Opinion issued May 2, 2019

In The 

## Court of Appeals

For The 

## First District of Texas

———————————— NO. 01

- 18

- 00679

- CR NO. 01

- 18

- 00680

- CR NO. 01

- 18

- 00681

- CR

——————————— THE STATE OF TEXAS , Appella nt

V.
JEROLD JERMAINE GRIF FIN , Appell e e

On Appeal from the 2 68th District Court Fort Bend County, Texas Trial Court Ca se No s . 17

- DCR

- 078992 , 18

- DCR

- 080908, 16

- DCR

- 075232B

MEMORANDUM OPINION

After being charged by three indictments with felony drug possession in a
drug

- free zone , Appellee Jerold Griffin filed a mo tion to suppress in all three cases.2

After an evidentiary hearing, t he trial court granted the motions to suppress, and
the State appeals. We affirm the trial court’s ruling

. Background
The evidence at the suppression hearing consisted of the testimony of Sugar
Land police officers Joshua Young and Matt Shockey and videos from the ir body
cameras of the incident. The trial court made the following findings of fact and

conclusions of law:

FINDINGS OF FACT

1. Officer Joshua Young, a Sugar Land Police Department p atrol officer on night shift patrol, at approximately 11:30 p.m., while patrolling the Mayfield subdivision on September 23, 2016, noticed someone sitting on a bench under the pavilion at Mayfield Park. Officer Matt Shockey and Officer Jones of the Sugar L and Police Department arrived at approximately the same time as Officer Young. Officer Shockey was assigned to the Sugar Land Police department training division as a range master but was working night patrol this date. Officer Young, a less experienced of ficer, was the first officer arriving and was designated as the lead officer.

2. The Mayfield subdivision is a known high crime area.

3. Griffin approached Officer Young ’ s vehicle as officer Young drove up to the pavilion area. Griffin ’ s demeanor was calm and he began talking to officer Young.

4. The Park hours are from dawn to dusk and are posted at the park entrance. A sign may be seen beside the pavilion.

5. Officer Young advised Griffin of the park hours and told Griffin that he was in violation of the park hou rs. Officer Young observed a large wad of cash in Griffin ’ s pocket and was unable to3

determine the denomination of the cash bills. Officer Young did not observe anything else in Griffin ’ s pockets.

6. There were no other individuals at the park.

7. Officer Youn g observed open containers of alcohol on the bench in the pavilion and Griffin admitted drinking out of the containers.

8. Officers Jones, Young and Shockey escorted Griffin to the pavilion. Griffin gave identifying information to Officer Young when asked. Y oung left Griffin at the bench in the pavilion to check on outstanding warrants but found no outstanding warrants on Griffin.

9. Griffin told the officers that he was homeless. He indicated that he had lived in the house across the street in the subdivision. Griffin said he worked at TXU and had been paid.

10. Officer Shockey indicated to Griffin that if he was not causing trouble and not smoking weed [,] the officers were cool and that they are not into selective enforcement and not there to split hairs. Officer Young asked Griffin if he had anything illegal on him and Griffin said

no.

11. Officer Young asked Griffin for consent to search him and no consent was given.

12. Griffin was told to stand up by O fficer Young. Officer Young then told him he was going to be arre sted for violation of the city ordinance, a fine only offense. While Griffin was standing Officer Young put his hands on Griffin and turned him around to place Griffin ’ s arms behind him. This was the only show of force by anyone at the time.

13. Griffin ran a t this point.

14. The officers chased Griffin and put him on the ground where a struggle occurred. All officers struggled with Griffin with O fficer Young attempting to taser Griffin and subsequently putting his weapon to Griffin ’ s head.4

15. After a search of Gri ffin ’ s pockets the officers found cocaine, ecstasy and Xanax.

16. Griffin was arrested for possession of ill egal narcotics and resisting arrest in a d ru g free zone.

CONCL U SIONS OF LAW

1. Officer Young observed Griffin in Mayfield Park after dark when city park s are closed. There was no one else at the park except Griffin. The Sugar Land City Ordinances provide that city parks are open from sunrise to sunset and notice of this rule is posted in city parks.

2. Officer Young and o fficers Shockey and Jones observed o pen containers of alcoholic beverages on the park bench where they found Griffin. The consumption or possession of open containers of alcohol in city parks is prohibited. Violation of this ordinance may result in a fine up to $500.00.

3. Griffin approached Y oung upon Young ’ s arrival and was calm and accompanied Young to the park bench

. Young observed a wad of cash in Griffin ’ s pocket but did not observe anything else in Griffin ’ s pockets. Griffin explained that he had cashed his TXU work check and that was th e cash in his pocket. Young explained to Griffin that he was in violation of the City of Sugar Land ordinances regarding being in the park after closing hours and in possession of alcoholic beverages in the park without permission. Young told Griffin that he was returning to his police vehicle to check for outstanding warrants.

4. Shockey and Jones stayed with Griffin at the park bench and questioned Griffin about his reasons for being in the park. Griffin explained that he previously lived in the neighborhoo d but was homeless. Shockey explained options for housing and indicated to Griffin that if he was not smoking weed the officers were cool.

5. Young returned to the park bench and said h e found no outstanding warrants. He then began to question Griffin about whether he had anything in his pockets and asked for consent to search Griffin.5

Griffin denied having anything in his pockets and denied consent to search.

6. Griffin violated the city ordinances regarding being in the park after closing [h] ours and in posse ssion of alcoholic beverages and Young was authorized to write Griffin a citation and remove him from the park.

7. The officers under the U. S. Fourth Amendment and Art. 1, § 9, Texas Constitution had seized Griffin and he was not free to leave.

8. There were no exigent circumstances existing after the officers determined there was a reasonable explanation for the cash in Griffin ’ s pockets, they had determined that the reason for the stop was for the violation of the park hours and alcohol consumption in the pa rk and Griffin was cooperating with the officers.

9. There were no articulable grounds presented by the officers for the request to search Griffin ’ s pockets as no bulges were observed
, no evidence of weapons and there was no intent to arrest Griffin

.
10. The of

ficers were there for the ordinance violations and had offered Griffin assistance to find housing with no focus on other than the ordinance violations.

11. There was no reasonable suspicion nor probable cause for Young to perfo rm a Terry frisk of Griffin nor probable cause to arrest Griffin for any offense.
This Court determines that all evidence seized should be suppressed.
Analysis In its sole issue, the State contends that the trial court erred as a matter of
law in granting the motions to suppress becaus e the evidence was obtained in a

search incident to arrest.6

Standard of Review
We review a trial court’s ruling on a motion to suppress under a bifurcated

standard of review. Lerma v. State , 543 S.W.3d 184, 1 89

– 90 (Tex. Crim. App.

2018) . We review the tri al court’s factual findings for an abuse of discretion but
review the trial court’s application of the law to the facts de novo. Id. at 1 90

. We
give deference to the trial court’s factual determinations because the trial court is

the sole trier of fact and judge of witness credibility and the weight to be given
their testimony. Id. ; Valtierra v. State , 310 S.W.3d 442, 447 (Tex. Crim. App.
2010). Our deferential review also applies to the trial court’s conclusions regarding
mixed questions of law and fact th at turn on credibility or demeanor. State v. Ortiz
, 382 S.W.3d 367, 372 (Tex. Crim. App. 2012). We review de novo purely legal
questions, as well as mixed questions of law and fact that do not turn on credibility

and demeanor. State v. Woodard , 341 S.W.3d 404, 410 (Tex. Crim. App. 2011).
When the trial court makes explicit findings of fact, we determine whether
the evidence, when viewed in the light most favorable to the trial court’s ruling,
supports the findings. State v. Kelly , 204 S.W.3d 808, 818 (Tex. Crim. App. 2006).
We afford the prevailing party the strongest legitimate view of the evidence and all
reasonable inferences that may be drawn from that evidence. State v. Duran , 396
S.W.3d 563, 571 (Tex. Crim. App. 2013). We will uphold the trial court’s ruling if
it is reasonably supported by the record and is correct on any theory of law7

applicable to the case. Lerma , 543 S.W.3d at 190 ; State v. Story , 445 S.W.3d 729,
732 (Tex. Crim. App. 2014).

Search Incident to Arrest

T he State argues that Officer Yo ung’s attempted search of Griffin’s pant
pockets was a lawful search incident to arrest.

“ If an officer has probable cause to arrest, a search incident to arrest is valid

if it is conducted before a formal arrest

— at least if it is immediately before the

a rrest. ” State v. Sanchez , 538 S.W.3d 545, 550 (Tex. Crim. App. 2017). This
argument is belied by the evidence

— particularly the body camera video

— which
reflects that the officers were not going to arrest Griffin and that Officer Young
was not attempting to search Griffin in the context of arresting him.
Officer Young testified that, after asking Griffin several times for consent to
search his pockets: “At that point, I told him to stand up, put his hands behind his
back, that I was going to arrest him for t he city ordinance violations.” This
testimony is contradicted by the body camera video, which shows that, after
confirming that Griffin had no outstanding warrants, Officer Young stated to

Griffin : “As long as you’re not doing anything illegal, I’m cool wi th that. . . . as
long as you’re not causing any kind of ruckus, or you’re not smoking weed out

here.”8

Officer Shockey, o ne of the other two officers
, then discussed with Griffin

that the park closed at dark by city ordinance, that they try not to do sele ctive
enforcement, and that they understood that, with Griffin being homeless, he had to
do what he had to do to get by. They then discussed Griffin’s employment situation

and that there were programs and assistance available to help him with his

homeless situation and lack of a vehicle, and O fficer Shockey concluded by telling

Griffin:
Whatever you do, man, just don’t get too drunk out here with that vodka and that beer and then you start getting stupid when you’re all drunk. . . . You’re not really suppo sed to drink in the parks, but we’re not out here trying to split hairs either. . . . Just be smart about it, like Officer Young said, we’re just making sure people aren’t out here causing a ruckus or doing anything wrong. All right, man?
Griffin replied, “Yes, sir.” 1

Officer Shockey and the third office r then turned as if to start walking away,

but Officer Young then addressed Griffin, stating: “Before we leave you, man, like
I said, I don’t want anything illegal going on, man. So, you don’t have anything
illegal on you? No drugs, weapons, something like that , man ?” Griffin replied,
“No, sir,” shaking his head in the negative in response to those questions.
Officer Young then immediately asked, “Can I check just to make sure,

man?” Griffin calm ly replied, “No, sir.” Officer Young said, “Huh?” Griffin

1 In response to a question from the trial judge, Officer Shockey testified that the normal course of action for persons in the park “after hours” is, “more tim es than not, it’s just a warning or we write a ticket.”9

replied, “No, I’m saying I don’t have nothing.” Officer Young then asked , “You

got nothing illegal on you ?” Griffin replied, “No, sir.”
Officer Young continued, “ Okay, I’m asking, can I check to make sure you
don’t have anything illegal on you? If you don’t, I’ll leave you here, brother, to do
your thing. ” Griffin continued to deny having anything illegal and to refuse Officer
Young’s request to search. Griffin the n stood up and turned his back to Officer

Youn g, who said, “Put your hands back here.” As Griffin began to put his hands
behind his back, he started running but was quickly apprehended.
In short, nothing i n the video suggests that Officer Young intended to arrest

Griffin for a city ordinance violation or was going to perform a search incident to

such an impending arrest

. 2 In fact, both officers’ statement s in the video reflect the
opposite

—

that as long as Griffin was not smoking “weed” or causing a ruckus,
they were going to let him stay at the park . A nd Officer Young then added that he
would let Griffin stay in the park and “do his thing” if the officer could check
whether Griffin had anything illegal on his person. The record does not support the
State’s argument that Officer Young’s attempted search was incident to an arrest. 3

2 After reviewing the videos and Officer Young’s testimony, it is clear that the trial court’s Finding of Fact No. 12 is a recitation of Officer Young’s testimony rather than a recitation of the col loquy on the video. The trial court’s Conclusion of Law No. 9 (“there was not intent to arrest Griffin”) confirms this determination.

3 Griffin was not indicted for the offense of evading arrest or resisting arrest.10 Conclusion
The trial court did not err or abuse its discretion in granting Griffin’s
motions to suppress. We overrule the State’s sole issue and affirm the orders of the

trial court.

Richard Hightower Justice

Pan el consists of Justices Lloyd, Kelly, and Hightower.
Do not publish. T EX

. R. A PP

. P. 47.2(b).