Juan Jose Rivera v. The State of Texas--Appeal from 339th District Court of Harris County

IN THE

TENTH COURT OF APPEALS

No. 10-93-108-CR

JUAN JOSE RIVERA,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 339th District Court

Harris County, Texas

Trial Court # 595,462

O P I N I O N

This is an appeal by Appellant Rivera from his conviction for possession with intent to deliver 400 grams of cocaine, for which he was assessed thirty-five years in the Institutional Division of the Texas Department of Criminal Justice and a $20,000 fine.

Officer Wood of the Houston Police Department first heard of Appellant from Joseph Hall, a person he had arrested for possession of cocaine. Hall told Officer Wood that Appellant had large quantities of cocaine, and that Officer Wood could listen in as he set up a drug deal with Appellant on the phone. Wood listened as Hall called Appellant and asked to buy half a kilo of cocaine. The time was approximately 4:00 P.M. on April 18, 1991. Wood verified that the number dialed belonged to a body shop owned by Appellant. Hall gave Wood a description of Appellant which Wood verified from Appellant's rap sheet. Hall made a second call to Appellant firming up the sale at 4:30 P.M. At that time Wood was at the body shop conducting a personal surveillance to verify Hall's information and was informed of the call. At 6:00 P.M. Appellant left the body shop and drove to his house. Appellant entered the house carrying nothing and exited a few minutes later carrying a small brown paper bag. Wood testified that the small bag was consistent with a package that could contain a half kilo of cocaine. Appellant then got into his car and drove in the direction of where he had agreed to take the cocaine.

Officer Wood called and had Appellant stopped by a patrol unit. Wood then recovered the bag which was on the passenger seat of Appellant's car. The bag contained 466 grams of cocaine. A further search of the car revealed another bag which contained 161 grams of cocaine.

Trial was before the court. Appellant filed a motion to suppress the admission of the cocaine, which was denied by the trial court. Appellant's counsel stipulated "everything except to the admission of the cocaine." "I stipulate the care, custody and control and that it is indeed cocaine." The trial court then admitted the cocaine.

As noted, the court found Appellant guilty and assessed his punishment at 35 years confinement and a $20,000 fine.

Appellant appeals on one point of error: "The trial court reversibly erred in overruling the Appellant's motion to suppress in light of the fact that the Appellant's warrantless arrest contravened Article 14.04, Vernon's Annotated Code of Criminal Procedure, and the resulting search and seizure violated Article 38.23, Vernon's Annotated Code of Criminal Procedure."

Article 14.04 provides: "Where it has been shown by satisfactory proof to a peace office, upon the representation of a credible person, that a felony has been committed, and that the offender is about to escape, so that there is no time to procure a warrant, such peace officer may, without a warrant, pursue and arrest the accused."

Article 38.23 provides: "No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case."

Appellant contends that since there was no evidence Appellant was about to escape, that his warrantless arrest was illegal, [Article 14.04], and that the admission of the cocaine was thus precluded by Article 38.23.

Article 14.04 is not the exclusive criterion for, or the only authorization, for a warrantless arrest.

Article 14.03 provides that a peace officer may arrest, without a warrant, persons found in suspicious places and under circumstances which reasonably show that such persons are guilty of a felony.

And, the requirement of a search warrant may be excused in the case of a moving vehicle if there is probable cause for the stop and for the search. Gill v. State, (Tex. Crim. App.) 625 S.W.2d 307, 310; Christopher v. State, (Tex. Crim. App.) 639 S.W.2d 932, 935.

The court must determine whether the officer possessed probable cause by determining whether, given all the known circumstances, a person of reasonable caution would be warranted in the belief that contraband or evidence might be found in the vehicle. Amores v. State, (Tex. Crim. App.) 816 S.W.2d 407; Vargas v. State, (Tex. App. El Paso) 852 S.W.2d 43, 46; Murray v. State, (Tex. App. Texarkana) 864 S.W.2d 111, 116. In Murray, supra, the court found that the police officers had probable cause for a warrantless arrest and search of a driver of a vehicle after receiving a phone tip from a confidential informant, found to be reliable in the past, that the driver was transporting alleged drugs.

In this case Officer Wood had ample probable cause to believe that Appellant was carrying cocaine in his vehicle. First, he heard Hall make the initial telephone call setting up the deal and was informed of the second call which established the time for the sale. Second, Wood immediately set up surveillance on Appellant's business, had verified Hall's description of Appellant, the type of car he possessed, and where his work place was. His continued surveillance confirmed Appellant's departure to his home at the predicted time, his retrieval of a small paper bag consistent with carrying a half kilo of cocaine, and his driving in the direction of the arranged location for the sale.

As soon as the above facts were verified, Appellant's car was stopped and the brown paper bag seized. We hold that probable cause existed for the stopping of Appellant's vehicle, and for the seizure of the cocaine found in the front seat.

Appellant's point is overruled and the judgment of the trial court is affirmed.

FRANK G. McDONALD

Chief Justice (Retired)

Before Chief Justice Thomas,

Justice Vance, and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed July 6, 1994

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