Melendez v. State, 01-94-00652-CR

• Court: Court of Appeals of Texas
• Writing for the Court: Before OLIVER-PARROTT; O'CONNOR
• Citation: 902 S.W.2d 28
• Parties: Eliseo MELENDEZ, Appellant, v. The STATE of Texas, Appellee. (1st Dist.)
• Docket Number: No. 01-94-00652-CR,01-94-00652-CR
• Decision Date: 25 May 1995

Page 28

902 S.W.2d 28 Eliseo MELENDEZ, Appellant,
v.
The STATE of Texas, Appellee. No. 01-94-00652-CR. Court of Appeals of Texas,
Houston (1st Dist.). May 25, 1995.
Discretionary Review Granted Oct. 11, 1995.

Floyd W. Freed, III, Houston, for appellant.

John B. Holmes, Jr., Scott A. Durfee, Devon Ward, Houston, for appellee.

Before OLIVER-PARROTT, C.J., and O'CONNOR and MIRABAL, JJ.

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OPINION

O'CONNOR, Justice.

We deny the State's motion to abate this appeal, and reverse and remand for a new trial pursuant to TEX.R.APP.P. 50(e). A jury convicted the appellant, Eliseo Melendez, of possession of cocaine with intent to deliver. The trial court assessed punishment, enhanced by an earlier felony, at 25-years confinement. On appeal, the State discovered that a crucial exhibit had been lost and attempted to substitute the affidavits of the trial attorneys for the exhibit. The appellant opposed the substitution.

Fact Summary

Acting on an anonymous tip, Houston Police Officer F.A. Kurtz set up surveillance outside a bar to watch for drug trafficking. Within 10 minutes, Kurtz saw three separate transactions at the back of the bar that appeared to be drug deals. In each transaction, Kurtz saw a car pull up to the back door and the driver honk the horn. A man, later identified as the appellant, would then come out of the bar, walk to the car, look around, lean into the car, talk to the driver, pull something out of his right pocket, and hand it to the driver. The driver would then give the appellant something that he would put it into his left pocket. Officer Kurtz testified he did not actually see drugs exchanged, but did see money pass during one transaction. Officer Kurtz testified he believed he was watching drug transactions.

After the third transaction, Officer Kurtz testified that the appellant got into a car with another man and left the bar. Officer Kurtz called for assistance from the raid team. Officer David Wondercheck, who was driving a marked patrol car, stopped the appellant's car after noticing that the driver and the passenger were not wearing seatbelts. The appellant was driving the car.

Officer Wondercheck and a partner ordered the appellant and his companion out of the car. A total of five officers participated in the stop and arrest. Two of the officers testified at trial that they watched the appellant's car and the appellant to make sure he did not throw anything from the car during the stop or during the arrest. None of the officers saw the appellant throw or drop anything from the car before he got out or afterward. The officers testified that it is common for persons in possession of drugs to throw them away or drop them during an arrest.

After taking the appellant and the passenger out of the car, the officers patted them down for weapons. The officers then put the appellant into the passenger side back seat of the patrol car and his companion in the driver's side back seat. After the appellant and the passenger were in the patrol car, Sergeant John Williams spotted a Big Red Gum PlenTpak wrapper (exhibit six) on the ground, next to the rear passenger door of the patrol car. In the wrapper, Officer Williams found three clear plastic baggies containing what he believed was cocaine. About the same time he found the Big Red Gum wrapper outside the car, Officer Kurtz noticed an "open pack, five sticks of gum, laying on the [front] seat [of the appellant's car] still wrapped up in the wrapper." (exhibit five)

A police chemist testified the baggies...