## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02 - 10 - 00449 - CR

BRI AN KEITH JENSEN APPELLANT
V. THE STATE OF TEXAS STATE

---------- FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY

---------- 

### MEMORANDUM OPINION 1

---------- Introduction Appellant Bri an Keith Jen sen appeals his conviction and life sentence for murder. We affirm. Factual and Procedural Background Appellant and Robert Neal Sommer were part of a New Mexico construction crew working on a project in Wichita Falls. During a hiatus , the rest

1 See Tex. R. App. P. 47.4.2

of the crew returned to New Mexico , while Appellant and Sommer stayed behind , sharing room 446 at the Econo Lodge hotel and enjoy ing the local nightlife

. Herbert Palmer owned and operated a taxicab in Wic h ita Falls

. Sometime dur in g the afternoon o n March 20, 2008 , Palmer t o ok Appellant and Sommer to a liquor store on 9th Street and a Walgr eens near by

. L ater, after Palm er had dropped them off back at the hotel, Appellant hired him again to drop Appellant a t the corner of 15th and Austin and wait while Appellant visited a house on the block

. A fter seven or eight minutes, A ppellant returned to the cab, and Palmer drove him back t o the h o t e l

. Later still , Palmer was again called to the Econo Lodge ; t his time to carr y Appellant and Sommer to Maximus , a strip club on Seymour Highway. As Appellant climbed out of the front seat into the club parking lot , Palm er noticed the handle of a pistol protruding from Appellant ’ s waistband

. He also heard Sommer ask Appellant if the nightclub staff searched patrons at the door for weapons; Appellant assured him that they did not.
In side the club , Appellant chatted with and bought drinks for a dancer who worked the re

. She noticed that w hen Appellant ran ou t of money, he borrowed

m or e from Sommer. When Appellant and Sommer decided to leave, they called Palmer , who

once more fe rrie d them back to the hotel

. Appellant paid him the seven

- dollar fare , and Sommer offered to add a tip but had no thing smaller than a hundred dollar bill, for which Palmer had no change

.3

A round nine or ten o ’ clock that night , Appellant called Palmer once more to pick him up at the hotel

. As Palmer pull ed into the parking lot, he saw neither Appellant nor Sommer waiting for him as they usually had , so after waiting for a
moment , he w alked into the office . There , he was told that the room Appellant and Sommer had rented s hould be empty s inc e the two had gone . Palmer doubted that, and on the way back to his cab he saw Appellant hail ing him from outside his room on the fourth floor . Palmer waited a bit longer in the cab before Appellant came down and climb ed in

. S weating heavily , Appellant started talking, saying that he had just shot his friend in the head and had ―hu rt him real bad

. ‖ He borrowed Palmer ’ s cell phone and directed Palmer to return him to the corner of 15th and Austin. Palmer

over heard Appellant on the phone reiterate to his boss that he had hurt someone ―real bad , ‖ and confide ― that he was fixing to skip town, that he wouldn ’ t see him anymore.‖ When the y rea ched the corner of 15th and Austin , Appellant ―cussed‖ Palmer and instructed him that he ―didn ’ t hear nothing, didn ’ t see nothing.‖ H e then stepped out of the cab and , after paus ing long enough at the back of i t to worry Palmer, he set off down the street. When Appellant wa s half a block away , Palmer ―took off.‖ Palmer called his wife and told her what had happened ; she advised him to call the police. A fter a couple of blocks , he spotted Wichita Falls Police Officer Jesse Bartow in a patrol car , flagged him down , and reporte d that he had just4

dropped off a man claim ing to have shot his friend in the head. Palmer described Appellant and said that he and the other man had been staying at th e Econo Lodge in room 446

. Officer Bartow radioed for backup a nd d rove to the hotel . After acquiring a keycard from the manager, he went to room 446 to check on the welfare of the occupant. He knocked on the door to no response. Eventually, h e used t he keycard and entered the room where h e found Sommer ’ s body on the floor between two twin beds , apparently shot and killed

. A n empty leather wallet chain ed to Sommer ’ s belt lay on the floor next to his body

. Carl Anthony Flint was in the doorway of his efficiency apartment on 16th Street when he saw Appellant knock at the backdoor of a known drug house

ne ar by . When no one answered, Flint called Appellant over and offered to go find some drugs for him. Appell ant gave Flint a hundred dollar bill, which Flint took down the street , return ing momentarily with rocks of crack cocaine

. Appellant and Flint promptly consum ed the drugs in Flint ’ s apartment. Flint looked up at some point , s tartl ed to see that Appellant, sitting next to a small stove Flint used to heat his apartment, had taken out a revolver

. Appellant had
extract ed from it an empty cartridge , which he set on top of Flint ’ s stove. Flint asked what Appellant was doing with a gun. A ppellant was eva sive at first , but when Flint pressed him, sa i d, ―If somebody ’ s going to shoot me, I ’ m going to shoot them first.‖ When Flint asked Appellant if he had killed someone, Appellant repl i e d, ―I don ’ t know. T he bullet went past his head.‖5

After they had smoked the crack , Appellant suggested that they go to a strip club. The two d ecided , however, that the club w as closed at that hour , so Appellant suggested they go to Wal m art instead . He asked Flint if he wanted anything there

. Flint mentioned that he could use a new DVD player ; Appellant told him to pick one out

. Flint called a cab. Tom Terry was the night supervisor for the cab company and was handling the company ’ s dispatch that night. The police called him to get in touch with Palmer , who soon joined him and the police at the hotel

. There, Palmer describ ed Appellant and all t hat he had recently seen and heard. Terry was still at the Econo Lodge when he answered Flint ’ s call requesting a ride to Walm art. Terry felt uneas y pick ing up Flint near the corner of 16th and Austin when he saw that Flint ’ s companion fit the description Palmer had just given him and the police

. After arriving in t he Walm art parking lot , Appellant gave Terry a hundred dollar bill and asked him to wait for them while they shopped

. Terry moved his cab to a parking space some distance from the front door and , as the two men walked inside , Terry called Palmer , still with the police . Terry told Palmer , ― [S] end them over to the Lawrence Road Walm art

. I ’ ve got the guy th at was with you.‖ Inside the store, Appellant purchased Flint a DVD player , paying for it with another hundred dollar bill

. Officer Robert McCann was dispatched to the Walmart to look for the man described by Palmer. He drove his patrol car through the Walmart parking lot ’ s6

south entrance at a lmost the same time that Appellant, followed by Flint, exit ed the front door. Flint head ed toward the cab, waving for Terry to wait, but T e rry eased the cab out the north entrance before return ing through the south , and pull ing alongside the patrol car

. Terry told Officer McCann that he had just dropped off the person he believed the o fficer was looking for. Officer McCann saw a man matching the description given by Palmer walking toward the parking lot exit

. After double

- check ing th e description with dispatch and quickly having it confirm ed , he exited his patrol car , withdrew his duty weapon, and addressed Appellant, who had seen him coming and was walking away from him toward th e exit

. When Appellant appeared to ignore him, Officer McCann raised his
weapon a nd aimed it , announced himself as a police officer, and ordere d Appellant to the ground. Appellant complied , and Officer David Raines, having just arrived , rushed in and handcuffed him

. Officer Raines asked if Appellant had any weapons, and Appellant replied that he had a gun in the front of his pants. Officer Raines rolled Appellant over and seized a .38 caliber revolver . Live rounds filled five of the weapon ’ s six cha mbers; one chamber was empty . The officers placed Appellant in the patrol car for transport to the station for questioning. The judge who later presided over Appellant ’ s trial issued a warrant to photograph and fingerprint Appellant , to swab his hands for blood and gunshot residue, and to ob ta in a sample of his DNA.7

There was blood on Appellant ’ s hands. There was also blood on the revolver the police seized from him ; DNA analysis determined that it was Sommer ’ s blood. Appellant ’ s and S ommer ’ s hands tested positive for gunshot residue. The medical examiner who performed an autopsy on Sommer opined that

a gash on Sommer ’ s forehead could have been caused by a grazing gunshot wound or a blow with a blunt object. The medical examiner determined that the

c ause of Sommer ’ s death was blunt trauma to the head and brain consistent with his having be en pistol

- whipped. The grand jury indict ed App ellant for Sommer ’ s murder

. Appellant filed a
pre - trial motion to suppress all evidence seized a fter his arrest. After an evidentiary hearing, the trial court noted that the revolver had been seized during

a Terry search, 2 and found that probable cause coupled with exigent circumstances justified Appellant ’ s arrest without a warrant , and denied the motion to suppress. Appellant did not testify during either the guilt

- innocence or punishment phases of his trial. At the close of the guilt

- innocence phase, t he jury found him guilty. Previously, a nother jury , after considering a severed charge of felon

- in

possession

- of

- a - firearm , which had arisen from Appellant ’ s having the revolver in

2 See Terry v. Ohio , 392 U.S. 1, 88 S. Ct. 1868 (1968).8

the Walmart parking lot, convicted Appellant of that offense and, after finding that Appellant had been convicted of two prior felonies, assessed a n enhanced sentence of ninety

- nine years ’ confinement. That case was affirmed on direct appeal by the Amarillo Court of Appeals. Jensen v. State , No. 07

- 10

- 00028

- CR, 2011 WL 691237, at *4 (Tex. App.

— Amarillo Feb. 28, 2011, pet. ref ’ d) (mem. op. not designated for p ublication ). In the case now before us, Appellant elected for the tri al court to assess punishment. Appellant and the State stipulated t hat Appellant had an extensive criminal record in three states, including convictions for mayhem, assault on a police officer, assault with intent to rob, aggravated assault, attempted aggravated assault with a deadly weapon, carrying a weapon while committing an act of violence, aggravated fleeing a law en forcement officer, and escape.
A ppellant pleaded true to three enhancement paragraphs set out in the indictment. A fter hearing the evidence and arguments of counsel presented during both phases of trial , the trial court found the enhancement allegations true.
T he record shows that the trial court then announced that , after considering the evidence and arguments of counsel submitted during both phases of trial, it was ready to sentence Appellant

. It addressed Appellant as follows:

THE COURT: I guess that wonders never cease

— you see something every day or new just ab out every day as a judge, as an individual or

— or whatever, but on e thing I did not see from the D efendant during any stage of this trial whatsoever was any hint of remorse for the crime of which he ’ s been convicted.9 Mr. Jensen left

–– you left a dead or dy ing man with the victim ’ s money to buy drugs and a CD player for a person you really didn ’ t even know, the blo od of your victim still on your

–– on your hands. You ’ ve [ led ] a life of violence, the violence sending you to prison. Your first offense when you were but 24 years old and I believe the calculation now would show that you are nearly 62 years old, but it ’ s been a long, long, long life of violence. Alcohol is no excuse. I hereby sentence you to serve life in prison for the murder of the victim in this matter. With it being my authority under th e law, I hereby sentence you

— your
— your sentence for life in prison is to commence once you have completed your 99 year sentence, which you received in here from a jury last year in September of 2009 for f elon in possession of a weapon. Accordingly, your life sentence will not start running until after you have satisfied and served your 99 year sentence, sir. You will receive credit for the amount of time served in relation to this charge, but your life of violence on the outside world hopefully is over. Comment on A ppellant ’ s A pparent Lack of Remorse
In hi s first issue , Appellant c omp lai n s that his trial was fundamentally unfair because the trial court , in deciding punishment, considered Appellant ’ s apparent lack of remorse
— which Appellant asserts could only have been shown by his own testimony

— and then punished him more severely for exercising his right not
t o testify. As sole proof of his claim , Appellant offers the trial court ’ s remarks before s entencing, reproduced above, in which the trial court observed that Appellant had not shown ―a n y hint of remorse for the crime. ‖ Appellant does not so much argue that the se remarks, themselves, are error, but rather that they reveal a ―window into the mind of the judge‖ through which Appellant having10

peered can tell t hat t h e trial court took into account his decision not to testify and unfairly punish ed him more severely for it

. In response to the State ’ s argument that Appellant did n o t preserve his claim with an objection at trial , Appellant asserts that the right to a trial conducted by an impartial and fair judge is fundamental , and t hat it would have been pointless t o object at trial because the error was in the judge ’ s own mind , and that the judge hardly could have instruct ed himself to disregard his own bias

. The court of criminal appeals has not directly answered the question whether the right to a fair trial conducted by an impartial judge requires no objection to preserve a claim about its infringement

. See Marin v. State , 851 S.W.2d 275, 278

– 80 (Tex. Crim. App. 1993), o verruled on other grounds by Cain v. State , 947 S.W.2d 262, 264 (Tex. Crim. App. 1997). But in Blue v. State , a case upon which Appellant relies, five members of the court of criminal appeals held that a trial judge ’ s comments to a venire can amount to error requiring no objection to preserve a claim f o r appeal. 41 S.W.3d 129, 133 (Tex. Crim. App. 2000) (plurality op.)

. Although five members of the court in Blue agree d that the trial court ’ s comments were so improper th at they obviated the need for an objection , the five could not agree on what right th os e comments actually violated. Four thought the comments tainted the presumption of innocence. Id

. at 132. One a lso thought t hey violated the right to a fair trial. Id

. at 133

– 35 (Mansfield, J., concurring). And o ne thought t he remarks violated the right to an impartial judge

. Id

. at 139 (Keasler, J., concurring in the judgment). One did not11

say what he thought except that he concurred in the judgment. Id

. at 133 (Meyers,J., concurring)

. T he three dis sente rs di d not think that the comment s

were structural, absolute, or fundamental error , and they would have held that the claim had not been preserved

. Id

. at 142

– 44 (Keller, J., dissenting). Blue is not controlling because , for one thing, as demonstrated above, it is a plurality opinion. See Pearson v. State , 994 S.W.2d 176, 177 n. 3 (Tex. Crim. App. 1999) (noting that plurality opinions are not binding precedent)

. Moreover, the issue in Blue involved a trial court ’ s comments t o a venire and how those comments affected the ability of the jury that was eventually selected to presume the defendant innocent and/ or to judge the facts impartially. Here, in contrast, the jury had left the building; it ha d returned a verdict and been discharged , Appellant having elected for the trial court to assess punishment. The trial
court ’ s comments in th is case , the refore , could not have prejudic ed the jury ; Blue does not apply

. But even if, for the sake of argument, we accept ed Appellant ’ s premise that a trial court

— with the jury discharged and dismissed

— could make a remark so egregious as to reveal that it was infring ing upon a non forfeit able right , we would still not agree that the remarks in this case opened any ―window into the mind‖ th rough which we may observe the trial court ’ s internal thought processes in action and determine that t he trial court unfair ly considered Appellant ’ s decision not to testify as a circumstance against him and punished him more severely as a result

.12

Appellant conceded at oral argument that it was not clear that the trial
court ’ s consideration of his lack of remorse caused the trial court to sentence Appellant more severely, or if it did, to what degree. But a bsent a clear showing
t o the contrary, reviewing courts presume that the trial court s act fairly and impartially

. Brumit v. State , 206 S.W.3d 639, 645 (Tex. Crim. App. 2006); Jaenicke v. State , 109 S.W.3d 793, 796 (Tex. App.

— Houston [1st Dist.] 2003, pet. ref ’ d) ; Steadman v. State , 31 S.W.3d 738, 741 (Tex. App.

— Houston [1st Dist.] 2000 , pet. ref ’ d )

. Thus, Appellant bears the burden of making a clear showing that the trial court improperly considered his failure to show remorse

— and by extension , his failure to take the stand

— in assessing a higher punishment. Appellant has failed to make a clear show ing that the trial court was n ot neutral and detached. Apart from the trial court ’ s remarks before sentencing, which Appellant concedes were not erroneous themselves, Appellant offers up nothing else from the record

— s uch as arbitrary or clearly erroneous adverse rulings

— as evidence that the trial court acted with bias or unfairly. We also note that Appellant points to nothing in the record to suggest that the trial court did not consider the entire range of punishment. Nor does he guide us to anything in the record indicat ing what punishment the trial court w ould have assess ed had Appellant testified that he was sorry for what he did or had the record otherwise indicated that he felt remorse

. For instance, there is no record of a hearing on a motion for new trial through which Appellant could have called the judge to the13

stand and asked whether he considered the full range of punishment or whether he would have assessed a more lenient sentence had Appellant appeared

remorse ful

. Asserting that t here is no evidence in the record to justify the trial court ’ s inferring a lack of remorse from the Appellant ’ s appearance or conduct during either stage of trial except from his failure to testify , Appellant argues that the trial court violated his right to remain silent by equating Appellant ’ s failure to testify with a failure to show remorse. W e reject the premise urged by Appellant that evidence of remorse (or its absence ) can only be shown by the remorseful (or not) defendant taking the stand and testifying

. R ecently, t he court of criminal appeals dr e w a distinction between a defendant ’ s present
- sense lack of remorse during trial and evidence of his lack of remorse as shown by the facts of the case. In Snowden v. State , the court held that a comment on the form er, in a case where the defendant exercises his right not to te s tify , is an impermissible comment on the defendant ’ s exercise of that right ; while a comment on the latter , if supported by the evidence, is a proper summation of the evidence

. 353 S.W.3d 815, 824

– 25 (Tex. Crim. App. 2011 )

. A defendant ’ s failure to testify is not a proper topic of comment for either the prosecutor or the trial court. See, e.g. , Tex. Code. Crim. Proc. Ann. art. 38.08 (West 2011); Bustamante v. State , 48 S.W.3d 761, 764 (Tex. Crim. App. 2001); see also Davis v. U.S. , 357 F.2d 438, 441 (5th Cir.) , cert. denied , 385 U.S.14

927 (1966) . Much of the case law involving comments on a defendant ’ s failure to testify involves comments made by prosecutors during closing argument. The analysis in those cases is also useful in determining whether a trial court improperly broached the topic of a defendant ’ s silence.
In Snowden the prosecutor argued during summation , ―And he [the appell ant] doesn ’ t give two hoots about the mother of his baby or his baby because he looks her in the eye and punches her in her 38 week old stomach without remorse , just like he is today. ‖ Id . at 817 *1

. The court of criminal appeals held that the first part of the prosecutor ’ s remark was supported by the record evidence that the defendant intentionally punched his pregnant girlfriend in the stomach , and that it was , therefore , a proper summation of the evidence; but the court of criminal appeals also held that the ph r ase
— ―just like he is today‖

— impermissibly drew attention to the fact that the appellant did not take the stand and testify about his present
- sense lack of remorse during the trial itself. Id

. at 817

- 18 *5

– 6

. See also Howard v. State , 153 S.W.3d 382, 385

– 86 (Tex. Crim. App. 2004) (holding that State ’ s argument was proper summation of evidence when evidence showed defendant had told officer that he had no remorse), cert. denied

, 546 U.S. 1214 (2006); Caldwell v. State , 818 S.W.2 d 790, 800 (Tex. Crim. App. 1991) (holding t hat comment on defendant ’ s lack of remorse was supported by testimony including the appellant ’ s calm demeanor between the murder and his apprehension and his three

- day spree of illicit drug use immediately following the murder) , cert. denied , 503 U.S. 990 (1992),15

overruled on other grounds by Castillo v. State , 913 S.W.2d 529 (Tex. Crim. App. 1995) ; Oliva v. State , 942 S.W.2d 727, 734 n. 2 (Tex. App.

— Houston [14th Dist.] 1997) (holding that witnesses may testify as to the defendant ’ s statements and conduct indicating a lack of remorse ) , pet. dism ’ d , 991 S.W.2d 803 (Tex. Crim. App. 1998)

. Appellant ’ s brief directs us to an opinion from this court, Hall v. State , for the proposition that a defendant ’ s personal fee ling of remorse can only be shown through the defendant ’ s own testimony. 13 S.W.3d 115, 117 (Tex. App.

— Fort Worth 2000), pet. dism ’ d , 46 S.W.3d 264 (Tex. Crim. App. 2001)

. During jury argument in that case, the prosecutor argued, ― H as he ever shown remorse for this? No.‖ Id

. at 117. This court re cognized then, as it does today, that comments referring to a defendant ’ s demeanor at and around the time of the offense are permissible. Id

. at 118. But in Hall , the prosecutor strayed from discussing evidence of the defendant ’ s lack of remorse during and around the time of the offense when she argued that he had never showed remorse , which necessarily referred to his failure to testify

. Id

. Here, the trial court ’ s comment

— ― one thing I did not see from the defendant during any stage of this trial [. . .] was any hint of remorse for the cri me of which he ’ s been convicted‖

— taken in isolation, reasonably could be interpreted as a remark on Appellant ’ s apparent present
- sense lack of remorse during trial. But the remark immediately precede s the trial court ’ s ticking off evidence of Appellant ’ s actions taken after the killing: ―y ou left a dead or dying16

man with the victim ’ s money to buy drugs and a CD player for a person you really didn ’ t even know, the blo od of your victim still on your
— on your hands. ‖ This comment is supported by evidence admitted at trial , as it was based on testimony of Appellant ’ s drug use , desire to go to a strip club , and trip to Walmart to buy a DVD player for a man that he hardly knew , all within hours of the murder

. T aken together, t he trial court ’ s co mment s reasonably can be construed to refer to Appellant ’ s present
- sense lack of remorse and to evid e nc e of his lack of remorse during and immediately after committing the offense

. Because the portion of the comments referring to the latter w as supported by evidence presented in trial through witness testimony and did not necessarily refer to Appellant ’ s present
- sense lack of remorse at trial, t hat portion did not refer t o Appellant ’ s exercise of his right not to testify , and therefore was not error

. However, the portion referring to what the trial court did not see from the defendant during any stage of this trial , might have supported a holding of constitutional error had it been objected to

. See Bustamante , 48 S.W.3d at 764 (noting that a trial judge ’ s or prosecutor ’ s comment on a defendant ’ s failure to testify violates the U.S. and Texas c onstitution s) ; Hall , 13 S.W.3d at 11 8

– 19 ( distinguishing between pro se cutor ’ s comment s regarding lack of remorse shown by facts of the case and lack of remorse shown during trial). All but the most fundamental rights are forfeited if not insisted upon by the party to whom they belong. Moore v. State , 295 S.W.3d 329, 333 (Tex. Crim. App. 2009). This general ly includes constitutional errors. Curry v. State , 91017

S.W.2d 490, 496 & n.2 (Tex. Crim. App. 1995); see also Mendez v. State , 138 S.W.3d 33 4 , 34 2 (Tex. Crim. App. 2004). Appellant concedes he did not object to the trial court ’ s comments but argues that the y are proof that his trial was fundamentally unfair

. But even if we assumed that the trial court ’ s comment was error of constitutional dimension , it does not rise further to the level of structural or fundamental error. Appellant has shown us nothing in the record to clear ly demon s trate that the trial court was biased or unfair or that it did not consider the full range of punishment

. And w e refuse to speculate about the thought processes of the trial court by peering through the ―window‖ of a n isolated
comment. W e hold , therefore, that Appellant has failed to meet his burden to prove th at he received an unfair trial

. See Brumit , 206 S.W.3d at 645 ; Jaenicke , 109 S.W.3d at 796

– 97. Finally, we hold that the trial court did not punish Appellant more severely for exercising his right not to testify. We have already noted that there is no evidence in the record showing what punishment the tri a l court would have assessed had it concluded that Appellant was remorse ful . Moreover, we point out that Appellant stipulated to having compiled an extensive criminal history across three states before coming to this one and receiv ing his latest two convictions based upon this incident in Wichita Falls

. The first of those Texas convictions was for a felon in possession of a firearm ; the jury in that case assessed a punishment of ninety

- nine years ’ confinement. In th e case before us ,18

the jury found Appellant guilty of murder. Given the facts of th is case and Appellant ’ s long and significant criminal history , we hold that there is no merit to the contention that the trial court punished Appellant more severely for exercising his right not to testify. Accordingly, we overrule Appellant ’ s first issue

. Motion to Suppress
In his s econd issue, A ppellant contends that the trial court erred by denying his motion to suppress the gun and other evidence because it was seized a s part of an illegal arrest. The State responds that the gun was seized as part of only an investigative detention, but, even if co nstrued as an arrest, appellant ’ s arrest was authorized , as was the seizure of the gun and other evidence, under the circumstances. We review a trial court ’ s ruling on a motion to suppress evidence for an abuse of discretion. Shepherd v. State, 273 S.W.3d 681, 684 (Tex. Crim. App. 2008). In so doing, we view the facts in the light mo st favorable to the trial
court ’ s decision. Id. We give almost t otal deference to a trial court ’ s express or implied determination of historical facts and review de novo the trial court ’ s application of the law of search and seizure to those facts. Id

. We will sustain the admission of the evidence if admission is reasonably supported by the record and correct on any theory of law applicable to the case. Laney v. State , 117 S.W.3d 854, 857 (Tex. Crim. App. 2003). Appellant ’ s issue specific ally challenges the trial court ’ s denial of the motion to suppress the hand gun found in hi s possession , as well as trace19

evidence, fingerprints, and other evidence seized after h e was taken into custody. Appellant raised this issue in his appeal from the severed felon

- in

possession

- of

- a - firearm conviction

. Jensen , 2011 WL 691237, at * 2. We agree with our sister court ’ s reasoning and disposition in that case. Appellant contends th at this evidence ― was the product of a warrantless arrest without a lawful and statutory exception ‖ to the warrant requirement. However, the gun was seized very early in the encounter between A ppellant and law enforcement. The record shows th at , when police came into contact with appellant, the officers were aware that a ma n had been found dead in room 446 of the Econo Lodge, that a nother man coming from that room had admitted to a cab driver that he had shot someone , and that A ppellant matche d the description of the passenger that had been given to the police by the cab driver. On the basis of these facts, the police had reasonable suspicion to detain appellant to investigate a potential crime. See Davis v. State, 947 S.W.2d 240, 244 (Tex. C rim. App. 1997). A detention, as opposed to an arrest, may be justified on less than probable cause if a person is reasonably suspected of criminal activity based on specific, articulable facts. Terry , 392 U.S. at 21, 88 S. Ct. at 1880; Carmouche v. State , 10 S.W.3d 323, 328 (Tex. Crim. App. 2000). An officer conducts a lawful temporary detention when he or she has reasonable suspicion to believe that an individual is violating the law. Crain v. State , 315 S.W.3d 43, 52 (Tex. Crim. App.20

2010); Ford v. State , 158 S.W.3d 488, 492 (Tex. Crim. App. 2005)

. Reasonable suspicion exists when, based on the totality of the circumstances, the officer has specific, articulable facts that when combined with rational inferences from those facts, would lead him to reasonably conclude that a particular person is, has been, or soon will be engaged in criminal activity. Ford , 158 S.W.3d at 492. This is an objective standard that disregards any subjective intent of the officer making the stop and looks solely to whet her an objective basis for the stop exists. Id. Appellant does not dispute the ex istence of reasonable suspicion; rather, he contends that Officer McCann ’ s ordering A ppellant to lie in a prone position while O fficer Raines handcuffed A ppellant transformed the detention into an
arrest. The timing of the gun ’ s discovery is critical to our analysis. The record shows that McCann ordered A ppellant to lie prone, that O fficer Raines handcuffed A ppellant , and Appellant was immediately asked i f he possessed a
weapon. Appellant then admitted that he had a handgun in the front of his pants. Based on the facts known to the officers , namely that A ppellant matched the description of a man who had admitted shooting another man and that a man was fo und to have been shot and killed, it was reasonable for them to suspect that A ppellant was armed and dangerous. Further , it was reasonable for the m to handcuff Appellant in order to protect the mselves while they determined whether
A ppellant was a rmed , and their doing so did not transform h is temporary detention into an arrest. See Rhodes v. State , 945 S.W.2d 115, 117 (Tex. Crim.21

App.) (citing United States v. Sokolow , 490 U.S. 1, 109 S. Ct. 1581 (1989)) , cert. denied , 522 U.S. 894 (1997)

. Once the officers discovered the handgun on Appellant in the Walmart parking lot, they had probable cause to arrest him for the offense of unlawfully carrying a weapon committed in the officers ’ presence. Tex. Penal Code Ann. § 46.02(a) (West Supp. 2010 ); Tex. Code Crim. Proc. Ann. art. 14.01(b) (West 2005). Because the evidence was not seized as a result of an illegal arrest, we overrule Appellant ’ s second issue. See Jensen , 2011 WL 691237, at *3.

Requested Self - Defense Instruction In Appellant ’ s third issue, he claims that the trial court erred by refusing to include in the jury charge hi s p r opos ed instruction on self

- defense and the presumption of reasonableness

. H e requested the following instruction: You are further instructed that the reasonable belief of the accused that deadly force was immediately necessary is presumed to be reasonable, if the accused knew or had reason to believe that the person against whom the deadly force was used was committing or attempting to commit the offens e of murder upon the accused by shooting the accused with a firearm, to wit: a handgun. Section s 9.31 and 9.32 of the penal code govern. Under those sections, a presumption that a defendant ’ s belief that deadly force is immediately necessary

was reason able applies if (1) the defendant knew or had reason to believe that the person against whom the force was used was committing or attempting to commit murder , (2) did not provoke the person against whom the force was used,22

and (3) was not otherwise engaged in criminal activity other than certain Class C misdemeanors

. See Tex. Penal Code Ann. §§ 9.31 (a )(1) , 9

. 32(b)(1)(C), (2), (3) (West 2011)

. During the charge conference, the trial court offered to include a charge that tracked these statutes, and the State replied that it would not have any objections to such a charge. Appellant, however, ultimately opted instead t o stand on his requested cha rge, which we have set out above. Appellant ’ s proposed instruction was incomplete ; it omitted the provisions relating to provocation and not otherwise being engaged in criminal activity. This is not a matter of requesting a charge that is not in perfect form

. S ee, e.g

. , Stone v. State , 703 S.W.2d 652, 655 (Tex. Crim. App. 1986). Appellant ’ s requested charge was significantly deficient in that it would have instructed the jury to
presum e Appellant ’ s belief that deadly force was necessary based on only one out of three elements required to justify the presumption. We hold that the trial court did not err by refus ing to include a requested instruction that was more than sixty percent inco mplete

— particularly when the record shows that the trial court offered to fill in the blanks of Appellant ’ s proposed charge, but that Appellant declined. Because Appellant refused the trial court ’ s offer to include a complete and correct charge on the presumption of reasonableness and persisted in requesting one that was two

- thirds incomplete, we overrule Appellant ’ s third issue.23 C onclusion Ha ving overruled ea ch of Appellant ’ s i s sues , we affirm t he judgment of the trial court

.

LEE GABRIEL JUSTICE PANEL: WALKER, MEIER, and GABRIEL, JJ. DO NOT PUBLISH Tex. R. App. P. 47.2(b)
DELIVERED: February 16, 2012