Vicknair v. State

• Decision Date: 14 July 1983
• Docket Number: No. 01-82-0155-CR,01-82-0155-CR
• Citation: 670 S.W.2d 286
• Parties: James Wallace VICKNAIR, Appellant, v. The STATE of Texas, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 286

670 S.W.2d 286

James Wallace VICKNAIR, Appellant, v. The STATE of Texas, Appellee.

No. 01-82-0155-CR.

Court of Appeals of Texas,

Houston (1st Dist.).

July 14, 1983.

Discretionary Review Granted

April 18, 1984.

Don Irvin, Houston, for appellant.

John Holmes, Houston, for appellee.

Before EVANS, C.J., and COHEN and DOYLE, JJ.

OPINION

COHEN, Justice.

Appellant was convicted of the felony offense of possession of marihuana in an amount more than five pounds and less than fifty pounds. Pursuant to a plea of bargain agreement, the court assessed punishment at 5 years confinement. We hold that the marihuana was seized as the result of an illegal arrest and, therefore, we reverse the judgment.

The appellant was arrested while driving his automobile for what the arresting officer characterized as "an equipment violation", namely, "a defective taillight with a cracked lens and white light showing to the rear of the vehicle while moving." The violation was also characterized as "a taillight lens that has been cracked to the extent you could observe white light coming through the rear." The arresting officer testified that both red light and white light were visible coming from the taillight of appellant's vehicle. The officer testified that he had been instructed in his training that this was a violation and believed that it violated "Vernon's Texas Civil Statutes regarding moving motor vehicles."

Immediately upon confronting the arresting officer, appellant stated that he had no Texas driver's license and his license issued in another State had been revoked. Consequently, the officer put appellant in custody in the police car. A male passenger of appellant's car exited upon the officer's demand and a handgun was seen in plain view near the seat he had occupied. He was arrested for unlawfully carrying a handgun and placed in the patrol car. A female passenger was then removed from the car, whereupon bags of marihuana were seen in plain view, and she was arrested for possession of marihuana. Appellant was also subsequently charged with possessing the marihuana found in the car.

Both appellant and the State agree that the violation the officer was describing was that in Tex.Rev.Civ.Stat.Ann. art. 6701d, § 111 (Vernon 1977) which provides in pertinent part:

... every motor vehicle ... shall be equipped with at least two taillamps mounted on the rear which, when lighted as required by § 109, shall emit a red light plainly visible from a distance of 1000 feet to the rear, ....

There is no evidence whatsoever in this record that appellant's car failed to emit a red light plainly visible at a distance of 1000 feet to the rear, as required by § 111. On the contrary, the arresting officer testified that it did emit a red light visible to him at all times at an unstated distance to the rear. Since no one testified that appellant's car failed to emit a visible red light, there was no basis at all to justify the original detention. This distinguishes this case from Praska v. State, 557 S.W.2d 83, 86-87 (Tex.Cr.App.1977).

The State concedes in its brief that the evidence would be insufficient to sustain a conviction for the taillight violation. Furthermore, the State cites not a single case upholding a search under these circumstances.

This was a warrantless arrest. A peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view. Tex.Code Crim.Pro.Ann. art. 14.01(b) (Vernon 1977); Tex.Rev.Stat.Ann. art. 6701d, § 153 (Vernon 1977). However, what this officer testified he observed did not constitute an offense under § 111 of art. 6701d, and the officer's well-intentioned but mistaken belief that it did will not legitimate this search. Scott v. U.S., 436 U.S. 128, 138, 98 S.Ct. 1717, 1723, 56 L.Ed.2d 168 (1978). "Instead of motive or intent, the court must view the circumstances objectively to determine whether they support the justification." Nickerson v. State, 645 S.W.2d 888, 890 (Tex.App.--Dallas 1983). If the circumstances do not support the justification claimed for the arrest or search, the evidence illegally seized must be suppressed. Tex.Code Crim.Pro.Ann. art. 38.23 (Vernon 1979).

Convictions were reversed under very similar circumstances in Willett v. State, 454 S.W.2d 398 (Tex.Cr.App.1970) and Hall v. State, 488 S.W.2d 788 (Tex.Cr.App.1973). In both of those cases, the arresting officer stopped a motor vehicle for making a turn without a signal, even though the maneuver was done without creating any traffic hazard. The relevant statute, art. 6701d § 68, then made it an offense to turn without signaling only when it was unsafe to do so. In Willett, the search which followed produced marihuana, and in Hall it produced a pistol.

The court stated in Willett:

There is no evidence that the operation by the appellant of his automobile at the time and place in question was a threat or hazard to traffic safety or that traffic safety was affected by the movements of his car as he turned right into the private driveway. The only motor vehicle at or near the scene other than appellant's was that driven by Officer Keltie, and there is no testimony to show that appellant's right turn into the driveway affected the movement of his automobile.

There are no facts or circumstances shown which would warrant the detaining of the appellant and requiring him to get into the patrol car and accompany the officers to the service station. The illegal arrest of the appellant without a warrant and his detention thereafter rendered the testimony concerning the marihuana obtained at the service station inadmissible.

Both Willett and Hall were unanimous decisions. The opinion in Willett was written by Judge Leon Douglas on the appellant's motion for rehearing, and it withdrew the prior opinion of the court affirming the conviction.

The State makes a one sentence argument that the search should be upheld because appellant did not argue that the traffic stop was illegal during the motion to suppress hearing. However, it was the State's burden, not appellant's, to prove the validity of a warrantless search or arrest. Gonzalez v. State, 588 S.W.2d 355 (Tex.Cr.App.1979); Brown v. State, 481 S.W.2d 106 (Tex.Cr.App.1972). The rules announced in Gonzalez and Brown have been the law not only of this state, but of this nation, for many years. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1923); Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); McDonald v. U.S., 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153 (1948). The State cites no authority for the proposition that appellant must argue orally at the motion to suppress hearing that the traffic stop was illegal in order to preserve the error. There is statutory authority to the contrary. Tex.Code Crim.Pro.Ann. art. 40.09 § 6(d)(3) (Vernon Supp.1982) provides:

When the court hears objections to offered evidence out of the presence of the jury and rules that such evidence shall be admitted, then in that event such objections shall be deemed to apply to such evidence when it is admitted before the jury without the necessity of such objections being renewed in the presence of the jury.

Appellant timely filed a motion to suppress evidence stating that the search was made without warrant and without authority; was not incident to a legal arrest or based upon probable cause; and was unreasonable. This written motion was before the court at all times and was overruled at the conclusion of the hearing. The motion was unambiguous and, in our opinion, sufficient to preserve the error precisely for the reasons stated: the search that occurred here was without warrant, not incident to a legal arrest, and not supported by probable cause. Willett v. State; Hall v. State, both supra.

Ground of error three is sustained.

The judgment is reversed and the cause is remanded to the district court.

DOYLE, J., dissents.

DOYLE, Justice, dissenting.

I respectfully dissent.

The majority opinion is predicated on the premise that there was no basis to justify the original detention, and hence the warrantless arrest and search were illegal. Therefore, it reasons, any evidence obtained as a result of such a search was illegally seized and should have been suppressed.

I shall first discuss the original detention. Was there probable cause to stop and arrest the appellant?

In the instant case, the fact that the taillight was broken and emitting a red and white light is undisputed. Therefore, the appellant's motion to suppress raises the issue of the sufficiency of the evidence to support a warrantless arrest as a matter of law. Killingsworth v. State, 306 S.W.2d 715 (Tex.Cr.App.1957). It thus became the duty of the trial judge to rule on the admission of the evidence and this ruling will not be disturbed if there is any basis to support it. Fowler v. State, 379 S.W.2d 345, 347 (Tex.Cr.App.1964). The trial judge had before him the testimony of Officer Illingworth to the effect that he had been trained and instructed to issue citation to drivers who operated vehicles with taillights cracked or defective to the extent that they emitted white light coming through the rear. Contrary to the statement in appellant's brief to the effect that the only reference to the time of day was that it was "evening", the trial court heard testimony that also revealed that the time was "night". When Officer Illingworth was asked to identify a defense exhibit showing the subject car, he stated:

Q. Let me show you what is been marked Defense Exhibit No. 1. Can you identify that?

A. Yes, sir, that the ... I believe that to be the vehicle we stopped that night.

Later, on being questioned about the appearance of the car, the officer testified:

Q. Does it appear to be the same as it did on or about November 27th of 1981, Officer?

A. From my memory, I couldn't tell if that's the exact same taillight that was on it that night.

Q. What...