Gary v. State

• Decision Date: 22 December 1982
• Docket Number: No. 66260,66260
• Parties: James Lee GARY, II, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 646

647 S.W.2d 646

James Lee GARY, II, Appellant, v. The STATE of Texas, Appellee.

No. 66260.

Court of Criminal Appeals of Texas,

En Banc.

Dec. 22, 1982.

On Rehearing March 30, 1983.

Robert A. Shults, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty. and George McCall Secrest, Jr. & Nick Vincent, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., and Alfred Walker, Asst. State's Atty., Austin, for the State.

Before ROBERTS and ODOM, JJ.

OPINION

ROBERTS, Judge.

Appellant was charged with possession of methamphetamine. Before trial he filed a written motion asking the court to suppress the fruits of a certain search and seizure. The trial court denied his motion after receiving a stipulation of the evidence. Appellant then waived a jury and went to trial on a plea of nolo contendere. His plea was supported by the same stipulation of evidence. The court found him guilty. The State made a recommendation, to which appellant and his attorney agreed, that the punishment be six years' confinement and a five hundred dollar fine, both probated. The court followed the recommendation. Pursuant to Article 44.02, V.A.C.C.P., appellant now seeks a reversal of his conviction, solely on the ground of the allegedly illegal search.

At the outset, we reject the State's contention that "the search issue at bar has not been preserved for review." According to the State, the stipulation of the evidence constituted a judicial confession sufficient to support the plea, independent of any evidence gained from the search. Upon examination, however, we discover that appellant nowhere testified that the allegations against him were "true and correct." Cf. Dinnery v. State, 592 S.W.2d 343, 352 (Tex.Cr.App.1980) (Opinion on motion for rehearing). Moreover, the written stipulation ¹ contains no statement that could be classified as a judicial confession, and was clearly not regarded as such by the trial court or the parties. ² See Brown v. State 617 S.W.2d 196, 198-99 (Tex.Cr.App.1981), cert. granted, 457 U.S. 1116, 102 S.Ct. 2926, 73 L.Ed.2d 1328 (1982). ³ As in Brown, "appellant has successfully navigated the procedurally hazardous passageway of Article 44.02...." Id. at 199.

This procedural victory avails appellant little, however, because we find that the case is governed by New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981). In Belton, the Supreme Court held as follows:

"[W]hen a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.

"It follows from this conclusion that the police may also examine the contents of any containers found within the passenger compartment, for if the passenger compartment is within reach of the arrestee, so also will containers in it be within his reach. United States v. Robinson, [414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427], supra; Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327. Such a container may, of course, be searched whether it is open or closed, since the justification for the search is not that the arrestee has no privacy interest in the container, but that the lawful custodial arrest justifies the infringement of any privacy interest the arrestee may have." Id. at 453 U.S. 460-61 at 101 S.Ct. 2864 (footnotes omitted).

The statement of facts in appellant's brief in this case reads:

"Both the hearing on Appellant's Motion to Suppress and the trial to the court on Appellant's plea were conducted based upon an agreed stipulation of the testimony that would be forthcoming from witnesses for the State if they were called to testify (R. 25, 33). The stipulation is set out in the record as Defense Exhibit No. 1. That document shows that the State's witness, Officer Kilty, would have testified that he stopped the Appellant's automobile on September 22, 1979 for a traffic violation. Upon approaching the vehicle, he saw that Appellant was the driver and sole occupant of the car. Kilty further noticed a pistol, in plain view, lying on the rear seat of the automobile. Appellant was then arrested for carrying a weapon and was placed in the patrol car.

"After Appellant's arrest, the officers searched his vehicle and found a closed or zipped bank bag on the front seat (See Defendant's Exhibit No. 2). Upon opening and searching the interior contents of the bag, Officer Kilty found the substance which a police chemist would have testified was methamphetamine. The officers then arrested Appellant for the controlled substances offense, and one of the officers drove Appellant's vehicle to the police station."

Since appellant does not challenge the initial stop of his vehicle or his arrest, Belton is the death rattle of his claim that the warrantless search of the bag was illegal. ⁴

The trial court's judgment is affirmed.

Before the Court en banc.

OPINION ON APPELLANT'S MOTION FOR REHEARING

CAMPBELL, Judge.

The appellant was charged with possession of methamphetamine. Before trial he filed a written motion asking the court to suppress the fruits of a certain search and seizure. The trial court denied his motion after receiving a stipulation of the evidence. Appellant then waived a jury and went to trial on a plea of nolo contendere. His plea was supported by the same stipulation of evidence. The court found him guilty and, upon the State's recommendation, the court assessed punishment at six years confinement and a five hundred dollar fine, the former being probated for five years. Pursuant to Art. 44.02, V.A.C.C.P., appellant now seeks a reversal of his conviction, based solely on the ground of the allegedly illegal search.

On original submission a panel opinion affirmed the conviction, relying on the Supreme Court's opinion in New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 49 L.Ed.2d 768 (1981). On rehearing, we find the facts in the instant case distinguishable from those in New York v. Belton, supra. However, we find that the search was proper according to the principles announced in South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), and affirm.

The written stipulation introduced into evidence to which the appellant agreed reads:

"The Defendant was driving his automobile on a public street in Harris County, Texas, on September 22, 1979 at approximately 9:30 p.m. when he was stopped by two officers of the Houston Police Department. One of the officers was Officer Kilty.

"If Officer Kilty were called to testify, he would testify that the Defendant was stopped initially because the Officers observed him run a red light at a controlled traffic intersection. He would further testify that the officer's partner approached the Defendant's automobile to speak with the Defendant and to issue him a traffic citation. At this point in time, the Defendant had exited his automobile was standing near the rear of his vehicle. As the officers looked into the Defendant's automobile, they saw a pistol lying, in plain view, on the back seat of the automobile.

"The officers then placed the Defendant under arrest for carrying a weapon and subsequently placed him in the police vehicle. While one of the officers was placing the Defendant in the police vehicle, the other officer began a search of the interior of the Defendant's automobile. On the front seat of the automobile, the officers found a closed or zipped bank bag, which bag will be introduced into evidence as Defense Exhibit No. 2. The officer opened this bag, searched it and found a substance which a Houston Police Department chemist, if called to testify, would state was identified by testing as methamphetamine. The Defendant was then told that he was under arrest for possession of a controlled substance.

"Since the Defendant was the sole occupant of his automobile, the officers took the car to the police compound after the Defendant's arrest while one of the officers drove the police vehicle to the police station."

The appellant's motion to suppress raised the contention that the search of the zipped and closed bank bag found on the front seat of the appellant's car was not a lawful search since it was conducted without probable cause, without a warrant, and without any justification that would excuse the obtaining of a warrant. We disagree. The State during the hearing on the appellant's motion to suppress argued that the search was a valid inventory, pursuant to impoundment of the automobile. Such inventory searches have been held as not being in violation of the Fourth Amendment to the United States Constitution. South Dakota v. Opperman, supra. The appellant does not allege or argue that the inspection of the bank bag was "a pretext concealing an investigatory police motive." South Dakota v. Opperman, supra, 96 S.Ct. at 3100. We are left with the issue of whether or not the car was legally impounded. Daniels v. State, 600 S.W.2d 813 (Tex.Cr.App.1980).

The appellant was placed under...