754 S.W.2d 512 | Tex. App. | 1988
OPINION
The appellant was convicted of aggravated possession of marijuana (possession of more than 50 pounds
While patrolling at night on a section of road that lay within a mile of the Mexican border and was known as a dropoff point for smuggled drugs and aliens, Deputy Sheriff Garza observed the appellant and another person loading bundles into the trunk of an automobile. Deputy Garza parked his car behind the appellant’s and, as he did so, the appellant closed the trunk’s lid. The officer got out of his
Sergeant Gonzalez examined the lock and discovered that it was broken and could be opened with a screwdriver. He got one from his patrol car, opened the trunk, and discovered over 90 pounds of marijuana packaged in cellophane. The appellant and his companion were arrested.
A search warrant is unnecessary where there is probable cause to search an automobile stopped on a highway because: (1) the car is movable, (2) the occupants are alerted, and (3) the car’s contents may never be found again if a warrant must be obtained. Chambers v. Maroney, 399 U.S. 42, 51, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419 (1970). Therefore, the immediate search of such a car is constitutionally permissible. Id.
Ideally, an automobile about which there is probable cause to search should be immobilized until a magistrate is contacted and a warrant procured. Id. But there is little practical difference between seizing an automobile by immobilizing it and carrying out an immediate warrantless search of it. Id. at 52, 90 S.Ct. at 1981. If there is probable cause to search, either course may be followed. Id.; Scott v. State, 531 S.W.2d 825, 827 (Tex.Crim.App.1976).
Here, the officers had more than sufficient probable cause to search the vehicle: its location, the time of day, the difference between what Deputy Garza saw and what the appellant and his associate said they were doing, and the strong smell of marijuana emanating from the trunk. The officers were justified in searching the trunk.
The appellant complains in his second point of error of the trial court’s refusal to give the jury the statutory definition of marijuana,
Besides the testimony cited by the appellant, the chemist also testified that the total weight of the contraband seized was 97 pounds, including wrappings and seeds. He estimated that the wrappings weighed a maximum of 5 pounds and the seeds 3. Taking that into account, there was no reason to give the instructions in question because there was no question that the appellant possessed significantly more than 50 pounds of marijuana. The case cited by the appellant, Getters v. State, 170 Tex.Cr.R. 331, 340 S.W.2d 806 (1960), is not on point because the issue there was whether Getters possessed a usable amount of marijuana and the viability of the seeds, which were a substantial portion of the contraband seized, was an important question. The appellant’s second point of error is overruled.
The appellant argues in his last point of error that the trial court violated TEX.CODE CRIM.PROC.ANN. art. 38.-23(a) (Vernon Supp.1988) by not charging the jury to not consider the marijuana seized from his car’s trunk if they found
No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or the Constitution or law of the United States of America, shall be admitted into evidence against the accused on the trial of any case.
In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.
A charge under art. 38.23(a) is not required if the facts and circumstances are such that probable cause to search existed so as a matter of law. Davis v. State, 474 S.W.2d 466, 469 (Tex.Crim.App.1971). Article 38.23(a) only applies where there are disputed fact issues concerning an officer’s right to search. Jones v. State, 493 S.W.2d 933, 936 (Tex.Crim.App.1973). If there is no fact issue regarding the legality of a search, its legality is a matter of law to be decided by the trial court. Campbell v. State, 492 S.W.2d 956, 958 (Tex.Crim.App.1973).
Here, unlike the case cited by the appellant, Washington v. State, 663 S.W.2d 506 (Tex.App.—Houston [1st Dist.] 1983, pet. ref'd), there were no contested fact issues concerning the events that led up to the search of appellant’s car’s trunk. Therefore, there was no issue for the jury to decide and no reason to submit the requested charge to it. The appellant’s final point of error is overruled.
The trial court’s judgment is affirmed.
. TEX.REV.CIV.STAT.ANN. art. 4476-15, § 4.051(c) (Vernon Supp.1988).
. TEX.REV.CIV.STAT.ANN. art. 4476-15, § 1.02(24) (Vernon Supp.1988).
. Id. at § 4.051(b)(4).