Guzman v. State

Decision Date08 December 1993
Docket NumberNo. 3-93-147-CR,3-93-147-CR
Citation867 S.W.2d 126
PartiesJoe Rivera GUZMAN, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Appeals

Mark Darrow Wilson, Austin, for appellant.

Ronald Earle, Dist. Atty., Robert Smith, Asst. Dist. Atty., Austin, for appellee.

Before CARROLL, C.J., and ABOUSSIE and B.A. SMITH, JJ.

PER CURIAM.

The district court found appellant guilty of possessing less than twenty-eight grams of heroin and assessed punishment at imprisonment for twenty years. Texas Controlled Substances Act, Tex. Health & Safety Code Ann. § 481.115 (West 1992). In two points of error, appellant urges that the heroin was unlawfully seized and that the court erred by admitting it in evidence after overruling his motion to suppress.

On the afternoon in question, Austin police officer Troy Gay was on patrol in the 1700 block of East First Street when he saw a male pedestrian flag down a passing vehicle. As the officer watched, a passenger in this vehicle gave the man cash in exchange for an object the man took from his mouth. Believing he had witnessed an unlawful sale of narcotics, the officer arrested both parties. Officers Jimmy Cardenas and Ronald Lara responded to Gay's call for assistance.

At the hearing on appellant's motion to suppress, Cardenas testified that, after his arrest, the man on the street told the officers he knew "where we can get a lot more heroin than what we're speaking of now." The man then described "a house where he knew some other people were, at that specific moment, in possession of some heroin." Cardenas continued:

He told us, as we had been speaking to him, that Mr. Joe Guzman was in possession of heroin at the time, and he had walked right by us. We weren't concerned with him at the time. He wasn't involved in the actual stop, you know, so he wasn't questioned during this. We looked for him, and of course, he had already walked away.

So as we continued to speak to him [the informer], myself and Officer Lara, we called for two senior sergeant narcotics officers to come to the scene because at this specific time we were talking about a house which supposedly had heroin, and we were going to try [to] figure out, you know, what our next step was going to be.

Q. (By Ms. Crosby) [prosecutor] And what happened then?

A. Well, what happened next is the two other officers--senior sergeants, arrived. While we were talking to them about the information we had, I think Lara was still with the CI which was giving us the information, and he had described Joe Guzman at the time as being an older gentleman, small Hispanic male, wearing a brown leather jacket.

While I was still conversing with the other senior sergeant, about this time Officer Lara said, "There he is. There he is."

Apparently the informant had said, "There goes Joe. That's the guy I was talking to you about earlier." So apparently Mr. Guzman and another gentleman were walking by us again, and we started walking towards them, you know, in a hurriedly manner.

Q. And what did he do?

A. I told him to stop. I said, "Hey, stop." He kind of turned and looked at us and started walking a little faster. 1 So we ran up to him, and as I ran up to him, I could see him swallowing, you know, like you swallow--you could see his throat swallowing something.

Q. What did you do when you observed that?

A. When I saw that, I immediately figured he was swallowing the heroin which the other gentleman told us about. He told us that he had balloons in his mouth.

Q. And after you saw the swallowing motion and you formed your opinion as to what he was doing, what did you do next?

A. Well, I immediately went for his throat, and I grabbed him around his throat, and I told him, you know, "Spit it out. Spit it out." He kept trying--I could feel him trying to swallow again, so I squeezed a little harder, and I started to take him down, you know, face first towards the ground, telling him, "Spit it out. Spit it out." He finally spit out three small balloons.

Appellant was transported to a hospital where his stomach was pumped and one more balloon was recovered. The balloons were later found to contain heroin.

Appellant contends the heroin should have been suppressed because it was seized pursuant to and as a result of an unlawful warrantless arrest. Tex.Code Crim.Proc.Ann. art. 38.23 (West Supp.1993). The State responds that the arrest was authorized by article 14.01 of the Code of Criminal Procedure, which permits a police officer to arrest an offender without warrant when the offense is committed in the officer's presence. Tex.Code Crim.Proc.Ann. art. 14.01 (West 1977). 2

An officer may arrest a person pursuant to article 14.01 only if there is probable cause with respect to that person. Stull v. State, 772 S.W.2d 449, 451 (Tex.Crim.App.1989). Probable cause for arrest exists when the facts and circumstances within the officer's knowledge and of which the officer has reasonably trustworthy information are sufficient to warrant a prudent belief that the arrested person has committed or is committing an offense. Id. In this cause, it is undisputed that the police did not see appellant commit an overtly criminal act. But activities that are not overtly criminal may be sufficient, when coupled with an officer's prior knowledge, to establish probable cause that an offense is then occurring. Id. at 452; Adkins v. State, 764 S.W.2d 782, 786 (Tex.Crim.App.1988); Lunde v. State, 736 S.W.2d 665 (Tex.Crim.App.1987). Because the officers' information concerning appellant came entirely from the informer, the informer's trustworthiness is crucial to a finding of probable cause.

The officers testified that they had never seen the informer before the afternoon in question, and there is no evidence that he had previously given the police reliable information. 3 The State cites cases holding that the police may act immediately upon information furnished by a witness to a crime without first investigating the reliability and credibility of that witness. Frazier v. State, 480 S.W.2d 375, 378 (Tex.Crim.App.1972); Ramirez v. State, 658 S.W.2d 808, 810 (Tex.App.--Corpus Christi 1983), aff'd, 672 S.W.2d 480 (Tex.Crim.App.1984). In those cases, however, the courts were referring to a witness whose only contact with the police or criminal activity was a result of having witnessed a single criminal act, as distinguished from the usual police informer who has a criminal background or enjoys the confidence of criminals. Frazier, 480 S.W.2d at 379; Ramirez, 658 S.W.2d at 810. In this cause, the informer had been arrested for selling a controlled substance only minutes before making his crucial statements to the police. We do not believe that he was a citizen witness on whom the police could rely without a further showing of credibility.

An officer may rely on information received from an informer if that information is reasonably corroborated by other matters within the officer's knowledge or by the officer's subsequent investigation. Illinois v. Gates, 462 U.S. 213, 242, 103 S.Ct. 2317, 2334, 76 L.Ed.2d 527 (1983); Whaley v. State, 686 S.W.2d 950 (Tex.Crim.App.1985). Gay testified that he believed the informer in this cause was credible because "he was giving us information not on Mr. Guzman, okay, not on just him alone, he was giving us other information such as other locations, other areas in town which are known to be known narcotic areas which he was--he was giving us some information on those areas." But when asked, the officer could not provide any details with regard to this other information. On this record, it cannot be said that the informer was shown to possess a degree of knowledge about drug dealing in Austin sufficient to warrant the conclusion that his tip about appellant was probably accurate.

As further corroborative evidence, the State cites the officers' testimony that the area in which the incident occurred was known for drug dealing. The officers did not testify, however, that this was an area frequented only or mostly by drug dealers and users. A person found in a high-crime area does not for that reason have a lesser right than others to be free from detention or arrest. Conner v. State, 712 S.W.2d 259, 263 (Tex.App.--Austin 1986, pet. ref'd). Officer Lara testified that he had previously seen appellant in the area, but he did not testify that he had seen appellant commit a criminal act.

Finally, the State argues that the informer's tip was corroborated by the officers' observations at the scene. The informer told the officers that Joe Guzman, a Hispanic man wearing a brown coat, was selling heroin on East First Street. Moments later, appellant, who apparently matched this description, walked past the patrol car. In an analogous case,...

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