Charles Weldon BEASLEY, Appellant, v. STATE of Texas, Appellee.
No. 11-83-268-CR.
Court of Appeals of Texas, Eastland.
Dec. 20, 1984.
Rehearing Denied Jan. 10, 1985.
685 S.W.2d 132
RALEIGH BROWN, Justice.
Jimmy A. Ashby, Dist. Atty., Palo Pinto, for appellee.
RALEIGH BROWN, Justice.
Charles Weldon Beasley, reserving his right to appeal, pled guilty to possession of marihuana аnd was sentenced to ten years confinement in the Texas Department of Corrections.
Upon affidavit of Texas Department of Public Safety Officеr Kenneth Perry, a search warrant was issued whereby Palo Pinto County law enforcement officers searched certain lands in Palo Pinto County. Growing marihuanа plants were discovered. Beasley was arrested for possession of such marihuana. At a pre-trial suppression hearing, Beasley challenged the validity of the search warrant. The trial court denied appellant‘s motion to suppress the evidence. Reserving his right to appeal, Beaslеy entered his plea of guilty and was sentenced by the trial court. We affirm.
Appellant initially challenges the validity of the search warrant and the admission
An open field may be any unoccupied or underdeveloped area of land outside the curtilage of a dwelling. Hurwitz at 349. Curtilage is the area of land immediately adjacent to the dwelling to which intimate activities of the home life extend. The court in Hurwitz, supra said, “The ‘open fields’ doctrine is based upon the premise that the
The “open field doctrine” allows a law enforcement officer to enter and search an area of land without a warrant. Oliver v. United States, — U.S. —, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984); Goehring v. State, 627 S.W.2d 159 (Tex.Cr.App. 1982). Since the land in quеstion was an open field, no search warrant was necessary for the law enforcement officers to enter the land and seize the marihuana. Wе hold that the seizure of the marihuana was, therefore, legal and there is no necessity to pass on the issue of the validity of the search warrant as relating to probable cause or the property description. The pictures taken of the growing marihuana plants were, accordingly, properly admitted into evidence. Therefore, these grounds of error are overruled.
Appellant next urges that the police had no probablе cause to arrest him and that any evidence obtained as a result of the arrest should have been excluded by the trial court. On orders of Sheriff Turpin, Deputy Tucker caused the initial detention of appellant which led to his arrest. Turpin testified to specific articulable facts which gave him adequate cause to have appellant detained. Upon being stopped, Tucker asked appellant if he lived around the area. Appellаnt replied that he did not live around there but that was his pasture, pointing to the land being searched. Appellant‘s remark “but that is my pasture” was a non-respоnsive answer to the question asked by Tucker, negating the necessity of Miranda1 warnings. The incriminating portion of appellant‘s response was a non-responsive res gestae statement at the time of the arrest and was therefore admissible. DeHart v. State, 468 S.W.2d 435 (Tex.Cr.App. 1971). Any evidence seized from appellant‘s person or truck was prоperly seized as a result of the search incident to arrest. Lara v. State, 469 S.W.2d 177 (Tex.Cr.App. 1971). Therefore, these grounds of error are overruled.
Appellant next urges that the trial court erred in admitting into evidence the weight slip that reflected the amount of marihuana confiscated. He asserts that it was hearsay, and, thus, constituted “no evidence.” We disagree. Appellant made nо objection at trial to the admission of the weight slip. Absent a hearsay objection made timely at trial, we hold that the exhibit was properly admitted and did constitute “some evidence.” Lalande v. State, 676 S.W.2d 115 (Tex.Cr.App. 1984). This ground is overruled.
Appellant further urges that the trial court erred in admitting an exhibit that reflected the calculations made by the chemist relating to the amount of marihuana confiscated. No objection was levied at trial. Therefore, the evidence was properly admitted and constituted “some evidence.” Lalande, supra. This ground is overruled.
Appellant further urges that the trial court erred in convicting him because of insufficiency of the evidence to prove рossession by appellant and the amount possessed. The appellant, in a res gestae, non-responsive statement said that the pasture bеing searched was his. He made further comments concerning “his” livestock on the land. The weight ticket reflecting the total amount of marihuana confiscated was admitted into evidence without objection. Also, the appellant pleaded guilty to the offense. Appellant argues that this is a circumstantiаl evidence case. For a conviction to withstand appellate review in a circumstantial evidence case, the standard is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the
All grounds of error have been considered and оverruled. The judgment of the trial court is affirmed.
ON REHEARING
In his motion for rehearing, appellant notes that petition for review has been granted by the Court of Criminal Appeals in Hurwitz v. State, 673 S.W.2d 347 (Tex.App.—Austin 1984, pet‘n granted) and, therefore, should not be cited by this Court in support of the application of the “open fields doctrine.” We disagree. The Court of Criminal Aрpeals granted limited review concerning grounds other than those for which this Court has cited the Hurwitz case.
Appellant also contends that
The
We hold that the language in
The motion for rehearing is overruled.