Baray v. State

321 S.W.2d 87, 167 Tex. Crim. 456, 1958 Tex. Crim. App. LEXIS 3563

• Court: Court of Criminal Appeals of Texas
• Decided: December 17, 1958
• Docket: 30224
• Status: Published

Opinions

MORRISON, Presiding Judge.

The offense is the possession of marijuana; the punishment, 15 years.

Three officers of the narcotic division of the San Antonio police were parked at a certain location on the night in question watching for a certain automobile of which they had a complete description and which belonged to two brothers who were known narcotic peddlers. The automobile arrived, parked near a small grocery store, and a group of teen age boys converged upon it. They saw the driver of the automobile reach in his shirt pocket and hand something to one of the boys. At this juncture, the officers started their automobile in that direction, and several of the boys called out in Spanish, “The dogs are coming,” and the driver of the automobile looked back and then drove away. One of the officers dropped off at the scene, and the two remaining officers pursued the fleeing automobile, observed the driver reach in his shirt pocket and then drop some cigarettes out of the automobile window. Within a block they were able to bring the automobile to a halt and place the appellant, who was alone therein, under arrest. Following this, they retraced their course and recovered four cigarettes from the street at the point where they saw the appellant drop them. At the police station the appellant’s shirt was taken from him and, with the cigarettes, was sent to the Department of Public Safety. The cigarettes and the shirt pocket were shown to contain marijuana.

The appellant did not testify in his own behalf, but called several witnesses who were present at the scene, saw the officers searching in the street but did not see them find anything.

We shall discuss the contentions advanced by diligent counsel in brief and argument.

He challenges the legality of the arrest and the search of the person of the appellant. The state introduced in evidence an ordinance of the city of San Antonio enacted pursuant to the terms of Article 214, Y.A.C.C.P. “authorizing the arrest, without warrant, of persons found in suspicious places and under circumstances which reasonably show that such persons have been guilty of some felony or breach of the peace, or threaten, or are about to commit some offense against the laws.”

Reliance is had upon Palacio v. State, 162 Texas Cr. Rep. 194, 283, S.W. 2d 765, and Thomas v. State, 163 Tex. Cr. Rep. 68, 288 S.W. 2d 791. In neither case was there introduced in evidence an ordinance such as before us in this case. In addition to this, we note further that the act of the appellant in handing something to one of a group of teen age boys who congregated about his automobile when it came to a halt, his act of looking back at the officers and hurriedly driving away when some of the boys cried out in Spanish a colloquialism which, according- to the record, meant that the narcotic police were coming, his act in throwing a number of cigarettes out of his automobile while being pursued by the police, when taken with the information which they had received about the automobile which he was driving, abundantly supported the legality of his arrest, and the search became proper as an incident to the lawful arrest. We cite in support of such holding French v. State, 162 Texas Cr. Rep. 48, 284 S.W. 2d 359; Piland v. State, 162 Texas Cr. Rep. 362, 285 S.W. 2d 230; Sanders v. State, 166 Texas Cr. Rep. 312 S.W. 2d 640; Slaughter v. State, 166 Texas Cr. Rep. 403, 314 S.W. 2d 92; and Sutton v. State, 166 Texas Cr. Rep. 580, 317 S.W. 2d 58.

Appellant’s last contention that the city ordinance is unconstitutional was decided adversely to him in Purdy v. State, 159 Texas Cr. Rep. 154, 261 S.W. 2d 850, and Crippen v. State, 80 Texas Cr. Rep. 293, 189 S.W. 496.

Finding the evidence sufficient to support the conviction and no reversible error appearing, the judgment is affirmed.