Fisher v. State
| Decision Date | 18 April 1973 |
| Docket Number | No. 46653,46653 |
| Parties | John Russell FISHER, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Thomas J. Purdom, Lubbock, for appellant.
Alton R. Griffin, Dist. Atty., and Mike Irish, Asst. Dist. Atty., Lubbock, Jim D. Vollers, State's Atty., and Robert A. Huttash, Asst. State's Atty., Austin, for the State.
This is an appeal from a conviction for the offense of possession of marihuana. The jury assessed punishment at three years.
The record reflects that on May 24, 1972, Officer George Mayben of the Department of Public Safety, and Lieutenant Frank Wiley of the Lubbock Police Department accompanied by other officers, went to an apartment under the control of April Steigers to execute a search warrant issued by Justice of the Peace Charles Smith, at 9:00 p.m., on May 23, 1972.
Officer Mayben testified that they arrived at the entrance to the apartment about 1:35 a.m., and he went up to the door which was open and identified himself and the others as police officers. He then handed a copy of the search warrant to April Steigers.
There were three people in the apartment when the officers began their search. Appellant and two others arrived during the search. The three were informed by an officer that a search was in progress, and someone in the apartment yelled for the three not to come in. Appellant then fled and Lieutenant Wiley gave chase. Officer Mayben went to the apartment balcony where he was able to observe appellant running, and he saw appellant throw an object which appeared to be a plastic baggie at the base of a tree. Appellant was finally caught by Lt. Wiley and a 'pat down' search produced a plastic bottle containing marihuana and pills of LSD. The object tossed away by appellant was recovered and it also contained marihuana.
In his first ground of error appellant contends that the marihuana found on his person was inadmissible because it was the fruit of an illegal search and seizure. He argues that the search warrant containing language about 'person or persons unknown' did not extend to persons found at the premises.
This Court in Hernandez v. State, Tex.Cr.App., 437 S.W.2d 831, held that officers had a right to search a person not named in the warrant but found on the premises at the time of execution of the warrant. Then in Johnson v. State, Tex.Cr.App., 440 S.W.2d 308, this Court held that there was no meaningful distinction between persons found on the premises by the officers when they initiate their search and persons who entered the premises after the search has begun.
Counsel attempts to distinguish the Johnson case from the case at bar stating that in Johnson the warrant contained express authorization for search of persons found at the premises, whereas he alleges the warrant in the instant case doesn't specifically state such.
The warrant directed the officers to search the premises controlled by a female known only as 'April' and a person or persons whose names and descriptions are unknown and to arrest and bring before the magistrate 'the said white female known only as 'April' and Any person or persons unknown, accused of possessing the said narcotic and dangerous drug.' (Emphasis supplied) We hold the search under the warrant was valid.
Further, after appellant had entered the apartment and the officer identified himself, the officer was authorized to pursue him when he fled.
Even if it could be said that the search was not proper under the search warrant, the arrest and subsequent search were proper under Article 14.03, Vernon's Ann.C.C.P., which provides:
'Any peace officer may arrest, without warrant, persons found in suspicious places and under circumstances which reasonably show that such persons have been guilty of some felony or breach of the peace, or threaten, or are about to commit some offense against the laws.'
See Williams v. State, Tex.Cr.App., 489 S.W.2d 614, and Baity v. State, Tex.Cr.App., 455 S.W.2d 305. Appellant's first ground of error is overruled.
His next two grounds of error complain of the court's failure to submit his specially requested instruction as to the probable cause necessary for a warrantless search and the court's failure to charge the jury to disregard any evidence obtained as a result of an illegal search and seizure.
Appellant argues that the evidence raises the issue of whether the officers had probable cause and says that he was entitled to an instruction under the provisions of Article 38.23, V.A.C.C.P.
No issue concerning the validity of the search is...
To continue reading
Request your trial
-
Robinette v. State, 4 Div. 478
...(defendant, present when marijuana was found, hurried into bathroom, closed door, and flushed toilet); Fisher v. State, 493 S.W.2d 841 (Tex.Cr.App.1973), overruled on other grounds, Lippert v. State, 664 S.W.2d 712 (Tex.Cr.App.1984) (defendant, who arrived during search, fled when he learne......
-
Lippert v. State
...and persons who enter the premises after the search commences. Johnson v. State, supra; Martinez v. State, supra; Fisher v. State, 493 S.W.2d 841 (Tex.Cr.App.1973); Rice v. State, 548 S.W.2d 725 The continued validity of these cases has been cast in doubt by Ybarra v. Illinois, 444 U.S. 85,......
-
Wilkerson v. State, 684-86
...also Dunlap v. State, 462 S.W.2d 591 (Tex.Cr.App.1971); Williams v. State, 535 S.W.2d 637, 640 (Tex.Cr.App.1976). In Fisher v. State, 493 S.W.2d 841, 843 (Tex.Cr.App.1973), the defendant was charged with possession of marihuana. LSD pills were found on appellant's person in the same contain......
-
Guerrero v. State, 47690
...Tex.Cr.App., 444 S.W.2d 921; Ortiz v. State, Tex.Cr.App., 490 S.W.2d 594; Christ v. State, Tex.Cr.App., 480 S.W.2d 394; Fisher v. State, Tex.Cr.App., 493 S.W.2d 841. We conclude that the error in having asked the foregoing question was curred by such instruction. In addition, we note that t......