Webb v. State

• Decision Date: 02 June 1971
• Docket Number: No. 43793,43793
• Citation: Webb v. State, 467 S.W.2d 449 (Tex. Crim. App. 1971)
• Parties: Samuel WEBB, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 449

467 S.W.2d 449

Samuel WEBB, Appellant, v. The STATE of Texas, Appellee.

No. 43793.

Court of Criminal Appeals of Texas.

June 2, 1971.

Edward Ganem, Victoria, for appellant.

Ted Butler, Dist. Atty., Charles D. Butts, Lucien B. Campbell, Asst. Dist. Attys., San Antonio, and William C Sparks, Dist. Atty., and D. F. Martinak, Asst. Dist. Atty., Victoria, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

MORRISON, Judge.

The offense is murder; the punishment, ninety-nine (99) years.

Appellant was shot in the encounter which resulted in the death of the deceased. His first two grounds of error arise out of the removal of a bullet from his body, which bullet was later used by the State for comparison purposes to show that it had been fired from the weapon of the deceased. In his first ground of error, appellant contends that the removal of the bullet and its subsequent use by the police constituted such a search as is prohibited by the Fourth Amendment to the United States Constitution.

Although the record is not entirely clear as to how appellant first came to the attention of the police, it appears that a call was placed to have an ambulance sent to appellant's home to take a shooting victim to the hospital. In response to this call a police officer was also sent to the location, as is apparently the custom in San Antonio. Detective Aguilar then went to the emergency room, where he advised appellant of his rights. At that time, appellant told Aguilar that he had been shot by some prostitutes and that the prostitutes had taken his wallet. The detective then determined that appellant still had possession of his wallet.

While appellant was being treated at the emergency room, the police learned that the deceased had been shot, and that he had shot his assailant one time. It appears that appellant was made a suspect in this shooting because he had been shot one time and because his story about his injury did not appear to be true. Appellant was placed under arrest, an armed guard was stationed in his presence twenty-four hours a day, and he was transferred to Bexar County Hospital.

Five days after the shooting, Dr. Leo Cuello examined appellant, and determined that there was a local infection in the area of the bullet, which had remained in appellant's back approximately one-fourth to one-half inch below the surface. He determined, together with Dr. Orlando Gonzalez, that it was medically advantageous to remove the bullet, that removal would shorten appellant's stay at the hospital and would lessen the infection, although it was not necessary to the life or death of the patient that the bullet be removed. Neither doctor had any discussion with law enforcement officers about the removal of the bullet; the doctors did know that a police guard was stationed with appellant at all times, but they had no discussion with the guard regarding the surgery. Dr. Gonzalez merely notified the police officer that the surgery would be done, in order that the officer would remove appellant's handcuffs and allow him to go to the X-ray room, where the minor operation was performed. A written consent to the operation was secured from appellant, and Dr. Gonzalez then administered a local anesthetic and removed the bullet. He handed the bullet to a nurse, and she held it until the operation was completed. After the operation was finished, a detective waiting outside the room requested the bullet. Dr. Gonzelez marked the bullet, then turned it over to the detective.

It was shown that the doctors at Bexar County Hospital, upon removal of a bullet, generally marked the bullet, and turned it over to the Department of Pathology. The bullets were marked in order that the doctors could identify them at trial, if necessary.

Appellant has totally failed to show that the surgeons were conducting an illegal search when they removed the bullet. They were simply performing a medical operation, for which they had obtained permission from the appellant. There was no unpermitted invasion of appellant's body, such as was prohibited in Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183, or even in Apodaca v. State, 140 Tex.Cr.R. 593, 146 S.W.2d 381. These cases involved an unconsented to intrusion into the appellant's body. Although some unpermitted intrusions into the body of the accused may be admissible into evidence, see Commonwealth of Pennsylvania v. Tanchyn, 200 Pa.Super. 148, 188 A.2d 824 and State of Minnesota v. Emerson, 266...