Sheldon v. State, 48166

Citation510 S.W.2d 936
Decision Date26 June 1974
Docket NumberNo. 48166,48166
PartiesDennis Reid SHELDON, Appellant, v. The STATE of Texas, Appellee.
CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas

Warren Burnett, Odessa, for appellant.

John Green, Dist. Atty. and Dennis Cadra, Asst. Dist. Atty., Odessa, Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for possession of marihuana. After the jury returned a verdict of guilty, punishment was assessed by the court at ten years.

At the outset appellant contends that the court erred in denying appellant's motion to suppress.

The only witness to testify at the hearing on appellant's motion to suppress was Highway Patrolman Wasson. He and fellow officer Redmon were on routine patrol on Interstate 20 south of Odessa on March 31, 1971, when they observed a Volkswagen van coming up behind them, 'weaving from one lane to the other crossing the center stripe.' The van passed the patrol car and was stopped by the officers after it passed another vehicle and 'pulled back too soon without giving a signal, he failed to give a signal that he was changing lanes.' When the van was pulled over to the shoulder 'both subjects leaned over into the vehicle down to the floorboard.' The driver of the van, Timmens, walked back to the patrol car. Wasson stated that the officers thought the occupants of the van might be intoxicated and, while they could not smell alcoholic beverage when Timmens talked to them, 'he appeared to be high on something, we didn't know what at the time.' Timmens exhibited a New Jersey driver's license and at the request of the officers secured a New Jersey vehicle registration from the van that was in another person's name. Timmens told the officers that the van 'belonged to someone that was hitchhiking in Old Mexico.' Wasson then left Timmens and Redmon standing in front of the patrol car and walked to the right front door of the van and started talking to appellant, who was still seated in the van, about ownership of the vehicle.

Pursuant to Wasson's request, appellant opened the door and remained seated in the van. Wasson observed a hatchet behind the front seat. Wasson then asked appellant to accompany him back to the patrol car where Wasson asked appellant to get in the patrol car and Wasson returned to the van with Timmens. Timmens and Wasson stood on the right-hand side of the van where Wasson questioned Timmens about the hatchet. Timmens stated that the hatchet was used for camping. While they were 'by the right door' of the van Wasson saw the 'butt end of a long hunting knife over by the driver's seat.' Wasson stated Timmens was standing 'right beside of me.' Wasson reached in to get the knife and saw 'marijuana seeds lying on the floorboard.' A search of the van ensued and a large quantity of marihuana was recovered from trunks and suitcases in the vehicle.

The officers were authorized to stop the van in which appellant was a passenger and arrest the driver of the van as a traffic violator without a warrant. Article 6701d, Sections 68, 153, Vernon's Ann.Civ.St.

In Walthall v. State, Tex.Cr.App., 488 S.W.2d 453, where officer observed a shotgun between seats of a car stopped for speeding, this Court held that even though the shotgun was not short enough to make possession illegal, the officers had a right to look for other weapons for their protection, and marihuana found on driver's person and under seat of car was admissible.

In Smoot v. State, Tex.Cr.App., 475 S.W.2d 281, the facts were similar to those in the instant case. The defendant in Smoot was stopped for speeding. Defendant got out of his car and approached the police car. The officer went to the defendant's vehicle and observed a hunting knife and box of cigarettes on the floorboard. The knife and cigarette box were retrieved by the officer and the box was found to contain nine marihuana cigarettes. The arrest and seizure were held to be legal.

In Imhoff v. State, Tex.Cr.App., 494 S.W.2d 919, when arresting officer observed defendant make movements toward the floor under the front seat of the automobile before the vehicle was stopped and defendant was standing sufficiently close to vehicle after he was stopped that he could have conceivably lunged for weapon or tried to destroy evidence, this Court held that the officer had justification for limited search under front seat which turned up stolen money.

As in Lewis v. State, Tex.Cr.App., 502 S.W.2d 699, there is more in the instant case than an arrest for a traffic offense to justify the search of the vehicle. With Timmens standing beside Wasson at the right front door of the van, coupled with the suspicious circumstances already known to Wasson, we conclude that the officer had a right to retrieve the knife and hatchet and search for other weapons or like material which would constitute a danger to the officers' lives or which might be used to facilitate escape. Lewis v. State, supra; Wallace v. State, Tex.Cr.App., 467 S.W.2d 608. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). When Wasson reached in the van to get the knife and saw marihuana seeds on the floor, probable cause was established for additional search of the vehicle for contraband drugs. See Taylor v. State, Tex.Cr.App., 421 S.W.2d 403, cert. denied, 393 U.S. 916, 89 S.Ct. 241, 21 L.Ed.2d 201; Medina v. State, Tex.Cr.App., 493 S.W.2d 151; Aldridge v. State, Tex.Cr.App., 482 S.W.2d 171.

No error is shown in the court overruling appellant's motion to suppress contraband found in the van.

Appellant contends that the court erred in admitting into evidence a statement made by appellant.

Luggage was removed from the van and Timmens was asked to return to the patrol car and obtain keys from appellant to open same. As the luggage was opened, revealing marihuana, appellant, still seated in the patrol car, said, 'That is my marihuana, he is just transporting it.'

Appellant argues that the statement was not admissible because it was (a) the fruit of an unlawful search, (b) obtained during custodial interrogation prior to the giving of a Miranda warning, and (c) never ruled 'voluntary' by the trial court as required by Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).

The statement made by appellant was spontaneous and not in response to questions by the arresting officers. Article 38.22, Vernon's Ann.C.C.P., permits the use of oral statements made without warnings when they are 'res gestae of the arrest or of the offense.' In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), it was stated, 'Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.' We reject appellant's contention that the statement was obtained in violation of Miranda and Article 38.22, V.A.C.C.P., and find that such statement was spontaneous and instinctive, and admissible as a res gestae declaration. Dominguez v. State, Tex.Cr.App., 506 S.W.2d 880; Hood v. State, Tex.Cr.App., 490 S.W.2d 549; DeLeon v. State, Tex.Cr.App., 500 S.W.2d 862. Cf. McBride and Byars v. State, Tex.Cr.App., 506 S.W.2d 887; Noble v. State, Tex.Cr.App., 478 S.W.2d 83; Brown v. Beto, 468 F.2d 1284 (5th Cir. 1972). We need not consider appellant's argument that such statement was the fruit of an unlawful search in view of our disposition of his first contention.

Having found that appellant's statement was admissible as a res gestae declaration, Jackson v. Denno findings were not required. See Jones v. State, Tex.Cr.App., 458 S.W.2d 654.

Appellant contends that the court erred in overruling appellant's motion to discover the police report that contained material important to the appellant's defense.

Appellant points to the fact that the police report contained the oral statement that was used against the appellant as an admission.

Appellant's reliance on Article 39.14, V.A.C.C.P., is misplaced in that police reports have been held to be excepted from discovery under such statute. Bradshaw v. State, Tex.Cr.App., 482 S.W.2d 233; Feehery v. State, Tex.Cr.App., 480 S.W.2d 649; Hart v. State, Tex.Cr.App., 447 S.W.2d 944. It should be noted that Article 39.14, supra, provides for discovery of 'written statement of the defendant.'

Before Officer Redmon testified before the jury relative to appellant's utterance regarding ownership of the marihuana, a hearing was held outside the presence of the jury at which it was developed that Officers Redmon and Wasson prepared the offense report in question and the report was made available to appellant for cross-examination and impeachment purposes. We find compliance with the holding in Zanders v. State, Tex.Cr.App., 480 S.W.2d...

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