Taylor v. State

820 S.W.2d 392, 1991 Tex. App. LEXIS 2907, 1991 WL 249385
Court of Appeals of Texas·Decided November 27, 1991·No. C14-91-00357-CR·Published·Cited by 10 cases

Opinion

OPINION

ELLIS, Justice.

Appellant, Darryl Taylor, appeals his judgment of conviction for the offense of possession of a controlled substance, to wit, cocaine weighing less than 28 grams by aggregate weight including any adulterants and dilutants. TexHealth & Safety Code Ann. § 481.102(3)(D) and § 481.115(a), (b) (Vernon Supp.1991). The jury rejected appellant’s not guilty plea and found him guilty as charged in the indictment. The court, after finding the enhancement paragraph to be true, assessed punishment at twelve (12) years confinement in the Institutional Division of the Texas Department of Criminal Justice. We affirm.

Viewed in light most favorable to the verdict the evidence is as follows: On October 16, 1990, Officer Edwin A. Kettler of the Houston Police Department was on patrol in a particular area of Houston which was known for its high crime — narcotics, gunfire, and stolen cars. Citizens had given the police numerous complaints concerning the narcotics activity, gunfire, and stolen cars in this neighborhood. As Kettler passed a particular residence, at 6507 Heite Street, in this neighborhood, he saw a number of men standing around a new car at the rear of the residence.

In addition to the neighborhood in general, the police had received citizen complaints concerning this particular residence. Kettler thought that the men might be stripping a stolen car. Kettler informed his dispatcher, and he requested additional patrol units to assist him in investigating the matter. Soon thereafter, a number of patrol units notified Kettler that they were in the area. When the officers arrived at the residence, they parked their patrol cars and got out.

Kettler saw that the other men standing around the new car were throwing a number of items down, and the officer walked over in order to cut off any escape by those individuals. Kettler checked the license plate number of the new car parked at the rear of the residence, and there was no report that the vehicle was stolen at that time. Meanwhile, Kettler had noticed that appellant was sitting in the driver’s side of a vehicle that he had previously seen parked in front of the residence. This was a black 1988 Jeep Cherokee.

Officers Garland Scott and S.A. Baker of the Houston Police Department arrived at the residence in separate patrol cars in order to assist Kettler. As Officers Scott and Baker got out of their patrol cars, they saw appellant throw out of the vehicle’s window and onto the ground a number of items that appeared to be cocaine. Appellant was alone in the vehicle. Scott and Baker had not initially intended to approach appellant in the vehicle parked in front of the residence.

Officer Scott walked over to the area where appellant had thrown the items and recovered three rocks of what appeared to him to be crack cocaine. Nothing else was on the ground in this area. Baker walked over to appellant and had him get out of the vehicle. At this time, appellant gave the officers a false name at the scene, and he had no identification.

Baker conducted a field test of the substance recovered by Officer Scott, and it tested positively as cocaine. These three rocks of crack cocaine were worth about $125.00. Appellant was arrested at that time and placed in Officer Baker’s patrol car. When appellant was taken to the police station, he was fingerprinted, and his true identity was learned at that time. An analysis of the substance that appellant *395 had thrown to the ground confirmed that it was 1.5 grams of 86.7 percent pure cocaine.

In his first point of error, appellant claims, the court erred in admitting into evidence the cocaine seized in an uninvited and unlawful entry onto private property by police, without any probable cause to arrest, search, or investigate, and in the absence of a search warrant, in violation of the Fourth amendment to the United States Constitution and Article I, Section 9 of the Texas Constitution. Appellant’s trial attorney affirmatively asserted that he had no objection to the admission of the cocaine into evidence. Therefore no error has been preserved for the purposes of appeal. Moraguez v. State, 701 S.W.2d 902, 904 (Tex.Crim.App.1986); Tex.R.App.P. 52(a).

Even if we address the merits of appellant’s point of error he cannot complain about any allegedly illegal “search” or “seizure” because he abandoned the cocaine before any alleged “search” or “seizure” occurred. When police take possession of abandoned property, there is no seizure under the Fourth Amendment. Clapp v. State, 639 S.W.2d 949, 953 (Tex.Crim.App.1982); Sullivan v. State, 564 S.W.2d 698, 702-04 (Tex.Crim.App.1978). See California v. Hodari, — U.S. -, 111 S.Ct. 1547, 1550, 113 L.Ed.2d 690 (1991).

Even had appellant’s trial attorney made an objection to the admissibility of the cocaine in this case, the trial court would not have erred in admitting the cocaine. Washington v. State, 810 S.W.2d 313, 314 (Tex.App.—Houston [14th Dist.] 1991, pet. ref'd); Norman v. State, 795 S.W.2d 249, 250-51 (Tex.App.—Houston [14th Dist.] 1990, pet. ref’d).

Appellant seems to contend that Officer Scott’s approach towards him was an investigative detention requiring articu-lable facts to support a reasonable suspicion of criminal activity. Not every encounter between a citizen and a police officer amounts to a seizure requiring constitutional justification. Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983). A person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980). Police questioning, by itself, is unlikely to result in a Fourth Amendment violation. I.N.S. v. Delgado, 466 U.S. 210, 104 S.Ct. 1758, 1762, 80 L.Ed.2d 247 (1984). An investigative stop requiring articulable suspicion occurs only when a police officer accosts an individual and restrains his freedom to walk away ... Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 1877, 20 L.Ed.2d 889 (1968).

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Taylor v. State, 820 S.W.2d 392, 1991 Tex. App. LEXIS 2907, 1991 WL 249385 (Tex. Ct. App. 1991).

820 S.W.2d 392 (Taylor v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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