Smyth v. State

• Decision Date: 23 June 1982
• Docket Number: No. 61769,61769
• Parties: Mary Sue SMYTH, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 721

634 S.W.2d 721

Mary Sue SMYTH, Appellant, v. The STATE of Texas, Appellee.

No. 61769.

Court of Criminal Appeals of Texas, En Banc.

June 23, 1982.

William A. Bratton, III, Dallas, for appellant.

Henry Wade, Dist. Atty. & Steve Wilensky and Martin Lenoir, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for State.

Before the court en banc.

OPINION ON APPELLANT'S MOTION FOR REHEARING

ROBERTS, Judge.

Our prior opinions are withdrawn.

The county criminal court found the appellant guilty of possession of a usable quantity of marihuana in an amount of less than 2 ounces, and assessed a punishment of 30 days' confinement (probated for 6 months) and a $150 fine. The appellant's only ground of error is that testimony about the marihuana should have been excluded, since it was the fruit of an illegal arrest.

On May 8, 1978, Irving Police Officer Weeger noticed that the appellant had stopped her car at an intersection, but that no brake lights came on. Weeger stopped the appellant "(t)o advise her that the light was out." He did not give her a ticket or arrest her, but he did "get her driver's license and made a check on our NCIC computer for possible warrants." The computer showed that there was an outstanding "warrant" (actually a capias) number 77-2326-E from Dallas County for "PWC theft." ¹ Weeger then arrested the appellant, and the record is quite clear that the arrest was based on the report of an outstanding "warrant."

Officer Hutchinson arrived to "back up" Weeger while Weeger took the appellant to the jail. He testified:

After Officer Weeger placed the defendant under arrest I ordered a Walnut Hill city contract wrecker to come and pick up the vehicle since there was no one there to release the car to. I made an inventory search. It's department policy that we do this on each car. During this time I was making a list of all the valuables in her car; going through it, I went through the console and found a baggie of marijuana in the console.

It is quite clear that the impoundment and inventory of the automobile were the result of the arrest of the appellant on the theft capias.

The question is whether Hutchinson's testimony that he found a usable quantity of marihuana in the appellant's automobile was the fruit of a violation of "(t)he right of the people to be secure in their ... effects against unreasonable searches and seizures...." ² "In applying the reasonableness standard adopted by the Framers, this Court has consistently sustained police intrusions into automobiles impounded or otherwise in lawful police custody where the process is aimed at securing or protecting the car and its contents." South Dakota v. Opperman, 428 U.S. 364, 373, 96 S.Ct. 3092, 3099, 49 L.Ed.2d 1000 (1976) (emphasis added). An automobile may be impounded if the driver has been removed from it and placed under custodial arrest, and if there is a reasonable connection between the arrest and the vehicle, and if no alternative to impoundment is available to insure the protection of the vehicle. Benavides v. State, 600 S.W.2d 809, 811 (Tex.Cr.App.1980). But if the arrest was unlawful, of course the fruits of the impoundment and inventory which were the result of the arrest may not be admitted into evidence. Anderson v. State, 612 S.W.2d 564 (Tex.Cr.App.1981). The admissibility of the fruits of this impoundment and inventory, therefore, depends on the lawfulness of Weeger's arrest of the appellant.

Weeger arrested the appellant on a report that there was an outstanding "warrant" (capias) for her arrest. Officers are entitled to rely on a valid warrant obtained by another officer, but if the warrant is invalid, so too will be the arrest. Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971). The same is true of a misdemeanor capias. Knox v. State, 586 S.W.2d 504 (Tex.Cr.App.1979). The lawfulness of this arrest, therefore, will depend on the validity of the capias.

Before a capias may issue validly, the Fourth Amendment requires that a neutral and detached magistrate make a determination, based on sufficient information to support his independent judgment, that probable cause exists for the capias. Knox v. State, 586 S.W.2d 504 (Tex.Cr.App.1979).

In this case, the capias was issued by the deputy clerk of a county criminal court, ³ on nothing more than the filing of a conclusory affidavit, ⁴ which did not indicate any source of the affiant's belief or supply information to support an independent finding of probable cause. The capias was not valid, and the arrest was unlawful. Knox v. State, 586 S.W.2d 504 (Tex.Cr.App.1979). The arrest having been unlawful, the fruits of the impoundment and inventory which followed should have been excluded on the appellant's objection.

The State makes an alternative argument that the appellant "waived" the error when she testified, "Yes," to this question at the punishment stage of the trial: "I have just one question. Did you know the marijuana was in the car?"

The State relies on Warren v. State, 514 S.W.2d 458 (Tex.Cr.App.1974), wherein (at 464) the rule is stated, "The legality of a search need not be considered when the defendant testifies to or otherwise produces evidence of the same facts...." The appellant's testimony in this case was not "the same facts" as the evidence which was the fruit of the illegal seizure. Her testimony, at most, was evidence that she knowingly possessed marihuana. The objectionable testimony of Officer Hutchinson included his evidence that the marihuana which he illegally seized was of a usable quantity, which was an essential element of the offense. ⁵ LeJeune v. State, 538 S.W.2d 775 (Tex.Cr.App.1976). There was no other proof of this element. The appellant's testimony did not cure the error of admitting Hutchinson's objectionable testimony.

The judgment is reversed and the cause is remanded.

TEAGUE, Judge, dissenting.

But for the law as it presently exists in the State of Texas, I would agree with Judge Roberts' conclusion that the appellant's arrest was unlawful, thereby rendering inadmissible into evidence the fruits of the impoundment and inventory which followed. However, because of the doctrine of stare decisis, I must respectfully dissent to his opinion.

This Court has in the past applied the doctrines of curative admissibility and waiver of error to the guilt stage of the trial, with evidence and testimony adduced at the punishment stage of the trial. See, for example, Richardson v. State, 458 S.W.2d 665 (Tex.Cr.App.1970); Boothe v. State, 474 S.W.2d 219 (Tex.Cr.App.1972); Palmer v. State, 475 S.W.2d 797 (Tex.Cr.App.1972); Sims v. State, 502 S.W.2d 730 (Tex.Cr.App.1973); Washington v. State, 500 S.W.2d 485 (Tex.Cr.App.1973); Moulton v. State, 486 S.W.2d 334 (Tex.Cr.App.1972); Sheridan v. State, 485 S.W.2d 920 (Tex.Cr.App.1972); Bradley v. State, 478 S.W.2d 527 (Tex.Cr.App.1972); Jones v. State, 484 S.W.2d 745 (Tex.Cr.App.1972); Hunnicutt v. State, 531 S.W.2d 618 (Tex.Cr.App.1976); Warren v. State, 514 S.W.2d 458 (Tex.Cr.App.1974); McKenzie v. State, 487 S.W.2d 65 (Tex.Cr.App.1972); Creel v. State, 493 S.W.2d 814 (Tex.Cr.App.1973); Lasker v. State, 573 S.W.2d 539 (Tex.Cr.App.1978); and see also Brown v. State, 617 S.W.2d...