Marvin Gibbs, Jr. v. The State of Texas--Appeal from 361st District Court of Brazos County

IN THE

TENTH COURT OF APPEALS

No. 10-92-002-CR

MARVIN GIBBS, JR.,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 361st District Court

Brazos County, Texas

Trial Court # 20,494-361

O P I N I O N

Marvin Gibbs, Jr. appeals his conviction for possession of a controlled substance. Gibbs was found guilty by a jury, and the court assessed punishment at twenty years in prison. On appeal Gibbs contends that the trial court erred in (1) denying his motion to suppress the evidence found in his automobile at the time of his arrest, and (2) denying his motion for an instructed verdict based on the State's failure to identify him in open court.

In point one, Gibbs argues that the arresting officers lacked probable cause and the requisite exigent circumstances to search Gibbs' automobile without a warrant. Lt. Gene Knowles of the Brazos Valley Narcotics Trafficking Task Force testified that on June 22, 1991, he received a tip from an anonymous caller who had previously called him on eight or ten occasions. Furthermore, the information provided by the caller had been reliable in the past. In fact, one of the previous calls had resulted in Gibbs' arrest for possession of a controlled substance.

The informant told Knowles that Gibbs was at the Triangle Bowling Alley and that crack cocaine was located in his car. Knowles, who was aware of the kind of car that Gibbs drove, also testified that the informant described Gibbs' car. The informant told him that, within the past thirty-five minutes, she had seen the cocaine between the cushions of the passenger seat in Gibbs' car. Knowles contacted Sgt. Mike Hallmark of the Bryan Police Department to follow up on the tip. However, when Hallmark arrived at the bowling alley ten or fifteen minutes later, he was unable to locate Gibbs' car. The following evening, Knowles received another call from the same informant. This time the informant told Knowles that Gibbs was at Neal Park and that the cocaine was still located in the passenger seat of his car. Again, Knowles called Hallmark.

Hallmark testified that he immediately went to the park where he saw the car described by Knowles. Hallmark waited about five minutes until Gibbs returned to the car. Hallmark followed the car out of the park, and when Gibbs failed to signal his intention to turn, Hallmark called for a backup. When Officer Martinez arrived, Hallmark stopped Gibbs for the traffic violation. Hallmark told Gibbs that he had committed a traffic violation and that he was suspected of transporting narcotics. At that point Hallmark left Gibbs with Martinez, reached into Gibbs' car, and retrieved a plastic bag from between the cushions of the passenger seat. Hallmark testified that the bag contained what appeared to be crack cocaine. Gibbs was then arrested for possession of a controlled substance.

The "totality of the circumstances" test applies in Texas for determining probable cause for a warrantless search and seizure. // The burden is on the State to prove the existence of probable cause to justify a warrantless search. // A police officer may search an automobile without a warrant when there are both exigent circumstances and probable cause to believe that the vehicle contains contraband or the instrumentalities of a crime. // In this case, probable cause is based on an informant's tip. An informant's veracity, reliability, and basis of knowledge are critical in this analysis. // The court in Price v. State provided the following guidance for determining probable cause based on an informant's tip:

One method of proving an informant's reliability is to show that the informant has provided truthful information in the past. An informant's tip can also be confirmed by the independent police work which corroborates the information received. Additionally, the credibility of the tip is strengthened if it is given in great detail which indicates a strong basis for the informant's knowledge. Furthermore, the tip is strengthened if it is based on personal observation rather than hearsay. Finally, the surrounding circumstances combined with the information received must be viewed in the light of their having been evaluated by a trained law enforcement officer. //

Here, Knowles had received information from the informant in the past and considered her to be reliable. On a previous occasion, information provided by the informant resulted in Gibbs' arrest for possession of a controlled substance. Furthermore, the informant supplied Knowles with several detailed facts including: (1) the color and style of Gibbs' vehicle, which Knowles knew to be accurate; (2) the location of the vehicle; (3) the fact that Gibbs had crack cocaine hidden between the cushions of the passenger seat; and (4) Gibbs' identity. More importantly, these facts were based on the informant's personal knowledge. We find that Hallmark had probable cause to believe cocaine was located inside Gibbs' automobile and that the exigent circumstances surrounding the investigation were sufficient to justify a warrantless search of the vehicle. // We overrule point of error one.

In point two, Gibbs argues that the court abused its discretion in allowing the State to re-open its case after Gibbs moved for an instructed verdict. The record reveals that, after the State rested its case in chief, Gibbs moved for an instructed verdict on the grounds that the State had failed to identify Gibbs in open court. After re-opening, the State recalled Hallmark to identify Gibbs as the accused, and the court denied Gibbs' motion for an instructed verdict. Where additional evidence is allowed, reversal will result only when the trial court abuses its discretion. // We hold that the court exercised its discretion in favor of "due administration of justice" in allowing the State to re-open its case in chief. // As a result, we overrule point of error two and affirm the judgment.

BOBBY L. CUMMINGS

Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed September 9, 1992

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