Almendarez v. State

• Citation: 460 S.W.2d 921
• Decision Date: 10 November 1970
• Docket Number: No. 43219,43219
• Parties: Lee ALMENDAREZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 921

460 S.W.2d 921

Lee ALMENDAREZ, Appellant, v. The STATE of Texas, Appellee.

No. 43219.

Court of Criminal Appeals of Texas.

Nov. 10, 1970.

Rehearing Denied Dec. 31, 1970.

William E. Steen, Houston (on appeal only), for appellant.

Carol S. Vance, Dist. Atty., James C. Brough and Don Lambright, Asst. Dist. Atty., Houston, Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ONION, Judge.

This is an appeal from a conviction for the possession of marihuana with the punishment assessed by the jury at life imprisonment.

In his sole ground of error appellant contends there was no probable cause for his warrantless arrest and that the fruits of the search incident to such arrest were inadmissible in evidence.

Michael Chavez, who had been a narcotics officer with the Houston Police Department for 15 years, testified that on March 18, 1968, at approximately 4:25 p.m. he was on duty with Officers Garcia, Oaks and Jackson when he received instructions by telephone to proceed to a given address to contact an informer. Shortly thereafter at the intersection of Market and McCarty Streets in Houston he left the other officers in the unmarked police vehicle and contacted an informer who had on two previous and recent occasions given him information which had proved to be true and correct. The informer gave Officer Chavez information concerning the appellant whom Chavez had known for approximately a year and whom he had had under 'on and off' surveillance for the preceding three weeks. The informer told Chavez that within the next few minutes the appellant and a Latin female companion would be in the vicinity of Philmore and Daugherty Streets and that both would be in possession of marihuana. The informer revealed that the appellant would be driving a 1956 yellow and white Pontiac automobile bearing license number NLG 646, and that the female would be driving a 1968 gold Plymouth with a black top bearing license number NSH 701. Chavez was told the marihuana would be somewhere in the two automobiles described.

Chavez related that he had no time to obtain a search warrant and drove immediately the 10 or 12 blocks to Philmore and Daugherty Streets, arriving within three or four minutes. There he recognized the appellant whom he knew driving the described Pontiac and following a Latin female in her early twenties who was driving the described Plymouth. The license numbers on the vehicles corresponded to the numbers given by the informer.

Chavez testified the officers signaled the two to pull to the curb but they proceeded for half a block and turned into a parking lot. Chavez then went to the female's vehicle while the other officers approached the appellant.

Officer J. D. Oaks testified that as appellant got out of the car he placed his hand in his left pants pocket. Oaks grabbed appellant's hand and pulled it out of the pocket and found the appellant holding a hand rolled marihuana cigarette. When the trunk of the car was opened Officer Jackson related there was strong marihuana odor. The search revealed 92 pounds of a green plant substance in three army duffle bags and various paper bags. One small bag of marihuana was found in the Plymouth. The chain of custody of the plant substance was established and the chemist's testimony reflects that an analysis thereof showed the same to be marihuana. He estimated the amount sufficient to make at least 120,000 cigarettes salable at $1.00 apiece.

In urging the lack of probable cause for the warrantless arrest appellant relies upon Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637, both of which decisions dealt with the sufficiency of...