Parker v. State, 57037

• Decision Date: 07 February 1979
• Docket Number: No. 57037,No. 3,57037,3
• Citation: 576 S.W.2d 613
• Parties: Charles Vernon PARKER, Jr., Appellant, v. The STATE of Texas, Appellee. . Panel
• Court: Texas Court of Criminal Appeals

Page 613

576 S.W.2d 613

Charles Vernon PARKER, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 57037.

Court of Criminal Appeals of Texas. Panel No. 3.

Feb. 7, 1979.

Jack Hill, Dallas, for appellant.

Henry Wade, Dist. Atty., William M. Lamb and Mary K. Ludwick, Asst. Dist. Attys., Dallas, for the State.

Before DOUGLAS and TOM G. DAVIS, JJ.

OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for possession of less than two ounces of marihuana. Art. 4476-15, Sec. 4.05(b)(3). The court assessed punishment at one day and a fine of $250.

In a single ground of error, appellant contends that the trial court erred in refusing to grant his motion to suppress.

W. L. Carmack, a Dallas police officer, testified that on May 24, 1976, at approximately 1:45 a. m., he answered a disturbance call at a "strip place" called the Painted Duck on Gaston Avenue in Dallas. As Carmack pulled into the driveway of the Painted Duck, he "noticed a vehicle attempting to leave at a pretty good rate of speed." When asked whether he stopped the vehicle, he stated, "Yes, the vehicle almost ran into us. . . ." The driver, who was identified as the appellant, and a companion were removed from the car. The appellant was, in the officer's opinion, intoxicated, and he was arrested for public intoxication. The officer testified that the arrest was for public intoxication rather than DWI because the car was stopped before it reached the public street.

Officer Carmack went inside the Painted Duck to answer the disturbance call while another officer who had arrived at the scene, J. N. Stacey, stayed with the appellant and his companion. After returning from the Painted Duck, Carmack searched the interior of the appellant's automobile and discovered two baggies of what was later identified as marihuana, one under the driver's seat and another in the console between the two front seats. It appears at the time the search was conducted the appellant and his companion were seated in the backseat of one of the patrol cars at the scene.

In his brief, the appellant argues that the officers had no probable cause to search appellant's automobile. It is clear from Carmack's testimony that the appellant's automobile was leaving the parking lot "at a pretty good rate of speed" and it "almost ran into" the patrol car. This was sufficient probable cause to authorize the initial stop of appellant's vehicle. When the vehicle was stopped, the officer was in a position where he could properly observe appellant's intoxication. He was then arrested for the offense of public intoxication.

In Duncantell v. State, 563 S.W.2d 252 (Tex.Cr.App.1978), cert. denied, --- U.S. ----, 99 S.Ct. 637, 58 L.Ed.2d ---- (1978), this Court was confronted with a case involving the discovery of marihuana after a stop for speeding. Citing Taylor v. State, 421 S.W.2d 403 (Tex.Cr.App.1967), the Court stated:

"Once a bona fide stop or arrest has been made for a traffic offense, the police can make additional arrest for any other offense unexpectedly discovered during the course of the investigation. If, while questioning a motorist regarding the operation of the vehicle, an officer sees evidence of a criminal violation in open view, or In some other manner acquires probable cause on a more serious charge he may arrest for that offense and Incident thereto conduct an additional search for physical evidence." (Emphasis in the original.)

This Court in Duncantell v. State, supra, also observed:

"It is common knowledge that usage of marihuana, or of a combination of marihuana and alcohol, often results in a form of intoxication."

In Law v. State, 574 S.W.2d 82 (Tex.Cr.App.1978), the defendant challenged the search of his automobile after his arrest for carrying a handgun. Like the appellant in the instant case, Law had been asked to step out of his car and "was being escorted by the other officer on duty toward the rear of the car . . ." while a search was conducted of the interior of his automobile which disclosed a gun under the front seat. This Court stated:

"Further, if there is probable cause that a motor vehicle contains contraband or the instrumentalities of a crime as there was here, a valid search is not limited to Chimel's, supra (Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969)), 'area of immediate control'...