# Colston v. State

> Court of Criminal Appeals of Texas · July 2, 1974 · 511 S.W.2d 10

URL: https://www.frixlaw.com/law-library/cases/9767873

## Case

- **Full name:** James Ray COLSTON, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** July 2, 1974
- **Citations:** 511 S.W.2d 10; 1974 Tex. Crim. App. LEXIS 1782
- **Precedential status:** Published
- **Opinion:** Dissent by Douglas
- **Judges:** Onion, 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/9767873

## How later opinions describe it (automated extraction)

- concluding that defendant was under arrest but that officers had the right to act upon the basis of the teletype dispatch and were entitled to assume that the officer requesting the arrest had sufficient probable cause to justify the arrest

## Opinion text

DOUGLAS, Judge
(dissenting).
The United States Supreme Court in Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968), upheld a seizure of a weapon upon less cause than is shown in the present case.
The officers in the instant case were informed by teletype from a narcotics officer that James R. Colston and Tom Hutchinson were heavily armed and had more reason to investigate than the officer in Terry v. Ohio, supra.
In Terry, Officer McFadden of the Cleveland Police Department testified that while he was on patrol in the afternoon his attention was drawn to two men, Chilton and Terry, standing on the corner of Huron Road and Euclid Avenue. He had never seen the two men before, and he was unable to say precisely what first drew his eye to them. He testified that he had observed the two men walk past a store on Huron Road, pause and look into the window, then walk back by the store again and return to the corner where they would confer. The two men made several trips. At one point while they were standing together on the corner, a third man approached them and engaged them briefly in a conversation. Chilton and Terry resumed their measured pacing, peering and conferring for approximately 10 to 12 additional minutes before taking off in the direction the third man, Katz, had taken. Just down the street in front of another store, Officer McFadden saw Chilton and Terry talking to Katz. He approached the three men, identified himself as a police officer and asked for their names. He stated that at this point his knowledge was confined to what he had observed, that he was not acquainted with any of these men by name or by sight, and that he had received no information concerning them from any other source. When the men were unresponsive to his questions, he immediately conducted *14 a pat down of the three men beginning with Terry. He found a pistol on both Terry and Chilton and then had all three men taken to the police station where Terry and Chilton were formally charged with carrying concealed weapons.
The Supreme Court noted that Officer McFadden’s actions constituted a “seizure” within the meaning of the Fourth Amendment. Specifically, that Court said, “It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person.” Terry v. Ohio, supra, at page 16, 88 S.Ct. at page 1877 .
In the present case the officers had a teletype which was received through normal police channels. It contained the names of two armed individuals as well as a complete description of the van, including the license number. The teletype also stated that the suspects were believed to be in the Waco area.
Article 483, Vernon’s Ann.P.C., prohibits the carrying of arms. Article 487, V.A.P. C. (in the same chapter), provides:
“Any person violating any article of this chapter may be arrested without warrant by any peace officer and carried before the nearest justice of the peace. Any peace officer who shall fail or refuse to arrest such person on his own knowledge, or upon information from some reliable person, shall be fined not exceeding five hundred dollars.”
When the officers spotted the van they had probable cause for an investigatory arrest. Upon the investigation, they saw the derringer lying on the floor partly under the front seat through the open door of the van. When the officers spotted the pistol in the van a further search of the van was authorized. Walthall v. State, Tex.Cr.App., 488 S.W.2d 453 , citing with approval Breckenridge v. State, Tex.Cr.App., 460 S.W.2d 907 . See Taylor v. State, Tex.Cr.App., 420 S.W.2d 601 .
The subsequent search of the vehicle thus being authorized, appellant’s arrest following the discovery of the 5,000 “LSD” tablets in the picnic cooler was proper. The search in this case was not unreasonable.
The judgment should be affirmed.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9767873. Public record. Not legal advice.