Brown v. State

• Citation: 617 S.W.2d 196
• Decision Date: 25 March 1981
• Docket Number: No. 65431,No. 3,65431,3
• Parties: Clifford James BROWN, Appellant, v. The STATE of Texas, Appellee
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 196

617 S.W.2d 196

Clifford James BROWN, Appellant, v. The STATE of Texas, Appellee.

No. 65431.

Court of Criminal Appeals of Texas, Panel No. 3.

March 25, 1981.

Rehearing Denied July 1, 1981.

Allan K. Butcher, J. Don Carter, Fort Worth, for appellant.

Tim Curry, Dist. Atty., William Kane, John Bankston, George Mackey and James J. Heinemann and C. Chris Marshall, Asst. Dist. Attys., Fort Worth, Robert Huttash and Alford Walker, State's Attys., Austin, for the State.

Before ROBERTS, ODOM and CLINTON, JJ.

OPINION

CLINTON, Judge.

This appeal is taken from a conviction on appellant's plea of nolo contendere to the offense of possession of heroin. The trial court assessed punishment at four years imprisonment pursuant to a negotiated plea bargain. On December 11, 1979 the trial court conducted a hearing on appellant's motion to suppress. Immediately following the trial court's denial of that motion, appellant was then tried before the judge, and his plea of nolo contendere was entered. During his trial on the merits the evidence adduced at the pretrial hearing was offered into evidence as a stipulation. In appellant's sole ground of error he complains that the trial court erred in denying his motion to suppress because the evidence was seized in contravention of the Fourth Amendment of the United States Constitution, and the Texas Constitution, Article I, § 9. Appellant contends that the search was conducted without a warrant, and does not come within any recognized exception to the warrant requirement. The State urges that the "plain view" exception to the warrant requirement should apply here.

However, in order to determine if we may reach this ground of error we must initially delve into the provisions of Article 44.02, V.A.C.C.P. ¹

At the outset we note that Article 44.02, supra, specifically applies with equal force to either pleas of guilty or pleas of nolo contendere, in which there has been a plea bargain accepted by the trial court. ² See Article 27.02(6), V.A.C.C.P., Sowell v. State, 503 S.W.2d 793, 795 (Tex.Cr.App.1974) and Lucero v. State, 502 S.W.2d 750, 752 (Tex.Cr.App.1973). Secondly, an erroneous ruling on a motion to suppress will not vitiate a conviction where the evidence sought to be suppressed is not introduced, and the nolo contendere plea is supported by independent evidence, other than that contested by the motion. Ferguson v. State, 571 S.W.2d 908, 909 (Tex.Cr.App.1978), and Brewster v. State, 606 S.W.2d 325, 328 (Tex.Cr.App.1980), and cases cited therein.

Here, although the heroin itself was not introduced, there was the stipulated testimony of the chemist who analyzed the contents of a particular green balloon. This testimony is also the fruits of the arrest and search, Brewster, supra, at 328.

As to the question of any independent evidence which remains unchallenged and whether it is sufficient to support a conviction, we wrote in Brewster, supra at 328:

"The review exercise is much like the search of the appellate record for a judicial 'confession' or 'admission' deemed adequate to show guilt notwithstanding an unauthorized oral stipulation, a flawed written stipulation or some similar defect in evidencing guilt. See the exhaustive treatment, pro and con, in Dinnery v. State, 592 S.W.2d 343 (Tex.Cr.App.1980)...."

Our search of the record in this case reflects that the evidence introduced at the pretrial hearing primarily consisted of the testimony by the arresting officer, Patrolman Maples. The only other witness called was the director of the crime laboratory of the Fort Worth Police Department, who appeared as the result of appellant's subpoena. His testimony consisted largely of a report of the items seized, and that, among other things, there were two balloons found to be containing a powder; one was identified to be heroin, and one was not. Appellant did not take the stand and, as mentioned, his trial was held immediately thereafter.

During this trial appellant made no oral or written stipulations of evidence that could be characterized as a judicial confession, i. e., there is no statement that the allegations of the indictment were true and correct. Neither was he sworn in as a witness before the careful trial judge admonished him and then accepted his plea of nolo contendere and the negotiated plea bargain. Cf. Dinnery v. State, 592 S.W.2d 343 (Tex.Cr.App.1980). In fact, great care was taken to inform appellant of his right to appeal the ruling, as the following excerpt from the transcription of the court reporter's notes demonstrates:

"THE COURT: All right.

Now, the Court finds that prior to your entering your plea of nolo contendere in this case, this Court conducted a hearing in open Court on the record in regard to the motion filed on your behalf by your attorneys, same being a Motion to Suppress the Evidence.

The Court further finds as a fact that at the hearing and trial on your plea of nolo contendere, that you did not take the witness stand and did not judicially confess to the offense charged against you in this Indictment.

It is the understanding of the Court, therefore, that though you do not have a right to appeal for your conviction on your plea of nolo contendere in this case, you do have a right to appeal this Court's decision on the Motion to Suppress.

Now, those being the circumstances, do you wish at this time to give notice of your intention to appeal this conviction and the Court's decision, or do you wish to waive that right as you waived your right to a trial by jury?

THE DEFENDANT: I want to appeal."

Thus we hold that appellant has successfully navigated the procedurally hazardous passageway of Article 44.02, supra, and preserved his right to appeal denial by the trial court of his motion to suppress. Having reached the search and seizure issue, we now reverse the ruling of the trial court, because we believe that the instant seizure cannot be validated on the strength of the facts before us.

The facts show that Officer Maple stopped appellant's 1970 Buick on the evening of June 18, 1979 as part of a routine and nonrandom license check being operated in the 1200 block of East Allen Street in East Fort Worth. When asked to produce his driver's license, appellant put his hand into the right front pocket of his trousers. On direct examination, Patrolman Maples testified as follows:

"Q (Prosecutor): When he put his hand in his pocket, did you do anything with the flashlight?

A: Not immediately, I didn't.

Q: All right.

Was there you say not immediately. Did you at some point in time shine the light in the car?

A: Yes, sir, I did.

Q: All right, and why did you do that?

A: His hand was in his pocket too long and it worried me.

Q: All right, and he pulled his hand partially out of his pocket. Was there anything in his hand?

A: There were two items. There was a, what I believe was a dollar bill that was partially folded and there was a small green balloon stuck between his fingers."

On cross examination the following testimony was elicited:

"Q (Defense Attorney): Now, basically, as a matter of fact, your arrest of Clifford James Brown was based on your suspicion that he did have a controlled substance in that balloon; is that correct?

A: Yes, sir, that is.

Q: Could you describe the size of the balloon for us, Officer?

A: It was a tip end of a I can't well, it was a balloon, probably would be about as large, you know not filled with anything just my little finger and it was just about that much (indicating) of the tip end of a balloon.

Q: When you say that much, could you give the reporter an estimate of the size and length that you are talking about?

A: Probably mashed down the balloon was maybe probably less than an eighth of an inch, but it was probably half of an inch long, maybe, from the tip to where it's tied.

Q: Is that what you based your arrest of this gentleman on?

A: Yes, sir.

Q: The sight of that balloon?

A: Yes, sir, that's correct."

Appellant then looked in the glove compartment of the car, still seeking his driver's license; as he did so the officer testified that he saw some empty plastic vials, a white powdery substance which was later determined not to be a controlled substance and a bag of party balloons. More importantly on direct examination, the officer candidly admitted the following:

"Q (Prosecutor): All right.

Have you ever made any arrests personally or been involved in any sort of situations where arrests were made where narcotics were stored in a plastic vial of the same nature that you saw in the glove box?

A: Personally I haven't seen it in the plastic vials."

After the green balloon was dropped on the seat, Patrolman Maples ordered appellant to exit the car; he then reached into the car and seized the green balloon.

We do not here question either the validity of the officer's initial stop of appellant's vehicle as a part of a license check. Cf. Faulkner v. State, 549 S.W.2d 1 (Tex.Cr.App.1976), nor the propriety of the arrest since appellant failed to produce a driver's license. What we do question is the sole argument advanced by the State that the green balloon seized was in "plain view" incident to a lawful arrest.

Significantly, the state overlooks the first limitation on the "plain view" doctrine: "(T)hat plain view alone is never enough to justify the warrantless seizure of evidence." (Emphasis in original) Coolidge v. New Hampshire, 403 U.S. 443, 468, 91 S.Ct. 2022, 2039, 29 L.Ed.2d 564 (1971).

For the plain view doctrine to apply, not only must the officer be legitimately in a position to view the object, but it must be immediately apparent to the police that they have evidence before them. This "immediately apparent" aspect is central to the plain view exception and is here relied on by appellant. ³ Howard and Coolidge, both supra. In this case then, Officer Maples had to know that "incriminatory evidence was before him when he seized the balloon." DeLao v. State,...