Barnett v. State, No. 41876

CourtTexas Court of Criminal Appeals
Writing for the CourtDOUGLAS
Citation447 S.W.2d 684,90 S.Ct. 216
PartiesVernon O. BARNETT, Appellant, v. The STATE of Texas, Appellee.
Decision Date19 February 1969
Docket NumberNo. 41876

Page 684

447 S.W.2d 684
Vernon O. BARNETT, Appellant,
v.
The STATE of Texas, Appellee.
No. 41876.
Court of Criminal Appeals of Texas.
Feb. 19, 1969.
Rehearing Denied May 7, 1969.
Second Motion for Rehearing Denied June 11, 1969.
Certiorari Denied Nov. 10, 1969. See 90 S.Ct. 216.

Sheey, Jones, Cureton, Westbrook & Lovelace, by Joel W. Westbrook, Waco, for appellant.

Page 685

Martin D. Eichelberger, Dist. Atty., George Allen, Asst. Dist. Atty., Waco, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

DOUGLAS, Judge.

The conviction is for the unlawful possession of marihuana; the punishment, ten years.

The evidence reflects that one hundred grams of marihuana were found in an attache or brief case belonging to appellant. The first two complaints were that physical evidence was obtained as a result of an illegal arrest; and, that oral statements made by appellant were inadmissible and consent to search was not voluntary because he was under an illegal arrest and was not given warnings that he had a right to counsel and a right to remain silent under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694; and Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977.

The facts on the motion to suppress evidence and those on the merits will be considered on the controlling issue of whether or not there was an illegal arrest. Two officers of the Texas Liquor Control Board and J. T. Conley, a narcotic agent of the Texas Department of Public Safety, entered Walker's Auditorium in Waco and saw Leon Stewart, Albert Lee Acklin and the appellant, Barnett, drinking beer at the bar. The three men turned toward the officers and appeared to be very nervous. Barnett pushed his unfinished drink away and said, 'Let's go.' As they walked toward the door, Conley identified himself as an officer and asked appellant his name. He stated that it was 'Spots' Barnett, and that he was a musician from San Antonio. In response to a question he told Conley that he had been arrested once for barbiturates in San Antonio. Conley asked to see, and was shown, Barnett's identification. Conley had heard from Agent Maroney that a 'Spots' Barnett had been arrested for barbiturates in San Antonio, and Conley thought appellant was the same person. Barnett said he had come to Waco in Stewart's automobile which was just outside the door. Conley asked Barnett if he had anything in the car, and Barnett replied that he had a brief case that contained some contracts and personal effects. Conley asked if he could look through the brief case, and Barnett said: 'It's Leon's (Stewart's) car. If its okay with Leon, its okay with me.'

Agent Conley testified that Stewart gave permission to search and opened the door of the automobile. When the light came on, Conley asked Stewart if the brief case was his, and Barnett said, 'No, it is mine. My brief case.' Conley asked Barnett for, and was granted, permission to look through the brief case. Barnett opened it for the officers. Conley asked what was in the brown paper bag, and Barnett stated: 'Mr. Conley, you know what's in the bag. Marihuana.' Agent Conley testified that Barnett was not under arrest at the time he obtained permission to search, and after Barnett showed his identification he would not have detained him had he tried to leave. Conley testified that he had no idea of making a search after the identification was confirmed, but he would have detained Barnett had he not complied with the request to establish his identification; and that the arrest was not made until after Conley found the marihuana, a .357 magnum pistol and some pills.

Gilbreath v. State, Tex.Cr.App., 412 S.W.2d 60, states the rule: 'Whether the accused is or is not under arrest is to be determined from the sufficiency of the facts to reasonably create the impression on his mind that he is under arrest.' Since appellant did not testify, only the testimony of Agent Conley and the surrounding facts and circumstances can be considered.

In Rolan v. State, 170 Tex.Cr.R. 88, 338 S.W.2d 457, the officer, as in the present case, had no warrant of arrest. While investigating the theft of stolen property, the

Page 686

officer located Rolan and interrogated him for some 45 minutes before placing him under arrest. At no time prior to such arrest did he advise Rolan that he intended to arrest him. On cross-examination the officer...

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88 practice notes
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    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
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88 cases
  • Western Addition Community Organization v. NLRB, No. 71-1656.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 29, 1973
    ...v. N. L. R. B., 135 U.S.App.D.C. 111, 416 F.2d 1126, cert. denied, Farmer's Co-op Compress v. United Packinghouse etc., 396 U.S. 903, 90 S.Ct. 216, 24 L.Ed.2d 179 (1969). Even in the absence of such a clause in a collective bargaining agreement, an employer would be equally restrained from ......
  • LOCAL NO. 1 (ACA), ETC. v. IBT, C., W. & H., Civ. A. No. 75-2684.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • August 12, 1976
    ...Semancik v. UMW Dist. 5, 466 F.2d 144 (3d Cir. 1972); Martire v. Laborers' Local 1058, 410 F.2d 32 (3d Cir.), cert. denied, 396 U.S. 903, 90 S.Ct. 216, 24 L.Ed.2d 179 (1969). 12 The importance of motive in proving a violation of § 609 has led to a somewhat academic debate regarding the prop......
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    • May 12, 1987
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