Gill v. State

DOUGLAS, Judge,

dissenting.

The court did not err in admitting the hydromorphone which had been found in the trunk of a car.

Officer J. R. Lawrence of the Hedwig Village Police Department testified that he first saw Gill upon entering the parking lot of a convenience store. Lawrence parked his car next to Gill’s. Gill, at seeing a uniformed policeman, had a shocked look on his face and appeared very surprised and tried to hide whatever he had in his hand. Lawrence then noticed that Gill had a syringe in his hand which he tried to cover with a towel. Lawrence went to the back of Gill’s car and radioed for help. Gill then got out of the car and left the door open. On the front seat of the car Lawrence saw a white towel, a canvas bag, a box of tissues, a number of loose tissues, a bottle of alcohol and a brief case.

*316 Lawrence then asked to see Gill’s identification. Gill reached into the brief case and produced a Michigan driver’s license which appeared to have been altered by inserting Gill’s picture over that of the true licensee.

According to Lawrence, Gill then began to get “pretty rowdy” and tried to get back into his car. Lawrence stopped him and immediately searched him for weapons. Lawrence then looked under the white towel and found a syringe full of clear liquid, a large spoon with a residue of cotton and carbon at the bottom, a bottle of alcohol, some cotton strainers, a residue-stained kitchen knife, some alcohol soaked tissue papers, a bottle of matches and a marihuana cigarette. Appellant was then arrested.

Lawrence called a wrecker in order to have Gill’s car towed off to a private impound lot. While waiting for the wrecker, Lawrence began to search the rest of the car. Gill would not provide the officer with a key to the trunk. Lawrence, with the wrecker driver’s help, removed the back seat of Gill’s car and searched its trunk. There, Lawrence found a paper bag which contained thirty-five Dilaudid (hydromor-phone) tablets, twenty-four Preludins, a plastic bag with one ounce of marihuana, and other miscellaneous items.

The court did not err in refusing to suppress the evidence of the hydromorphone tablets.

It is clear that Lawrence had sufficient articulable circumstances to justify an investigatory stop and frisk according to Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968). See Armstrong v. State, 550 S.W.2d 25 (Tex.Cr.App.1976); Shaffer v. State, 562 S.W.2d 853 (Tex.Cr. App.1978). Lawrence saw Gill react with shock and surprise upon seeing a uniformed policeman, saw him with a syringe in his hand and saw him try to hide the syringe underneath the towel after being discovered. In Shaffer v. State, supra, we held that the occupants of an automobile were just as subject to a stop and frisk detention as were pedestrians. See also Wood v. State, 515 S.W.2d 300 (Tex.Cr.App.1974). A brief detention in order to maintain the status quo and to obtain more information may be reasonable in light of facts known to the policeman at the time. Dillard v. State, 550 S.W.2d 45 (Tex.Cr.App.1977).

Lawrence was thus well within his constitutional authority in asking to see Gill’s driver’s license. In Pennsylvania v. Mimms, 434 U.S. 106 , 98 S.Ct. 330 , 54 L.Ed.2d 331 (1978), the Supreme Court of the United States held that a police officer could order a driver out of his car and request the production of his driver’s license. Such a limited intrusion on the defendant’s personal liberty was far outweighed by the officer’s need of personal protection once the defendant has been lawfully detained.

Lawrence then observed that the Michigan driver’s license had been altered. Gill had, apparently, substituted his picture for that of the true licensee. At this point, the circumstances ripened into full probable cause to arrest. Article 6687b, Section 32, Y.A.C.S. (alteration of a driver’s license). See Milton v. State, 549 S.W.2d 150 (Tex.Cr.App.1977); Jones v. State, 493 S.W.2d 933 (Tex.Cr.App.1973). Officer Lawrence was thus empowered to conduct a search incident to a valid arrest in order to search for weapons or destructible evidence. Chimel v. California, 395 U.S. 752 , 89 S.Ct. 2034 , 23 L.Ed.2d 685 (1969). The subsequent discovery of the items under the white towel was constitutionally permissible.

The issue then becomes the legality of the search and seizure of the contraband in the trunk of the car. A similar question was addressed in Borner v. State, 521 S.W.2d 852 (Tex.Cr.App.1975). There, the defendant was arrested for driving seventy-eight miles per hour in a seventy mile per hour zone. As the defendant’s car was pulling over to the side of the road, the policeman saw the passenger trying to hide something under the seat. One officer approached the car, looked in, and found a pistol and a marihuana cigarette butt. The police could not open the trunk of the car. They called a wrecker and had the car towed to the nearest town where a key was made for the trunk. After opening the trunk, the police found sixty-eight pounds of marihuana. *317 This Court held the search of the trunk to be reasonable. 521 S.W.2d at 856 . See also Texas v. White, 423 U.S. 67 , 96 S.Ct. 304 , 46 L.Ed.2d 209 (1975). Appellant’s contention should be overruled.

Gill also argues that the trial court committed fundamental error in not instructing the jury on the defense of possession by legal prescription. No such instruction was requested. No fundamental error is shown. Nothing is presented for review. Article 36.15, V.A.C.C.P.; Hayslip v. State, 502 S.W.2d 119 (Tex.Cr.App.1973).

Gill argues that the sentence, which recites the punishment as five years and a $5,000.00 fine, should be reformed to conform to Article 42.09, V.A.C.C.P. (Indeterminate Sentencing). The judgment should be reformed to read confinement in the Department of Corrections for “a period of not less than two years nor more than 5 years and a $5,000 fine.” Article 44.24, V.A.C.C.P.

The judgment should be reformed and affirmed.

Before the court en bane.