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Jones v. State

An officer's failure to testify that he was afraid of the suspect does not automatically invalidate a pat-down search for weapons.

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A jury convicted appellant Leroy Jones of possession of less than one gram of cocaine and assessed punishment, enhanced by prior felony convictions, at fifteen years’ confinement in the Texas Department of Criminal Justice Institutional Division. See Tex. Health & Safety Code Ann. � 481.115 (West Supp. 2002); Tex. Penal Code Ann. � 12.42 (West Supp. 2002). On appeal, he contends the district court erred in denying his motion to suppress. We will affirm.

Austin Police Officer Paul Kaderli testified that at about 8:00 p.m. on November 2, 1999, he was riding a bicycle on duty in the Sixth Street area, assisted by another uniformed bicycle officer. Kaderli received over his radio the description of a suspect in an undercover drug buy. The suspect was described as a black male wearing blue jeans, a blue sweatshirt, and a blue baseball cap, last seen walking down a pedestrian underpass to Waller Creek; Kaderli was given no information about the suspect’s possible age, height, weight, complexion, or facial hair. Kaderli and his partner entered the pedestrian tunnel and saw a black man wearing a blue sweatshirt, dark jeans, and a dark baseball cap; Kaderli identified Jones as that man. Jones was about half a street width away, he was facing away from Kaderli, and his hands were in front of him. Kaderli could not see what, if anything, Jones was holding, but he did not see anything sticking out of Jones’s clothes.

Kaderli approached Jones from behind; he did not think Jones knew the officers were there until Kaderli spoke. Kaderli said “for my own protection I wanted to see [Jones's] hands,” so he told Jones, “Police officer, show me your hands.” Jones complied and put out his hands, in which he had a brass copper pipe and a razor blade. Kaderli saw a white substance on the end of the crack pipe. He said, “I wasn’t necessarily in fear of my own safety, but I was making sure that I was going to be safe. That’s why I asked to see his hand.” When asked whether safety was the sole reason he asked to see Jones’s hands, Kaderli replied,

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