Reece v. State

• Decision Date: 09 June 1994
• Docket Number: No. 01-93-00074-CR,01-93-00074-CR
• Citation: 878 S.W.2d 320
• Parties: Gary Hawkins REECE, Appellant, v. The STATE of Texas, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 320

878 S.W.2d 320

Gary Hawkins REECE, Appellant, v. The STATE of Texas, Appellee.

No. 01-93-00074-CR.

Court of Appeals of Texas Houston (1st Dist.).

June 9, 1994.

Ronald N. Hayes, Houston, for appellant.

John B. Holmes, Jr., Kimberly Aperauch Stelter, Mike Fields, Harris County, for appellee.

Before DUGGAN, MIRABAL and WILSON, JJ.

OPINION

DUGGAN, Justice.

The jury found appellant, Gary Hawkins Reece, guilty of possession with intent to deliver less than 28 grams of cocaine. The trial court found one enhancement paragraph of the indictment to be true and assessed punishment at 45-years confinement. In six points of error, appellant contends that the trial court erred: (1) by failing to instruct the jury on probable cause for an arrest and search; (2) by excluding testimony regarding the warrantless arrest by Houston Police Department officers Rick Thomas and A.D. Brown; and (3) by allowing Officer Brown's opinion testimony about the reason appellant was in the parking lot. Appellant further argues that: (4) the evidence was insufficient to prove his possession of cocaine with intent to deliver; and (5) the State withheld certain exculpatory information from appellant. We reverse the trial court's judgment and remand for a new trial.

At approximately 8:30 p.m., on August 27, 1991, Houston police officers A.D. Brown and Rick Thomas were on routine patrol. Officer Brown testified that he saw appellant drinking from a beer can in a convenience store parking lot that had signs warning that consuming alcohol on the premises was a misdemeanor offense. Officer Brown testified that he approached appellant, advised him of the violation, and arrested him. Brown then searched appellant and a black pouch that was strapped around his waist. Inside the pouch, Brown testified that he found a baggie containing marihuana, 12 individual baggies of what appeared to be crack cocaine, and $222.57 in small bills. ¹ A subsequent chemical analysis of the substance from the 12 individual baggies revealed 1.4 grams of pure cocaine.

In his first point of error, appellant contends the trial court erred in failing to give the jury an instruction under TEX.CODE CRIM.P.ANN. art. 38.23 (Vernon Supp.1994), which provides that:

No evidence obtained by an Officer or other person in violation of any provisions of the Constitution or laws of the State of Texas or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.

In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.

Appellant argues that because there was conflicting evidence about whether he was consuming alcohol, he was entitled to a jury instruction on probable cause.

If Officer Brown saw appellant consuming an alcoholic beverage on the premises of a retailer licensed with an off-premises permit, then he had authority to arrest him. TEX.ALCO.BEV.CODE ANN. §§ 101.02 & 101.72(a) (Vernon Supp.1993). If appellant was lawfully arrested, then Brown had the right incident to the arrest to search the pouch appellant was carrying. Rogers v. State, 774 S.W.2d 247, 264 (Tex.Crim.App.) cert. denied 493 U.S. 984, 110 S.Ct. 519, 107 L.Ed.2d 520 (1989).

A defendant has the right to a jury instruction whenever a fact issue is raised concerning the legality of the State's means of acquiring evidence. Stone v. State, 703 S.W.2d 652, 655 (Tex.Crim.App.1986); Washington v. State, 663 S.W.2d 506, 508 (Tex.App.--Houston [1st Dist.] 1983, pet. ref'd). The State does not dispute that a fact issue was raised; it only asserts that the testimony upon which appellant relied in his objection at trial did not raise a fact issue. The State argues that appellant waived complaints relating to all remaining testimony showing a fact issue.

When the trial court asked for objections to the charge, counsel made his initial request:

I have--I request a charge on--under 38.23, the proper probable cause charge, Your Honor. I do not see it in the instruction at all, Your Honor.

I'm entitled to present that fact issue to the jury irregardless [sic] whether the court has made a decision there was probable cause or not.

They are entitled to hear it as a fact issue regarding the reasonable doubt of the evidence that was presented by the Officers, Your Honor, and, Your Honor, and to see whether the Officer had probable cause to arrest him.

So, we would request an instruction under 33--I'm sorry--38.23(a); and we ask for that, Your Honor.

The next day, at the conclusion of the evidence, appellant's counsel made his second request:

At this moment, again I renew my request for instruction under 38.22(a); and I cite the Court to two cases--one being Adams v. State, 634 S.W.2d 785; and is the second footnote where the Court cites Brewster v. Texas at 606 S.W.2d 325. The Court said, regarding Adams, the Officer who engaged the defendant in conversation testified that he was intent [sic] to issue a warning ticket to appellant with the implication that he would be free to leave. Discovery of the--a search intervened, and we think the restraint became custody when the search led to a search of marijuana bags.

I would submit Mr. Igwe impeached the testimony of Officer Brown as to whether Officer Brown actually arrested Mr. Reece for drinking on premises. Mr. Brown stated he had arrested him for drinking on the premises; but, in fact, Officer Thomas stated only thing he heard Officer Brown tell Gary was that Gary was arrested for possession of narcotics.

Mr. Igwe stated attorneys called on the phone told them he was going to warn him that it was against the law to drink on the premises. That's an indication he was going to release after warning him he didn't know how the black bag got opened and that discovery of the drugs was found on the bag, Your Honor.

That's an issue. That's a fact question that he can go to the jury under 38.23(a). We're entitled to an instruction on that point; and we would request an instruction on that point, Your Honor.

The court overruled each request. The State contends that because Mr. Igwe (appellant's probation officer) was not at the scene of the arrest, his testimony failed to raise a fact issue on probable cause of the arrest. We agree that Igwe's testimony did not create a fact issue.

However, for appellate review purposes, we find that appellant sufficiently raised the issue before the court. First, appellant's initial request did not refer to particular testimony. Second, in considering whether an appellant's objection was specific enough to preserve complaints on appeal, the Court of Criminal Appeals, in Miniel v. State, 831 S.W.2d 310, 316 (Tex.Crim.App.1992), decided that the defendant's specific objection to the exclusion of an instruction on voluntariness of the confession, together with counsel's dictation into the record that "the defendant feels that there was sufficient evidence raised in the facts of this case to submit such charge to the jury," preserved his claim on appeal. Here, no written request was made. A dictated objection to a jury charge is sufficient to preserve alleged error for review without submission of a requested instruction. James v. State, 774 S.W.2d 418, 420 (Tex.App.--Dallas 1989, pet. ref'd).; Heard v. State, 701 S.W.2d 298, 299 (Tex.App.--Houston [14th Dist.] 1985, pet. ref'd). Moreover, even in the case of a written request, the court in Stone stated that the requested instruction sufficiently apprised the trial court of the objections to omissions in the charge because "the trial court understood that appellant was objecting to the omission of an instruction regarding the officer's right to stop the vehicle." 703 S.W.2d at 655. "The requested charge must only be 'sufficient to call the trial court's attention to the omission in the court's charge.' " Id. (quoting Stiles v. State, 520 S.W.2d 894, 896-97 (Tex.Crim.App.1975)).

Appellant's two dictated requests specifically objected to the omission of an instruction on probable cause to arrest and further generally referred to the testimony at trial that raised "a fact question that he can go to the jury under 38.23(a)." Appellant's failure to refer to all the testimony that combined to raise the fact question was not fatal to preserve his claim on appeal. We find his requests sufficient for the court to understand that appellant was complaining about whether the evidence presented a fact question on probable cause for his arrest. See Miniel, 831 S.W.2d at 316; Stone, 703 S.W.2d at 896-97.

We now consider whether the evidence in fact raised the issue of probable cause to mandate the requested jury charge instruction. Officer Brown testified that he arrested appellant for drinking from a beer can while on the premises in a convenience store parking lot that had signs warning that consuming alcohol on the premises was a misdemeanor offense. Brown's testimony was controverted by the following testimony:

1. Aaron Griggs, who was with appellant before the police arrived and at the time he was arrested, stated that appellant wasn't holding anything; he further stated that if anyone said appellant was drinking a beer, they would be lying;

2. Presnell Crear, who saw appellant immediately prior to the arrest and during the arrest, stated that appellant used the phone outside the store, walked into the store, and then reappeared with a Styrofoam cup; he further stated that he did not see any aluminum can;

3. Chuong Trinh, one of the owners of the convenience store, stated that appellant came into the store and bought a cup of ice;

4. LaTonya Reed, who, at the time the police arrived, saw appellant with a Styrofoam cup; and

5. Officer Thomas stated that appellant had...