Gillum v. State

788 S.W.2d 443, 1990 Tex. App. LEXIS 837, 1990 WL 42515
CourtCourt of Appeals of Texas
DecidedApril 12, 1990
DocketNo. 01-89-00492-CR
StatusPublished
Cited by2 cases

This text of 788 S.W.2d 443 (Gillum v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gillum v. State, 788 S.W.2d 443, 1990 Tex. App. LEXIS 837, 1990 WL 42515 (Tex. Ct. App. 1990).

Opinion

OPINION

DUNN, Justice.

The trial court found appellant, Shun Gil-lum, guilty of the offense of possession of cocaine and assessed punishment at four years confinement, probated, and a $500 fine.

Officer Daniel Garza testified that on April 13, 1989, at 5:15 p.m., he received a call from a confidential informant that three black males and a black female were selling narcotics in the 4000 block of Dowl-ing Street at Cleburne Street, in Houston. Garza testified that he knew two of the four suspects, and that after obtaining the information he proceeded to the scene described — the driveway of an apartment complex. Garza testified that he arrived at the location and saw six or seven people and that three of the four suspects were in the group. Appellant was among the group, but was not one of the suspects named by the informant. Garza testified that when he got out of the unmarked patrol car, some of the people began to scatter, and that he and the other officers ordered everyone to “freeze” until they completed the investigation.

Officer Kenneth Fedderson testified that during the investigation, he and the other officers searched only the persons named by the informant, that one of the suspects was arrested, and that the other suspects were released. Fedderson further testified that as he arrived on the scene, he noticed that appellant was drinking beer and appeared to be under the age of 21; and that he left his patrol car and asked appellant his age, and appellant responded that he was 19. Fedderson also testified that appellant did not have any identification, and that he arrested appellant for consumption of alcohol by a minor. Following the arrest, Fedderson searched appellant and found a pipe and a matchbox containing cocaine weighing less than 28 grams. Charges were not filed against appellant for the offense of consumption of alcohol as a minor.

In his sole point of error, appellant contends that the trial court erred in admitting the evidence obtained during an unlawful detention. Appellant argues that because he was not one of the suspects identified by the informant, the officers did not have a right to detain him or have probable cause to arrest him.

First, we note that while appellant argues he was arrested for the investigation of a possible drug offense, the record clearly establishes that he was initially arrested for the offense of consumption of alcohol as a minor; only later was he charged with possession of cocaine after a post-arrest search.

Appellant asserts that his conduct did not justify detention for investigative purposes. The State contends that the detention and the resulting arrest were justi[445]*445fied. In order to justify a temporary detention, the officer must have specific artic-ulable facts which, in light of his experience and personal knowledge, together with inferences from those facts, would reasonably warrant the intrusion on the freedom of the citizen stopped for further investigation. Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968). The officer must have a reasonable suspicion, based on articulable facts, that some activity out of the ordinary is occurring or has occurred, some suggestion to connect the detainee with unusual activity, and some indication that the activity is related to a crime. Hoag v. State, 728 S.W.2d 375, 379-80 (Tex.Crim.App.1987); Kelly v. State, 721 S.W.2d 586, 587 (Tex.App.-Houston [1st Dist.] 1986, no pet.). Appellant has cited several cases in which the officer did not have a reasonable suspicion to detain. In Cortinas v. State, 571 S.W.2d 932, 933-34 (Tex.Crim.App.1978), the court held that a police officer did not have a reasonable suspicion to detain a defendant who was near the scene of the robbery and carrying a paper bag, when the defendant did not fit the description of the robber. Similarly, in Lippert v. State, 664 S.W.2d 712, 721-22 (Tex.Crim.App.1984), the court held that the fact that the defendant was present on the premises during the execution of the search warrant did not authorize his initial detention or the ensuing frisk. Both cases are distinguishable in that the officers did not have a reasonable suspicion justifying a detention.

In this case, the specific articula-ble facts observed by Officer Fedderson justified appellant’s detention. When he arrived at the driveway of the apartment complex, Fedderson saw appellant drinking beer and noticed that he appeared to be under the age of 21. When he asked appellant for identification, appellant responded that he did not have any. Under these circumstances, Fedderson had a reasonable suspicion to conduct an investigative stop; therefore, we will consider whether the subsequent events ripened to probable cause for an arrest. When appellant told Fedderson that he was 19 years old, probable cause existed to arrest appellant for the offense of consumption of an alcoholic beverage by a minor. Guy v. State, 751 S.W.2d 284, 286 (Tex.App.-Houston [1st Dist.] 1988, no pet.) (reasonable suspicion found to stop defendant where officer observed defendant walking down the street carrying a cigarette lighter, rolling papers, and a small bag); Tex.Alco.Bev.Code Ann. § 106.04 (Vernon 1978). Once an officer has made a legal arrest, he is justified in searching the person for objects immediately associated with the person of the arres-tee. Stewart v. State, 611 S.W.2d 434, 436 (Tex.Crim.App.1981). During the search of appellant’s person, Fedderson discovered that appellant had a pipe and some cocaine in his possession. Appellant’s drinking beer, youthful appearance, and age justified the initial detention and the resulting arrest flowed from the justified investigative stop.

Appellant also urges that the State did not establish the source of the informant’s information, or the informant’s reliability or credibility. The State contends that appellant’s arrest for consumption of alcohol had nothing to do with the narcotics investigation and thus the informant’s credibility is irrelevant. Appellant asserts that Ebarb v. State, 598 S.W.2d 842, 845 (Tex.Crim.App.1979), is controlling. In Ebarb, the court held that where an informant’s tip was the only justification for the investigatory stop, and there was no testimony which would enable the court to evaluate the reliability of the informant, there was insufficient evidence of specific articulable circumstances to justify the stop. See also Moorman v. State, 638 S.W.2d 68, 71 (Tex.App.—Houston [1st Dist.] 1982, no pet.). The Ebarb case is distinguishable, because in the instant case the information provided by the informant was not the basis for appellant’s detention and arrest for the consumption of alcohol.

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788 S.W.2d 443, 1990 Tex. App. LEXIS 837, 1990 WL 42515, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gillum-v-state-texapp-1990.