James C. Marrone v. State

Marrone v. State AFFIRMED MARCH 29, 1990 NO. 10-89-157-CR Trial Court # 1781-88 IN THE COURT OF APPEALS FOR THE TENTH DISTRICT OF TEXAS AT WACO * * * * * * * * * * * * * JAMES C. MARRONE, Appellant v. THE STATE OF TEXAS, Appellee * * * * * * * * * * * * * From County Court Brazos County, Texas * * * * * * * * * * * * * O P I N I O N * * * * * * * A jury found Appellant guilty of unlawfully carrying a handgun. See TEX. PENAL CODE ANN. § 46.02(a) (Vernon 1989). The court assessed his punishment at 180 days in jail, to be probated for a year, and a $300 fine. Appellant complains that section 43.02 of the Penal Code was inapplicable to him because he was "a traveler" as a matter of law under the evidence. See id. at 46.03(a)(3). He also alleges that the "traveler's exception" is vague and overbroad, therefore depriving him of his constitutional rights. The judgment will be affirmed. During his trial, Appellant, who was in the oil field trucking business, testified that on September 8, 1988, he spent the night at the Motel 6 in Houston. He stated that although he returned to his hometown, Bryan, the following day, his journey did not terminate because he never went to his house. His first point is that the evidence showed that he was a traveler as a matter of law. A person commits the offense of unlawfully carrying a weapon if he "intentionally, knowingly, or recklessly carries on or about his person a handgun." Id. at 46.02. However, as an exception, carrying a weapon is lawful when a person is "traveling." Id. at 46.03(a)(3). When a defendant claims an exception to the offense, he must bring himself within one of the exceptions making the possession of a weapon lawful. Chatman v. State, 513 S.W.2d 854, 856 (Tex. Crim. App. 1974). Furthermore, whether a defendant is a traveler privileged to carry a weapon is a question for the trier of fact. Evers v. State, 576 S.W.2d 46, 50 (Tex. Crim. App. [Panel Op.] 1978). Although there was evidence that Appellant had traveled to Houston, he had returned to his hometown and stopped at the Howard Trucking Terminal in Bryan to obtain his pay check at the time of the offense. The court properly submitted the travel defense to the jury, and this court cannot hold that the guilty verdict was contrary to the law and evidence. See id. Furthermore, based on the record as a whole, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Humason v. State, 728 S.W.2d 363, 366 (Tex. Crim. App. 1987). Point one is overruled. Appellant's second point, that the traveler's exception is unconstitutionally vague and overbroad, is not reached because we determine that he was not within the exception. Appellant removed the handgun from his vehicle and carried it onto the steps of a public building. See Gibbs v. State, 70 Tex. Crim. 278, 156 S.W. 687, 688 (1913) (holding that a person cannot carry a pistol into an assembly of people). Furthermore, he deflected from his journey when he stopped to collect his paycheck. See Pecht v. State, 82 Tex. Crim. 136, 199 S.W. 290, 291 (1917) (holding that when a traveler turns aside from his journey on business disconnected with the trip, fact that he was originally a traveler does not exempt him from punishment from unlawfully carrying a weapon). Point two is overruled and the judgment is affirmed. TERRY R. MEANS DO NOT PUBLISHJustice ="font-size: 14pt"> Appellee * * * * * * * * * * * * No. 10-97-276-CR ROBERT ANTHONY POPE, Appellant v. THE STATE OF TEXAS, Appellee From the 13th District Court Navarro County, Texas Trial Court Nos. 25,177 & 25,176 O P I N I O N Robert Anthony Pope and Alan Lynn Richardson entered a plea of nolo contendere to the court on the charge of possession of a controlled substance. See Act of May 18, 1989, 71st Leg., R.S., ch. 678, § 1, sec. 481.115(b), 1989 Tex. Gen. Laws 2230, 2937, amended by Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 2.02, sec. 481.115, 1993 Tex. Gen. Laws 3586, 3706-07. The court found Pope and Richardson guilty based on their signed stipulations of the evidence. Pursuant to a plea bargain, the court assessed punishment at eight years’ confinement, suspended imposition of the sentence and placed them on community supervision for eight years and a $500 fine. The issue presented on appeal is whether the court erred in denying a pre-trial motion to suppress because the evidence upon which the conviction is based was seized in violation of the laws of Texas and the Texas Constitution. FACTUAL BACKGROUND On August 12, 1993, Officer Mike Hopson stopped a vehicle on Interstate 45 because it did not have a rear license plate. As Officer Hopson approached the driver side window, he smelled the odor of burnt marihuana. He asked the driver, Pope, to exit the vehicle and took him to the patrol car to interview. He asked about the odor of marihuana, and Pope denied having any marihuana. Hopson obtained verbal consent from Pope to search the vehicle and called for back up to assist him. Hopson then asked Richardson, the passenger, to exit the vehicle. He testified that he again smelled the odor of burnt marihuana. He found a red canvas bag between the front and rear seats. He opened it and found a brown bag with Richardson’s name printed on it in gold letters. Hopson did not ask Richardson for consent to search the bag although he testified that he realized the bag belonged to Richardson. Inside Richardson’s bag were two bank bags, one of which contained a large amount of cash. The other bank bag contained some sifters and small glass vials with a powdery residue and a black film cannister containing marihuana. Hopson testified that sifters and vials are drug paraphernalia commonly used with cocaine. Deputy Wesley Blue arrived to assist Hopson. Deputy Blue found two small plastic bags of cocaine on top of the driver’s side visor. A canvas bag in the trunk yielded Pope’s checkbook, several scoops, and an electronic scale. Pope and Richardson were arrested for possession of a controlled substance. MOTION TO SUPPRESS Pope and Richardson allege that the cocaine was seized in violation of article I, section 9 of the Texas Constitution which protects persons from unreasonable searches and seizures. Pope specifically argues that the consent to search his vehicle was not given voluntarily. Richardson alleges that Pope’s consent to search, even if voluntary, did not encompass a search of his bag. Warrantless searches are per se unreasonable under the Fourth Amendment. Stine v. State, 787 S.W.2d 82, 85 (Tex. App.—Waco 1990, pet. ref’d). Exceptions to this rule include: the plain view exception, the automobile exception, and an inventory search. Id. We believe the automobile exception is appropriate here. “Under the automobile exception, an officer may conduct a warrantless search of a motor vehicle if the officer has probable cause to believe the vehicle contains evidence of a crime.” Powell v. State, 898 S.W.2d 821, 827 (Tex. Crim. App. 1994). We review determinations of probable cause de novo on appeal. Guzman v. State, 955 S.W.2d 85, 87 (Tex. Crim. App. 1997). We afford deference to the trial court’s determination of the historical facts, especially those based on the credibility and demeanor of witnesses. Id. at 89. Thus, we must determine if Officer Hopson had probable cause to search the vehicle. Probable cause for a search exists where the facts and circumstances within the officer’s knowledge, and of which [he] had reasonably trustworthy information, are sufficient to lead a person of reasonable caution and prudence to believe that the instrumentality of a crime or evidence pertaining to a crime will be discovered. Brown v. State, 481 S.W.2d 106, 110 (Tex. Crim. App. 1972). Officer Hopson testified that when he approached the driver’s window he smelled the odor of burnt marihuana. He further testified that he was familiar with the odor of marihuana. The odor of marihuana coming from a vehicle has been held to be sufficient probable cause for an officer to search the vehicle. Marsh v. State, 684 S.W.2d 676, 679 (Tex. Crim. App. 1984); Christopher v. State, 639 S.W.2d 932, 935 (Tex. Crim. App. [Panel Op.] 1982); Razo v. State, 577 S.W.2d 709, 711 (Tex. Crim. App. [Panel Op.] 1979); Hernandez v. State, 867 S.W.2d 900, 907 (Tex. App.—Texarkana 1993, no pet.); Levine v. State, 794 S.W.2d 451, 453 (Tex. App.—Amarillo 1990, no pet.). As the Court in Hernandez stated, “because the initial stop was proper, the subsequent search of the truck, after [Officer] Washington smelled the strong odor of green marihuana, was also authorized, the odor having created sufficient probable cause for Washington to believe marihuana was concealed in the truck.” Hernandez, 867 S.W.2d at 907. Officer Hopson had probable cause to search Pope’s vehicle because he smelled the odor of marihuana. Further, Officer Hopson could search anywhere that marihuana might likely be found, such as closed bags. According to the United States Supreme Court: The scope of a warrantless search of an automobile thus is not defined by the nature of the container in which the contraband is secreted. Rather, it is defined by the object of the search and the places in which there is probable cause to believe that it may be found. If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search. Osban v. State, 726 S.W.2d 107, 111 (Tex. Crim. App. 1986) (quoting United States v. Ross, 456 U.S. 798, 824-25, 102 S. Ct. 2157, 2172-73, 72 L. Ed. 2d 572 (1982); Levine, 794 S.W.2d at 453. Therefore, we find that Officer Hopson had probable cause to search the canvas bags in the vehicle because they could conceal marihuana. We acknowledge Richardson’s contention that the Texas Constitution affords a greater expectation of privacy in a bag clearly owned by a third party, however because we have found probable cause exists to search the bags we need not address this contention. The officers could also search the visors for the marihuana. Deputy Blue found cocaine on top of the visor instead of marihuana but under the “plain view” doctrine the seizure of the cocaine was lawful. See Ramos v. State, 934 S.W.2d 358, 365 (Tex. Crim. App. 1996). The “plain view” doctrine requires that law enforcement officials have a right to be where they are, and it must be immediately apparent that the item seized constitutes evidence, which means there is probable cause to associate the item with criminal activity. Id. In this case, the officers had probable cause to search the vehicle and its contents for marihuana. In the course of their search, they found cocaine which they appropriately seized under the “plain view” doctrine. Because we have found that the automobile exception and the existence of probable cause allowed the warrantless search of the vehicle, we need not address Pope’s and Richardson’s contentions that the search was illegal due to involuntary consent and the absence of consent to search Richardson’s bag. See Harrison v. State, 929 S.W.2d 80, 83 (Tex. App.—Eastland 1996, pet. ref’d). For these reasons, the court did not err in denying Pope’s and Richardson’s motion to suppress. We overrule the issue presented. We affirm the judgment. REX D. DAVIS Chief Justice Before Chief Justice Davis Justice Cummings and Justice Vance Affirmed Opinion delivered and filed May 13, 1998 Do not publish