Beverly v. State

764 S.W.2d 353, 1989 Tex. App. LEXIS 311, 1989 WL 13435

• Court: Court of Appeals of Texas
• Decided: January 11, 1989
• Docket: 09-88-202-CR
• Status: Published

Opinions

OPINION

BURGESS, Justice.

This is an appeal from a conviction for possession of a controlled substance, cocaine, less than twenty-eight grams.

Appellant’s first point alleges the trial court committed error in denying a motion to suppress evidence seized as the result of an illegal warrantless arrest. Appellant was arrested for criminal trespass when he drove his car into the common parking lot of an apartment complex. Officers found cocaine in appellant’s clothing during a search, after the arrest. The arresting officer, Mark Hogue, testified the management at the apartment complex had been having problems with loiterers. City police officers, including Hogue, routinely patrolled the complex and accompanied the manager while she “trespass warned” loiterers, which Hogue defined as “telling them in front of us that she did not want them back on the property.” The manager supplied the officers, including Hogue, with a list of people who had been trespass warned in the presence of police officers. Hogue stated that when the appellant drove up, the manager told him she had trespass warned appellant. Hogue then checked his list and found appellant’s name there. He arrested appellant as he was getting out of his car without questioning him.

A person commits criminal trespass if he enters or remains on another’s property without effective consent and he had notice that the entry was forbidden or received notice to depart but did not. TEX. PENAL CODE ANN. sec. 30.05(a) (Vernon Supp.1988). Notice is defined as:

(A) oral or written communication by the owner or someone with apparent authority to act for the owner;

(B) fencing or other enclosure obviously designed to exclude intruders or to contain livestock; or

(C) a sign or signs posted on the property or at the entrance to the building, reasonably likely to come to the attention of intruders, indicating that entry is forbidden.

TEX.PENAL CODE ANN. sec. 30.05(b)(2).

The state contends that appellant’s war-rantless arrest was lawful under TEX. CODE CRIM.PROC.ANN. art. 14.01 (Vernon 1977), which provides that a peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view. Appellant argues inferentially that the officer was not authorized under article 14.01 to make the war-rantless arrest because he was not present when the owner gave appellant notice and, therefore, the offense was not committed in his presence.

This case presents an issue of first impression: Does the presence of a person at a place within the arresting officer’s view coupled with a hearsay report that the person had been given notice constitute probable cause to believe trespass is being committed in the officer’s presence? The fifth circuit has upheld, under Texas law, a warrantless arrest for criminal trespass upon an officer’s reasonable belief of a complainant’s representation that defendant was on complainant’s property, although the facts later revealed that he was on public property. Bodzin v. City of Dallas, 768 F.2d 722 (5th Cir.1985). The missing element under the trespass statute in Bodzin was “property of another.” There, the officer could look at the layout of the property grounds and assess from his own observation and knowledge the probability that the offender was standing on store grounds. The missing element in this case, notice, was not one the officer could assess from his own perceptions, but required reliance upon information provided by the manager. Generally, an officer has probable cause to arrest when the facts and circumstances within his knowledge and of which he had reasonably trustworthy information would warrant a reasonable and prudent person’s believing that a particular person has committed or is committing a crime. Lewis v. State, 598 S.W.2d 280, 284 (Tex.Crim.App.1980). For a warrantless arrest pursuant to article 14.01, however, probable cause for arrest must arise from facts within the arresting officer’s own knowledge and observations, not from hearsay information. Appellant’s point of error is sustained. It is unnecessary to reach appellant’s second point of error. The judgment is reversed and remanded for a new trial.

REVERSED AND REMANDED.