Hamel v. State

582 S.W.2d 424, 1979 Tex. Crim. App. LEXIS 1309
CourtCourt of Criminal Appeals of Texas
DecidedMarch 28, 1979
Docket55462
StatusPublished
Cited by34 cases

This text of 582 S.W.2d 424 (Hamel 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
Hamel v. State, 582 S.W.2d 424, 1979 Tex. Crim. App. LEXIS 1309 (Tex. 1979).

Opinions

OPINION

DOUGLAS, Judge.

This is an appeal from a conviction for the offense of possession of heroin. Punishment, enhanced by one prior felony conviction, was assessed by the jury at twenty years. The sufficiency of the evidence is not challenged.

Appellant first contends that an incriminating oral statement which was made by him and introduced at trial was the fruit of an unlawful arrest and therefore inadmissible.

On November 28, 1975, appellant’s apartment in Texas City was under surveillance by police officer Frank Fleming. At that time, appellant was suspected of burglary and trafficking in narcotics. At 4:00 p. m., appellant left his apartment with Viola McComb, Larry Ellis and Joyce Ellis. The four drove in appellant’s car to a Woolco department store and went inside. Officer Fleming followed, waited in the parking lot and radioed to Officer Deril Oliver to assist him. Both officers saw appellant exit the [426]*426store alone with something in his hand, look around him and walk to the ear. He drove the car to the store entrance where he stopped and continued to look around. Viola McComb, Larry Ellis and Joyce Ellis emerged from the store next. All had objects in their hands and continually looked over their shoulders in a suspicious manner; Larry Ellis appeared to be telling Joyce Ellis to hurry up and get into the ear.

On cross-examination Officer Oliver testified:

“First of all, when Hamel went by himself, alone, took the car out of the parking lot, put it up to the main entrance; subsequently Viola came out in a hurry, looking over her shoulder.
“Just a minute or two later, the other two parties came out. They, too, rushed to the automobile, they, too, acted as if they were looking over their shoulder to see if anyone was coming after them.
“We felt something occurred in the store but we didn’t know what. We had a pretty good idea.”

At the request of Officer Fleming, appellant’s car was stopped by Officer Oliver’s marked patrol unit on Palmer Highway. Officer Oliver testified that appellant’s car was stopped because the officers thought that there was a possibility that the four were shoplifting. On the front console and rear floorboard arresting officers found numerous new, small items with Woolco price tags on them; they were not, however, in bags as if they had been bought. The four were then arrested for shoplifting.

Appellant was taken before Texas City Justice of the Peace Bishop and given the statutory warnings which he stated he understood. Following his admonishment by the magistrate appellant was informed by police officers that his apartment had been under surveillance and that they suspected that it contained narcotics and stolen property. Appellant agreed to sign a consent to search but was not induced to do so by threats, coercion, or physical abuse of any kind. After signing the consent to search, appellant stated to officers: “You’re going to find it anyhow. I will tell you there’s some stuff there.” He related that police would find heroin in the bathroom linen closet and further stated that the heroin belonged to him and not to Viola McComb with whom he had been living. Appellant requested that Officers Fleming and Oliver not charge McComb with possession of heroin, to which request they agreed. A search of appellant’s apartment produced two plastic syringes and a red balloon containing heroin which were found in the bathroom in the precise spot where appellant told police they had been hidden.

Officer Fleming testified that at the time he radioed Officer Oliver to stop appellant’s car he had no evidence that appellant had committed a breach of peace or felony upon which he could have obtained a warrant. For this reason, appellant contends his arrest was not made upon probable cause and that the incriminating statement made by him thereafter was inadmissible.

While this Court has previously held that the inarticulate hunch, suspicion, or good faith of an officer will not constitute probable cause for arrest, search or detention, Talbert v. State, 489 S.W.2d 309 (Tex.Cr.App.1973) considerably more than an inarticulate hunch existed in the present case. Appellant’s apartment had been watched for a considerable period of time by officers acting upon informant’s tips that drug sales were being negotiated inside. Appellant had previous convictions for selling heroin, for burglary, and was further known to Officers Fleming and Oliver as the subject of numerous burglary investigations. Appellant’s behavior as a “wheel man” in front of the Woolco store was suspicious, as was the hurried, nervous and watchful behavior of appellant and his companions, all of whom went into the store empty handed but emerged carrying objects in their hands. Such circumstances, while falling short of probable cause, nevertheless justified Officer Oliver’s temporary detention of appellant’s car. Mann v. State, 525 S.W.2d 174 (Tex.Cr.App.1975); Baity v. State, 455 S.W.2d 305, cert. denied 400 U.S. 918, 91 S.Ct. 180, 27 L.Ed.2d 158 [427]*427(1970).1 Upon detaining appellant and his passengers, Officers Oliver and Fleming saw, lying in the car in plain view, new merchandise which had Woolco price tags but which were not in bags as they would normally be if they had been purchased. At this point the officers were empowered to arrest appellant without a warrant pursuant to Article 14.03, V.A.C.C.P., which provides:

“Any peace officer may arrest, without warrant, 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.

Warrantless arrests pursuant to Article 14.-03 under circumstances comparable to those of the present case have been approved by this Court in Castillo v. State, 494 S.W.2d 844 (Tex.Cr.App.1973); Kwant v. State, 472 S.W.2d 781 (Tex.Cr.App.1971); Baity v. State, supra; Alaniz v. State, 458 S.W.2d 813 (Tex.Cr.App.1970); and Stuart v. State, 447 S.W.2d 923 (Tex.Cr.App.1969).

We conclude that appellant’s detention and arrest without a warrant were proper. Even if it had not been, that fact alone would not render appellant’s oral statement inadmissible absent a causal connection between the arrest and the confession. Jurek v. State, 522 S.W.2d 934 (Tex.Cr.App.1975); Brantley v. State, 522 S.W.2d 519 (Tex.Cr.App.1975). In the present case appellant was arrested for shoplifting. After being properly informed of his rights, however, he freely and voluntarily admitted possessing heroin, an unrelated offense. His oral admission led officers to fruits of the crime.

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Bluebook (online)
582 S.W.2d 424, 1979 Tex. Crim. App. LEXIS 1309, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hamel-v-state-texcrimapp-1979.