# Hardison v. State

> Court of Criminal Appeals of Texas · May 7, 1980 · 597 S.W.2d 355

URL: https://www.frixlaw.com/law-library/cases/9768261

## Case

- **Full name:** Theophilus H. HARDISON, Jr., Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** May 7, 1980
- **Citations:** 597 S.W.2d 355
- **Precedential status:** Published
- **Opinion:** Dissent by Douglas
- **Judges:** Douglas, Dally, Davis, Clinton
- **Cited by:** 32 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/9768261

## Opinion text

DISSENTING OPINION ON DENIAL OF STATE’S MOTION FOR LEAVE TO FILE MOTION FOR REHEARING WITHOUT OPINION
DOUGLAS, Judge.
The panel opinion jumps to the question of whether an arrest without warrant was proper under Article 14.04, V.A.C.C.P., without addressing the underlying question of whether an arrest was made prior to the discovery of the heroin by the officers.
Article 15.22, V.A.C.C.P., provides that:
“A person is arrested when he has been actually placed under restraint or taken into custody by an officer or person executing a warrant of arrest, or by an officer or person arresting without a warrant.” (Emphasis supplied)
Officers Little and Ladd testified that they approached Hardison, Ladd “asked to let him see the hat,” and Hardison complied. Leaving aside the question of whether Ladd’s subsequent inspection of the hatband was by a consensual waiver of Fourth Amendment rights under the rule of Schneckloth v. Bustamonte, 412 U.S. 218 , 93 S.Ct. 2041 , 36 L.Ed.2d 854 (1973), it would seem to require a stretch of the imagination to characterize asking for and briefly inspecting a hat as the kind of “actual . restraint or . custody” envisioned in Article 15.22, supra.
Once the heroin was seen by Officer Ladd, the arrest was authorized by Article 14.01, V.A.C.C.P.
If we characterize the minimal intrusion upon this appellant as an arrest requiring a warrant, how can we justify the use of a pat-down search for weapons as authorized by Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968), in light of Article 14.04? Surely the Court does not mean to be understood as saying that the ripening of probable cause to search removes the right of the officer to make an otherwise proper investigative stop?
Finally, even granting, arguendo, that Article 14.04 may have some application here, the Court should be instructed by its decision in Trammell v. State, 445 S.W.2d 190 (Tex.Cr.App.1969).
Trammell and a companion were stopped as they walked down a street by a policeman who noticed that they had mud and dried leaves on their clothes, and who knew that the suspects in an armed robbery the previous day had been seen entering a wooded area. The officer requested identification, and, upon discovering Trammell’s identity, and knowing that he was being sought, arrested him without a warrant.
Nothing in the opinion in Trammell indicates that there was any immediate danger of Trammell’s escaping, but the Court found that the officer “was clearly authorized to arrest without a warrant appellant and his companion under the terms of Article 14.04, V.A.C.C.P., based upon probable cause alone.” 445 S.W.2d at 192 .
Perhaps the Court justifiably inferred that Trammell, who had earlier fled the scene of an armed rpbbery, might, before a warrant could be procured, flee again. But the Court would be no less justified in inferring that Hardison, who been selling heroin capsules from a supply in his hat band, might run out of stock before a warrant could be procured and executed.
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/9768261. Public record. Not legal advice.