Adkins v. State

• Decision Date: 23 November 1988
• Docket Number: No. 512-87,512-87
• Citation: 764 S.W.2d 782
• Parties: Sammy Joe ADKINS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 782

764 S.W.2d 782

Sammy Joe ADKINS, Appellant, v. The STATE of Texas, Appellee.

No. 512-87.

Court of Criminal Appeals of Texas En Banc.

Nov. 23, 1988.

Jimmy Edwards, Odessa, for appellant.

Phil Pollan, Dist. Atty., Fort Stockton, Douglas M. Becker, Ray B. Goldstein, William M. King, Austin, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

W.C. DAVIS, Judge.

A jury convicted appellant of the offense of possession with intent to deliver tetrahydrocannibinal, over 28 but less than 400 grams, and assessed punishment at 15 years' confinement in the Texas Department of Corrections. See Tex.Rev.Civ.Stat.Ann. Art. 4476-15, Section 4.031. The Court of Appeals for the Eighth Judicial District reversed the conviction, holding the trial court reversibly erred in failing to suppress evidence seized under an invalid warrant. Adkins v. State, 675 S.W.2d 604 (Tex.App.--El Paso 1984). We vacated that judgment and remanded the case for a determination whether exigent circumstances existed to support the warrantless arrest of appellant. Adkins v. State, 717 S.W.2d 363 (Tex.Crim.App.1986) (Adkins I ). On remand, the appeals court found there were no exigent circumstances which justified the warrantless seizure, but upheld appellant's arrest pursuant to Art. 14.01, V.A.C.C.P. ¹ Adkins v. State, 726 S.W.2d 250 (Tex.App.--El Paso, 1987). We granted the appellant's petition for discretionary review to determine whether the appeals court erred in not limiting review to the question on remand, and whether that court erred in upholding the arrest under the auspices of Art. 14.01, supra. We will affirm.

The facts of the case are succinctly stated in our prior opinion and shall not be reiterated here at length. For purposes of this opinion it is sufficient to note the Approximately one week after the initial tip, the informant again contacted Renfro and told the officer of an impending transaction between appellant and Pollock. While Renfro went to secure a vehicle search warrant, Deputy Allen Bailey was sent to Pollock's residence to conduct surveillance on the expected transaction. The event unfolded as related by the informant. The two men parked at Pollock's house and went inside. Shortly thereafter, they left the house and entered the car. A few minutes later, the man later identified as appellant took a brown paper package from the back seat of his car and handed it to Pollock, who then left the vehicle and went inside the residence. Appellant returned to the bar from whence he came, picked up another individual and again drove off. At this time the warrant was executed. Officers seized loaded weapons in plain view, cash, marihuana and the hashish which is the focus of the instant offense.

record reflects the following facts. Upton County Deputy Sheriff Charles Renfro received a tip from a confidential informant that each week on a certain day a man approximately six feet tall, thin, with long blond hair, beard and mustache, driving a blue automobile would meet a man nicknamed "Pollock" at Nutt's Bar in McCamey. The two men would drive to Pollock's house, go inside for a short time, then return to the blue car where the described man would hand Pollock a package of drugs.

In his first ground for review, appellant contends the Court of Appeals erred in upholding the conviction in light of this Court's remand instructions to that court. Essentially, appellant is arguing that the Court of Appeals lacked the authority to go beyond those instructions. We cannot agree, both because appellant places an unduly restrictive interpretation on the instructions in our prior opinion, and because, upon remand from this Court, the exercise of the reviewing function of an intermediate appellate court is limited only by its own discretion or a valid restrictive statute. Carter v. State, 656 S.W.2d 468 (Tex.Crim.App.1983).

In Adkins I, supra, we held that the actual procuring of a warrant later found to be invalid does not preclude the use of exigent circumstances to justify a particular search. Adkins I, supra, at 365. Indeed, that is merely the beginning of the inquiry. When the warrant in question is found to be deficient, "the search should be treated as one proceeding without a warrant and the facts of the case should be reviewed to determine whether the search can be upheld under a warrant exception." Id. at 365-66. Subsequently, we remanded this cause to determine if any such exigent circumstances existed to support the warrantless stop and seizure of appellant and the evidence admitted at trial, noting along the way the "facts of the particular case (will) either excuse or proscribe the actions of the officers involved." Id. Our instructions on remand did not specifically limit the Court of Appeals's review to any particular section of Chapter 14 of the Code of Criminal Procedure.

Moreover, when a case is remanded to a lower appellate court, the jurisdiction originally granted to the court by constitutional and statutory mandate is fully restored by the order of abatement and remand. As this Court stated on rehearing in the case of Garrett v. State, 749 S.W.2d 784 (Tex.Cr.App.1988) (Garrett III):

[F]or this Court to issue an "order of remand" to restrict the court of appeals in renewed exercise of its own jurisdiction, power and authority would seem to be an impossible and unwarranted abridgement of constitutional grant of same to courts of appeals by Article V, § 6, Constitution of Texas, as implemented by Articles 4.03, 44.24 and 44.25, V.A.C.C.P.

At 787.

For these reasons we conclude that the Court of Appeals was within its authority in reviewing the warrantless stop and search of appellant in light of the warrant exception found in Art. 14.01, supra. Appellant's first ground for review is overruled.

In his second and final ground for review appellant contends the Court of Appeals erred in concluding the crime was committed within the officer's presence. He also takes issue with the fact that he was not given the opportunity to brief or argue the question of a proper Art. 14.01, supra, arrest. Initially, we note that appellant's ground for review is multifarious and presents nothing for review. Morin v. State, 682 S.W.2d 265 (Tex.Cr.App.1983), and cases cited therein. Moreover, given our discussion of the appeals court's inherent powers when jurisdiction is originally vested or later restored by remand, ante, and the lack of any authority cited in support of the latter argument, we decline to address appellant's latter complaint. Due to the posture of this case, however, we will turn our attention to the question of whether a crime was committed within the presence of a peace officer so as to justify the warrantless seizure and search in this cause.

For purposes of the case before us, a police officer may arrest an individual without a warrant only if (a) there is probable cause with respect to that individual, and (b) the arrest falls within one of the exceptions specified in Art. 14.01, supra. See Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959); Lunde v. State, 736 S.W.2d 665 (Tex.Crim.App.1987); Delgado v. State, 718 S.W.2d 718 (Tex.Crim.App.1986), and cases cited therein; Self v. State, 709 S.W.2d 662 (Tex.Crim.App.1986).

The test for determining the existence of probable cause for a warrantless arrest has been stated as follows:

Whether at that moment the facts and circumstances within the officer's knowledge and of which (he) had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the arrested person had committed or was committing an offense.

Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); Lunde, supra; Britton v. State, 578 S.W.2d 685 (Tex.Crim.App.1979); Brown v. State, 481 S.W.2d 106 (Tex.Cr.App.1972). An investigating officer's mere suspicion, hunch or "good faith perception," without more, is insufficient to constitute probable cause for an arrest. Fatemi v. State, 558 S.W.2d 463 (Tex.Crim.App.1977); Ceniceros v. State, 551 S.W.2d 50 (Tex.Crim.App.1977). Moreover, "the perceived events must be out of the ordinary, suspicious and tie a subject with a criminal act." Lunde, supra, at 667. Cf. Glass v. State, 681 S.W.2d 599 (Tex.Crim.App.1984) and Armstrong v. State, 550 S.W.2d 25 (Tex.Crim.App.1976) [the observed individual's conduct alone cannot be as consistent with innocent activity as with proscribed, criminal conduct]. However, Art. 14.01 arrests have previously been sanctioned when an individual's conduct, while not overtly criminal by itself, is coupled with an officer's prior knowledge so that the otherwise innocuous conduct reflects that an offense is then occurring. See Lunde, supra; Miller v. State, 458 S.W.2d 680 (Tex.Crim.App.1970). To determine whether probable cause exists, the Court must look to the "totality of the circumstances." Whaley v. State, 686 S.W.2d 950 (Tex.Cr.App.1985).

Turning to the facts of the case at bar, we hold that the circumstances combining the personal observations of the officer conducting surveillance with the prior knowledge of the officers allowed a warrantless arrest under Art. 14.01(b), supra. One week before the arrest, Officer Renfro received information from a confidential source who had previously provided correct information to him. The informant told Renfro that each week on a certain day a man closely matching appellant's description and driving a blue automobile would meet a man nicknamed Pollock at Nutt's Bar in McCamey. The two men would drive to Pollock's house, go inside for a short time, then return to the automobile and exchange drugs for money. The informant also related that he had personally seen the man matching appellant's description sell cocaine, hashish, marihuana and pills. Renfro was himself familiar with Pollock's (real name David Martinoleskowitz) reputation as...