Hamilton v. State

• Citation: 831 S.W.2d 326
• Decision Date: 06 May 1992
• Docket Number: No. 1106-89,1106-89
• Parties: Larry Dale HAMILTON, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 326

831 S.W.2d 326

Larry Dale HAMILTON, Appellant, v. The STATE of Texas, Appellee.

No. 1106-89.

Court of Criminal Appeals of Texas,

En Banc.

May 6, 1992.

Richard Alley, Fort Worth, for appellant.

Tim Curry, Dist. Atty., C. Chris Marshall, Helen T. Dhooghe, Asst. Dist. Attys., Fort Worth, Robert Huttash, State's Atty. and Matthew W. Paul, Asst. State's Atty., Austin, for the State.

Before the Court en banc.

OPINION ON STATE'S MOTIONS FOR REHEARING AFTER REFUSAL OF

STATE'S PETITIONS FOR DISCRETIONARY REVIEW

McCORMICK, Presiding Judge.

A Tarrant County jury found appellant guilty of the offense of possession of less than 28 grams of amphetamine, a felony of the third degree in violation of Article 4476-15, Sections 4.02(c)(3) and 4.041(a) and (b), V.A.C.S., the provisions of the Texas Controlled Substances Act in effect at the time of appellant's offense. ¹ After finding that appellant committed this offense enhanced by three prior felony convictions, as alleged by the State in its indictment of appellant, the trial court sentenced appellant to a term of imprisonment of 25 years pursuant to V.T.C.A., Penal Code, Section 12.42(d). Appellant filed a timely notice of appeal from his conviction and sentence. In a published opinion, the Fort Worth Court of Appeals reversed appellant's conviction on the ground that the trial court committed reversible error in denying appellant's request to instruct the jury on pretext arrests pursuant to Article 38.23, V.A.C.C.P. Hamilton v. State, 772 S.W.2d 571 (Tex.App.-Fort Worth 1989). We refused petitions for discretionary review filed by the offices of the Tarrant County District Attorney and the State Prosecuting Attorney, but subsequently granted their motions for rehearing. For the reasons stated below, we now reverse the decision and affirm appellant's conviction and sentence.

Officer Mika Jackson of the Fort Worth Police Department testified that on the afternoon of May 5, 1986, she and Officer J.D. Ross were driving in a marked patrol car on Jeff Street in Fort Worth. The officers noticed a 1984 gray Chrysler Laser parked on the wrong side of the street in front of 2821 Jeff Street. The Laser caught Officer Jackson's attention because she had been patrolling that area for over a year and knew that no one on Jeff Street owned it. In addition, the Laser was a "sports" type car which was out of character for that neighborhood. ² The officers then decided to run a records check to determine if the Laser had been stolen. ³ The check revealed that the registered owner of the Laser was P.K. Insulation. After learning that the Laser was owned by a business, rather than an individual, the officers decided to drive by the Laser again. As the officers drove by, now travelling east on Jeff Street, they saw appellant leave the house at 2821 Jeff Street. The officers then circled the area and were driving west on Jeff Street when they saw the Laser heading toward them in their lane. The officers had to stop their car to avoid hitting the Laser. Officer Ross motioned to appellant and told him to pull over.

After appellant pulled over, Officer Jackson told him to step out of his car and show her his driver's license and proof of insurance. Appellant got out of the car and told Jackson that he did not have either a license or proof of insurance. Jackson then asked appellant what his name was, and appellant identified himself as Larry Wilson, but had difficulty spelling his last name for Jackson. Appellant also gave Jackson a date of birth and an address in Marlow, Oklahoma, but was unable to give Jackson a zip code or a telephone number. Jackson then attempted to obtain driver's license information on appellant using the name Larry Wilson and the date of birth appellant gave her, but was unable to do so. Jackson then asked appellant who owned the Laser he was driving, and appellant told her that he borrowed it from a person named "Sherry." Jackson then asked appellant for the last name and address of "Sherry," but appellant could only state that she did not have a local address and was staying at a Holiday Inn in Hurst.

At this point Jackson cited appellant for the misdemeanor offenses of driving on the wrong side of the road, and failing to produce a driver's license or proof of insurance. Jackson also decided to arrest appellant and place him in jail so that he would be required to post a cash bond before he could be released. Jackson based this latter decision on the following facts: (1) appellant became very nervous when Jackson asked appellant his name, (2) appellant had difficulty spelling his last name, (3) appellant had been unable to give her a complete mailing address ⁴, and (4) Jackson had been unable to contact either P.K. Insulation or "Sherry" to verify the ownership of the Laser. ⁵ Based on these facts, Jackson also testified that it was "proper police procedure" to arrest appellant rather than simply have him sign the citations and promise to appear in court. Jackson therefore testified that she did not have the option of releasing appellant under these circumstances. ⁶

After appellant was placed under arrest, Officer Ross conducted a search incident to arrest. During that search, Ross found a black leather sunglass case. Ross opened the case and found a plastic baggie containing a white powdery substance, which a subsequent chemical analysis showed to be amphetamine. As Officer Ross opened the case, appellant stated that "I thought I was out of dope." After the officers placed appellant in the patrol car, he admitted that his real name was Larry Hamilton, not Larry Wilson.

After the presentation of evidence by the parties, but prior to closing arguments, appellant objected to the trial court's charge to the jury on the ground that it failed to include Defendant's Specially Requested Charge. Paragraphs III and V of the Specially Requested Charge would have instructed appellant's jury, in essence, to disregard any evidence which the jury found was obtained as a result of a pretext arrest of appellant, and return a verdict of not guilty if it found any such evidence. ⁷ The trial court denied appellant's requested charge. As stated previously, appellant's jury found him guilty of the offense of possession of less than 28 grams of amphetamine and the trial court sentenced him to a 25-year term of imprisonment after finding that appellant committed the offense enhanced by three prior felony convictions.

Appellant filed a timely notice of appeal from his conviction and sentence and argued on appeal that the trial court committed reversible error in refusing his requested charge on pretext arrest. Specifically, appellant argued that (1) the evidence at trial raised the issue of whether his arrest was a pretext arrest in violation of Article I, Section 9 of the Texas Constitution and (2) the trial court was therefore required by Article 38.23, V.A.C.C.P., to instruct the jury on this issue. ⁸ The Fort Worth Court of Appeals agreed with appellant's argument, and reversed and remanded his case to the trial court for a new trial. In reaching this result, the court relied upon this Court's decision in Black v. State, 739 S.W.2d 240 (Tex.Cr.App.1987), in which we found that an arrest was a pretext arrest in violation of the Fourth Amendment to the United States Constitution where the police arrested a defendant for traffic violations in order to question him about a murder for which the police did not have probable cause to arrest the defendant. The court held that it was bound by our decision in Black, and was therefore required to construe Article 1, Section 9 as providing at least as much protection to defendants with respect to pretext arrests as is provided under the Fourth Amendment as construed by Black. The court therefore rejected the State's argument, based on United States v. Causey, 834 F.2d 1179 (5th Cir.1987), that an arrest should not be considered to be a pretext arrest under Article 1, Section 9, as long as the police were legally authorized to make the arrest. Using the subjective intent standard of Black, the court held that the trial court violated Article 38.23 in refusing to instruct appellant's jury on pretext arrests since the evidence at trial raised a factual issue concerning the officers' intent in arresting appellant. Specifically, the court stated that the same facts which prompted the officers to arrest appellant for the misdemeanor offenses could have caused the officers to suspect appellant of car theft and wish to question him about that offense. Finally, the court held that this violation was not harmless because appellant was entitled to have that factual question resolved by the jury. ⁹

As noted previously, the offices of the Tarrant County District Attorney and the State Prosecuting Attorney (the "State") filed petitions for review from the Court of Appeals' decision. In those petitions, the State requested us to review the following legal issues: (1) whether Black v. State, supra, is still a viable interpretation of the Fourth Amendment with respect to pretext arrests, (2) whether Article I, Section 9 of the Texas Constitution provides greater protection than the Fourth Amendment with respect to pretext arrests and (3) whether the evidence at appellant's jury trial raised an issue with respect to pretext arrests which required instruction of appellant's jury pursuant to Article 38.23. Having granted the State's motions for rehearing of our refusal of the State's petitions, we now address these issues.

We very recently resolved the first issue presented by the State for review, i.e., whether Black is still a viable interpretation of the Fourth Amendment with respect to pretext arrests. In Garcia v. State, 827 S.W.2d 937 (Tex.Cr.App., No. 929-90, April 1, 1992), we overruled Black v. State, supra, and held, relying on the majority rule in the federal circuit courts, that for Fourth Amendment purposes the validity of an...