Williams v. State

• Decision Date: 23 September 1981
• Docket Number: No. 2,No. 60568,60568,2
• Citation: 621 S.W.2d 609
• Parties: Cynthia Hicks WILLIAMS, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 609

621 S.W.2d 609

Cynthia Hicks WILLIAMS, Appellant, v. The STATE of Texas, Appellee.

No. 60568.

Court of Criminal Appeals of Texas, Panel No. 2.

Sept. 23, 1981.

Leighton Cornett, Paris, for appellant.

Tom D. Wells, III, Dist. Atty., Paris, Robert Huttash, State's Atty., Austin, for the State.

Before ONION, P. J., and TOM G. DAVIS and CLINTON, JJ.

OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for felony theft. V.T.C.A. Penal Code, Sec. 31.03(d)(4)(A). After finding appellant guilty, the jury assessed punishment at ten years, probated and a $500.00 fine.

In her sole ground of error, appellant contends that the trial court erred in overruling her motion to suppress evidence she urges was discovered as a result of an unlawful search and seizure.

Reserve Officer John McGee of the Paris Police Department testified that while shopping with his wife at Gibson's Department Store on August 13, 1977 he observed the appellant and her aunt, Deretha Lindsey, first fill a shopping cart with various items and then proceed to leave the cart by the west wall of the store away from the cash register. Subsequently, he observed the appellant and her aunt exit Gibson's without attempting to purchase any of the goods left in their shopping cart. McGee proceeded to follow the appellant out to the parking lot and continued to observe her conduct from the vantage point of his pickup truck. After some time, McGee observed an employee of Gibson's push a dolly containing three large boxes from a fenced area adjacent to Gibson's out to the appellant's car. These boxes were loaded into a black Chevrolet which McGee watched the appellant drive away.

McGee then alerted the assistant store manager, Dan Presley, to what he had observed and Presley stated he would call the police. McGee and his wife, in turn, proceeded to follow the car appellant was driving and McGee radioed the Paris Police Station, via citizen's band radio, of the description of the car and its location in its route out of Paris.

Officer Don Charles Smith, of the Paris Police Department, testified that he responded to a call from the dispatcher alerting him to a black Chevrolet with Oklahoma license plates that had allegedly stolen items from Gibson's Department Store. Smith proceeded to the intersection of Loop 286 and Highway 271, intercepting the vehicle on the outskirts of Paris. Upon receiving consent from the passenger and owner of the automobile, Deretha Lindsey, Officer Smith searched the trunk and discovered three boxes containing various items which displayed Gibson's price tags. McGee and his wife were likewise present and observed both the stopping of the car and the search of the truck. Appellant and her aunt were then arrested by Smith for theft.

Presley and Gibson's Manager Hood testified they did not consent to appellant taking the merchandise without paying for it. Cash register receipts from Gibson's for the date in question failed to show that any of the articles in question were purchased. Cash register receipts offered by appellant were for dates other than the one in question.

Appellant contends that the initial stop of the car was violative of the Fourth Amendment and absent a warrant Officer Smith had no probable cause to detain the vehicle driven by Williams. She claims that Officer Smith could not rely upon a dispatch over the radio to supply the probable cause sufficient to make the initial stop of appellant's automobile.

Independent, eyewitness knowledge by the police of a criminal act has never been delineated as a requirement of the test for probable cause. Conversely, the test as to probable cause is sufficiency of the information known to the officer who requests another officer, by radio or other means, to effect an arrest. See Merriweather v. State, Tex.Cr.App., 501 S.W.2d 887; Brown v. State, Tex.Cr.App., 443 S.W.2d 261; Green v. State, Tex.Cr.App., 470 S.W.2d 901; McDuff v. State, Tex.Cr.App., 431 S.W.2d 547; Weeks v. State, Tex.Cr.App., 417 S.W.2d 716, cert. den. 389 U.S. 996, 88 S.Ct. 500, 19 L.Ed.2d 494; Jones v State, 171 Tex.Cr.R. 608, 352 S.W.2d 270; Beeland v. State, 149 Tex.Cr.R. 272, 193 S.W.2d 687. Although it is true in appellant's case that neither the arresting officer, nor the police radio dispatcher, individually possessed probable cause for the arrest, they had the right, however, to assume the officer requesting the arrest had sufficient probable cause to justify the initial detention of the appellant. Muggley v. State, Tex.Cr.App., 473 S.W.2d 470; see Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306; Weeks v. State, supra; Brown v. State, Tex.Cr.App., 443 S.W.2d 261.

Appellant further contends that McGee had only a mere suspicion or "hunch" that appellant was involved in a theft and that no probable cause existed for the warrantless stop and search of appellant.

In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, the United States Supreme Court determined that "a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest." Id. at 22, 88 S.Ct. at 1880. The Fourth Amendment is not so strictly construed as to require a law enforcement officer to "simply shrug his shoulders and allow a crime to occur or a criminal escape ... (if he) lacks the precise level of information necessary for probable cause to arrest." Adams v. Williams, 407 U.S. 145, 92 S.Ct. 1921, 32 L.Ed.2d 612. Rather, a standard somewhat less than probable cause has emerged to allow a police officer to make an initial investigatory stop. We have held that in order to justify a stop the peace officer must be able to relate specific and articulable facts which, in light of his experience and personal knowledge taken together with rational inferences from those facts, would constitute more than a mere inarticulate hunch, suspicion, or good faith suspicion that a crime was in progress. See Hull v. State, Tex.Cr.App., 613 S.W.2d 735; McMillan v. State, Tex.Cr.App., 609 S.W.2d 784; Brem v. State, Tex.Cr.App., 571 S.W.2d 314; Shaffer v. State, Tex.Cr.App., 562 S.W.2d 853; Hinson v. State, Tex.Cr.App., 547 S.W.2d 277. Accord, United States v. Cortex, --- U.S. ----, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981) ("totality of circumstances" standard for border patrol); Brown v. Texas, 443 U.S. 47, 99 S.Ct., 2637, 61 L.Ed.2d 357 ("objective manifestation" standard); United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 ("articulable facts" standard for roving border patrol).

Finally, the...