also noted that behavior was cally parties. I raised think that consistent behavior that he had seen it important also to one partic- address “uncooperative before from persons” and presented ular issue in appellant’s petition in placed he was “fear of life.” [his] discretionary Was review: tall, said 5'4" that he is probable weighs “arrested” cause pounds, when and has received train- ing to prevent taking someone from his Smith handcuffed him? Given weapon. particular case, circumstances this believe that was “arrested” at the Once appel- handcuffed lant, moment he was handcuffed. him ID asked where his was.
Appellant pants him “that it told pocket,” Deputy so Smith reached into the I. pocket and retrieved small wallet. majority notes, As the Deputy Smith license a pocket was in wallet inside *7 stopped patrol ear his when he saw with a clear plastic covering, Deputy and appellant—who pocket matched the de- Smith took license out the of the to man — point, examine it. At that scription to he saw small given him the unidentified baggie powder in behind the white it out, got woman. approached appel- He license. lant, him Instead, and asked for ID. his
appellant
Deputy
why
asked
he
The
appellant’s
trial court denied
motion
his
wanted to see
ID.
Smith de-
suppress
appeals
the court
af-
and
of
happened
scribed what
next:
firmed.2 Justice Anderson dissented and
Q.
training
you
1. On cross-examination
Smith elabo-
Is that the kind of
that
re-
rated
through
County
on his fear:
ceived
the Harris
Sheriff's
Q.
Department?
you
saying
only thing
And
are
that
the
Yes,
A.
it
put
is.
you
your
fear of
is
in
life
that
Q.
nervous,
said,
you
shaking,
They
If
shaking,
shuddering?
see someone
and
* n *
nervous,
shuddering
you
right
A. Yes.
and
have the
Q. So,
your testimony today
you
is it
that
to handcuff them?
nearly
Yes,
is,
any suspect
you
my
would
handcuff
if
I
A.
it
if am in fear of
life I have a
nervous, shuddering
shaking?
see him
right to
them.
handcuff
Yes,
A.
I will.
Q.
State,
(Tex.App.-
your
2. Baldwin v.
Smith had reasonable hand, may the handcuffs use of escalate a because, if investigative detention even investigative citizen encounter or detention the the detention were reasonable under into an if there is no arrest evidence that Amendment, poses or handcuffing suspect dangerous flight Fourth the the is risk.5 nor under necessary neither reasonable circumstances. particular
these
recently
In State
we
held
Sheppard,6
necessarily
person
that a
“arrested”
argues
The State
purposes
for
the Fourth Amendment if
based
handcuffed
on “officer
detained,
temporarily
he is
handcuffed
safety” is
safety.”
legitimate
“Officer
explained
but
then
We
released.7
purpose. However, the need for handcuff-
tempo-
has been
handcuffing person
who
threat
to officer
must
safety
and the
ordinarily
rarily
proper,
detained “is not
imagined
objectively
unreason-
special
yet
but
cir-
may be resorted
able under the
circumstances.
particular
the
cumstances,
as to thwart
sus-
such
simply
Nor may it be done
because a
further
pect’s
inqui-
to ‘frustrate
attempt
”8
citizen
officer’s
to see
request
declines an
In
ry.’
we concluded
Sheppard,
identification,
his
agreed
suspect
“for
temporarily handcuffing
objection
being asked
the officer conducted
safety” while
walk-through
lawful
a brief
defendant’s
his
and that
identification
J.,
(Anderson,
away
(stating
and walked
dissenting)
jerked
Jordan
hand
Id. at 821
aggressive-type
in "an
that "if the force utilized exceeds that reason-
towards the officers
goal
stop,
ably necessary
effect
manner.”
omitted).
investigative
(cites
de-
Given both the
this force
transform
Id. at 450
arrest.”).
uncooperative-
suspect’s degree
physical
tention into a full-blown
"aggressive” manner toward
ness and his
Williams,
143, 146,
officers,
407 U.S.
Adams v.
held that
officers
the Fifth Circuit
(1972).
handcuffing
S.Ct.
32 L.Ed.2d
As
unreasonably
did not
act
explained in United
Fifth Circuit
States v. Jor-
investigated
being
for the
*8
who was
Cir.2000):
dan,
(5th
232 F.3d
robbery.
violent
Id.
crime of
Handcuffing
suspect
a
does not automati-
Vizo,
Del
918 F.2d
5. See
United States
investigatory
cally
an
detention into
convert
(9th Cir.1990) (handcuffing was
im-
an
probable
requiring
cause. The
an arrest
determining that an arrest
portant
in
factor
inquiry
police
whether
relevant
is
the
were
was no evidence
there
occurred because
failing to use
intrusive
unreasonable
less
in
dangerous).
suspect
particularly
that
was
safely
procedures
conduct
their investi-
gation. Here
officers first asked Jordan
(Tex.Crim.App.2008).
6.
Jordan’s handcuffs per- trailer to determine a third that whether We have also held were detention, an present was consistent a rather than son was reasonable under the with totality under circumstances such as of the circumstances.9 In that when at an alone case, suspect officer was left with the officer alleged had talked night partner after his had left the scene aggravated of an assault victim who told an accomplice,13 to chase and when just him that the defendant had threatened possible at burglary was called to “big him with a while he knife” and the apartment was alone two and with defendant, woman, along with a “do- were much larger suspects.14 Reports gun- ing speed.”10 some When defendant area, along suspicious fire in the be- door, opened his the officer immediately havior, to conclude have led us that hand- a “very strong smelled chemical odor com- In cuffing appropriate.15 each was trailer,” out of the so ing he frisked the cases, those specific, the officer had articu- defendant and large folding found a knife lated for his safety. reasons to fear pocket.11 in his front Because the assault victim’s statements defendant had Rhodes, Like in Mays, the officers large they knife and “doing were Balentine, Smith was alone speed” had both been corroborated night appellant, but when met the simi- observations, officer’s own the officer was larities end there. Smith articu- concerned person-the about the third wom- lated no reason to an with whom both men “doing were carrying any type weapon,16 was burgla- speed.” Based on the evidence that ry inherently crime, is not an violent defendant had been armed and have Deputy Ap- not outnumbered. (for been involved in drug manufacturing pellant combative; weapons which frequently pro- are used to hiding reaching his hands or for his pock- product), tect the concluded that we ets; attempt only he did not to flee.17 The officer was objectively reasonable tem- fact articulated porarily handcuffing the defendant for “of- “fearing for life” was that appellant safety” ficer while he looked for the miss- anxious, nervous, and glancing around Thus, woman in the trailer.12 there pedestrian the area. that a The fact specific were several supported facts that approached by police nervous offi- when objective reasonableness of the more, offi- cer at night, is insufficient totality cer’s conduct under the of the cir- reason to him. handcuff But cumstances. procedure testified that his standard testimony 9. Id. at 291. 16. did Smith's not indicate weap- prior burglaries any that the involved Id. at 284. 10. ons report and the unnamed woman made no seeing weapon, as was the situation Id. Balentine. Id. at 288. *9 briskly Although appellant walking 17. started State, 115, 13. Rhodes v. S.W.2d 945 117-18 Smith, away when he saw first 1997). (Tex.Crim.App. voluntarily stopped to talk to the officer when State, approached, 937, dispel would seem to Mays which v. 14. 726 S.W.2d 943-44 1986). flight (Tex.Crim.App. notion that he risk. was a State, 763, 15.Balentine v. S.W.3d 71 771 (Tex.Crim.App.2002).
376 any suspect any specific sug- to handcuff that he sees is officer did not facts have armed, appellant “nervous, gesting was shuddering, shaking.” offense, a committed about violent was second-guess police I am reluctant so. not to do Because the handcuffs were split-second make deci- officers who must reasonably necessary legiti- to further a particular based circum- upon sions purpose temporary mate of a detention or they on But stances encounter the street. safety,” for “officer once uphold Smith’s routine Deputy’s I cannot handcuffed the encounter or de- appellant, handcuffing procedure, and I cannot find And, tention became a de arrest.18 facto made totality that the of the circumstances concludes, correctly Depu- the majority as handcuffing rea- appellant objectively probable ty Smith did not have cause response nervous- sonable that he arrest time questioning or his of wallet, ness Officer Smith. much at the time searched less Here, him. Sheppard, unlike the situation that he handcuffed Stier, See, car, e.g., significant peri- a People Cal.App.4th patrol v. 168 and detained 28, 21, (2008) (officer's State, 1154, time); Cal.Rptr.3d 85 77 act Baggett od of v. 849 So.2d handcuffing drug suspect during tempo- (defendant of (Fla.App.2003) detained on 1157 rary suspect detention because was much tal- anonymous suspicion burglary of based on necessary; reasonably not ler than officer was pat report, when officer did not citizen's but any specific did have articulable suspect was evidence that down and there no suggesting suspect facts was armed or about existed," "threatening hand- circumstances crime, handcuffing commit a act violent of investigation cuffing suspect of for duration arrest” converted detention into “de facto arrest); into converted detention de facto cause; by probable unsupported was 249, (Mo. Pfleiderer, S.W.3d 256 State v. 8 therefore, subsequent suspect’s consent (even properly detained App.1999) police if B., voluntary); re Antonio search In anonymous tip, handcuff- defendant on based 693, 435, Cal.App.4th Cal.Rptr.3d 82 166 ar- de him converted detention into facto (when (Cal.App.2008) officer handcuffed teen- cause); probable was no rest for which there ager walking with a who down street 9, Acosta-Colon, 18 F.3d United States v. 157 smoking marijuana ciga- who friend rette, drug (1st Cir.1998) (handcuffing suspected temporary detention into converted drug simply airport trafficker at because cause; probable sub- de arrest without facto dangerous might con- armed and be sequent pocket was consent to search his ar- temporary into de invalid; verted detention "policy” of therefore detective’s facto rest; "factually unanchored government's handcuffing any suspect he for fur- detains virtually investigation regardless "generalizable to justification” of the circum- ther ignores stop drug every investigatory stop involving stances of the constitutional sus- upon rea- directive that "a detention based justification pect. accept purported To suspicion activity of criminal must be sonable the use of would be to endorse here therefore using means conducted the least intrusive stop investigatory initiated handcuffs even reasonably available under the circumstances drug suspicion upon traffick- an articulable detention."); particular Longshore v. of that State, Smith, ing.”); 3 F.3d States v. United 1145 924 A.2d 399 Md. (7th 1993) (seizure involving use of Cir. (2007) tempo- (handcuffing suspect converted Teriy stop upheld as "in handcuffs suspicion drug posses- rary detention on and ordi- 'rare' case common sense wherein "was into de arrest as defendant sion facto that an nary experience convince us human risk”); safely flight Cocke neither nor 132, reasonably investiga- officer believed State, (ap- (Fla.App.2005) So.2d only safely stop effectuated tive could be deciding that pellate court assumed without handcuffs.”); generally through see the use of lawfully stopped in the first defendant was 9.2(d), § at 311- LaFave, & Seizure Search a de place, but the detention turned into facto cause, probable when defen- handcuffed, placed dant was inside
Thus, majority join reversing judgments of the courts below. INTERNATIONAL,
SONIC SYSTEMS
INC., Appellant,
Randy CROIX, Eddie Croix Insurance Inc.,
Agency, and Texas Mutual Insur Company
ance Texas Worker’s f/k/a
Compensation Fund, Appel Insurance
lee.
No. 14-07-00103-CV. Texas, of Appeals
Court (14th Dist.).
Houston
Aug.
Rehearing Overruled March