Harper v. State, 27736

• Citation: 284 S.W.2d 362,162 Tex.Crim. 295
• Decision Date: 09 November 1955
• Docket Number: No. 27736,27736
• Parties: Otis Wayne HARPER, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 362

284 S.W.2d 362

162 Tex.Crim. 295

Otis Wayne HARPER, Appellant, v. The STATE of Texas, Appellee.

No. 27736.

Court of Criminal Appeals of Texas.

Nov. 9, 1955.

Martin & Shown, by W. E. Martin, Houston, James B. Turner, Houston, for appellant.

Dan Walton, Dist. Atty., Eugene Brady, Asst. Dist. Atty., Thomas D. White, Asst. Dist. Atty., Houston, Leon B. Douglas, State's Atty., Austin, for the State.

MORRISON, Presiding Judge.

The offense is the possession of heroin; the punishment, 10 years.

Officer Tucker testified that at approximately 5:00 P.M. on the day in question he observed two men, one of whom he recognized as Haynes, seated in a parked automobile on a street in the City of Houston some 50 feet from a filling station; that the automobile had two flat tires, and 'the right side was bent'; that Haynes was 'sitting with his head kind of slumped over the wheel,' and he could barely see the top of the head of the other man; and that it looked to him like they had been involved in an accident. Tucker circled the block, and when he returned Haynes had gone inside a filling station and the appellant was standing up on the sidewalk. He went up to the appellant, whom he knew had been to the penitentiary for narcotics and had been arrested several times on suspicion of narcotics, and he thought once for burglary; and we then quote from his testimony: 'I told him we have been having some bad reports on him; that we had heard that he had been pushing heroin out in the Denver-Harbor Addition.' Tucker stated that he then arrested the appellant and searched his person and found the heroin which forms the basis of this prosecution.

By bill of exception No. 1 it is shown that the appellant is 5"' 2' in height, weighs about 96 pounds, is a badly deformed hunchback, and when sitting is about one head lower than an average sized adult person; and, according to the officer's testimony, he got the impression that the other man with Haynes was slumped down when he first passed but that he could have been mistaken because he found that the appellant was so short.

The officer's testimony is confusing on this point, but we think a reasonable construction of the record would be that after the search the appellant was then asked where he had been, to which question the appellant failed to give a definite answer, and he was also asked where he had bought the heroin, to which question no answer is shown.

Following this, Haynes came out of the filling station, and he was arrested. We think a discussion of the officer's observation of Haynes' condition at the time of his arrest would be of no probative value in this case because the appellant was already under arrest when Haynes came upon the scene.

The appellant did not testify and offered no evidence in his own behalf.

The sole question presented for review is the admissibility of the fruits of the search of the appellant's person which followed his arrest.

The State relies upon the ordinance of the City of Houston passed under the authority of Article 214, V.A.C.C.P.; Holt v. State, 144 Tex.Cr.R. 62, 160 S.W.2d 944, and Id., 144 Tex.Cr.R. 88, 160 S.W.2d 957; McCutcheon v. State, 158 Tex.Cr.R. 419, 252 S.W.2d 175; the recent opinion of this Court in French v. State, No. 27,637, Tex.Cr.App., 284 S.W.2d 359, and several other cases.

The appellant contends that the ordinance of the City of Houston goes much further than is authorized by Article 214, V.A.C.C.P., and is therefore not authorized by the statute.

In the two Holt cases, the facts surrounding the arrest and search of the Holts are not set forth, and therefore are of little aid to us here. We note, however, that the court held the fruits of the search admissible under both the ordinance and Article 325, V.A.C.C.P.

In the McCutcheon case, the officers saw two men step up on the sidewalk at night and throw something over a hedge. The officers then questioned the men, and they denied that they had thrown anything; the officers then looked behind the hedge and found two shirts. We held that such conduct on the part of men unknown to the officers authorized a search of their persons and their automobile under the ordinance of that city.

In the recent French case, the facts were these. Two narcotic enforcement officers were outside a certain cafe in the City of Houston, observing, while uniformed officers were making a raid inside the cafe. They observed the appellant, who was known to them to be a handler of marijuana, walk up to the door of the cafe where he could see what was going on inside, but instead of entering abruptly turned and ran to his automobile and endeavored to leave the vicinity in great haste. In that case, we were careful to say:

'We do not hold that the information which the officer had received about the appellant's connection with narcotics alone would have authorized the search but we do hold that his flight under the circumstances here presented, together with the information which the officer had about him, authorized the arrest of the appellant as a person of suspicious demeanor under the ordinance, and the subsequent search.'

But let us now carefully examine the facts in the case before us to determine whether or not the ordinance in question, insofar as it does not conflict with or exceed the power granted the city by Article 214, authorizes the arrest and search of the appellant here.

When the officer first passed, he says he got the impression that a parked automobile had been in an accident. But when he returned, he asked the appellant no questions about a collision, nor was any proof introduced to show that the automobile had been involved in a collision. In fact, this is what he said:

'Got out of the car and went to the defendant and started talking to him. I identified myself, and his eyes started getting big, and he seemed to get very nervous; so I told the fellow he was under arrest for suspicion, and started searching him.'

We see, therefore, that, stripped of all non-essential facts, we have here an officer who comes upon an ex-convict standing on the sidewalk during the business hours of the day doing nothing to indicate that he was involved in a violation of the law, and immediately arrests him upon 'suspicion' and searches his person.

These were not, as we view it, sufficient grounds to authorize the arrest under the terms of the statute and under the provisions of the ordinance which are not in conflict with the statute. Nor do we here find sufficient facts to authorize the arrest and search under Section 15 of Article 725b, V.A.P.C., as we did in Sutton v. State, 157 Tex.Cr.R. 216, 247 S.W.2d 894.

The facts in the French case differentiate it from the case at bar. Here, we have no flight from a place under...