NO. 07-02-0348-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL B FEBRUARY 12, 2004

______________________________ PATRICK

EUGENE NASH, Appellant

v. THE STA

TE OF TEX

AS, Appellee

_________________________________ FROM THE 64 TH DISTRICT COURT OF HALE COUNTY; NO. B14446-0205; HON. JACK R. MILLER, PRESIDING

_________________________________ Memorandum Opinion

__________________________________ Before JOHNSON, C.J., and QUINN and CAMPBELL, JJ. Appellant

Patrick Eugene Nash appealshis conviction for possession of a controlled subs tan ce in an amount of one gram or more but less than four grams. Four issues allegedly justifyin g reversa l are asserted. Each in volves w hether th e trial court abus ed its discretion in denying appellant’s motion to suppress. One involves whether there was no “probable c ause tosearch” h im, two i nvolve w hether th ere was i nsuffici ent evid ence to justify an arrest, and another involves whether the search was not “a permissible stop and2

frisk.” The last issue need only be addressed for it is dispositive of the ot hers. We reform the judgme nt of the trial cou rt and, as reformed, affirm it. Background At10:39 p. m., on Apr il 15, 20 02, the l ocal pol ice disp atcher, La rryRocha, received

an anonymous call. The person told Rocha that an individual inside a black Ford Explorer in front of 105 East Brazier Street was “‘disturbing [the] peace.’” Rocha asked what he meant, and the caller responded by saying that “he was playing his musi c too lou d . . . .” The caller also gave Rocha thevehicle’s license number and, before disconnecting the line, said, ”oh yeah, he keeps his dope in his right sock.” At that point, Rocha dispatch e d several officers to

the scen e to inve stigate. One of the fir st policemen to respond was Officer Ward. Ward found an Ex plorer with the license number described by the anonymous ca ller at the Brazier Street address. So too did he hear music coming from the vehicle. Upon arriving at the scene, Ward exited his patrol car and approached. Several individ uals around the Explo rer began “backing off.” Ward “instructed them to come back in the street and speak wi th” him. A t that poi nt, Ward turned and saw another person (identified as De rek H ead) “throw a small bag containing a white rock substance.” Though Ward described H ead as being within “close proximity” to the ve hicle, a nother of ficer sai d that War

d removed or talke d Head i nto exiting the Explorer. Nevertheless, Head was arrested, and the substance in the bag was determined to be cocaine. A second officer, John Poole-Williams, had also responded to the police dispatch. Knowing the area to be one involving high d rug traffic, he arrived at the scene momentarily after Ward, and saw the Explorer. The front door of the vehicle was open, and appellant3

satinside on the fro nt seat. Though the officer was not previ ously in formed of the iden tity of the person about whom the complaint was made, Pool e-Williams recognized appella nt. The latte r “was a k nown dru g dealer .” After seeing Ward ret rieve “some dope” from Head, Poole-Williams approached appell a ntand asked him to step out of the vehicle to undergo a pat-down for weapons. The officer believed that appellant “might be involved in narco tics ac tivity” and knew that weapons may be used by those engaged in that activity. During the pat-down, a plastic bag was di sco vered in appellant’s pocket. From experience, P oole-Williams knew that “contraband” and “weapons” were often wrapped in plastic as a means of concealing their identity. The ite m removed, however , contained money, and the pat-down continued. As the officer came to ap pellant’ s sock, an other item was discovered. The officer asked appellant

what it was, towhich question appellant responded that i t was “nothing.” Then, the officer reached down and removed it. As the officer did so, appellant ran away. The item foun d in the sock cons isted of a “rock-li ke substa nce.” Appellant

was later arrested and indicted for the offense of posses sion of a controlled substance in an a mount of f our gramsor more but less than 200 grams. After the court overruled his motion to suppress, he pled gui lty, via a p l ea barga in agree ment, to the lesser offense of possession of a controlled substance in an amount of one gram or

more but less than four grams. The trial court found him gui lty of the latter off ense. Thereafte r, he wasgranted permissi on to app eal. Issue Four - Pat Down Search Through his fourth issue, appellant contends that the search cannot be justified as

a legitimate stop and frisk. This is so because P oole-Williams detained appellant based4

upon nothing more than “the call from an unknown loca tion by an un known call er.” He personallywitnessed no criminal act ivit y nor had basis to conclude that appellan t was armed or d angerous . We over rule the issue. Standard of Review The standard of review is one of ab used di scretion, as described in Guzman v. State, 955 S .W.2d 85 , 89 (Tex . Crim. Ap p. 1997), Benitez v. State, 5 S.W.3d 915, 921 (Tex. App.–A mar illo 1999, pet. ref’d), and LaSalle v. State, 923 S.W.2d 81 9, 823 (Tex. App.–Amarillo 1996, pet. ref’d). Furthermore, when no finding s of factare executed as here, we must v iew the evidence in a lig ht favorab le to theruling. Statev. Ross, 32 S.W.3d 853, 855(Tex. Cr im. App. 2 000). Next, one may be temporarily detained when an officer has specific and articulable facts that, when combined with rational inferences from those facts, would l ead the officer to reasonably suspect the detainee has engaged or is (or soon will be) engaging in crimin al activity. Garcia v. State , 43 S.W.3d 527, 530 (Tex. Crim. App. 2001). The standard is obj ective. Id. Thus, th e subject ive inte nt of the officer i s irrelevant. Id. Additionally, we address t he questi on by con sidering the total ity of thecircumsta nces. Id. Next, once a pers on is detained, then a pat-down search during a detention is permissible when the police officer reasonably suspects he is dealing wi th an armed and dangerous individ ual. Davis v. State , 61 S.W.3d 94 , 97 (Tex. App.–Ama rillo 20 01, no pe t); Maldonadov. State, 853 S.W.2d 74 6, 748 (T ex. App. –Houston [1 stDist.] 19 93, no pe t.) (citing Terry v. Oh io, 392 U.S. 1, 2 7, 88 S .Ct. 1868, 1883, 20 L.Ed.2d 889 (1968)). This does not mean that the officer mustbe absolutely certain that the individual is armed; nor does the officer have to have probabl e cause to arrest. Davis v. State , 61 S.W.3d at 97.5

Rather, the issue is whether a reasonably prudent person in the same circumstances would be warranted in believing that his safety or that of others i s in dan ger. Id.; Carmouche v. State , 10 S.W.3d 323, 329(Tex. Cr im. App. 2000) (stating that the officer m ust have before him specificand arti culablefacts rea sonably leading him toconclude that the suspect might possess aweapon)

. Applica tion of th e Standa rd Though an anonymous tip rarely establishes the requis ite s uspicio n necess ary to justify an initi al deten tion, it u sually w ill justi fy the in itiation of an in vestigati on. Garcia v. State , 3 S.W.3d 227, 234 (Tex. App.–Houston [14 th Dist.] 1999), aff’d on other grounds , 43 S.W.3d 527 (Tex. Crim. App. 2001). Here, the anonymous tipster i nformed the police that someone was “disturbing the peace” by playing loud music outdoors at 10:39at night, at

a specific street address, and from a specific vehicle. So too were the officers told of possibl e drug in volvemen t. Thatthe caller also informed the officers of the rather unique location of the drugs possessed by appel lant tend s to indi cate that he had so me pers o nal knowledge of the contraband

. This, coupled with the iteration of a specific type vehicle, a specific license number of the vehicle and a specific location of the vehicle, constitute some indicia of the reliabi lity of the ti p. See Garcia v. State , 3 S.W.3d at 237-38 (discussing the variousindicia of reliabi lity

to look for). In any case, the circumstances entitled the poli ce to begin an investig ation. When the first officer arrived, he confirmed the presence of the sp ecific Explorer mentioned in the police dispatch and its broadcast of music la te at night at the location given by the ti pster. This provided some confirmation of the complaint about the purported6

disturbance and again justified further investigation. As the officer di d so, v arious of the individuals present a t the scen e began to scatter . So too did anot her, who was in or around the Explorer, attempt to rid himself of an object. These furtive gestures undertaken in response to an officer approaching could reasonably be said to evince a consciousness of guilt. They

also provided additional basis to continue the investigation, and temporarily detain those in and around the Explor er to conf

irm or to n egate whether crime was afoot. Next, among the individuals found at the scene was appellant. The offic ers knew him to be a drug dealer. Moreover, the area in which he was found was known for its high incidence of drug activity. And, there he sat in the front seat of the Explor er from which emanated the music and from which another occupant had tried to discard an object as the police a pproache d. The nature of

the complaint

by the anonymous caller, the time of night, the location of the disturbance, and appellant, his reputation, and his presence with others who attempted to flee or rid themselves of objects with which they did not want to be discovered tended to corroborate the anonymous tip and could lead an officer to reasonably conclude thatcrime wa s afoot a nd appell ant was i nvolved in it. Th us, the of ficers we re entitl ed to temporarilydetain him. And , that thecrime involved not only disturbing the peace but also narcotics justified the frisk undertaken of appellant for weapons. As our Court of C riminal Appeals has said , the natu re of the suspecte d crimina l activi ty may provide basis for officersto reasonabl y c oncludethat a de tainee i s armed an d danger ous. Carmouche v. State , 1 0 S.W.3d a t 330. Mo reover, i t is rathe r settled that wea pons and violence are freque ntly as sociated with dru gs, thus j ustifyin g a frisk for weapo ns. Id. And, that the officer may have thoug ht to sear c h for both weapons and narcotics while frisking the1 Appell ant does not complain about t he search exceeding the scope author ized by t he circumstance s

.

So, w e do n ot addre ss that m atter. 7 detaineematters no t, so lon g as he h ad legit imate bas is to frisk for weapons. Again, the subjective intent of the off icer is i rrelevan t. Garcia v. State , 43 S.W.3 d at 530. Given the totality of the circumstances appearing of record, the trial court had ample evidence upon which to conclude that Poo le-Willi ams had reasonable suspicion to detain and frisk app ellant. 1 Because it did, we cannot say that it abused its discretion in refusing to suppress

the evid ence ult imately d iscovere d on app ellant’ s person. Finall y, since th e officer had reasonable suspicion to do that which he did, i t does not matter whether he also had probable cause to search. Probable cause was not needed, given the existence of reasonable suspicion, and this obviates the need to address appellant’s first three issues. As an aside, we note that the reporter’s record from the hear ing on a ppellan t’s guil ty plea revealed that

the trial court found appellant guilty of the lesser offense of possession of a controlled substance in an amount of one gram or more but less than four grams. That offense is a third de gree felo ny. Howe ver, the ju dgment co ntained in the cl erk’s record shows that appellant was convicted of the offense for which he was originally indicted, that being possessi on of a co ntrolled substance in an a mount of f our grams or more bu t les s than 200 g rams. The latter is a felony of the second degree. Thus, the judgment inaccuratelyreflects the offense for which appellant was convicted v ia the plea bargain. We have the power to correct that by reformi ng the jud gment. Nolan v. State, 39 S.W.3d 697, 698 (Tex . App.–Ho uston [1 stDist.] 20 01, no pe t.). We do so now. The ju dgme nt of the trial court is reformed to show that appellant was convicted of the offense of possession8

of a c o ntrolled substance in an a mount of o ne gram o r more but less tha n four gra ms, a third degree felony. As reformed, the judgment is affirmed.

Brian Quinn Justice Do not publish.