Acosta v. State

• Decision Date: 08 September 1982
• Docket Number: No. 04-81-00327-CR,04-81-00327-CR
• Parties: Armando ACOSTA, Appellant, v. STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 381

640 S.W.2d 381

Armando ACOSTA, Appellant, v. STATE of Texas, Appellee.

No. 04-81-00327-CR.

Court of Appeals of Texas San Antonio.

Sept. 8, 1982.

Juan Martinez Gonzales, Beeville, for appellant.

Stella Saxon, Asst. Dist. Atty., Karnes City, for appellee.

Before KLINGEMAN, BUTTS and CLARK, JJ.

OPINION

BUTTS, Justice.

This is an appeal from an order revoking probation. On June 5, 1978, the appellant entered a plea of guilty before the court to the offense of possession of marihuana in an amount over four ounces, a felony. The court assessed punishment at eight (8) years' imprisonment, but suspended imposition of sentence and placed appellant on probation. One condition, among others of the probation, was that appellant shall "neither commit nor be convicted of any offense against the laws of the State of Texas, any other State or the United States." In its second amended petition for revocation, filed on April 3, 1981, the State alleged appellant had committed three offenses, all possession of marihuana of less than two ounces, during his probationary period. Although other violations of the conditions of probation were alleged, they were not proved. The court based its revocation order on these three offenses, all occurring in Karnes County. Appellant challenges the order on ten grounds. We find no merit in the arguments and affirm the order of the trial court.

In his first ground of error appellant asserts his constitutional right to subpoena and question at the revocation hearing the members of the grand jury which indicted him for the primary offense, the subject of the revocation hearing. The trial judge quashed the subpoenas and dismissed the grand jurors. We hold the trial court acted correctly. Appellant did not appeal from the judgment in 1978. Tex.Code Crim.Pro.Ann. art. 44.08(c) (Vernon Supp.1982). He may not now challenge the indictment, by going behind its valid face. ¹ Carpenter v. State, 477 S.W.2d 22, 23 (Tex.Cr.App.1972). Had there been any question of the validity of the indictment because of failure of the grand jury to follow the applicable Texas Constitutional provisions and laws, the time to challenge the grand jury evidence was before trial in 1978. A challenge to the composition of the grand jury must be timely raised or it is barred. Rodriguez v. State, 597 S.W.2d 917, 918 (Tex.Cr.App.1980). The same reasoning applies to a challenge of grand jury actions in returning an indictment. Challenge to the array may be by a motion to quash the indictment before trial. See also Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973) in which the Supreme Court ruled a state prisoner, after pleading guilty, could not collaterally attack the indictment to which he pled, even though the indictment may have been returned by an unconstitutionally selected grand jury. Tex.Code Crim.Pro.Ann. art. 19.27 (Vernon 1977) has been interpreted to mean that the array must be challenged at the very first opportunity. Muniz v. State, 573 S.W.2d 792, 796 (Tex.Cr.App.1978), cert. denied 442 U.S. 924, 99 S.Ct. 2850, 61 L.Ed.2d 291 (1979). Appellant's contention is without merit.

Appellant, in his second ground of error, argues the trial court denied him a "comprehensive hearing" before revocation of his probation. Appellant relies upon Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) which required for certain probationers the same kind of hearing afforded parolees as enunciated in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), that is, a preliminary "probable cause" hearing when the parolee is arrested and, in addition, a hearing before revocation. In Texas the probationer, unlike the one in Scarpelli, has not yet been sentenced when his probation is revoked. It is for this reason that counsel must represent an accused at revocation proceedings in Texas. The statutory proceedings for revocation in this State, Tex.Code Crim.Pro.Ann. art. 42.12 et seq. (Vernon 1979; Supp.1982), have been upheld as constitutional. Richardson v. State, 487 S.W.2d 719 (Tex.Cr.App.1972), cert. denied 411 U.S. 972, 93 S.Ct. 2167, 36 L.Ed.2d 694 (1973). The Court of Criminal Appeals construed the effect of Scarpelli, supra, Morrissey, supra, and Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967) on Texas revocation (and sentencing) hearings and determined that Scarpelli is not applicable to Texas probation revocation proceedings. Ex parte Shivers, 501 S.W.2d 898, 900-901 (1973). We adhere to this ruling and overrule the second ground of error.

In his third ground of error appellant raises for the first time on appeal the State's failure to prove compliance with Sec. 6 of the probation statute, supra. This section provides that the clerk of the court shall furnish a copy of the terms and conditions of the probation to the probationer and shall note the date of delivery of the copy on the docket. Appellant does not contend he did not know the conditions.

The duty is plainly codified in the probation statute. But an order revoking probation is not void even though there is no proof of performance of the duty when there was no question raised at the revocation hearing. The question of performance of the duty may not be raised for the first time on appeal. Bush v. State, 506 S.W.2d 603, 605-606 (Tex.Cr.App.1974). The probation officer testified that appellant received and understood the terms and conditions of his probation, thus accomplishing the primary purpose of Sec. 6 of the statute. Stevenson v. State, 517 S.W.2d 280 (Tex.Cr.App.1975). The contention is without merit.

In his fourth ground of error appellant asserts the State painted a false picture by the testimony of the probation officer,

"I explained each rule individually [conditions of probation], and asked him if there was (sic) any questions, and if there isn't (sic), I have him sign his name stating that they (sic) understand those rules ... He [appellant] said he understood them and signed his name showing I had given him the rules and that he understood them."

We do not agree with appellant's statement that this is perjured testimony indicating falsely the appellant signed the judgment in the cause, and that the absence of the signature of appellant on the judgment indicates he did not receive a copy of the conditions of probation and did not understand them. The record shows the probation officer simply testified that appellant signed his name, not to the judgment, but to a statement of the probation office. On cross-examination the probation officer again repeated that appellant signed his name signifying he understood the conditions. We find there was no "false picture of the facts" presented by the State. This contention is overruled.

Appellant, in grounds of error five, six, and seven, challenges the trial court's failure to suppress the evidence (marihuana) obtained in searches by peace officers on three occasions. Constitutional protection under the Fourth Amendment to the United States Constitution and the Texas Constitution Art. I, Sec. 9 against unreasonable search and seizure extends to probationers. Davis v. State, 576 S.W.2d 378 (Tex.Cr.App.1978). The trial court in this case conducted a suppression hearing covering the three instances. All three incidents began with the automobiles in which appellant rode as the front seat passenger being stopped for traffic violations. Different officers conducted each stop and search.

On November 20, 1980, Department of Public Safety Trooper David Bradshaw stopped an automobile for speeding in Karnes County. Before the car came to a stop, a distance of about a quarter of a mile, Bradshaw observed a great deal of movement between the two occupants, the driver and passenger. The passenger disappeared at one time onto the floorboard. After talking with the driver away from the car, the officer opened the door on the passenger side "because of the unusual action of the passenger ... the unusual way that the vehicle was stopped ... the unusual motion that the passenger made toward the front seat ... appellant facing straight ahead the entire time ... the nervousness of the driver and the reluctancy to identify the passenger." He had the passenger step out for his own safety "where I could see him, and no weapons were obvious." At that time he smelled "a strong odor of burned marihuana." He saw marihuana seeds on the floorboard by the passenger's seat in the car. A search of appellant revealed a white envelope which contained a baggy of marihuana inside his underwear at his crotch.

Appellant argues this search was illegal because a search incident to arrest does not justify a body cavity search in daylight on a public street. We find nothing in the record indicating the appellant had been placed under custodial arrest before the search, therefore, we conclude this was not a search incident to custodial arrest. See U.S. v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). We also conclude this was a search which was not based upon probable cause. (We note, incidentally, that the search was not of a body cavity.) The circumstances leading to the search of appellant and the discovery of marihuana on his person failed to give rise to probable cause to search him. "[V]ague suspicion cannot be transformed into probable cause." Brown v. State, 481 S.W.2d 106, 111 (Tex.Cr.App.1972). We hold the evidence should have been suppressed.

We do not agree with appellant's contention in ground of error six that evidence of contraband was illegally obtained. On March 1, 1981, officer Jimmy Burns of the Kenedy Police Department and fellow officer Edwin Jalufka were "working radar." They saw the automobile in which appellant was the passenger going sixty-four miles per hour in a forty mile zone. They turned on their overhead lights and their bright lights; the time was approximately 2:40 a.m. The police car followed the other car...