Holmes v. State

• Decision Date: 11 February 1998
• Docket Number: No. 10-97-080-CR,10-97-080-CR
• Citation: Holmes v. State, 962 S.W.2d 663 (Tex. App. 1998)
• Parties: Michael Dwayne HOLMES, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 663

962 S.W.2d 663

Michael Dwayne HOLMES, Appellant, v. The STATE of Texas, Appellee.

No. 10-97-080-CR.

Court of Appeals of Texas Waco.

Feb. 11, 1998.

Rehearing Overruled March 11, 1998.

George Roland, McKinney, for appellant.

Tom O'Connell, Criminal District Attorney, Julie Breedlove, Assistant District Attorney, McKinney, for appellee.

Before DAVIS, C.J., and CUMMINGS and VANCE, JJ.

OPINION

DAVIS, Chief Justice.

A jury convicted Appellant Michael Dwayne Holmes of possessing a usable quantity of marihuana in the amount of two ounces or less. See TEX. HEALTH & SAFETY CODE ANN. § 481.121(b)(1) (Vernon Supp.1998). The court sentenced Holmes to 120 days' confinement in the county jail and a fine of $1,500.

Holmes contends in this appeal that the court erred by:

misconstruing article 38.23 of the Code of Criminal Procedure;

denying his motion for an instructed verdict;

admitting evidence obtained pursuant to an illegal search;

denying his requested article 38.23 instruction in the charge;

denying his requested instruction on an offense other than that with which he was charged;

denying his request to define the term "usable quantity" in the charge;

permitting evidence which inferred his commission of extraneous offenses;

refusing his requested instruction on extraneous offenses; and

overruling his objection to the State's closing argument.

Holmes argues in a final point that his counsel rendered ineffective assistance by failing to object to other portions of the State's argument which were allegedly improper. This case presents the challenge of applying settled propositions of law to a unique factual setting.

FACTUAL BACKGROUND

McKinney Police Officer Bruce Keffer ¹ stopped Holmes on December 19, 1993, ostensibly for driving his car without wearing a seatbelt. Holmes informed Keffer that he did not have his license with him at that moment and that his car was uninsured. Keffer completed a traffic citation for the violations he observed ² and asked Holmes to step to the rear of his car to discuss the citation. Keffer testified ³ that when Holmes got out of the car, he saw "the corner of a dollar bill" "hanging out from underneath the door armrest" of Holmes's car. He asked Holmes whether "there was anything in his vehicle that [Keffer] needed to know about?" According to Keffer, Holmes responded in the negative and invited him to search the car. Keffer found $5,840 in cash and two pill bottles behind the door panel. The pill bottles each bore Holmes's name and each contained a trace of a substance Keffer suspected to be cocaine. Keffer also found two partially-smoked marihuana cigarettes in an ashtray in the right rear door of the car.

After finding the cash and the suspected cocaine, Keffer handcuffed Holmes and placed him in the front passenger seat of his police car because Holmes was too large to fit in the back seat. ⁴ At some point, Keffer placed the marihuana cigarettes on the driver's seat of the police car as he continued his work at the scene. When Keffer returned to his car "30 to 40 seconds" later, the cigarettes were gone. Keffer testified that Holmes was sitting in his seat "just grinning" and that he asked Holmes to step out of the car. Keffer directed Holmes to "open his lips" with his teeth clenched together, and Holmes complied. Keffer "noticed the marihuana leaves in the cracks through his teeth around the gum line."

The State presented Holmes's case to the grand jury seeking an indictment for Holmes's destruction (consumption) of the marihuana and for his possession of cocaine. The grand jury no-billed Holmes on both charges. ⁵ Thereafter, the State filed an information in the County Court at Law on March 22, 1994, charging Holmes with possession of the marihuana.

In October 1994, the State instituted forfeiture proceedings against Holmes's car and the money found in the door compartment. ⁶ See TEX.CODE CRIM. PROC. ANN. art. 59.02 (Vernon Supp.1998). Holmes filed a motion to suppress the evidence in the forfeiture proceeding alleging that the car and money had been seized without a warrant and pursuant to an unlawful detention and search. Id. art. 59.03. In the hearing on the motion, Holmes testified that he was wearing his seatbelt and that he consented to Keffer conducting a search of only his person, not his car. He disputed other aspects of Keffer's testimony as well. The forfeiture court granted Holmes's motion to suppress the evidence on July 11, 1995. The court subsequently dismissed the forfeiture proceeding in October of the same year.

Holmes filed a special plea of double jeopardy and a motion to suppress in the misdemeanor proceeding, which were heard by the court on September 30, 1996. Counsel for the State informed the misdemeanor court that the State sought only to prosecute Holmes for his "repossession" of the marihuana and not for his "original" possession of the substance in the car. The court overruled the special plea and informed counsel that the suppression motion would be carried forward to trial. The case came to trial two days later. The court overruled the suppression motion but directed the State to begin its evidence from the moment when Holmes was placed in Keffer's car and the marihuana was placed on the seat beside him, "and then everything beyond that point." ⁷

The State presented the testimony of Keffer and two other officers who assisted him in Holmes's arrest. The State's witnesses carefully avoided any mention of the basis for the initial stop or their other observations surrounding the investigation (i.e., the discovery of the cash and suspected cocaine). However, the testimony of the witnesses frequently alluded to the fact that other matters were being investigated at the same time as the marihuana charge.

ARTICLE 38.23

In Holmes's first point, he contends that the court misconstrued the exclusionary rule codified in article 38.23 when the court allowed the State to proceed on its "repossession" theory. The State responds that Holmes's voluntary intervening act of retaking possession of the marihuana attenuated the taint of the unlawful detention and search.

Holmes argues that article 38.23 does not allow for the use of the attenuation doctrine as an exception to the exclusionary rule codified in the statute. See TEX.CODE CRIM. PROC. ANN. art. 38.23 (Vernon Supp.1998). However, the Court of Criminal Appeals has specifically held to the contrary. Johnson v. State, 871 S.W.2d 744, 750 (Tex.Crim.App.1994). Accordingly, we will examine the record to determine whether the court properly applied the attenuation doctrine to the facts of this case.

The factors generally considered in assessing whether the taint of an unlawful arrest or search has been sufficiently attenuated to allow the admission of the evidence in question are:

whether Miranda warnings were given;

the temporal proximity of the arrest and the evidence;

the presence of intervening circumstances; and

the purpose and flagrancy of the official misconduct.

Brown v. Illinois, 422 U.S. 590, 603-04, 95 S.Ct. 2254, 2261-62, 45 L.Ed.2d 416 (1975); Dowthitt v. State, 931 S.W.2d 244, 261 (Tex.Crim.App.1996). The first factor only applies in cases in which the evidence sought to be suppressed is testimonial in nature. See Brown, 422 U.S. at 603-04, 95 S.Ct. at 2261-62; Dowthitt, 931 S.W.2d at 261. If nontestimonial evidence seized pursuant to an illegal search or arrest is sought to be suppressed, the first factor is not utilized. See Reed v. State, 809 S.W.2d 940, 946 (Tex.App.--Dallas 1991, no pet.); Matienza v. State, 699 S.W.2d 626, 628 (Tex.App.--Dallas 1985, pet. ref'd).

TEMPORAL PROXIMITY AND INTERVENING CIRCUMSTANCES

The voluntary commission by the accused of another offense after an unlawful arrest generally operates as an intervening circumstance which purges any taint flowing from the unlawful arrest. Id.; see also State v. Mayorga, 876 S.W.2d 176, 177-78 (Tex.App.--Dallas 1994), rev'd on other grounds, 901 S.W.2d 943 (Tex.Crim.App.1995) (evidence that accused resisted unlawful arrest not subject to suppression in prosecution for resisting arrest). ⁸ In this situation, the temporal proximity of the unlawful arrest to the subsequent seizure of evidence is given little weight. See Reed, 809 S.W.2d at 946; Matienza, 699 S.W.2d at 628. Holmes's voluntarily regaining possession of the marihuana in an apparent attempt to destroy the evidence constitutes such an intervening circumstance.

PURPOSE AND FLAGRANCY OF POLICE MISCONDUCT

This factor is "one of the most important factors to be considered." Bell v. State, 724 S.W.2d 780, 789 (Tex.Crim.App.1986).

The clearest indications of attenuation should be required where police conduct is the most flagrantly abusive. Such conduct includes: reliance on factors in making an arrest which were so lacking in indicia of probable cause as to render belief in its existence entirely unreasonable; an arrest effectuated as a pretext for collateral objectives; or an arrest which is unnecessarily intrusive on personal privacy.

Id.; accord Reed, 809 S.W.2d at 947.

The State concedes in its brief that Keffer lacked probable cause to stop Holmes. Thus, it appears that the stop was merely a pretext. Accordingly, this factor weighs heavily against the State, and "[t]he clearest indications of attenuation" are required to overcome it. Bell, 724 S.W.2d at 789.

SUMMARY

Although Keffer's purposeful and flagrant misconduct militates strongly toward suppression, Holmes's intervening "act of free will" sufficiently purged the taint of Keffer's misconduct. Matienza, 699 S.W.2d at 628; accord Mayorga, 901 S.W.2d at 946; see also Cooper v. State, 956 S.W.2d 95, 97-98 (Tex.App.--Tyler 1997, pet. ref'd) (evidence of aggravated assault on peace officer admissible regardless of legality of initial detention). Thus, the court correctly applied the attenuation doctrine to the facts of Holmes's case. We overrule Holmes's first point.

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