# Wilson v. State

> Court of Criminal Appeals of Texas · June 12, 1974 · 511 S.W.2d 531

URL: https://www.frixlaw.com/law-library/cases/9767865

## Case

- **Full name:** Winton Lee WILSON, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** June 12, 1974
- **Citations:** 511 S.W.2d 531; 1974 Tex. Crim. App. LEXIS 1736
- **Precedential status:** Published
- **Opinion:** Dissent by Morrison
- **Judges:** Davis, Morrison, Douglas
- **Cited by:** 37 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9767865

## Opinion text

MORRISON, Judge
(dissenting).
I cannot agree to the reversal of this conviction, but I cannot subscribe to my brother Douglas’ reasoning. On the other hand, I do not accept the majority’s alignment with People v. Superior Court, supra.
In this case the officer observed a traffic violation other than speeding, plus an overt act of making “a move with his right hand to between the two seats”, which I deem sufficient to establish probable cause to search both appellant and the area where the furtive gesture had occurred.
I dissent.
DISSENTING OPINION IN DENYING LEAVE TO FILE ON STATE’S MOTION FOR REHEARING
DOUGLAS, Judge.
The majority denies leave to file a motion for rehearing and still holds the search illegal. What does the majority intend to do with the previous decisions cited in the dissenting opinion that are contrary to the holding in this case?
In addition to those cases, let us look at the decision in Smoot v. State, Tex.Cr.App., 475 S.W.2d 281 , in a unanimous opinion by this Court as presently constituted. In that case the arrest was for speeding. In that opinion we find the following:
“. . . Upon being directed to pull over, appellant stopped his car and ‘made a motion to the floor.’ He hurriedly approached the police car and ‘seemed excited, nervous.’ After getting the appellant’s driver’s license, the officer went to the driver’s side of the car and *540 saw on the floor board ‘an old rusty hunting knife and a Marlboro box of cigarettes.’ He retrieved these articles and found 9 handrolled marihuana cigarettes in the Marlboro box.”
and,
“We conclude the arrest and search and seizure were legal.”
In the Smoot case the officers had the defendant outside the car and then searched the Marlboro cigarette package and found marihuana cigarettes. In the present case, the officers had Wilson outside the car; they looked into a Marlboro cigarette box and found marihuana cigarettes.
What is the difference? Does the majority rely upon no probable cause to search the cigarette box in the present case? If so, was there probable cause in the Smoot case? Does the majority rely upon protection of the officers in the Smoot case ? Smoot was outside the car— so was Wilson in the present case. Does the majority hold no arrest was made in the present case?
Leave to file the State’s motion for rehearing should be granted. The judgment should be affirmed.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9767865. Public record. Not legal advice.