Marsh v. State

684 S.W.2d 676, 1984 Tex. Crim. App. LEXIS 783
CourtCourt of Criminal Appeals of Texas
DecidedOctober 24, 1984
Docket169-82
StatusPublished
Cited by39 cases

This text of 684 S.W.2d 676 (Marsh 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
Marsh v. State, 684 S.W.2d 676, 1984 Tex. Crim. App. LEXIS 783 (Tex. 1984).

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

W.C. DAVIS, Judge.

A jury convicted appellant of possession of over four ounces of marihuana and assessed punishment at ten years’ confinement and a $5000.00 fine. The Court of Appeals for the First Supreme Judicial District, 630 S.W.2d 305 affirmed the conviction. We granted appellant’s petition for discretionary review in light of Robbins v. California, 453 U.S. 420, 101 S.Ct. 2841, 69 L.Ed.2d 744 (1981), but Robbins has since been disapproved. See United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). We will discuss the questions raised by appellant in light of applicable law.

[678]*678On the evening of March 27, 1978, Texas Ranger Ray Scholton was fishing on the 4444 ranch in Fort Bend County. Scholton was permitted to fish on the ranch in return for keeping an eye out for trespassers and cattle thieves. Shortly before midnight Scholton saw “a lot of activity” near the ranch’s grass landing strip, about x/4 of a mile away. He saw several people whom he could not identify, a Cadillac, and a camper-equipped pickup truck near the strip. He also saw flares and flashlights.

Scholton testified that he did not know whether the people he saw were trespassing or had permission to be on the land, but he suspected illegal activity.

Scholton left the ranch and drove four miles to Simonton, where he telephoned the Fort Bend County Sheriff’s Department. He drove back on Guyler Road toward the ranch. He stopped next to some cattle pens 200 yards or less from the landing strip, stayed there for 2 or 3 minutes, and saw an airplane circling low overhead.

Scholton admitted on cross-examination that he had written in his offense report that Robbie Pearson, the son of the owner, seemed to be in control of the premises. He testified that a week earlier Pearson had told him that he was waiting for a friend to fly an aircraft into the ranch at night. The record is not clear whether this particular night was supposed to be the night immediately preceding the offense or a night a week prior to the offense. However, Scholton knew that the friend had not arrived by the time of the instant events.

Scholton left and drove about four miles to Wallis, where he exchanged his pickup truck for a car with a police radio. He picked up Deputy Sheriff Larry Lee and drove back on Guyler road toward the ranch. He parked the car on the side of the road about 1½ miles from a gate entrance to the ranch.

Soon after this, Scholton and Lee saw the headlights of two vehicles coming from the ranch toward their car. When they passed Scholton’s car he identified them as a Cadillac and a pickup truck with camper. Scholton testified that he recognized the Cadillac as the same car he had seen on the ranch a week before. Pearson and another man to whom Scholton had been introduced had been standing beside the Cadillac at that time and Scholton testified he knew that the car was permitted on the ranch at that time.

Scholton and Lee followed both vehicles and continuously tried, without success, to contact a marked police car to stop them. After a few miles the Cadillac continued east and the pickup turned north; Scholton followed the truck.

Appellant was the driver of the pickup truck. He testified that he had pulled off the road and stopped because the officers flashed the lights of their car and drove up very close to his rear bumper. Scholton and Lee testified that they did not flash their lights and that appellant had pulled off the road of his own accord.

Scholton pulled in behind the truck, approached the driver’s side with a rifle, and ordered the driver out. Lee approached the passenger side of the truck with his gun in hand and ordered the passengers out. Appellant, another man, and their wives, were in the pick-up. Scholton testified that at that time none of the people were free to leave. Scholton asked appellant for identification. Appellant stated that he did not have any. Scholton said he wanted to find out if they had violated the law and “had a truck load of contraband.” Scholton also testified that he shined his flashlight into the back of the pickup and observed a tarpaulin covering some type of cargo. Appellant told Scholton that the vehicle contained feed or fertilizer. Schol-ton asked appellant to open the rear of the pickup. Appellant refused and asked if Scholton had a search warrant. Appellant asked Scholton to read him his Miranda rights and eventually the camper shell was opened.

Scholton claimed that he wanted the back opened for his own personal safety and because he felt there might be contraband. Lee testified that he smelled “what appeared to he marijuana” coming from the [679]*679back of the track, although he could not see it. Lee testified that he noticed this odor of marihuana at the time the passengers were getting out of the pickup, before the camper shell had been opened. Subsequently the camper was opened and six bales of marihuana wrapped in plastic covering with lettering that said “Matamoras Fertilizing Company” were found. Schol-ton said he first smelled marihuana at the time the camper top was opened.

Appellant contests the initial stop by Scholton and Lee. The testimony that the pickup had pulled off the road and stopped and that the officers following the car just pulled in behind and approached the car with guns drawn does not alter the nature of the investigation as a “stop.” Ebarb v. State, 598 S.W.2d 842 (Tex.Cr.App.1979). When the officers ordered appellant and the others out of the truck and, as Scholton testified, they were not free to go, they had been “seized”. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The officers’ actions in observing, following, and detaining appellant must meet the standard necessary to justify the intrusion of an investigative stop. That standard requires that the law enforcement officer have specific, articulable facts, which in light of his experience and general knowledge, together with rational inferences from those facts, would reasonably warrant the intrusion on the citizen. Terry v. Ohio, supra; Williams v. State, 621 S.W.2d 609 (Tex.Cr.App.1981); Brem v. State, 571 S.W.2d 314 (Tex.Cr.App.1978). Mere suspicions do not meet this test, Hull v. State, 613 S.W.2d 735 (Tex.Cr.App.1981), but neither is absolute certainty required. Armstrong v. State, 550 S.W.2d 25 (Tex.Cr.App.1976, opinion on rehearing 1977).

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Bluebook (online)
684 S.W.2d 676, 1984 Tex. Crim. App. LEXIS 783, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marsh-v-state-texcrimapp-1984.