Spencer v. State, 45709
| Decision Date | 31 January 1973 |
| Docket Number | No. 45709,45709 |
| Parties | Norris Lee SPENCER, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Michael L. Morrow, Dallas, for appellant.
Henry Wade, Dist. Atty., Mike G. McCollum, Asst. Dist. Atty., Dallas, Jim D. Vollers, State's Atty., and Robert A. Huttash, Asst. State's Atty., Austin, for the State.
DICE, Commissioner.
The conviction is for possession of marihuana; the punishment, fifteen (15) years.
By his first ground of error appellant insists that the court erred in admitting into evidence the marihuana 'which was obtained as the result of an illegal arrest and illegal search of appellant's automobile.'
The evidence shows that on the day in question, Officer Williams stopped the appellant for operating an automobile with loud mufflers. The officer then discovered that appellant had no driver's license and had an altered inspection sticker on the vehicle. Three other people were in the car, two women in the back seat and a man in the front seat with appellant. As appellant was getting out of the car at the officer's request, Officer Williams saw a small brown bottle fall from between appellant's legs onto the pavement. The officer picked up the bottle and found that it contained one red capsule and two clear capsules in which there was a whitishbrown substance which appeared to the officer to be heroin. Officer Williams then found a penny matchbox with a grass-like substance in it lying next to the curb by the right rear door of the automobile. He then proceeded to search the vehicle and found a grass-like substance on both the front and rear floorboards and a capsule containing a brownish or grayish substance under the rear seat on the left side.
Appellant and the other occupants were then taken into custody and the items found by the officer were placed in a locked box at the jail.
It was shown that the substance in the matchbox and on the floorboards of the vehicle was marihuana and that the capsules in the bottle contained heroin.
Under the facts Officer Williams had authority to stop the appellant for driving with a loud muffler and an altered inspection sticker. Article 6701d §§ 134, 142(b) and 153, Vernon's Ann.Civ.Stat.
The seizure of the brown bottle which fell to the ground and the penny matchbox lying outside the car near the curb, both in plain view, was not the result of a search. See Parson v. State, 432 S.W.2d 89 (Tex.Cr.App.1968), and Gizzo v. State, 272 S.W.2d 898 (Tex.Cr.App.1954).
It has been held that criminal objects falling within plain view of an officer who has a right to be in a position to have the view are subject to seizure. Legall v. State, 463 S.W.2d 731 (Tex.Cr.App.1971).
When Officer Williams discovered what appeared to be heroin in the bottle, he was authorized to arrest appellant for possession of narcotic drugs. Article 14.01 Vernon's Ann.C.C.P. After such arrest, the subsequent search of the car was lawful. Denny v. State, 473 S.W.2d 503 (Tex.Cr.App.1971), and Newhouse v. State, 446 S.W.2d 697 (Tex.Cr.App.1969).
We find no error in admitting the contraband into evidence and overrule the ground of error.
In his ground of error number two, appellant insists that 'the trial court committed fundamental error in admitting into evidence the appellant's confession, when the undisputed evidence shows the confession was involuntary and was obtained illegally.'
The record reflects that after having been taken before a magistrate and receiving the warnings required in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) and Art. 15.17, V.A.C.C.P., and having been also duly warned by Officer B. T. Zapata, as provided by Art. 38.22, V.A.C.C.P., appellant executed and signed a written confession in which he admitted possessing the contraband found by Officer Williams and exonerated the other three occupants of his automobile of any knowledge of the crime. Before admitting the confession into evidence, the trial judge conducted a hearing in the absence of the jury, as required by Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), and Art. 38.22, supra, on the issue of the voluntary nature and admissibility of the...
To continue reading
Request your trial
-
Howard v. State, 61438
...bottle with an attached label did not authorize an arrest and subsequent search under the plain view theory. In Spencer v. State, 489 S.W.2d 594 (Tex.Cr.App.1973), however, the plain view doctrine did justify a search where the defendant, after being stopped for a traffic violation, got out......
-
Moore v. State
...statement. See Short v. State, 511 S.W.2d 288 (Tex.Civ.App.1974); Shadrick v. State, 491 S.W.2d 681 (Tex.Cr.App.1973); Spencer v. State, 489 S.W.2d 594 (Tex.Cr.App.1973). Appellant advances the contention the conviction for capital murder cannot stand because the evidence wholly fails to sh......
-
Gollin v. State
...a showing in the record of a causal connection between the delay and the making of the defendant's statement. See also Spencer v. State, 489 S.W.2d 594 (Tex.Cr.App. 1973). No error is It is also urged that the confession should not have been admitted because the appellant and his attorney w......
-
Spencer v. State
...it may be successfully attacked by post-conviction habeas corpus application. The practice is not advisable.2 See Spencer v. State, 489 S.W.2d 594 (Tex.Cr.App.1973), wherein the evidence showed at the time of his arrest appellant was in possession of both marihuana and heroin.3 As noted in ......