Frazer v. State
| Citation | 508 S.W.2d 362 |
| Decision Date | 16 January 1974 |
| Docket Number | No. 46822,46822 |
| Parties | Dan Larry FRAZER, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Fred Time, Dallas, for appellant.
Henry Wade, Dist. Atty., and William J. Teitelbaum, Asst. Dist. Atty., Dallas, Jim D. Vollers, State's Atty., Buddy Stevens, Asst. State's Atty., Austin, for the State.
The offense is possession of marihuana; the punishment, two (2) years.
As a sole ground of error appellant contends the trial court erred in overruling his motion to suppress evidence, which was founded on the contention that the evidence was illegally seized.
On July 3, 1971, Mr. Russell, the Chief of Security for the Dallas Market Center, noticed an automobile occupying two spaces in the Market parking area. He sought out the appellant, who admitted it was his, and drove him back to move the car.
Officer Tilton, and off-duty officer of the Dallas Police Department, who was working in the area, saw appellant flick or throw something under Russell's car as Russell and appellant entered it. On investigation the officer found a bottle in the area that the car had occupied. The bottle contained a substance which, in the opinion of the officer, was marihuana.
The officer walked over to the area in which appellant's car was parked, and questioned appellant concerning the bottle. Appellant denied knowledge of the bottle and gave consent to a search of the car; however, this consent was immediately revoked. Nevertheless, the officers searched the car and found two containers of marihuana in the passenger area.
Appellant cites several cases in which the 'plain view' doctrine was invoked. 1 He urges that they are distinguishable for the reason that in those cases the officers who found the abandoned property were able to identify it as the identical property that fell from the defendant's hand. If appellant's contention be correct, it is not supported by the record. The officer testified that after the bottle was released from appellant's hand he saw that it was and saw the cap come off. See also Gamez v. State, Tex.Cr.App., 403 S.W.2d 418.
The subsequent search of appellant's automobile presents a differnt problem. It appears that Gasery v. State, Tex.Cr.App., 465 S.W.2d 377, and cases there cited are in point. In that case, the defendant was arrested for burglary when he was found prying on an air conditioner trying to get into a building. The officers searched a car parked in the immediate area, and seized a stolen bank bag, tools, and property taken in another burglary. In affirming, this Court held there was probable cause for searching the automobile. Likewise, we hold that probable cause to search the automobile existed in the case at bar. Cf. Hensley v. State, Tex.Cr.App., 494 S.W.2d 816.
If we be in error as to the validity of the search of appellant's automobile, this conviction is nevertheless sustainable on the basis of the quantity of marihuana found under Officer Russell's automobile.
Officer Tilton testified that, in his opinion, the bottle which he saw appellant 'flip' contained marihuana. Such testimony is sufficient to sustain a conviction. Boothe v. State, Tex.Cr.App., 474 S.W.2d 219.
Also it was stipulated that the bottle contained marihuana. 2
The judgment is affirmed.
The trial in this case was before the court; this following a lengthy hearing on a defense motion to suppress evidence because of an alleged illegal search. During the actual trial, the defense counsel did agree that the judge should consider all the evidence presented at the hearing on the motion. This evidence included testimony by the arresting officer that after he retrieved the bottle which he saw appellant 'flick' away, he examined the contents thereof, and concluded that it contained marihuana. On this basis, the evidence is sufficient to sustain the conviction. If the conviction had to stand or fall depending on the legality of the search of the appellant's automobile, I would vote for reversal of the cause, as the search of that vehicle was illegal.
The record reflects that on the day in question the appellant's vehicle was parked Across Industrial Boulevard from the area where the appellant got into the automobile with the security officer and rode over to his auto. Because of the heat, the appellant had parked his car, taking up two parking spaces, so as to take advantage of the shade offered by a tree located nearby. His trunk was full of candles which he was selling at the trade fair, and the appellant showed this to the security guard upon their arrival at the vehicle. The police officer who arrested the appellant was working pedestrian traffic at a signal light some 'thirty-five to fifty feet' from where appellant and the security guard entered their vehicle.
Further, the security officer stated that he did not see or hear any container being thrown and that as far as he was concerned the appellant was free to leave after the parking violation was cleared up. There was no testimony from this officer regarding the subsequent search of the appellant's automobile.
The arresting officer stated that at the time in question he was working as patrol officer at a pedestrian crossing between the Market Hall and the Dallas Trade Mart. After the 'flick,' the officer followed appellant and the security guard to appellant's automobile and there searched appellant's person after asking him if 'he had any more of this with him.' The appellant denied knowledge of the bottle, and the search of appellant's person revealed nothing of consequence.
The officer who arrested the appellant testified that after finding the bottle he made up his mind at that point to arrest appellant for possession of marihuana. He candidly admitted that the search of the appellant's automobile was to determine if there was any more marihuana there. The officer further testified that he told appellant several times to shut-up and be quiet because 'he was making protests.' Also, this officer verified that the appellant withdrew his consent to search before the search got underway, but that the search continued, lasting some Twenty or thirty minutes, while appellant continued to protest.
Using the majority's logic, probable cause would have existed for a search at the Next location appellant proceeded to, period,...
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