Gonzales v. State
Decision Date | 23 March 1983 |
Docket Number | No. 665-82,665-82 |
Citation | 648 S.W.2d 684 |
Parties | Moses G. GONZALES, Appellant, v. The STATE of Texas, Appellee. |
Court | Texas Court of Criminal Appeals |
Benjamin F. Walker, Donald A. Roush, Jr., court appointed, San Antonio (David K. Chapman, San Antonio, of counsel), for appellant.
Bill M. White, Dist. Atty., Miguel Martinez, Elizabeth Taylor, Dennis J. McKnight and Jerry Rosson, Asst. Dist. Attys., San Antonio, Robert Huttash, State's Atty., and Alfred Walker, Asst. State's Atty., Austin, for the State.
Before the Court en banc.
OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW
This case involves an appeal from a conviction for possession of heroin. Punishment was assessed at life by the trial court after the jury found that appellant had twice before been convicted of felony offenses. See V.T.C.A., Penal Code, § 12.42(d). Appellant's conviction was reversed by the Court of Appeals in an unpublished per curiam opinion by the San Antonio Court of Appeals. Gonzales v. State (No. 04-81-00129-CR, 6/30/82). The ground for reversal in the Court of Appeals was an illegal search and seizure. We granted the State's petition for discretionary review on that issue.
The record reveals that petitioner was involved in a minor automobile accident in San Antonio. He was arrested by officers at the scene and heroin contained in five balloons was seized from his mouth. This evidence led to the instant prosecution and conviction.
On January 28, 1980 the trial court conducted a hearing on petitioner's motion to suppress.
Arthur D. Struxness, a police officer for the city of San Antonio, was called to testify on behalf of the State. He had been a police officer for two and a half years at the time of trial. On July 1, 1979 he was on duty from 3 p.m. to 11 p.m. Struxness had gone to the scene of an accident to work traffic and assist the officer handling the accident. While at the accident scene, he was talking with appellant. At that time Struxness observed that appellant was under the influence of some kind of intoxicant, but that he could not smell liquor on appellant's breath. At that time Struxness observed that appellant was having trouble talking and there was some object underneath his tongue. Struxness then observed a yellow and orange bright-colored object. At this time Struxness' curiousity was aroused, because as he testified:
Struxness then told Officer Vogel what he had observed. Vogel testified that he had been investigating the automobile accident. Vogel, while talking to appellant, also observed various colored balloons under appellant's tongue. Vogel also observed that appellant was intoxicated but could not smell any intoxicants on appellant's breath.
Vogel testified as follows concerning the significance of the balloons:
Vogel and Struxness both seized appellant and administered a choke hold so that appellant could not swallow the balloons. Appellant was finally forced to spit out the balloons which were later discovered to contain heroin.
On cross-examination Struxness testified that he had never arrested a heroin addict with balloons in his mouth. No evidence on this point was elicited from Vogel.
In disposing of this case, the Court of Appeals observed that:
The Court of Appeals then held:
The Court of Appeals relied on three decisions of this court for its conclusion.
In DeLao v. State, 550 S.W.2d 289 (Tex.Cr.App.1977), we stated the following:
(Citations omitted.) (Emphasis supplied.)
Then in Brown v. State, 617 S.W.2d 196 (Tex.Cr.App.1981), 1 we made the following observations:
Subsequently in Sullivan v. State, 626 S.W.2d 58 (Tex.Cr.App.1982), in dealing with the seizure of narcotics from a partially unzippered pouch containing a dark brown bottle and clear plastic bag containing a white powder, we stated:
The distinction between the instant case and the three cases cited above is that the record in this case affirmatively shows that the officers had knowledge that heroin was transported in the same manner as appellant was doing. The Court of Appeals seems to indicate that in addition to this knowledge the officers, or one of them,...
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Lopez v. State, 07-05-0243-CR.
...recognized that certain objects not inherently suspicious can become so under certain circumstances. See generally Gonzales v. State, 648 S.W.2d 684, 686 (Tex.Cr.App. 1983) (balloons containing heroin); Sullivan v. State, 626 S.W.2d 58, 59 (Tex.Cr. App.1981) (a partially unzipped pouch expo......
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Wiede v. State
...court of criminal appeals has repeatedly held that there is nothing inherently suspicious about a plastic bag. See Gonzales v. State, 648 S.W.2d 684, 686 (Tex.Crim.App.1983); Sullivan State, 626 S.W.2d 58, 60 (Tex.Crim.App. 1981) ("a clear plastic bag is not an object that is inherently dan......
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Guzman v. State
...offense." Stull, 772 S.W.2d at 451. Each search and seizure question must turn on the facts of that particular case. Gonzales v. State, 648 S.W.2d 684, 687 (Tex.Cr.App.1983). Our analysis of the facts surrounding this arrest begins with the informant telling the officer that he knew where a......
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Wiede v. State
...and amended 1995) (current version at TEX. TRANSP. CODE ANN. § 550.041)). 12. Id. 13. Id. 14. Id. (citing Gonzales v. State, 648 S.W.2d 684, 686 (Tex.Crim.App.1983); Sullivan v. State, 626 S.W.2d 58, 60 (Tex.Crim.App. 1981); Duncan v. State, 549 S.W.2d 730, 732 (Tex. 15. Id. at 245 (citing ......