Taylor v. State, 01-84-0319-CR

• Decision Date: 21 November 1984
• Docket Number: No. 01-84-0319-CR,01-84-0319-CR
• Citation: Taylor v. State, 682 S.W.2d 391 (Tex. App. 1984)
• Parties: J.D. TAYLOR, Appellant, v. The STATE of Texas, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 391

682 S.W.2d 391

J.D. TAYLOR, Appellant, v.The STATE of Texas, Appellee.

No. 01-84-0319-CR.

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

Nov. 21, 1984.

Craig A. Washington, Craig A. Washington & Associates, Houston, for appellant.

John B. Holmes, Jr., Harris County Dist. Atty., Timothy G. Taft, Becky Gardner, Harris County Asst. Dist. Attys., Houston, for appellee.

Before EVANS, C.J., and DUGGAN and JACK SMITH, JJ.

OPINION

JACK SMITH, Justice.

The trial court convicted appellant of possession of cocaine and assessed his punishment at two years confinement.Appellant brings two grounds of error on appeal.

In his first ground of error, appellant asserts that the trial court erred in failing to grant his motion to suppress.He urges that the warrantless search of his automobile was not made incident to his lawful arrest.

The arresting officer testified that he and his partner saw appellant driving his pickup truck down the wrong side of a two-way residential street in Houston.As appellant turned onto another street, the officers turned on their emergency equipment, but appellant continued to drive another three to four blocks before stopping.During this time, the arresting officer observed appellant and his passenger through the rear window of the pickup truck.The officer testified that appellant reached behind himself as if he were reaching in his back pocket and then looked over his right shoulder.Although the officer could not see appellant's hands, he was able to observe the upper part of appellant's torso down to the shoulder blades.The officer stopped appellant for driving on the wrong side of the road.The arresting officer approached the driver's window, and his partner approached the passenger's window.The arresting officer asked appellant to get out of the truck, and step to the rear of the truck.Because appellant was driving on the wrong side of the street, the arresting officer testified that he thought appellant might be drunk, and the officer conducted a field sobriety test.After he decided that appellant was not intoxicated, he patted down appellant for weapons.He asked the dispatcher to check appellant for outstanding warrants, and then left appellant standing at the back of the truck and approached the passenger's window to talk to his partner.The arresting officer shined his flashlight into the cab of the truck, and observed on the floor board on the driver's side a clear cellophane package which contained a white powdery substance.The officer testified that he thought the white substance was cocaine, and he requested the passenger to step out of the truck.He then picked up the package and arrested appellant for possession of cocaine.At that time, he determined that appellant was the owner of the truck by checking with the police vehicle registration department and also by questioning the appellant.

The arresting officer's partner corroborated this testimony, and testified that he had shined his flashlight into the cab of the truck when he approached the passenger side.He did not observe the cellophane package on the floor board until the arresting officer pointed it out to him.He said he could not have seen it from where he was originally standing.

Appellant urges that the officers had no justification for searching his pickup because the search was not reasonably necessary to protect the officers from bodily injury.However, the officers did not search appellant's truck.The Court of Criminal Appeals has held that contraband contained in a cellophane bag found on the floor board of an automobile in plain view may be properly admitted into evidence.Nickerson v. State, 660 S.W.2d 825(Tex.Crim.App.1983).The officers in the instant case had a right to be where they were, and saw the cocaine in plain view on the floor of the pickup truck.Appellant's first ground of error is overruled.

In his second ground of error, appellant asserts that the trial court erred in finding that the evidence was sufficient to establish that appellant had possession of the cocaine.The evidence showed that appellant was the owner of the truck, and that the cocaine was located on the driver's side on the floor of the pickup.It further showed that, after the officers had turned...