Wilson v. State
| Decision Date | 30 September 1981 |
| Docket Number | No. 1,No. 67809,67809,1 |
| Citation | 621 S.W.2d 799 |
| Parties | Oris James WILSON, Appellant, v. The STATE of Texas, Appellee |
| Court | Texas Court of Criminal Appeals |
Jimmy D. Ashley, Houston, for appellant.
John B. Holmes, Jr., Dist. Atty., James C. Brough, and Michael T. McSpadden, Asst. Dist. Atty., Houston, Robert Huttash, State's Atty., Austin, for the State.
Before ROBERTS, DALLY and TEAGUE, JJ.
Appellant appeals from the trial court's order revoking his felony probation.
On January 14, 1980, the appellant entered a plea of guilty to an indictment that charged him with committing on May 9, 1979, the offense of "intentionally and knowingly manufactur(ing) a controlled substance, namely, PHENCYCLIDINE." After obtaining a pre-sentence investigation report, the trial court assessed appellant's punishment at ten years confinement in the penitentiary and a $2,500 fine, the confinement portion being ordered probated.
On September 4, 1980, the State filed a motion to revoke appellant's probation, alleging in the motion that: "On or about August 28, 1980, in Harris County, Texas, (he) did then and there intentionally and knowingly possess a controlled substance, namely, phencyclidine."
Appellant filed a written motion to suppress the evidence, which motion was heard and denied on October 3, 1980. Shortly thereafter, a hearing, based upon agreements and stipulations of the parties, was held on the State's motion to revoke appellant's probation. Appellant offered no testimony at the hearing. After both sides rested and arguments were heard, the trial court found that appellant violated his probation for the reason stated in the State's motion to revoke, see supra.
Appellant raises only one contention in his appeal, that is: "The trial court abused its discretion by revoking Appellant's probation based on evidence seized as the result of an illegal arrest and search on the ground that the officers did not have sufficient probable cause to arrest Appellant without a warrant."
It is, therefore, necessary for us to review the evidence presented below.
At the hearing conducted on appellant's motion to suppress evidence, only one witness, Ron Gospederic, a special agent employed by the Federal Drug Enforcement Administration, testified.
Gospederic testified that at some time before 4:30 p. m. on the day in question, he had occasion to talk with an "informant," who told Gospederic that: "Mr. Wilson (appellant) would be going to a phencyclidine laboratory, that he would be manufacturing a quantity of PCP, and that he would be leaving that laboratory with the PCP." "The informant identified a white pickup truck as the vehicle most commonly used by Mr. Wilson..." The informant did not state what type clothing the appellant would be wearing nor did the informant tell Gospederic what time appellant would be "going to the laboratory." The informant also did not tell Gospederic where "the laboratory" was located. The informant had never told Gospederic he had been "to the laboratory." The informant also did not tell Gospederic the source or the basis of his information, and Gospederic did not ask him. Without detailing what information he had received from the informant in the past, Gospederic testified that whatever information he had received in the past that came from the informant, "it (was) reliable." However, Gospederic also testified: "I have never used him (the informant), correct, as far as making a case with him." The record also reflects the following:
Q. You never used him to make a case with him before?
A. Correct.
Q. So, you had no way of knowing whether his information was reliable or not.
A. I thought it was reliable.
Q. Well, you never used him before, had you?
A. He has given me reliable information, yes. He has given me the names of people that we have been interested in, and it was reliable.
Q. You just testified you never made a case with him before.
A. Correct.
Q. So, wouldn't it be fair to say, Mr. Gospederic, this was the first time that you had received information from that informant that you could use or that you could attempt to use to make an arrest.
A. This was the first time we did use the information, yes.
Q. So you really never tested this information before, had you?
A. I don't understand the word, test. As far as I am concerned, his information always passed the test.
Q. To determine his reliability, you never tested it. Had you checked it out?
A. Well, I have checked information out before, and it's been reliable.
Q. How many other instances have you checked it out before?
A. Like I said, a couple of times.
Q. Have you ever made any arrests on this information?
A. No.
Q. Prior to this time?
A. No.
Q. To determine its reliability?
A. No arrests.
Q. And you don't know how he got his information?
A. No, I do not.
The informant had never told Gospederic that he had seen the appellant in possession of "PCP," nor that the appellant was armed with any weapons. The informant also did not tell Gospederic anything in reference to the community of Barrett Station, although Gospederic testified that at some unknown time and for an unknown reason he had in the past arrested appellant at Barrett Station.
With the above related information from his informant, Gospederic, with other law enforcement officials, around 4:00 O'Clock p. m. on the day in question, set up a surveillance near appellant's apartment. He first saw appellant at approximately 8:30 p. m., when appellant left his apartment, got on his 750 Honda motorcycle, "a pretty hot vehicle," and proceeded down Highway 90. Gospederic and the others maintained surveillance of appellant until they arrived in the community of Barrett Station, at which time, as Gospederic tells us, "we lost him from view." Gospederic and the others then "drove all the streets of Barrett Station, but were unable to locate his (appellant's) motorcycle." The informant also told Gospederic that appellant was going to work at his place of employment the next day. It was therefore assumed by Gospederic and the other officers that appellant had to return to his apartment, by going the same direction as the way he went to Barrett Station. Surveillance was then set up "on the roads coming to and from Barrett Station." Around 4:30 A.M., Gospederic and the other law enforcement officials saw appellant riding his 750 Honda motorcycle, "coming out of Barrett Station," going "the opposite direction from where we lost him going in." Appellant then proceeded down Highway 90. He subsequently was caused to stop at an intersection due to a traffic light. Gospederic testified that at this time, when "we rolled up behind him he was reaching inside the fairing of the motorcycle on the left side, doing something." Gospederic's vehicle at that time was immediately behind appellant's motorcycle. Gospederic testified that "he turned around and looked at us, and then he kind of messed around there again, and then he pulled off when the light turned green." No efforts were made by any of the law enforcement officials to arrest appellant at this time.
Shortly after proceeding from the intersection, appellant drove onto the premises of a nearby gasoline service station and stopped his vehicle. Gospederic testified that: "And we had to pass him because we were the only vehicle on him at the time, and we were afraid he was going to bolt and run on the motorcycle, and we wouldn't be able to catch him." After making a U-turn, Gospederic then drove back to the service station and arrested the appellant. Gospederic immediately looked in the left hand side of the fairing, where he found a brown bottle he suspected contained phencyclidine or "PCP." The bottle was subsequently examined by a member of the Houston Police Department's crime laboratory and the analysis showed it to contain the controlled substance phencyclidine.
We find the issue, as drafted by appellant, see supra, to be properly before this Court. After the trial court denied appellant's motion to suppress the evidence, the State's case was then presented by "agreements and stipulations" of the parties. Throughout the introduction of the "agreements and stipulations" into evidence, the record affirmatively shows that appellant's objection to the admissibility of the evidence, made in his motion to suppress and at the hearing, was carried over to the hearing on the Motion to Revoke. The trial court at different times during the hearing stated into the record: If it be the State's contention that appellant did not preserve his error, it misreads this record. Also, if it be the State's contention that based on Gospederic's testimony that "he found a brown bottle in Appellant's possession (sic), the contents smelled to Agent Gospederic like phencyclidine, and that Agent Gospederic had a Bachelor's degree in Chemistry," that this is sufficient to overcome an illegal and unlawful arrest and search, as well as being sufficient to satisfy the predicate for the giving of an expert opinion, we find that based upon this record, the State shows a total lack of understanding and appreciation of Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), and this Court's decision of Duran v. State, 552 S.W.2d 840, 843 (Tex.Cr.App.1977). Although the record does show that Gospederic testified that: "I have a bachelor's degree in chemistry," without more being shown we find this could easily mean that he received such degree by virtue of a correspondence school course, or less. There is not anything in this record to show that Gospederic has had any training concerning the controlled substance phencyclidine, has had any experience in making an analysis of same, nor...
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