Brandon Eugene Hazel v. The State of Texas--Appeal from 54th District Court of McLennan County

AFFIRMED 9 AUGUST 1990

NO. 10-89-214-CR

Trial Court

# 88-639-C

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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BRANDON EUGENE HAZEL,

Appellant

v.

THE STATE OF TEXAS,

Appellee

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From 54th Judicial District Court

McLennan County, Texas

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O P I N I O N

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This is an appeal by defendant Hazel from conviction for possession of amphetamine, after a plea of guilty, for which he was assessed 5 years in the Texas Department of Corrections and a $500 fine, with imposition of sentence suspended and probation for 5 years.

Defendant appeals on 1 point: "The trial court erred in overruling [defendant's] motion to suppress evidence obtained in an unlawful search and seizure of his person in violation of the Fourth and Fourteenth Amendments".

The State's only witness at the motion to suppress hearing was Officer Hoskins who testified that he and other officers executed a search warrant for a residence in Waco, Texas. The search warrant is in evidence. Defendant was not named in the warrant and was not present at the time the police began to execute the warrant.

Officer Hoskins testified he first became familiar with defendant while working undercover; that he (Hoskins) had purchased a large quantity of drugs from a person in an apartment complex where defendant lived; that defendant been inside the apartment while the undercover transaction occurred.

Officer Hoskins next met defendant during the execution of the search warrant. The warrant named James Domengeaux as the person whose residence was to be searched at 3623 Homan in Waco. Defendant is not specifically named in the warrant but the warrant authorized the arrest of all other persons making their entry into or escape therefrom the curtilage. The officers possessed probable cause to believe that Domengeaux sold methamphetamine from his residence. During a three-day period before execution of the warrant a continued flow of traffic was observed in and out of the residence. Between the time the officers executed the search warrant and when defendant arrived, several persons arrived at the house, some of whom possessed drugs.

Officer Hoskins testified that those who came to the house were detained long enough to identify them; that pat down searches were conducted to determine whether any weapons were possessed thereby insuring the safety of the officers; and that since weapons were discovered inside the residence, the officers were distrustful of persons who arrived. When defendant arrived at the door of the house being searched, the officers invited him in. Officer Hoskins believed defendant to be involved in drug transactions based upon: (1) his knowledge of defendant's connection with the case where a large quantity of marihuana was seized; (2) the existence of drugs in possession of others who arrived at the house; and (3) defendant's apparent and extreme intoxication on some sort of drug. Officer Hoskins asked defendant if he had any drugs. Defendant responded he did not know if he had any or not. Officer Hoskins testified he conducted the pat down search of defendant to determine if he possessed any weapons. Pursuant to the pat down search, he discovered a loaded syringe in defendant's breast pocket containing a brown fluid which Hoskins tested immediately verifying that it contained contraband. A further search revealed a bag of white powder in defendant's shirt pocket.

Defendant asserts that he should not have been searched simply because he was at the scene where a search warrant was being executed, citing Lippert v. State, Ct.Crim.Appls, 664 S.W.2d 712; Ter1ry v. Ohio, U.S. S.Ct. 88 S. Ct. 1868; and Worthy v. State, CA (San Antonio), 773 S.W.2d 783. But the fact in those cases are not the facts here.

We think defendant was properly searched and arrested pursuant to the search warrant executed at the Domengeaux residence. The warrant specifically authorized the arrest of "all other persons making their entry into or escape therefrom said curtilage" of the premises searched. The text of the affidavit described numerous persons who came to the premises to buy contraband. And a similar illegal purpose was manifested by facts known to the officers upon defendant's arrival at the premises. Under the facts known to the officers, they had probable cause to believe that persons who arrived at this residence did so for the purpose of conducting illegal activity.

As this search was being executed, the officers discovered weapons inside the premises; and others arrived at the premises with contraband. Officer Hoskins recognized defendant to have been connected with a previous undercover operation involving a large quantity of contraband. Defendant's intoxication was conspicuous. These specific and articulable facts, in the light of the officer's experience and personal knowledge, together with inferences from these facts, reasonably warranted the intrusion of defendant's freedom and his detention for further investigation.

The pat down search was justified by the totality of the circumstances. When asked if he had any drugs defendant's response was an equivocal one. Officers were justified in being distrustful of a person who had ties to a previous drug offense. Also defendant's intoxication linked him to the ongoing drug activities of the premises being searched. When such a person arrives intoxicated and potentially carrying additional drugs at a house where drug transactions had occurred and where weapons were discovered, officers are justified in conducting a pat down search for weapons.

The search of defendant was authorized by both the search warrant and the totality of the circumstances. The seizure of contraband from defendant's person and his arrest were proper. Defendant's point of error is overruled.

AFFIRMED

FRANK G. McDONALD

DO NOT PUBLISHChief Justice (Retired)

[Participating: Chief Justice Thomas, Justices Hall and Means and Chief Justice McDonald (Retired)]