stating that the fact that odor of marijuana could be detected outside the cab of a pickup truck “suggests that the [defendant] would become aware of the existence of the [drug] before entering the cab”
How later courts described this case
- stating that the fact that odor of marijuana could be detected outside the cab of a pickup truck “suggests that the [defendant] would become aware of the existence of the [drug] before entering the cab”
- holding a peace officer, after a bona fide stop for a traffic offense, may then make an additional arrest for any other offense discovered during the investigation
- finding possession of a key to a location where contraband is found reasonably implies control over the contraband
- defendant had key to camper shell where drugs found
Written by the judges who cited it.
Later courts went against this
Overruled on other grounds by Preston v. State, 1985 Tex. Crim. App. LEXIS 1760 (1985)
Christopher v. State, 639 S.W.2d 932, 935-36 (Tex. Crim. App. 1982) (defendant had key to camper shell where drugs found), overruled on other grounds, Preston v. State, 700 S.W.2d 227, 230 (Tex. Crim.
The opinion
OPINION ON APPELLANT’S MOTION FOR REHEARING
ODOM, Judge.
This is an appeal from a conviction for possession of marihuana in an amount over four ounces. The appellant was found guilty by the trial court and punishment was assessed at three years, probated, and a $5000 fine. The judgment was affirmed. We granted leave to file the appellant’s motion for rehearing to consider appellant’s ground of error, that a game warden has no authority to arrest the appellant for speeding under the facts of this case.
Art. 2.12(11), V.A.C.C.P., provides:
“The following are peace officers:
“(11) law enforcement officers commissioned by the Parks and Wildlife Commission.”
The Code of Criminal Procedure provides for general powers of peace officers. Art. 2.13, V.A.C.C.P. under Duties and Powers states:
“It is the duty of every peace officer to preserve the peace within his jurisdiction. To effect this purpose, he shall use all lawful means. He shall in every case where he is authorized by the provisions of this Code, interfere without warrant to prevent or suppress crime. He shall execute all lawful process issued to him by any magistrate or court. He shall give notice to some magistrate of all offenses committed within his jurisdiction, where he has good reason to believe there has been a violation of the penal law. He shall arrest offenders without warrant in every case where he is authorized by law, in order that they may be taken before the proper magistrate or court and be tried.” (Emphasis added.)
In addition Art. 14.01(b), V.A.C.C.P., upon which the panel opinion relied, provides:
“(b) A peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view.”
The record reflects that officer Talbert, a game warden for the Texas Parks and Wildlife Department, initially stopped the appellant for speeding.
Article 6701d, Sec. 153, Vernon’s Ann. Civ.St. states:
“Any peace officer is authorized to arrest without warrant any person found committing a violation of any provision of this Act. [Traffic Regulations.]” (Emphasis added.)
The specific authority and jurisdiction of game wardens as peace officers is set out in Secs. 11.019(b) and 12.102(a) and (b) Parks & Wildlife Code Annotated:
Section 11.019(b) states:
“Employees commissioned under this section have the powers, privileges, and immunities of peace officers while on state parks or on state historical sites or in fresh pursuit of those violating the law in a state park or historical site.”
Further, Sec. 12.102(a) and (b) provides:
“An authorized employee of the department has the same authority as a sheriff to arrest, serve criminal process, and require aid in serving criminal process in connection with violations of the law relating to game, fish, and birds. The department may receive the same fees as are provided by law for sheriffs in misdemeanor cases.
“(b) An authorized employee of the department may arrest without a warrant any person found in the act of violating any law relating to game, birds, or fish.”
Appellant contends in his ground of error that the specific authority and jurisdiction *937 of Sections 11.019 and 12.102, supra, controls over the general provisions given to peace officers, (i.e. game wardens), under the Code of Criminal Procedure. Appellant implies that these codes are in conflict and are not compatible if both are given effect. Therefore, the specific powers, 11.019 and 12.102, under the Parks and Wildlife Code, should be given effect.
Article 5429b-2, Sec. 3.06, Y.A.C.S., provides:
“If a general provision conflicts with a special or local provision, they shall be construed, if possible, so that effect is given to both. If the conflict between the provisions is irreconcilable, the special or local provision prevails as an exception to the general provision unless the general provision is the later enactment and the manifest intent is that the general provision prevail.” 1
Section 11.019 and Sec. 12.102, supra, can either be read as a limitation placed on a game warden’s general power as a peace officer, 14.01, supra, thereby restricting his authority and jurisdiction to parks and historical sites or Secs. 11.019 and 12.102, supra, may be read separately as an explanation of their specific power. The statutes are reconcilable and may be construed as to give effect to both.
We do not agree with the panel opinion that Art. 14.01(b), supra, creates a general power for any peace officer to arrest without warrant under the stated conditions. That article is part of chapter 14, which delineates the circumstances under which no warrant is required for an arrest. It does not purport to delineate who is a peace officer. That function is accomplished by Arts. 2.12 and 2.13, supra. Art. 2.13 commences, “It is the duty of every peace officer to preserve the peace within his jurisdiction. To effect this purpose, he shall use all lawful means.” (Emphasis added.) Art. 2.13 then elaborates upon means of accomplishing the previously stated purpose by listing a series of specific duties and powers (arrest without warrant, execution of process, etc.). To hold that Art. 14.01(b) authorizes any peace officer to arrest for any offense would effectively render meaningless all specific grants of authority, such as the Parks and Wildlife Code provisions quoted above. 2 It would also give deputy constables and municipal park patrolmen (Art. 2.12(2) and (13), supra), state-wide jurisdiction. We do not believe the legislature intended such a result.
On the other hand, we likewise do not agree with appellant’s argument that the specific grant of power in the Parks and Wildlife Code set out above constitutes a restriction or exclusive expression of the powers of game wardens. Not addressed by appellant is the other grant of authority relied on in the panel opinion, namely, Art. 6701d, Sec. 153, Y.A.C.S.:
“Any peace officer is authorized to arrest without warrant any person found committing a violation of any provision of [traffic regulations] Act.” (Emphasis added.)
Unlike Art. 14.01(b), supra, this provision does expressly grant arrest powers to any peace officer. We hold this provision includes a grant of authority to game wardens and that appellant’s arrest for speeding was lawful.
The motion for rehearing is denied.
McCORMICK, J., concurs in the result.
. Art. 14.01(b), supra, was effective Aug. 28, 1967, and Secs. 11.019 and 12.102 were effective Sept. 1, 1975. Art. 2.12 was amended and effective May 24, 1977. This is an affirmative act by the legislature showing that Art. 2.12, § (11), was intended to include game wardens as peace officers under the laws of the State of Texas.
. Art. 14.01(a), on the other hand, authorizes any person to arrest under certain circumstances. Of course this would include persons who happen to be game wardens, but not due to their status as game wardens.