Buntion v. State, 44518

• Decision Date: 18 January 1972
• Docket Number: No. 44518,44518
• Citation: 476 S.W.2d 317
• Parties: Patsy Ruth BUNTION, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 317

476 S.W.2d 317

Patsy Ruth BUNTION, Appellant, v. The STATE of Texas, Appellee.

No. 44518.

Court of Criminal Appeals of Texas.

Jan. 18, 1972.

Rehearing Denied March 8, 1972.

Billy J. Griswold, Houston, for appellant.

Carol S. Vance, Dist. Atty., Phyllis Bell and Andy Tobias, Asst. Dist. Attys., Houston, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

DAVIS, Commissioner.

This is an appeal from a conviction for possession of marihuana. Punishment was assessed by the jury at three years and three months.

The record reflects that on May 7, 1969, Officers Roeber and Hadley, of the Houston Police Department, stopped appellant when she backed her automobile from a private driveway into the intersection of Capri Street and South Loop service road in Houston; that appellant's car was searched by the officers and cigarette stubs containing marihuana were found.

Appellant contends that the arrest and subsequent search were illegal, and the fruits of the search should have been suppressed.

Officer Roeber testified that because of appellant backing her automobile into the intersection, it was necessary for him to swerve the car he was driving into the next lane to avoid colliding with her. Article 6701d, Sec. 74, Vernon's Ann.Tex.Civ.St. ¹, provides:

'The driver of a vehicle about to enter or cross a highway from a private road or driveway shall yield the right-of-way to all vehicles approaching on said highway.'

Appellant relies on Willett v. State, Tex.Cr.App., 454 S.W.2d 398, in contending the arrest was illegal. In Willett, the arrest was made for making a right-hand turn into a private driveway without giving a signal under Article 6701d, Sec. 68, V.A.T.C.S.:

'No person shall * * * turn a vehicle to enter a private road or driveway or otherwise turn a vehicle from a direct course or move right or left upon a roadway unless and until such movement can be made with safety. No person shall so turn any vehicle without giving an appropriate signal in the manner hereinafter provided in the event any other traffic may be affected by such movement.'

In Willett, the accused was arrested and placed in a patrol car with officers. At a time subsequent to the arrest and while accused was still in the patrol car, marihuana was found at or about his person. In Willett, this Court said:

'There is no evidence that the operation by the appellant of his automobile at the time and place in question was a threat or hazard to traffic safety or that traffic safety was affected by the movements of his car as he turned right into the private driveway. The only motor vehicle at or near the scene other than appellant's was that driven by Officer Keltie, and there is no testimony to show that appellant's right turn into the driveway affected the movement of his automobile.

'There are no facts or circumstances shown which would warrant the detaining of the appellant and requiring him to get in the patrol car and accompany the officers to the service station. The illegal arrest of the appellant without a warrant and his detention thereafter rendered the testimony concerning the marihuana obtained at the service station inadmissible.'

In the instant case, the officers' testimony concerning appellant's entry onto the street, and the near accident caused by such, constituted a violation under Article 6701d, Sec. 74, V.A.T.C.S. Appellant's reliance on Willett is, therefore, misplaced since there was no traffic violation shown in Willett.

Sec. 153 of Article 6701d, V.A.T.C.S., provides:

'Any peace officer is authorized to arrest without warrant any person found committing a violation of any provision of this Act.'

The fact that the officers caused a ticket entitled 'backing into an intersection' to be issued did not render the stopping of appellant illegal.

After appellant had been stopped, Officer Hadley approached appellant and checked her driver's license. Officer Roeber was standing at the rear of appellant's car, on the passenger side, where he observed drivers' licenses, identification cards, credit cards, and checks lying on the floorboard of the back seat.

Officer Roeber testified that he recognized one of the driver's licenses, because he saw the picture of a friend on one of them. This friend had...