Astran v. State

799 S.W.2d 761, 1990 WL 182413
CourtCourt of Criminal Appeals of Texas
DecidedNovember 28, 1990
Docket1479-89
StatusPublished
Cited by47 cases

This text of 799 S.W.2d 761 (Astran v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Astran v. State, 799 S.W.2d 761, 1990 WL 182413 (Tex. 1990).

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

CAMPBELL, Judge.

Appellant pled guilty to delivery of a controlled substance and was sentenced to fifteen years imprisonment. The Court of Appeals affirmed. Astran v. State, 780 S.W.2d 447 (Tex.App.—Dallas 1989). We granted appellant’s petition for review to determine whether his motion to suppress a controlled substance found during the arrest should have been granted. We affirm.

Dallas officers, uniformed and undercover, were working in a combined effort to arrest drug offenders on the date of appellant’s arrest. Officer Wilson was part of the team and was working undercover making street buys of illegal drugs. Wilson bought twenty dollars’ worth of heroin from appellant and drove away from the scene of the sale. He immediately radioed uniformed Officer Black to make the arrest. Wilson gave a detailed description of appellant, which included appellants’ height, weight, and location. Wilson specifically told Black that appellant was wearing a tee-shirt which spelled the words “Jesus Christ.” Black found appellant in two minutes and arrested him. Wilson was parked two blocks away during the arrest and maintained radio contact with Black throughout the sighting and arrest. Wilson did not see the arrest. Within thirty minutes of the arrest Wilson identified appellant at the police station as the person who sold the drugs. During the arrest, Black found a small matchbox with five capsules of heroin on appellant’s person which appellant sought to have suppressed at trial.

Appellant filed a pre-trial motion to suppress alleging that the drugs were discovered during an illegal search, and preserved his right to appeal the denial of the motion when he entered his guilty plea. On appeal, appellant reiterated his claim that the search was not proper under Article 14.01, V.A.C.C.P., because the officer who saw the felony did not actually make the arrest.

The Court of Appeals noted that Art. 14.01 applied, permitting an officer to arrest an offender without a warrant for an offense committed within the officer’s presence or view. Following this Court’s decision in Willis v. State, 669 S.W.2d 728 (Tex.Cr.App.1984), the Court of Appeals held that the officer who viewed the offense need not necessarily make the arrest under Art. 14.01.

The court acknowledged that Willis differed from the instant case in one significant way: the officer in Willis saw the arrest but in the instant case Wilson did not see the arrest. The court noted that visual observation was merely one factor considered in Willis, and held the word “presence” in Art. 14.01 denotes “an awareness manifested through any of the senses.” Astran, 780 S.W.2d at 450. The court also referred to Caraballo v. State, 706 S.W.2d 773 (Tex.App.—Houston [14th] 1986, pet. ref’d), and Oviedo v. State, 767 S.W.2d 214 (Tex.App.—Corpus Christi 1989, no pet.), where other courts of appeals held that visual observation was merely one of several factors to consider when determining whether the officer who saw the offense had to arrest the offender.

Applying these case holdings to the facts of the instant case, the court held that Wilson’s awareness of appellant’s arrest [763]*763constituted presence at the arrest. Wilson saw the felony, was part of a team of officers present at the scene of the offense,1 and relayed appellant’s physical description and geographic location to the arresting officer. A short time elapsed between the commission of the offense and the arrest. Even though Wilson did not visually observe the arrest, he was parked two blocks away and maintained constant radio communication2 with Black during the arrest. The court concluded that the arrest was proper under Art. 14.01.

In his petition, appellant contends that Willis and Oviedo do not apply because the arresting officers viewed the arrests, whereas in the instant case Wilson did not. Appellant claims that Caraballo is inapplicable because the significant facts of Willis were not present or were not discussed.

We find that the Court of Appeals properly applied Willis. In Willis, Officer Foster was working undercover. The defendant drove up next to Foster’s car, left his car, entered Foster’s car, and sold heroin to Foster. Uniformed officers were watching Foster’s car and arrested the defendant after he returned to his car and drove away. On appeal, the defendant argued that the arrest was improper. This Court stated the following, id. at 730:

Although Foster himself did not make the arrest, his situation is not like that of an informant under Art. 14.04 because he was part of a team of officers present at the scene of the offense. He had firsthand knowledge of the offense and relayed that knowledge to his fellow officers. Those officers watched appellant get into Foster’s car, were aware of the prior telephone conversation setting up the deal, saw the pre-arranged signal from Foster confirming that appellant possessed drugs when he left Foster, and arrested appellant a few minutes later. Foster did not himself seize appellant, but he observed the arrest from about % of a mile away. Foster was just as much a participant in the arrest as if he had seized appellant himself. There was no significant time lapse or other intervening event that would take this arrest out of the ambit of Art. 14.01.

Thus, the Court of Appeals properly concluded that under Willis the viewing officer need not in all cases personally make the arrest under Art. 14.01.

Likewise, the Court of Appeals properly relied on Caraballo. In Caraballo, Officer Guerra was working undercover and arranged to buy cocaine from the defendant. He went to the defendant’s apartment, went inside, and the defendant’s cohort opened a bag containing cocaine. Guerra said he needed to get the money, left the apartment, gave a pre-arranged bust signal, and a group of officers went inside and arrested the defendant. The Houston [14th] Court of Appeals held, that pursuant to Willis, Guerra did not have to personally make the arrest because he “was an integral part of the arrest team and being such participated in the arrest of appellant” so that Art. 14.01 applied. Caraballo, 706 S.W.2d at 774. Thus, Caraballo applies.

Last, the Court of Appeals did not misapply Oviedo. In that case, the defendant offered to sell drugs to an undercover officer, Vinson. Vinson told two other officers of the offer to sell and they arrested the defendant. The officers did not see the [764]*764actual offer to sell, but Vinson watched the arrest from a short distance away. The Corpus Christi Court of Appeals cited Willis and held that even though Vinson did not herself arrest the defendant, she was “as much a participant in the arrest as if she had seized appellant herself.” Oviedo, 767 S.W.2d at 217. Thus, the holding in Oviedo supports the notion that every Art. 14.01 arrest need not be made by the viewing officer.

Just as the officer may rely on other officers in making an Art.

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Cite This Page — Counsel Stack

Bluebook (online)
799 S.W.2d 761, 1990 WL 182413, Counsel Stack Legal Research, https://law.counselstack.com/opinion/astran-v-state-texcrimapp-1990.