by testifying he had never had marijuana on his person, appellant opened door to impeachment by testimony of witness that he had smoked marijuana with appellant on night in question and had seen appellant in possession of marijuana on previous occasions
How later courts described this case
- by testifying he had never had marijuana on his person, appellant opened door to impeachment by testimony of witness that he had smoked marijuana with appellant on night in question and had seen appellant in possession of marijuana on previous occasions
- Guns taken from defendants challenged as fruits of an illegal search and seizure waived when the defendants testified on direct examination that they had the guns in their possession and admitted having an exchange of gunfire with the officers.
Written by the judges who cited it.
The opinion
ODOM, Judge
(dissenting).
The evidence shows that around midnight on September 7, 1970, narcotic officers, who were conducting a surveillance of a duplex in El Paso, observed appellants make several trips from the duplex to their automobile. They further observed appellant Shea carrying “a plastic baggy with what appeared to be a piece of red paper on it,” 1 and watched Shea place two shotguns in the back of the vehicle. The appellants then got in their automobile and drove away. Asked to describe appellant Shea’s appearance, one of the surveilling officers stated:
“. . . Mr. Shea was wearing a camouflage, that’s green and brown fatigue type jacket with the sleeves partly rolled up. He was wearing blue levi’s and some brown hunting boots.”
He further stated that it appeared to him that the appellants had been hunting.
Two of the narcotic officers followed appellants’ automobile in an unmarked, 1964 black Chrysler. Neither officer was in uniform. The record reflects that one of the officers was disguised as a “hippie,” had hair down to his shoulders and wore a mustache. 2 The other officer was described as “straight looking” but was not in uniform. They began chasing appellants, pulled their unmarked car abreast of appellants’ car, exhibited a shotgun and shouted for the appellants to pull over. (It is disputed whether the two identified themselves as officers.) At this point, shots were exchanged and the testimony is in conflict as to who fired the first shot. The gunfire continued until uniformed officers arrived on the scene.
I cannot agree that this warrantless arrest or attempted arrest (the initial stop or attempted stop of the automobile) met the test of probable cause. E. g., Brown v. State, Tex.Cr.App., 481 S.,W.2d 106. It is unlawful for an officer to arrest an individual or stop his car for the purpose of making an arrest where probable cause for such arrest does not exist; this is not doubted. And it is well established that a person has the right to use all force necessary to extricate himself from an illegal arrest. E. g., Cline v. State, 150 Tex.Cr.R. 586 , 204 S.W.2d 512 ; Ely v. State, 139 Tex. Cr.R. 520, 141 S.W.2d 626 ; Graf ft v. State, 134 Tex.Cr.R. 30 , 113 S.W.2d 546 ; Montgomery v. State, 43 Tex.Cr.R. 304 , 65 S.W. 537 . Recently, in Forbau v. State, 492 S.W.2d 516 , (Tex.Cr.App., 1973) we quoted the following from 6 Tex.Jur.2d, p. 194, Sec. 52:
“Although every citizen has a duty to submit to lawful arrest, he is not required to submit to an unauthorized or unlawful arrest.
“A person who is threatened with the commission of an offense that is classed as an ‘offense against the person,’ such as unlawful arrest or false imprisonment, has two remedies: he may choose to appeal to the law for redress by application for habeas corpus or other appropriate remedy, or he may resort to his right of resistance.”
But for the lawless conduct of the narcotic officers, the circumstances out of *932 which the alleged offense arose would not have occurred. I would hold the arrest to be illegal and reverse this case.
For the reasons stated, I respectfully dissent.
ROBERTS, J., joins in this dissent.
. Appellant Shea testified that he had a plastic bag of cherry drop candy that he had taken with him on a dove hunt on the day in question. Dead doves were found in the automobile.
. Officer Enriquez, describing his own appearance on the night in question, testified as follows: “A. Xes, sir. At that particular time I had I would say a little bit longer or quite a bit longer hair than I have now. At the time I had been doing some undercover work and had made some buys of narcotics and I had a mustache also * * * I was trying to fit the environment of a hippie.”