*1
mental acts and proceedings of a munici not discuss validation statutes. See Dallas
pality
adoption
attempted
Merchant’s,
since
adop
490-94;
852 S.W.2d at
Court
tion of the charter are validated as of the
ney,
(Tex.App.—Dallas writ Mur Corp.
mur Adjustment, v. Board (Tex.App.-Dallas n.r.e.).
writ ref They apply d to amendato-
ry zoning Mayhew, ordinances. 284;
S.W.2d at Murmur Corp., 718 S.W.2d not, at 793. may Validation statutes how DAVIS, Appellant, Ernest ever, cure May- constitutional defects. hew, 774 at 296. Validation stat utes cannot validate what the legislature Texas, Appellee. The STATE of could not into pass law the first in No. 14-98-00576-CR. Brooks, stance. 35 David B. Texas PRAC County Special § District Law 3.13 tice: & Texas, Appeals Court of (1989). (14th Dist.). Houston case, In this West End asserts the ordi nance is unconstitutional because it Feb. 2000. conflicts with state law. emphasize Rehearing July Overruled that West End does not challenge the con stitutionality of the grounds ordinance on process
that it violates due or equal pro
tection or any on the basis of other consti infirmity.
tutional Because legislature passed
could have law the first in authorizing City
stance to adopt the
ordinance, we conclude it could later val City’s
idate the ordinance and did so. We subsequent
note that validation statutes specifically provided they do
validate ordinance that violates section See, e.g.,
1.06 or 109.57 of the TABC. Tex (Ver 974d-39, § art. Ann.
Rev.Civ. Stat. (effective 1991). Supp.2000) August
non previously proposi cases cited for the
tion preempts municipal the TABC regulating
ordinances beverages alcoholic dispositive
are not because those did cases negate validating does not statute’s effect. Brooks, David tion. B. Texas Practice: purpose Validation statutes serve their when County Special § & District Law 3.13 they become law and serve no further func-
Panel consists of Justices MAURICE E. AMIDEI, EDELMAN, and WITTIG. MAJORITY OPINION *3 AMIDEI, MAURICE E. Justice. Ernest Davis appeals his conviction a jury for the of possession offense of co- caine. The trial court sentenced appellant years to ten imprisonment. In three error, (1) points appellant of contends trial court in denying erred his motion to suppress all evidence seized a result of (2) arrest, a warrantless the trial court in denying erred defense counsel the statement, to make an appellant was denied effective assistance of counsel. affirm judgment trial court.
I. BACKGROUND 6,1998, evening theOn of March Officer Myron in Dillingham patrol was on routine a marked police appel- car when he saw lant, Davis, walking Ernest down the Dillingham ap- street. Officer recognized pellant as someone he had dealt with past. When he was about ten feet away from appellant, Dillingham shined spotlight appellant. Dillingham his appellant then observed the throw a down Upon clear container. seeing appel- object, lant throw down the the officer turned on emergency lights and exited his vehicle. The appellant officer arrested littering. for Dillingham Officer then re- covered the discarded container and deter- mined that the contents were cocaine. milligrams The container contained 635 of crack cocaine. Dillingham placed appel- lant under arrest of a possession for con- trolled substance.
II. MOTION TO SUPPRESS point his first appellant con- unlawfully tends that he was detained Dillingham spot- when shined the Officer Greene, Houston, Thomas R. appel- for him, therefore, light on his abandon- lants. involuntary ment of the was an cocaine Houston, McCrory, appellees. Dan illegal result of an detention. or motion objection, request a show of form argues Dillingham used (the a ruling. and obtained appel- trial court authority spotlight) detain Tex.R.App. 33.1(a)(1); suspicion. It P. Broxton lant reasonable without spotlight (Tex.Crim.App.1995). claimed that the use of the Be- must corre appellant. Additionally, point amounted to seizure of the cocaine was trial. cause the abandonment made at Turner spond to the motion misconduct, (Tex.Crim. police product evidence, argues it was not admissible into A states one le App.1991). motion which overruling erred and the trial court theory support gal cannot used Broxton, suppress. motion to We dis- theory on legal appeal. different agree. Appellant’s at coun *4 should be sel that the evidence claimed of Review
A. Standard
theory
the
that litter
suppressed
on
based
to
gives
an
that
rise
ruling
suppress
ing
A
on a motion to
not
offense
is
failed to com
probable
the
of the trial
cause.
lies within
sound discretion
State,
during
suppress
motion
hear
plain
935
the
to
court. Villarreal v.
S.W.2d
spot
hearing
ing
Dillingham’s shining
At the
(Tex.Crim.App.1996).
138
motion,
This
the
the trial court
as the
to a show of force.
light
on
serves
amounted
the
the
first time on
judge
credibility
argument
sole
of
of
wit
was raised
the
complaint on
weight
given
appeal.
appellant’s
nesses
the
their
Because
Id.;
State,
appeal
comport
Romero
not
with the motion
testimony.
v.
800
does
trial,
properly
543
he
at
he has faded to
(Tex.Crim.App.1990).
S.W.2d
made
preserve error for our review. We over
afford al
Appellate courts should
of
one.
point
rule
error
appellant’s
most
court’s rul
total deference to
trial
ings
ques
on
of law to fact
“application
MAKE
III. DENIAL OF RIGHT TO
tions,”
questions
known as
of
also
“mixed
AN OPENING STATEMENT
fact,” if
law and
the resolution of those
on an evaluation
questions
ultimate
turns
of
point
appellant
In his second
credibility
and demeanor of the wit
refusing
the
court
in
contends
erred
State,
nesses.
v.
Guzman
to make an
statement
request
opening
(Tex.Crim.App.1997).
courts
Appellate
During the
his case-in-chief.
before
may
questions
de
review
novo “mixed
ease-in-ehief, the
its
State waived
State’s
not
this
falling
catego
law and fact”
within
At
right
opening
statement.
an
ry.
grant
Id. The trial
court’s decision
case appel-
of the State’s
conclusion
deny
suppress
the motion to
turned on
attorney
he be al-
requested that
lant’s
shining
assessment of whether
court’s
opening
make a short
statement
lowed to
on
constituted a
spotlight
appellant’s
evidence in
prior
putting
on
seizure,
There
question
which is a
law.
ap-
judge
case-in-chief. The trial
denied
fore,
de novo.
we will review
record
to make an
pellant’s attorney
right
(Tex.
v.
In Moore the right Court held the to make A. Standard of Review an statement is a statutory right, Moore, right. a constitutional A may present defendant open Therefore, S.W.2d at 789. error ing statement after the close of the State’s Tex.R.App. 44.2(b). this case involves P. case-in-chief. See Tex.Code Crim. PROC. 44.2(b) 36.01(a)(5) (Vernon Under rule we are to disregard Ann. Art. Supp.1999); (Tex. Moore v. right unless substantial affected. Tex.R.App. 44.2(b). Crim.App.1993). 44.2(b) P. The failure of a trial Since rule court to 52(a) allow such a statement virtually constitutes identical to rule of the Fed error. Farrar v. Procedure, eral Rules of Criminal may we (Tex.App.-Dallas 1989, pet.). no We there look to federal guidance case law for on fore find the trial court erred not allow meaning Umoja this rule. ing appellant’s trial counsel to make an 11 (Tex.App.-Fort Worth opening statement. pet.) no (opinion reh’g). A sub stantial is affected when the error analysis there,
Our
does not end
howev
*5
had a “substantial
injurious”
effect or
State,
er.
In
v.
McGowen
B. Harm right may affected; rather, have been it is analysis Our harm begin must determine whether the error influenced with a determination of whether the denial the trial’s outcome. provides:
1. Rule 44.2
beyond
determines
a reasonable doubt the
(a)
error did not contribute to the conviction or
appellate
Constitutional Error.
If the
rec-
punishment.
ord in a criminal case reveals constitutional
(b)
review,
error, defect,
subject
error that
Any
to harmless
Other Errors.
other
error
appeals
judgment
irregularity,
the court of
must reverse a
or variance that does not affect
punishment
of conviction or
rights
unless the court
disregarded.
substantial
must be
that the trial’s out-
the conclusion
summary,
supports
In
we assess
when
44.2(b),
appellant’s
Rule
we review
was not influenced
harm under
come
whether
not affected
rights
record to determine
were
entire
substantial
only slight
a
error did not influence or had
the overwhelm-
error. Given
trial court’s
grave
If we have
influence on the verdict.
guilt, we also conclude
ing evidence of
outcome, or
about its effect on the
including
doubts
that had
jury,
one
any rational
slight
statement,
it had
than a
we find that
more
an
would have
heard
influence, we must conclude that the error
appellant guilty.
found
require
as
a new trial. See
such
however,
suggest,
do not
(Tex.App.
Fowler v.
4. Trial counsel object failed to when the State large mentioned the sum of mon- Judicial scrutiny of perfor counsel’s ey that appellant had on person when mance highly must be deferential. See arrested. Strickland, 689,104 466 U.S. at S.Ct. 2052. 5. Trial put counsel appellant on the A court must indulge strong presumption stand in its ease-in-chief. Counsel then that counsel’s conduct within falls the wide inquired into appellant’s knowledge of range of professional reasonable assis drug trafficking previous arrests. tance. Id. An ineffectiveness claim cannot
6. Trial counsel failed object when be demonstrated by isolating one portion the State on cross examination ap- asked representation. counsel’s McFarland v. pellant past about a conviction for resisting 843 (Tex.Crim.App. arrest and about past three convictions for 1992). Therefore, in determining whether misdemeanor possession marijuana. met, the Strickland test has been counsel’s performance judged must be
7. Trial on the totali counsel failed timely object ty Strickland, of the representation. to the introduction of appellant’s arrest for possession U.S. at of 4.4 grams of cocaine S.Ct. 2052. The defen subse- quent to appellant’s prove dant must arrest in this ineffective assistance of cause. Trial counsel further failed counsel a preponderance to re- of the evi quest a limiting instruction dence. concerning Cannon v.
the matter. 403 (Tex.Crim.App.1984). 8. Trial counsel mentioned in its clos- *7 analyzing case the effective
ing statement long had a counsel, begin assistance of we with the record jail and had been to drug for of- presumption that counsel was effective. fenses a “zillion”times. (Tex. 768, Jackson v. 877 S.W.2d "(en banc).
A.
Standard of Review
Crim.App.1994)
We assume
counsel’s actions and decisions were rea
Supreme
The U.S.
Court established a
sonably professional and that
they were
two prong test to determine whether coun
motivated
sound trial strategy.
Id.
sel
is ineffective
guilt/innocence
at
Moreover,
appellant’s
it is the
burden to
phase
First,
of a trial.
appellant must
rebut this presumption via evidence illus
demonstrate that counsel’s performance
trating why trial counsel did what he did.
was deficient and
reasonably
not
effective.
Jackson,
Id. In
the court of criminal
Second,
ap
appellant must demonstrate that
peals refused
perfor
to hold counsel’s
performance prejudiced
deficient
given
mance deficient
the absence of evi
defense.
Washington,
Strickland v.
concerning
dence
counsel’s reasons for
104 S.Ct.
B. test. of the Strickland prong ond motion did not file a for no evidence appellant produced Because trial, develop therefore failed a new trial counsel’s reasons concerning strategy. of trial counsel’s See evidence did, and because choosing the course he (Tex. 112, 115 Kemp v. prejudice to not demonstrate appellant did refd) 1994, pet. Dist.] App.-Houston [1st defense, appellant’s con- we overrule inadequate trial court (generally, record of error three. point tention in ineffective assistance properly evaluate claim; in order eval properly of counsel opinion, For the reasons stated this claim, a assistance court uate an ineffective AF- trial court is judgment of the specifi a record focused needs examine FIRMED. cally on the of trial counsel such conduct application for writ of hearing as a on Justice, WITTIG, concurring and trial); corpus or motion for new habeas dissenting. Phetvongkham v. they they can believe “And how (Tex.App.-Corpus pet. Christi And can message? not how heard filed) refd, untimely (inadequate record to pro- if it is they message hear the claim). evaluate ineffective assistance See message And claimed? how can also Beck v. sent messengers if the are not proclaimed refd) (inade (Tex.App.-Amarillo pet. says, scripture out? As the ‘How wonder- record for ineffective assistance quate coming messengers ful is who claim, citing numerous other cases with ”1 Similarly, Exodus bring news.’ good inadequate to support records ineffective boy an- cry baby records the small claim). assistance in- daughter2 swered Pharaoh’s which case, In the record is silent to the freedom of an entire exorably leads to the appellant’s reasons trial counsel Nation. did. prong chose course she The first is not in this Strickland met case. Background
Jackson, Jackson, 957; at walking Davis Brew- Ernest was down at 771. Due to the lack of evidence night Police ster Street one when Houston in the record concerning counsel’s him. spotlight threw a Because alleged for these reasons acts ineffec- police said he threw down clear contain- tiveness, we are unable to conclude that searched, er, littering, he was arrested for performance trial counsel’s seized; with two a container enhance- deficient. Id. ments, years ten in the he now serves *8 possession of than 1 penitentiary Even if this rebutted the less record presumption gram Strickland of sound trial of cocaine. After remarkable appellant was then strategy, appellant affirmatively beginning story, has not of this open- of performance opportunity making shown trial counsel’s denied the ing trial. I first ap Today the defense. We find that his prejudiced was the harmful nature of the pellant by not harmed the actions of examine rudimentary judge’s his trial We find that baseless denial of counsel. also right of historical common law tradition appellant’s guilt evidence over I will whelming. Then Appellant has not shown rea statement. that, I con- probability briefly police address seizure. sonable but for counsel’s errors, by majority unprofessional the result cur the result reached al- effectiveness of counsel issue proceeding would been different. 2: 6 See 10:14-15 2. See Exodus Romans 1.
though trial counsel was rendered ineffec- to repeat it with impunity. Macias v. tive the denial of appellant’s right to (Tex.App. — Houston make an opening d). pet. [14th Dist.] ref Opening
I.
Statement
Analysis.
B. Harm
1. Source of Error.
The trial court
A. Standard of Review
is the source of the error. The State
majority
The
correctly observes the
argues waiver because the defense coun-
clear error of the trial
in denying
court
objection
sel’s
specific
was not
enough and
statutory and
right
common law
to make
failed to preserve for review the content of
an opening statement.
diverge
on the
the statement he desired to make.
analysis.
harm
Under our
appel-
rules of
preserve
order to
ruling
an adverse
procedure,
late
analysis
this harm
must
on an objection must be obtained in the
begin with a determination of whether the
Tex.R.App.P.33.1;
trial court.
Chappell v.
denial of
right
to
an opening
(Tex.Crim.App.
is constitutional error.
Tex.
1993);
Lewis v.
R.App.P. 44.2.3 This
seemingly
issue was
(Tex.Crim.App.1984). A formal bill of ex-
foreclosed Moore v.
ception
required
is not
preserve
787, 789 (Tex.Crim.App.1993). There the
when the
right
defense is denied the
court held the right to make an opening
Crew,
make an opening statement.
statutory
statement is a
right, not a consti-
S.W.2d at 899.
The
here ob-
tutional
right4. Accordingly, we are
tained an
ruling
adverse
from the trial
charged
perform
analysis
harm
under
court
specifically
objection,
stated his
44.2(b).
Tex.R.App.P.
See Cain v.
therefore,
preserved
he
The
error.
nature
Under the factors that the court determining should consider in practicalities whether state- (1) error was harmless include source ment are numerous. Eliminating even (2) (3) error; error; nature of injures whether or some of prerogatives every these State; emphasized to what extent it was litigant, State or the individual. In the (4) probable error’s implications; collateral completes statement the advocate (5) juror how much weight probably would the limited introductions of voir dire and error; place on whether declaring states the logic position.5 Counsel case, error harmless encourage would the State outlines the theme of her discusses provides: 3.Rule 44.2 It is noted the court did not discuss Article I, (a) Section 10 of the Texas Constitution which appellate Constitutional Error. If the provides record in a criminal case reveals constitu- an accused "shall have the *9 subject tional counsel, error that is to harmless error being by heard himself or or both.” review, appeals the court of must reverse a judgment punishment of conviction or un- Riley, Opening 5. See Tom The Statement: beyond less the court determines a reason- Outset, Winning at the 10 Am. J. of Trial Advoc. able doubt the error did not contribute to 81-82 punishment. the conviction or (b) error, defect, Any Other Errors. other irregularity, or variance that does not affect rights disregarded. substantial must be presenta- destroys balance and the pillar applicable principles and legal concepts integrity. presumption structural proof, such as burden tion’s innocence, Rather reasonable doubt.6 and of evidence Discussing significance or defense presenting prosecution than the remainder gives issues important and fashion, and kaleidoscope by in bits a focus, meaning and case of the advocate’s is the first opening statement pieces, a like opening, content. The contextual in picture the whole opportunity sentence, introduces, and illuminates topic sequence The logical sequence.7 logical opening The “hooks” stage. sets the Johnny People by is described Cochran pre- interest and jury, thus to catch their Gerry Spence Simpson roadmap.8 as a ex- case.12 This dispose them to counsel’s opening described the as the Silkwood listener take to make the ordium works jigsaw puzzle; of the picture completed what will fol- prepare them for heed puzzle picture “the on the box is what the opening make an state- The low.13 put together.”9 will look like when it is all trial.”14 part a “critical of the ment is thus narrowed, may simplified, The issues opening The whimsical disallowance of ju- educating a shortcut to presents and the logic, abates context statement jury of rors.10 The advocate disabuses the when the argument until final roadmap by opponent or false issues raised her clearly has is all but over. case As a existing in the conventional wisdom. substantially by harmed the denial of been communicator, the advocate professional opportunities. these may always “magic fire the bullet” salvo, insuring victory opening this but Psychological at the minds at least he can take shot jurors, and hearts of and not be muz- University Chicago study by A Minimally signifi- court. zled liability questions found of Law School cance of the evidence to be adduced can be im- with initial were answered consistent credibility high- discussed11 and issues jurors after state- pressions of sub- lighted. Appellant clearly has been (80%) time.15 percent eighty ments these stantially harmed the denial of jurors up to 80% of attorneys Most believe opportunities. a case after up make their minds about change and do not opening statements represents statement up maintain Psychologists their minds.16 indispensable one third of an effective trial jurors irrevocable to 80% or more lawyer’s opportunity to advocate his opening.17 their minds after Whether jury. up Like the directly chent’s case to the stool, reaches such or not the statement legged removing three the center Riley privileged great See at 83. 6. I have to witness 10. been both as advocate and trial statements by the judge. One such Id. 11. at 85. McQuown lawyer Lawrence famous trial York, persuasively powerfully in- so New at n. 12. 12. See Perrin tough Corps Marine Courts fluenced Quantico, prima Va. that a facie Martial at 13. Id. involuntary reduced to murder one case was (The opening manslaughter. 14. atn. 10. closing for max- Id. logically intertwined with the effect.) imum Riley 15. See at 82. Riley at 87. 7. See 107; (80% chal- at n. 104 Perrin, 16. See Perrin Timothy O.J. 8. See L. From Cf. Zeisel). lenged by Hans Opening McVeigh: Statement, Argument in the The Use of J., 107 n. L. Winter Emory at n. 104. 17. Id. *10 at n. 20. 9.Id.
18 heights efficacy, primacy the 36.01 principle sets out the order of in proceeding thought, remains. “The first the im- first criminal involving jury action age, argument, the first you provides the first word that a opening defendant’s state hear is the one that profound has the most ment shall be made after presentation impact.”18 Id.; What we hear first colors our of the State’s evidence. Atkinson v. thinking, State, (Tex.Crim. heavily 708, commits us and is out- 710-11 come determinative .19 has been App.1975). By creating Article 36.01 the clearly substantially by legislature harmed right makes it evident that the denial of the opportunity speak only before to make an statute is not jurors up their minds. valuable right right by but also a dictated legislature in mandatory language. Legalities Because precedent historical has estab At the conclusion of the State’s case lished the substantial value of the appellant’s attorney requested that he be statement and the right patently manda allowed to make a short opening statement tory, appellant’s substantial rights were prior putting on in appellant’s evidence affected. Thus the error cannot be case chief. The trial judge denied ap- deemed A right harmless. substantial pellant’s attorney the right to make an affected when the error had a substantial that, opening statement stating “Since it injurious or effect influence in deter state, wasn’t made you can’t make State, mining jury’s King verdict. v. one, other, I think one follows the Ias 266, (Tex.Crim.App.1997). 953 271 S.W.2d Appellant’s understand the law.” attorney A conviction should not be overturned for stated that he was entitled to an court, appellate such error after judge statement. The trial responded that whole, examining the record as a has fair the defense is entitled to an assurance that the error did not influence if the State makes an opening jury, had slight but a effect. John Appellant’s attorney then ob- (Tex. son v. jected on the record to being allowed Crim.App.1998). The United States Su case in preme nearly Court has construed the chief. The trial court appel- overruled the identical federal harmless error rule as attorney’s objection lant’s follows: If, done,
Historically, right open to make an when all is said and ing statement has been held to be a valu [court’s] conviction is sure that the error right. Caraway able jury, did not influence the or had but effect, 161 (Tex.Crim.App.1967); Kennedy very slight the verdict and the judgment Tex.Crim. should But if stand.... one and, assurance, 407 (1947)(op. reh’g); say, Price v. cannot with fair after 167 Tex.Crim. pondering happened S.W.2d 648 all without Texas, stripping this valuable the erroneous action from the whole, derived both judgment from common law and the that the was not sub- Procedure, specifically swayed Code of Criminal it stantially by the is im- possible Art. 36.01. Moore v. conclude that substantial (Tex.Crim.App.1993). prac rights inquiry were not affected. The tice of making opening merely statements is irre cannot be whether there was result, futably grounded the common law and enough support apart from phase “followed from time immemorial.” See affected the error. It is rather, Dugan so, v. State 82 Tex.Crim. even whether the error itself S.W.
616, 616, so, (Tex.Crim.App.1917). Article had substantial influence. If or if Id. at n. 106. Id. 19.
19
doubt,
not
legislature,
will of
grave
expressed
conviction the
our
one is
the
left
keeps to
v. John
cannot stand.
the will it
itself.” State
586,
son,
(Tex.Crim.App.
587
939 S.W.2d
McAninch,
432, 437-38,
v.
O’Neal
513 U.S.
1996)
State, 829 S.W.2d
Garcia v.
(quoting
(em
992,
115
5. How Much Harm- Juror Would 6. Whether Error Probably Encourage Place the on Error. Nor- less the to Re- Would State peat Impunity. mally, ability perform the to it with The decision to meaningful harm analysis depends deny opening by under standard was made statements such, upon provides enough argue whether the record trial court. As one could it is by information for reviewing repetition court not amenable to State gauge urge the effect of the error. An did not because here the State in wrongfully obviously upon statement denied is the trial court. However However, McGowen, not in the grave supra, government record. doubts case of by abound that denial of abili- invited the trial court into error errone- ty proffered to make an opening ously objecting statement had no to the defense’s effect on the proceeding. outcome statement. The trial court sus- objection, We must remember that counsel has the thus spurious tained the State’s “right” speak jury resulting to the three in the same denial of the ac- dire, occasions: voir an cused’s to make state- Further, closing argument. examining judice. After ment as the case sub whole, I say the record as a cannot with to hold this error would encour- harmless age government growing fair assurance that the error did not influ- into the bast- jury, slight ence the law the too familiar had but a effect. ardization of the error, your harmless argument: “It emphatically apparent This is more even moment declar- greater Honor.” Of applied to our facts. defendant took encourage ing the error harmless would directly the stand and contradicted the repeat and enable court to the trial State’s case. claims the micro- impunity. error with scopic planted by amount of cocaine was police analysis clearly officer who it in him. The Harm demonstrates had for theory timely request defense was corroborated two the denial of a of a sub- appellant spot- witnesses and the fact denial reason, good right, stantial and constitutes reversible lighted apparent no while I would reverse and remand simply walking the streets of Houston. error. for a trial. part The defense was even corroborated case new The contrast smell. ment the marihuana Suppress II The Motion clearly articulat case and the between our (10) feet, ten Officer From a distance of serve and Merideth ed facts Stewart police froze with Dillingham are our modern courts illustrate how far instantly stopped spotlight. Appellant protec constitutional sliding to emasculate air, walk, in the and await- threw his hands *13 why difficult to understand tions. It According to police ed further instruction. on stamp approval its put this court will a trace containing small vial Dillingham, a citizens seizure of police indiscriminate by appellant was discarded of cocaine argue To Houston streets. walking our bright shown his beam Dillingham when feet your face from ten spotlight police of- Dillingham Officer upon appellant. detention, of the say the smell is not more some inarticulate nothing fered than is roses. barn from ten feet downwind per- this justification stopping hunch as 1. There was no reason- son. Therefore: appellant’s issue on the I would sustain detain, on the total- suspicion able based suppress. motion to ity circumstances. See v. Guzman (Tex.Crim.App.1997); S.W.2d person and 2. A reasonable would believed free, to a show of yield
he was not would used
authority, physical force was
limit his Thus a seizure oc- movement. Hodari, v.
curred. See California 621, 628, 111 S.Ct. 113 L.Ed.2d McCANN, Appellant, Kenneth Gale v. The State cites Stewart (Tex.Crim.App.1980), McCANN, Appellee. Robin Bradford authority spotlight stop. for the The con Stewart, merit. tention without No. 14-97-01339-CV. patrol Nacogdoches police routine ob Texas, parked Appeals served a van and auto at the end Court Dist.). (14th of a end street near a home con Houston dead struction site. There were no other March approached homes. When the officers van, they light, darkened shown their out,
occupants got police and the smelled duly “The
marihuana. As the court noted: stop did not Stewart. The van
police out of the
already stopped. got Stewart being requested to do so.”
van without
Id. then the cites Merideth So State (Tex.Crim.App.
1980). police There 3 a.m. call to fre investigation into an area of
prompted
quent burglaries. Officer Kocik saw could not see
stopped auto and because he window, knocked at the car door. no stop. the court noted this is again
Once door, the offi opened Merideth his
When Then
cer smelled marihuana. a hand rolled the officer saw
flashlight smoky comple well as a haze to
butt as