Kite v. State

788 S.W.2d 403, 1990 Tex. App. LEXIS 678, 1990 WL 35008
CourtCourt of Appeals of Texas
DecidedMarch 29, 1990
Docket01-89-00418-CR
StatusPublished
Cited by36 cases

This text of 788 S.W.2d 403 (Kite 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
Kite v. State, 788 S.W.2d 403, 1990 Tex. App. LEXIS 678, 1990 WL 35008 (Tex. Ct. App. 1990).

Opinion

OPINION

MIRABAL, Justice.

An indictment charged appellant with possession of methamphetamine weighing at least 400 grams. Appellant filed a motion to suppress evidence, which was denied after a pretrial evidentiary hearing. Appellant then entered a guilty plea to the reduced charge of possession of methamphetamine weighing less than 400 grams, reserving his right to appeal the denial of his motion to suppress. Pursuant to this plea bargain agreement, the trial court deferred finding appellant guilty, placed appellant on six years probation, and ordered appellant to pay a $1,000 fine. Appellant now appeals from the trial court’s adverse ruling on appellant’s motion to suppress evidence. 1

*405 In his first point of error, appellant contends the trial court erred in overruling appellant's motion to suppress evidence obtained as a result of a warrantless arrest for which there was no probable cause.

In his second point of error, appellant contends the trial court erred in overruling appellant’s motion to suppress evidence obtained without a search warrant or valid exception to the warrant requirement; appellant argues that the evidence discovered pursuant to his illegal arrest was not ad-missable.

The State argues that appellant failed to preserve error on these points because appellant did not raise the same argument at trial that he raises on appeal. On appeal, appellant argues that his arrest did not fall under articles 14.01 or 14.03 of the Texas Code of Criminal Procedure. Chapter 14 of the Texas Code of Criminal Procedure provides exceptions authorizing an officer to arrest an offender without a warrant. In his motion to suppress evidence presented to the trial court, appellant argued that he was arrested without a warrant and without probable cause; that he was arrested pursuant to a pretextual stop and without probable cause; and that all of the items seized were obtained illegally in violation of appellant’s rights under the fourth, fifth, sixth, and fourteenth amendments to the United States Constitution, article I, § 9 of the Texas Constitution, and article 38.23 of the Texas Code of Criminal Procedure, in that the items were seized without probable cause.

The Texas Code of Criminal Procedure provides:

A peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view.

Tex.Code Crim.P.Ann. art. 14.01(b) (Vernon 1977).

The Texas Code of Criminal Procedure further 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.

Tex.Code Crim.P.Ann. art. 14.03(a)(1) (Vernon Supp.1990).

The thrust of articles 14.01(b) and 14.03(a)(1) are that an officer may arrest an offender without a warrant when the officer has probable cause to believe that an offense is being committed in his presence, or that the person has in the past committed, or is about to commit, some offense. See Lunde v. State, 736 S.W.2d 665, 666-67 (Tex.Crim.App.1987). Appellant’s arguments in his written motion that he was arrested without a warrant and without probable cause, coupled with appellant’s citations to the Texas Constitution and Texas Code of Criminal Procedure, were enough to preserve review. See Eisenhauer v. State, 754 S.W.2d 159, 160-61 (Tex.Crim.App.), ce rt. denied, — U.S.-, 109 S.Ct. 127, 102 L.Ed.2d 101 (1988) (where appellant’s written motion to suppress stated he was arrested without a warrant and without probable cause in violation of several amendments to the U.S. Constitution, and in violation of the “laws and Constitution *406 of the State of Texas,” and where appellant’s attorney only argued the federal claims at the hearing on the motion, appellant’s state law claims, nevertheless, were preserved for appeal). The court in Eisen-kauer stated:

Though it has long been the rule that a general or imprecise specific objection is insufficient to preserve error for appeal, where the grounds of the objection are obvious to the court or the opposing counsel, the error will not be waived.

754 S.W.2d at 161.

The standard for reviewing a trial court’s decision denying a defendant’s motion to suppress evidence is that the evidence should be viewed in a light most favorable to the trial court’s ruling. See Sawyers v. State, 724 S.W.2d 24, 35 (Tex.Crim.App.1986). Because the trial court is the sole trier of fact at a hearing on a motion to suppress, any finding supported by the record will not be disturbed. Green v. State, 615 S.W.2d 700, 707 (Tex.Crim.App. [Panel Op.] 1980), cert. denied, 454 U.S. 952, 102 S.Ct. 490, 70 L.Ed.2d 258 (1981).

Three witnesses testified at the motion to suppress hearing. The State called the arresting officer to testify, and the defense offered the testimony of a chemist and the manager of the apartment complex where appellant was observed.

On direct, the arresting officer, Nicholas Wilson, testified as follows: Officer Wilson is an eight year veteran of the narcotics division of the Houston Police Department. On November 5,1988 at approximately 1:30 p.m., Officer Wilson received information from an informant that a narcotics transaction would take place at apartment # 511 in an apartment complex at 2900 South Gess-ner. Officer Wilson had known the informant for about two years, during which time he had received accurate and reliable information from the informant on many occasions. Officer Wilson was with the informant while he had a conversation with a Diane Yarcey, but Officer Wilson did not hear what Yarcey was saying. The informant told Officer Wilson that Yarcey had just told him that a white female would deliver a large quantity of MDMA tablets within the next 20 minutes to Yarcey’s apartment # 511. Another person was going to come by Yarcey’s apartment to buy the tablets within 25 to 45 minutes after the woman with the tablets arrived.

After receiving the information and deciding that he did not have time to obtain a warrant, Officer Wilson went directly to Ms. Yarcey’s apartment. Wilson’s partner, Officer Johnny Ybarbo, came in another vehicle. The officers arrived at the apartment complex around 1:50 p.m. and set up surveillance. At approximately 2:00 p.m., they observed a white female driving a red Pontiac Piero park in front of apartment # 511. The woman arrived within the time frame the informant gave. The woman exited her car carrying a tennis racket 2 and a white plastic bag, and went inside apartment # 511.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State of Tennessee v. Kentrel Moragne
Court of Criminal Appeals of Tennessee, 2025
State of Tennessee v. Gregory Livingston
Court of Criminal Appeals of Tennessee, 2025
State of Tennessee v. Demarqushon Marquis Hinton
Court of Criminal Appeals of Tennessee, 2025
State of Tennessee v. Johnathan V. Duncan
Court of Criminal Appeals of Tennessee, 2025
State of Tennessee v. Tyrone McCurdy
Court of Criminal Appeals of Tennessee, 2025
State of Tennessee v. Derek Morse
Court of Criminal Appeals of Tennessee, 2025
State of Tennessee v. Michael Christopher Simonds
Court of Criminal Appeals of Tennessee, 2025
State of Tennessee v. Eric Wayne Herndon
Court of Criminal Appeals of Tennessee, 2025
State of Tennessee v. Mitchell Hopkins
Court of Criminal Appeals of Tennessee, 2025
State of Tennessee v. Gary Allen Jordan, Jr.
Court of Criminal Appeals of Tennessee, 2025
State of Tennessee v. D'tearius Carvell Southern
Court of Criminal Appeals of Tennessee, 2025
State of Tennessee v. Jason David Baine
Court of Criminal Appeals of Tennessee, 2025
State of Tennessee v. Timothy Ronald Cunningham
Court of Criminal Appeals of Tennessee, 2025
State of Tennesse v. Antonio M. Starnes
Court of Criminal Appeals of Tennessee, 2024
State of Tennessee v. Horace Andrew Tyler Nunez
Court of Criminal Appeals of Tennessee, 2024
State of Tennessee v. Warren J. Nostrom
Court of Criminal Appeals of Tennessee, 2024
State of Tennessee v. Lavondas C. Nelson
Court of Criminal Appeals of Tennessee, 2024
State of Tennessee v. Kirk D. Farmer
Court of Criminal Appeals of Tennessee, 2024
State of Tennessee v. Matthew Smith
Court of Criminal Appeals of Tennessee, 2024

Cite This Page — Counsel Stack

Bluebook (online)
788 S.W.2d 403, 1990 Tex. App. LEXIS 678, 1990 WL 35008, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kite-v-state-texapp-1990.