Albert v. State

• Decision Date: 24 March 1983
• Docket Number: No. B14-82-317CR,B14-82-317CR
• Citation: Albert v. State, 659 S.W.2d 41 (Tex. App. 1983)
• Parties: Kenneth William ALBERT, Appellant, v. The STATE of Texas, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 41

659 S.W.2d 41

Kenneth William ALBERT, Appellant, v.The STATE of Texas, Appellee.

No. B14-82-317CR.

Court of Appeals of Texas Houston (14th Dist.).

March 24, 1983.

Rehearing Denied April 20, 1983.

Allen Isbell, Houston, for appellant.

J. Sidney Crowley, Casey O'Brien, Houston, for appellee.

Before PAUL PRESSLER, ROBERTSON and CANNON, JJ.

PAUL PRESSLER, Justice.

Appellant appeals his convictions for possession of less than 200 grams of methaqualone and for carrying an illegal knife.The causes were consolidated.Trial was to the court.Punishment was assessed in each case at confinement in the Harris County Jail for three days with credit for two and a fine of $250.00.We affirm the judgment of the trial court.

On December 7, 1981, Edward Harold, a Harris County Deputy Constable, was told by a Klein Forest school security guard that several juveniles had reported seeing a black male in a tan vehicle selling drugs from the parking lot of the Stop-n-Go convenience store across the street from the Klein Forest Schools.The school security guard told Harold that the car had been parked in the Stop-n-Go parking lot from 6:00 to 9:00 a.m. for several days.

On December 8, at approximately 7:15 a.m. Constable Harold observed fifteen or sixteen juveniles from elementary to high school age congregated around an automobile in the Stop-n-Go parking lot.Harold pulled into the parking lot and the juveniles "immediately dispursed."Harold then noticed three or four people sitting in a two door tan automobile.Appellant, a white male, was sitting in the driver's seat.Harold testified that another juvenile may have been sitting in the front passenger's seat next to appellant.Two other juveniles were sitting in the back seat.

Harold parked his car about fifteen feet from appellant's vehicle.As Harold got out of his car the doors of appellant's vehicle "were flung open" and the juveniles quickly began exiting the vehicle.Just before the juveniles left, Harold saw appellant lean forward and reach underneath the driver's seat.One of the juveniles in the back seat leaned forward and moved as if to shove something underneath the driver's seat from behind.Harold testified that once outside the vehicle, appellant and the other juveniles attempted to walk away.Appellant testified that he began walking toward constable Harold to see what was wrong.Harold told the appellant and a second juvenile to remain where they were.The third juvenile disappeared into the crowd of youngsters and remains unidentified.Harold then searched the automobile.Underneath appellant's seat Harold found a marijuana bong and a tray of a useable quantity of marijuana.A "martial arts throwing star", or shuriken, was partially protruding from underneath the floor mat in front of appellant's seat.Underneath the front seat on the passengers side Harold found "58 mandrax tablets in assorted wrappers."Harold placed appellant and the other juvenile under arrest.The automobile was registered in appellant's family's name.Prior to trial appellant filed a motion to suppress the evidence and a hearing was had thereon.The motion to suppress was overruled.

Appellant brings five grounds of error.Three grounds are brought concerning the "martial arts throwing star."Two grounds are brought concerning the methaqualone.The first and third grounds regarding the "martial arts throwing star" are identical to both grounds regarding the methaqualone and will be discussed as appellant's first and third grounds of error.

In his second ground, appellant contends the State failed to prove that the object found under the floor mat is an illegal knife because there is no evidence that it was designed to cut or stab another by being thrown.We disagree.At the trial the State offered the record of the motion to suppress hearing as evidence.It was admitted without objection.Constable Harold testified at the hearing that the object he found underneath the floor mat was a "martial arts throwing star."He described it as having seven or eight points, like a saw blade, and very sharp.He further stated that "if thrown with any accuracy it's going to strike wherever it's thrown."In Texas an illegal knife includes "a hand instrument designed to cut or stab another by being thrown."TEX.PENAL CODE ANN. § 46.01(6)(B)(Vernon 1975).No objection was made to Harold's testimony or his qualifications when the State introduced such evidence at trial.Absent an objection, such testimony is sufficient to bring the device within the language of the statute.Appellant's second ground of error is, therefore, overruled.

In his first grounds of error appellant contends the court erred in not suppressing the evidence seized from the automobile because officer Harold did not have sufficient facts to justify the initial stop or the warrantless search.We find no merit to this contention.

An investigative stop is justified if the officer, in light of his experience and general knowledge, can point to specific and articulable facts which, together with rational inferences from those facts, warrant the intrusion on the person stopped for investigation.Reasonable cause for an investigative stop can be based on information supplied by third persons, Brem v. State, 571 S.W.2d 314(Tex.Cr.App.1978), a police radio call or an anonymous telephone call.Ferguson v. State, 573 S.W.2d 516(Tex.Cr.App.1978).

A warrantless arrest or search is justified if the State can show the existence of probable cause...