Tamez v. State

• Decision Date: 17 March 1976
• Docket Number: No. 51487,51487
• Citation: 534 S.W.2d 686
• Parties: Gumaro Luis TAMEZ, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 686

534 S.W.2d 686

Gumaro Luis TAMEZ, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 51487.

Court of Criminal Appeals of Texas.

March 17, 1976.

Rehearing Denied April 14, 1976.

Ronald D. Zipp, Edinburg, for appellant.

Oscar B. McInnis, Dist. Atty., Edinburg, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

This is an appeal from an order revoking probation which presents, among other things, the question of the validity of a probationary condition which requires the probationer to submit his person, residence and vehicle to search by any peace officer at any time, night or day.

On October 24, 1973, in a bench trial, the appellant pled nolo contendere to the possession of marihuana. The imposition of the sentence was suspended and he was placed on probation for three (3) years subject to certain conditions, among which was the requirement that he '(a) Commit no offense against the laws of this State or any other State or of the United States.'

In March, 1974, the State filed a motion to revoke. On April 11, 1974, the State filed an amended motion to revoke alleging in the first count thereof that on December 11, 1973, he 'did receive and possess firearms, to wit: a pistol and a shotgun in violation of the Penal Laws of the United States and in violation of condition 'a' of the Judgment placing him on probation.'

The second count alleged that on December 11, 1973, the appellant did intentionally and knowingly carry on and about his person a handgun in violation of the penal laws of Texas, and the third count alleged that on the same date he knowingly and intentionally possessed marihuana of more than four ounces.

On April 17, 1974, the court conducted a hearing on the amended revocation motion and at the conclusion of the hearing revoked upon the first count of the revocation motion alone.

The appellant appealed contending the court abused its discretion in revoking probation.

Gary Wheeler, United States Border Patrol Agent, testified at the revocation hearing he was conducting a stationary checkpoint on State Farm to Market Road 1017, approximately seven miles north of La Gloria, Texas, and 25 or 30 miles from the Mexican border on December 12, 1973, ¹ when he encountered the appellant. He described the checkpoint as a permanent checkpoint to check traffic and question people about citizenship, although there were no permanent facilities there. He related that nearly every day some unit of the border patrol was there. On the day in question he related he stopped one Ramon Dionicio Martinez driving a pickup truck and discovered over 300 pounds of marihuana in a large metal compartment in the bed of the pickup.

Two or three minutes later Wheeler related a white over blue Cadillac approached the checkpoint. The driver was the appellant Tamez, and he was with Juan Guerra and another man.

Wheeler stated he had never seen the appellant before and did not know he was on probation and had no reason to believe the car had crossed the international boundary. The occupants stated that they were from the Donna-Weslaco area. A search of the Cadillac revealed a .25 caliber pistol under the driver's seat, and a billfold belonging to Martinez, driver of the pickup, was found on the floorboard of the car in the back.

Testimony as to the discovery of the pistol, etc., and the introduction of the same into evidence were over the objection that there was no probable cause for the search, no consent to search and the same was not justified as a border search. The State contended that it was in fact a border search, but relied heavily upon the condition of probation which was imposed on the appellant.

Kenneth Glick, a gun dealer in Pharr, testified that the pistol in question had been sold to a Casimiro Valdez Chapa on May 8, 1973, and he had originally obtained the pistol from the Firearms Import and Export Corporation of Miami, Florida, which had shipped the same through United Parcel Post on April 2, 1973.

Barry Jackson, Special Agent, Bureau of Alcohol, Tobacco and Firearms, testified as to procedures used in tracing a firearm and related the pistol in question had been manufactured in Germany, shipped to the named import dealer in Florida and then to Glick's store in Pharr.

At the conclusion of the hearing the court revoked probation, finding that appellant violated his probationary conditions 'in that on the 11th day of December, 1973, Defendant, Gumaro Luis Tamez, Jr., did have in his possession a firearm, to wit: a pistol, that had travelled in interstate commerce, in violation of the Penal Laws of the United States.' Sentence was then imposed.

Initially appellant contends that the court erred in failing to grant his motion to quash the revocation motion for the allegations were vague and indefinite and did not specify as to what penal laws of the United States and State of Texas were violated and did not give him fair notice so that he could prepare a defense thereto.

As earlier noted, the allegation in the revocation motion upon which revocation was based merely alleged that appellant did receive and possess a pistol and shotgun in violation of the penal laws of the United States. No statutes were cited or mentioned nor were there allegations so the appellant could readily identify the offense allegedly committed. In the revocation order the court simply found that the appellant had possessed a pistol that had travelled in interstate commerce in violation of federal law. It may have been that the court meant to make reference to the Gun Control Act of 1968, 18 U.S.C., Sec. 922(h), making it unlawful for a convicted felon, inter alia, 'to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.' ²

We agree that the allegations of count one of the revocation motion were couched in such general terms so as to give the appellant no notice of how he had violated his probationary condition. The allegations in a motion to revoke probation do not require the same particularity of an indictment or an information, but, in all fairness, the allegations as to a violation of probation should be fully and clearly set forth in the motion to revoke so that he might be informed as to that upon which he will be called to defend. Campbell v. State, 456 S.W.2d 918 (Tex.Cr.App.1970). When the motion fails to fully inform the probationer, he is denied the rudiments of due process. Kuenstler v. State, 486 S.W.2d 367, 368 (Tex.Cr.App.1972). Since the allegation in the motion upon which the revocation was predicated was in such general terms, not informing which federal gun law was supposedly violated, the revocation cannot stand. Graham v. State, 502 S.W.2d 809 (Tex.Cr.App.1973), and cases there cited.

Since in the event of another revocation hearing the other contentions raised are bound to reappear, we conclude we should also discuss them. Appellant contends the court abused its discretion in revoking probation since there was an illegal search and seizure in violation of the Fourth and Fourteenth Amendments, United States Constitution. See also Article I, Sec. 9, Texas Constitution.

First we must decide whether the fruits of the search were admissible as a border search, ³ and if not, then we must decide the validity of the probationary condition imposed.

In Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973), the United States Supreme Court

held that the Fourth Amendment prohibits the use of roving patrols to search vehicles, with neither a warrant nor probable cause, at points removed from the border and its functional equivalents. In United States v. Peltier, 422 U.S. 531, 95 S.Ct. 2313, 45 L.Ed.2d 374 (1975), the court held that Alameida-Sanchez was not to be applied retroactively, but would be applicable to a roving patrol search conducted after June 21, 1973, the date of the decision in Almeida-Sanchez. See also Bowen v. United States, 422 U.S. 916, 95 S.Ct. 2569, 45 L.Ed.2d 641 (1975). In United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975), the Court held that except at the border or its functional equivalents officers may stop vehicles only if they are aware of specific articulable facts, together with rational inferences therefrom, which would reasonably warrant suspicion that the vehicles are occupied by aliens who may be illegally in the United States; and that an officer whose observations lead him reasonably to suspect that a particular vehicle might contain illegal aliens is entitled to briefly stop the vehicles, question the occupants about their citizenship and immigration status and ask them to explain suspicious circumstances, but further detention or search must be based on consent or probable cause. In Brignoni-Ponce the Court held that the stop of a vehicle by a roving patrol was not legal where the vehicle's occupants' apparent Mexican ancestry furnished the only ground for suspicion that the occupants were aliens.

And in United States v. Ortiz, 422 U.S. 891, 95 S.Ct. 2585, 45 L.Ed.2d 623 (1975), the Court extended Almeida-Sanchez and held that at traffic checkpoints removed from the border and its functional equivalents officers may not search private vehicles without consent or probable cause.

On February 4, 1976, in United States v. Martinez ⁴ and United States v. Peralez, 526 F.2d 954 (5th Cir.1976), the Fifth Circuit Court of Appeals held that the Supreme Court's decisions in Ortiz and Brignoni-Ponce would be given retrospective effect. With regard to the Martinez case, the Court noted that the search was Post-Almeida-Sanchez and Pre-Ortiz and that while Almeida-Sanchez was not to be given retrospective application Ortiz did not establish a new rule in an overruling decision as had Almeida-Sanchez, and, in fact, the Court in Ortiz pointed out it was following Almeida-Sanchez and ...