Hernandez v. State
| Citation | 548 S.W.2d 904 |
| Decision Date | 06 April 1977 |
| Docket Number | No. 52874,52874 |
| Parties | Felix M. HERNANDEZ v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
This is an appeal from a conviction for possession of heroin. Appellant was found guilty in a bench trial upon his plea of not guilty and his punishment was assessed at 20 years' confinement in the Texas Department of Corrections.
Appellant's sole complaint is that the manner in which the heroin was recovered "shocks the conscience." Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 96 L.Ed. 183 (1952). His motion to suppress was overruled.
The record reflects that as two San Antonio police officers who were acting on a tip that appellant was in possession of heroin approached the appellant they "saw his hand come to his mouth and try to put something in his mouth . . . ." Believing the appellant to be secreting the heroin that they had been informed he was in possession of, the two officers rushed the appellant and wrestled him to the ground. While one officer held appellant's arms, the other choked him until he spit out four balloons. Heroin was found in the balloons.
California decisions, People v. Parham, 60 Cal.2d 378, 33 Cal.Rptr. 497, 384 P.2d 1001 (1963); People v. Sanders, 268 Cal.2d 802, 74 Cal.Rptr. 350 (Cal.App.1969); People v. Erickson, 210 Cal.App.2d 177, 26 Cal.Rptr. 546 (Cal.App.1962); People v. Taylor, 191 Cal.App.2d 817, 13 Cal.Rptr. 73 (Cal.App.1961); People v. Brinson, 191 Cal.App.2d 253, 12 Cal.Rptr. 625 (Cal.App.1961); People v. Martinez, 130 Cal.App.2d 54, 278 P.2d 26 (Cal.App.1955); see also, People v. Bracamonte, 15 Cal.3d 394, 124 Cal.Rptr. 528, 540 P.2d 634 (Cal.Sup.1975), notwithstanding, the law is well settled in this jurisdiction that when an officer has probable cause to believe that an offense is being committed in his presence, see, Article 14.01, V.A.C.C.P., he has the right to take reasonable measures to insure that the incriminating evidence is not destroyed and that reasonable physical contact is one of these measures. McLeod v. State, 450 S.W.2d 321 (Tex.Cr.App.1970); Donley v. State, 435 S.W.2d 518 (Tex.Cr.App.1969); Johnson v. State, 397 S.W.2d 441 (Tex...
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State v. Harris
...defendant's jaw and placing fingers in defendant's mouth to recover tinfoil packets containing heroin and cocaine); Hernandez v. State, 548 S.W.2d 904 (Tex.Crim.App.1977) (holding that police were justified in choking defendant until he spit out four balloons containing heroin); State v. Le......
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State v. Thompson
...(stranglehold on defendant, forcing him to spit out heroin, was not an unreasonable search and seizure); Hernandez v. State, 548 S.W.2d 904 (Tex.Crim.App.1977) (action of the police officers in wrestling defendant to the ground while one officer held defendant's arm and the other choked def......
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State v. Hodson
...364 U.S. 827, 81 S.Ct. 65, 5 L.Ed.2d 55 (1960); State v. Santos, 101 N.J.Super. 98, 243 A.2d 274 (App.Div.1968); Hernandez v. State, 548 S.W.2d 904 (Tex.Crim.App.1977); see also State v. Thompson, 244 Neb. 189, 505 N.W.2d 673 (1993) (upholding use of a "lateral vascular neck restraint" to o......
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People v. Holloway, Docket No. 65452
...containing narcotics from the defendant's mouth, and the defendant sustained slight injuries in the scuffle); Hernandez v. State, 548 S.W.2d 904 (Tex.Crim.App.,1977) (no Rochin problem was found where the officers noticed the defendant attempting to put something in his mouth, the defendant......