Gary v. State

647 S.W.2d 646, 1983 Tex. Crim. App. LEXIS 1123

• Court: Court of Criminal Appeals of Texas
• Decided: March 30, 1983
• Docket: 66260
• Status: Published

Opinions

OPINION

ROBERTS, Judge.

Appellant was charged with possession of methamphetamine. Before trial he filed a written motion asking the court to suppress the fruits of a certain search and seizure. The trial court denied his motion after receiving a stipulation of the evidence. Appellant then waived a jury and went to trial on a plea of nolo contendere. His plea was supported by the same stipulation of evidence. The court found him guilty. The State made a recommendation, to which appellant and his attorney agreed, that the punishment be six years’ confinement and a five hundred dollar fine, both probated. The court followed the recommendation. Pursuant to Article 44.02, V.A.C.C.P., appellant now seeks a reversal of his conviction, solely on the ground of the allegedly illegal search.

At the outset, we reject the State’s contention that “the search issue at bar has not been preserved for review.” According to the State, the stipulation of the evidence constituted a judicial confession sufficient to support the plea, independent of any evidence gained from the search. Upon examination, however, we discover that appellant nowhere testified that the allegations against him were “true and correct.” Cf. Dinnery v. State, 592 S.W.2d 343, 352 (Tex.Cr.App.1980) (Opinion on motion for rehearing). Moreover, the written stipulation ¹ contains no statement that could be classified as a judicial confession, and was clearly not regarded as such by the trial court or the parties.² See Brown v. State, 617 S.W.2d 196, 198-99 (Tex.Cr.App.1981), cert. granted, 457 U.S. 1116, 102 S.Ct. 2926, 73 L.Ed.2d 1328 (1982).³ As in Brown, “appellant has successfully navigated the procedurally hazardous passageway of Article 44.02.... ” Id. at 199.

This procedural victory avails appellant little, however, because we find that the case is governed by New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981). In Belton, the Supreme Court held as follows:

“[W]hen a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.

“It follows from this conclusion that the police may also examine the contents of any containers found within the passenger compartment, for if the passenger compartment is within reach of the arres-tee, so also will containers in it be within his reach. United States v. Robinson, [414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427], supra; Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327. Such a container may, of course, be searched whether it is open or closed, since the justification for the search is not that the arrestee has no privacy interest in the container, but that the lawful custodial arrest justifies the infringement of any privacy interest the arrestee may have.” Id. at 453 U.S. 460-61 at 101 S.Ct. 2864 (footnotes omitted).

The statement of facts in appellant’s brief in this case reads:

“Both the hearing on Appellant’s Motion to Suppress and the trial to the court on Appellant’s plea were conducted based upon an agreed stipulation of the testimony that would be forthcoming from witnesses for the State if they were called to testify (R. 25, 33). The stipulation is set out in the record as Defense Exhibit No. 1. That document shows that the State’s witness, Officer Kilty, would have testified that he stopped the Appellant’s automobile on September 22, 1979 for a traffic violation. Upon ap-. proaching the vehicle, he saw that Appellant was the driver and sole occupant of the car. Kilty further noticed a pistol, in plain view, lying on the rear seat of the automobile. Appellant was then arrested for carrying a weapon and was placed in the patrol car.

“After Appellant’s arrest, the officers searched his vehicle and found a closed or zipped bank bag on the front seat (See Defendant’s Exhibit No. 2). Upon opening and searching the interior contents of the bag, Officer Kilty found the substance which a police chemist would have testified was methamphetamine. The officers then arrested Appellant for the controlled substances offense, and one of the officers drove Appellant’s vehicle to the police station.”

Since appellant does not challenge the initial stop of his vehicle or his arrest, Bel-ton is the death rattle of his claim that the warrantless search of the bag was illegal.⁴

The trial court’s judgment is affirmed.

Before the Court en banc.

1 . In the stipulation, appellant agreed that one of the officers who arrested him, Officer Kilty, would testify to certain facts, which will be set out shortly. Appellant also stipulated that a police chemist, if called, would testify that a substance found in a bag in appellant’s car was “identified by testing as methamphetamine.”

2 . When the trial court asked appellant if he understood that he was “making a judicial confession to the facts of this case,” appellant’s attorney interrupted: “Your honor, I’m sorry we’re not making a judicial confession. We’re stipulating as to what the officer would testify if called to testify in Court. There is a slight difference. I think that will suffice for purposes of the plea.” In its brief, the State acknowledges that appellant’s counsel said this but sees nothing of import. The State leaves out of its brief what the prosecutor said immediately afterwards: “That’s agreeable, Your Honor.” We will take the prosecutor at his word.

3 . Brown also disposes of the State’s assertion that since the alleged contraband was not itself introduced into evidence, appellant cannot complain. The stipulation as to the chemist’s testimony was designed as a substitute for the introduction of the purported contraband, and of course such testimony would have been a fruit of the search. See Brown, supra, at 198; Cf. McGlynn v. State (Tex.Cr.App.1982) (Opinion No. 67,435, delivered September 15, 1982).

4 . We note that appellant has never invoked Article 1, Section 9 of the Texas Constitution (indeed, his pretrial motion to suppress cites no provision from any constitution). Accordingly, we have no occasion to consider whether our own constitution provides any greater protection than that vouchsafed by Belton. For my own part, I cannot understand why containers in the trunk of one’s car, but not those in the passenger compartment, are protected by the warrant requirement. See Belton, supra, at 453 U.S. 460, n. 4 at 101 S.Ct. 2864, n. 4. Under the fiction created in Belton, after all, it does not matter whether containers are actually within the “area of immediate control.” That being so, why does the new fictional area not extend to the trunk? (I do not see why one has more of a privacy interest in luggage in the trunk than in luggage elsewhere; to me the expectations are the same.) Perhaps the court will one day have occasion to consider, en banc, this and other riddles of Belton, as a matter of Texas law.