Hamel v. State

• Decision Date: 28 March 1979
• Docket Number: No. 55462,No. 1,55462,1
• Parties: Robert Preston HAMEL, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 424

582 S.W.2d 424

Robert Preston HAMEL, Appellant, v. The STATE of Texas, Appellee.

No. 55462.

Court of Criminal Appeals of Texas, Panel No. 1.

March 28, 1979.

Rehearing En Banc Denied June 20, 1979.

George R. Schilter and Allen C. Isbell, Houston, for appellant.

Ronald L. Wilson, Dist. Atty., and David P. Walker, Asst. Dist. Atty., Galveston, Robert Huttash, State's Atty., Austin, for the State.

Before DOUGLAS, PHILLIPS and W. C. DAVIS, JJ.

OPINION

DOUGLAS, Judge.

This is an appeal from a conviction for the offense of possession of heroin. Punishment, enhanced by one prior felony conviction, was assessed by the jury at twenty years. The sufficiency of the evidence is not challenged.

Appellant first contends that an incriminating oral statement which was made by him and introduced at trial was the fruit of an unlawful arrest and therefore inadmissible.

On November 28, 1975, appellant's apartment in Texas City was under surveillance by police officer Frank Fleming. At that time, appellant was suspected of burglary and trafficking in narcotics. At 4:00 p. m., appellant left his apartment with Viola McComb, Larry Ellis and Joyce Ellis. The four drove in appellant's car to a Woolco department store and went inside. Officer Fleming followed, waited in the parking lot and radioed to Officer Deril Oliver to assist him. Both officers saw appellant exit the store alone with something in his hand, look around him and walk to the car. He drove the car to the store entrance where he stopped and continued to look around. Viola McComb, Larry Ellis and Joyce Ellis emerged from the store next. All had objects in their hands and continually looked over their shoulders in a suspicious manner; Larry Ellis appeared to be telling Joyce Ellis to hurry up and get into the car.

On cross-examination Officer Oliver testified:

"First of all, when Hamel went by himself, alone, took the car out of the parking lot, put it up to the main entrance; subsequently Viola came out in a hurry, looking over her shoulder.

"Just a minute or two later, the other two parties came out. They, too, rushed to the automobile, they, too, acted as if they were looking over their shoulder to see if anyone was coming after them.

"We felt something occurred in the store but we didn't know what. We had a pretty good idea."

At the request of Officer Fleming, appellant's car was stopped by Officer Oliver's marked patrol unit on Palmer Highway. Officer Oliver testified that appellant's car was stopped because the officers thought that there was a possibility that the four were shoplifting. On the front console and rear floorboard arresting officers found numerous new, small items with Woolco price tags on them; they were not, however, in bags as if they had been bought. The four were then arrested for shoplifting.

Appellant was taken before Texas City Justice of the Peace Bishop and given the statutory warnings which he stated he understood. Following his admonishment by the magistrate appellant was informed by police officers that his apartment had been under surveillance and that they suspected that it contained narcotics and stolen property. Appellant agreed to sign a consent to search but was not induced to do so by threats, coercion, or physical abuse of any kind. After signing the consent to search, appellant stated to officers: "You're going to find it anyhow. I will tell you there's some stuff there." He related that police would find heroin in the bathroom linen closet and further stated that the heroin belonged to him and not to Viola McComb with whom he had been living. Appellant requested that Officers Fleming and Oliver not charge McComb with possession of heroin, to which request they agreed. A search of appellant's apartment produced two plastic syringes and a red balloon containing heroin which were found in the bathroom in the precise spot where appellant told police they had been hidden.

Officer Fleming testified that at the time he radioed Officer Oliver to stop appellant's car he had no evidence that appellant had committed a breach of peace or felony upon which he could have obtained a warrant. For this reason, appellant contends his arrest was not made upon probable cause and that the incriminating statement made by him thereafter was inadmissible.

While this Court has previously held that the inarticulate hunch, suspicion, or good faith of an officer will not constitute probable cause for arrest, search or detention, Talbert v. State, 489 S.W.2d 309 (Tex.Cr.App.1973) considerably more than an inarticulate hunch existed in the present case. Appellant's apartment had been watched for a considerable period of time by officers acting upon informant's tips that drug sales were being negotiated inside. Appellant had previous convictions for selling heroin, for burglary, and was further known to Officers Fleming and Oliver as the subject of numerous burglary investigations. Appellant's behavior as a "wheel man" in front of the Woolco store was suspicious, as was the hurried, nervous and watchful behavior of appellant and his companions, all of whom went into the store empty handed but emerged carrying objects in their hands. Such circumstances, while falling short of probable cause, nevertheless justified Officer Oliver's temporary detention of appellant's car. Mann v. State, 525 S.W.2d 174 (Tex.Cr.App.1975); Baity v. State, 455 S.W.2d 305, cert. denied400 U.S. 918, 91 S.Ct. 180, 27 L.Ed.2d 158 (1970). ¹ Upon detaining appellant and his passengers, Officers Oliver and Fleming saw, lying in the car in plain view, new merchandise which had Woolco price tags but which were not in bags as they would normally be if they had been purchased. At this point the officers were empowered to arrest appellant without a warrant pursuant to Article 14.03, V.A.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. . . . "

Warrantless arrests pursuant to Article 14.03 under circumstances comparable to those of the present case have been approved by this Court in Castillo v. State, 494 S.W.2d 844 (Tex.Cr.App.1973); Kwant v. State, 472 S.W.2d 781 (Tex.Cr.App.1971); Baity v. State, supra; Alaniz v. State, 458 S.W.2d 813 (Tex.Cr.App.1970); and Stuart v. State, 447 S.W.2d 923 (Tex.Cr.App.1969).

We conclude that appellant's detention and arrest without a warrant were proper. Even if it had not been, that fact alone would not render appellant's oral statement inadmissible absent a causal connection between the arrest and the confession. Jurek v. State, 522 S.W.2d 934 (Tex.Cr.App.1975); Brantley v. State, 522 S.W.2d 519 (Tex.Cr.App.1975). In the present case appellant was arrested for shoplifting. After being properly informed of his rights, however, he freely and voluntarily admitted possessing heroin, an unrelated offense. His oral admission led officers to fruits of the crime. Where, as in this case, the requirements of Article 38.22, V.A.C.C.P., are complied with, the defendant acts of his own free will and his statement has not resulted from the arrest itself, his confession is not vitiated by an unlawful arrest. Pearson v. State, 414 S.W.2d 675 (Tex.Cr.App.1967).

He also complains of the admission of heroin into evidence for the same reasons previously advanced. We have already determined that appellant's arrest was lawful. The heroin found in the consensual search of his apartment was not tainted and inadmissible evidence.

Appellant next argues that the court erred in admitting both the heroin and his oral confession into evidence on the grounds that the consent to search was not voluntarily given but, rather, induced by a promise not to charge Viola McComb with possession of heroin.

The record reflects that Officers Fleming and Oliver promised not to file a possession charge against Viola McComb after appellant's consent to search had already been executed. Such consent preceded the officers' promise and was not given in response to it or to any kind of physical or mental coercion. The evidence was lawfully obtained; no error is shown.

Hamel next complains that his conviction should be reversed because of his and appointed defense counsel's failure to waive in writing the ten day trial preparation period as required by Article 26.04(b), V.A.C.C.P.

Counsel was appointed on April 19, 1976, and the instant case was tried on April 22, 1976. The record actually reflects that defense counsel was originally retained by appellant in January of 1976 and that he continued to represent appellant in a retained capacity until April 19 when appellant executed a pauper's oath. Although ambiguous on this point, the record seems to indicate that the trial court appointed defense counsel to continue as appellant's attorney on April 21. Both appellant and counsel orally waived additional time and counsel stated to the court that he had represented the appellant in the case for some time, had examined the district attorney's file and was completely knowledgeable about the case.

The purpose of Article 26.04(b) is to guarantee an indigent accused that he and his appointed attorney will have reasonable time in which to prepare a defense. Thus, this Court has gone beyond the appointment time and looked to actual preparation time in determining whether the dictates of Article 26.04(b) have been satisfied. Henson v. State, 530 S.W.2d 584 (Tex.Cr.App.1975); Guzman v. State, 521 S.W.2d 267 (Tex.Cr.App.1975); McBride v. State, 519 S.W.2d 433 (Tex.Cr.App.1974); Davis v. State, 513 S.W.2d 928 (Tex.Cr.App.1974). Defense counsel conceded that he had had more than three months to prepare for trial. There is no showing that additional time was needed, requested or wanted. See King v. State, 466 S.W.2d 322 (Tex.Cr.App.1971). Under ...