Duff v. State

• Decision Date: 19 January 1977
• Docket Number: No. 51681,51681
• Citation: 546 S.W.2d 283
• Parties: Jerry M. DUFF and Derrell M. Pendley, Appellants, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 283

546 S.W.2d 283

Jerry M. DUFF and Derrell M. Pendley, Appellants, v.The STATE of Texas, Appellee.

No. 51681.

Court of Criminal Appeals of Texas.

Jan. 19, 1977.

Cameron M. Cunningham and Stephen W. Russell, Austin, for appellants.

Robert O. Smith, Dist. Atty., Stephen Capelle, Asst. Dist. Atty., Austin, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

ON APPELLANTS' MOTION FOR REHEARING

BROWN, Commissioner.

Our prior opinion is withdrawn.

These are appeals from convictions for possession of marihuana.Appellants waived the right to a trial by jury and were tried before the court.Punishment was assessed at five years in the Texas Department of Corrections for appellant Duff and two years for appellant Pendley.Imposition of sentence was suspended and both appellants were placed on probation.

In addition to contesting the legality of the search of their automobile revealing the marihuana, appellant Pendley challenges the sufficiency of the evidence to show that he possessed the marihuana.

At the hearing on the motion to suppress, Officer Schmidt testified that he was parked in his marked patrol car at the corner of Airport Boulevard and 12th Street in Austin around noon on Sunday, January 7, 1975.He stated that his car was facing south and that he saw appellants' vehicle approach the traffic signal at Airport and 12th.The car was traveling north and Schmidt could not state whether or not it stopped for the traffic signal.Schmidt said that he turned his patrol car around and quickly accelerated to follow the car because 'it seemed to be speeding.'He said that he clocked the car with his own speedometer at 51 MPH in the 1400 block of Airport Blvd. where the speed limit is 45 MPH.He followed the car to the intersection of 19th Street and Airport where it turned right and proceeded east on 19th Street.He stopped the car using his red lights in the 4400 block of East 19th Street, approximately 1 mile from the Airport Blvd. intersection.

Schmidt further testified that when he stopped the car appellant Duff, the driver, got out of the car and came back toward the patrol car.Schmidt said that he told Duff to get in the patrol car and then told him why he had been stopped and then asked for his identification.He stated that he inquired about Duff's passenger and that Duff responded that the passenger's name was Pendley and that he had come to Austin from Corpus Christi with him that day.Schmidt said that he then approached the car on the driver's side to speak with Pendley and to request identification.He said that Pendley told him he was a hitchhiker whom Duff had picked up about five minutes earlier just outside of Austin.Schmidt said he then went around to the passenger side of the vehicle and asked Pendley to get out of the car.He said that he did this because he detected the 'very strong odor of marihuana' and because he saw 'a large amount of marihuana seeds laying on the front . . . floorboard.'He said that he then put Pendley in the custody of another officer and conducted a search of the car.(It is not clear whether the other officer was a partner with Schmidt in his patrol car or if he responded to a radio request from Schmidt.)Schmidt said that he found about thirty (30) pounds of marihuana in a large box in the back seat of the car.He said that the marihuana was in a garbage bag which was partially torn and placed in the box which was sealed with tape.Duff and Pendley were transported to jail where Schmidt said that a search of Duff revealed a pipe containing marihuana residue.Schmidt said that he issued Duff a warning ticket for speeding after he had been taken to jail.

It was further developed in Schmidt's testimony that he recognized the odor of the marihuana from his police academy training and from having smelled it '20 or 30 times.'He stated that there was no difference between the odor of unburned marihuana and marihuana smoke and that there was no evidence in the car that marihuana had recently been smoked; that is, there were no 'roaches' or ashes that he could see.

Officer Rodman testified that he searched the vehicle at the police station and that he found another large quantity of marihuana packaged in burlap bags in the trunk of the car.He stated that there was a suitcase in the trunk which also contained marihuana seeds, residue and papers.However, Rodman stated that his search of the front floorboard of the car revealed no marihuana seeds, but only a large amount of trash, such as cans, bottles and paper.

Appellant Duff testified that he saw Schmidt's patrol car parked at the 19th Street intersection of Airport Blvd. and not at 12th Street.He stated that when the officer stopped him that he got out of his car and walked back and met Schmidt halfway and that Schmidt asked him if he had a gun and then told him to get into the patrol car.Duff recalled no mention of speeding, but said that Schmidt went immediately to his car and questioned Pendley and that he then radioed for help.Duff stated that Schmidt issued no warning ticket to him at any time.He also stated that there were no marihuana seeds on the front floorboard, but that it was covered by a mat.Pendley did not testify.

Appellant's first four grounds of error all deal with the legality of the search of the automobile and will be discussed together.In addition to contending that the initial stop of the car was a pretext for the search, appellant maintains that even if the initial stop was justified, Officer Schmidt exceeded his authority by approaching the vehicle and, subsequently, conducting a search.

We are in accord with appellant's recitation of the law supporting a citizen's right to travel on the public roads without unreasonable interference and limiting the extent to which an officer can detain citizens in his efforts to curtail crime.We cannot agree, however, with appellant's contention that Officer Schmidt could not approach his car because 'the purpose for which (he) allegedly stopped appellant Duff's vehicle . . . was completely accomplished at the time he chose to approach the passenger.'In support of this contention, appellant relies on Willett v. State, 454 S.W.2d 398(Tex.Cr.App.1970)andMurphy v. State, 378 S.W.2d 73(Tex.Cr.App.1964).Neither case is directly applicable to the instant case.

In Willett, the officer pulled in behind the defendant's vehicle after it turned into a private driveway without signaling a right turn.He then placed the defendant and the other occupants of the car into his patrol car and drove off to another location where he checked their identification by telephone.We held there were no facts and circumstances which would justify detaining the defendant and requiring him to get in the patrol car and accompany the officer to another location.

In Murphy, the accused was a passenger in a car which the officer stopped because of a traffic violation.The officer asked her a question (which was not specified) and when she did not respond he asked her to get out of the car.When she did not get out he reached in and physically removed her from the vehicle.The State argued that the officer was justified because he had formed the opinion that the defendant was drunk.However, this Court reversed the case because, under the facts and circumstances, the officer could not have formed his opinion until after he had pulled her from the car.The arrest and search were held to be unlawful.

Neither Willett nor Murphy stands for the proposition that the officer was not justified in approaching the defendant's vehicle.In both cases the officer was where he had a right to be; however, he exceeded his authority in each case by his actions After approaching the car.

In the instant case, Officer Schmidt testified that he stopped the appellants' vehicle because it was speeding.The traffic violation served as justification for the initial stop of the car.Borner v. State, 521 S.W.2d 852(Tex.Cr.App.1975)(speeding violation);Hampton v. State, 511 S.W.2d 1(Tex.Cr.App.1974)(improper lane change);Trusley v. State, 505 S.W.2d 861(Tex.Cr.App.1974)(improper start, no license plate light).

Appellant contends that, since there was a conflict in testimony over whether Schmidt issued the warning ticket, the State should have produced a copy of the ticket to support the justification for the initial stop.The trial court was the sole judge of the credibility of the witnesses and the facts in the hearing on the motion to suppress.Draper v. State, 539 S.W.2d 61(Tex.Cr.App. decided July 19, 1976).He was present and observed the witnesses' demeanor and the manner in which each witness testified.We are unwilling to conclude, upon this record, that the trial court abused its discretion in impliedly finding that Officer Schmidt told the truth.Hampton,supra.

Nor are we willing to agree that since Duff, as driver of the car, was in the patrol car with Schmidt, there was no justification for Schmidt's approach of the car to question Pendley.Not only was he justified in approaching the car if he desired to check the license plate number or vehicle inspection sticker, but we have previously held that there is no prohibition against his questioning the passenger of the car.Leonard v. State, 496 S.W.2d 576(Tex.Cr.App.1973);Wood v. State, 515 S.W.2d 300(Tex.Cr.App.1974).

In Leonard, the defendant's car was stopped for a routine license check and the driver got out of the car and approached the officer.The officer detected 'an odor from his clothing . . . marihuana smell.'He then approached the vehicle to ask the passenger for his identification whereupon he detected the 'real strong odor of marihuana.'The subsequent search was upheld.

In Wood, the accused was a passenger in a car driven by Glen Tores.An officer stopped the car because it had run a stop light and as he was discussing the traffic...