*1 prior during fense not raised LAYTON,
trial, cannot be raised waived and Armell Russell appellate court. for the first time before an v. State, In 571 S.W.2d Dickerson v. Texas, Appellee. The STATE Judge Dally (Tex.Crim.App.1978), 09No. 87 020 CR. wrote the Court: Texas, Court plead limita-
“Although appellant did not Beaumont. court, in the trial tions as a defense allege indictment to failure of the 7, 1987. Oct. not was committed at a time the offense prosecution is so remote that barred is a fundamental defect limitations raised for the first time State,
appeal. Cooper v. S.W.2d [527 (Tex.Crim.App.1975)]; Donald
State, Tex.Crim. 306 S.W.2d [165 (1957)].” State, supra, State Dickerson
alleged burglary that a in a indictment
complaint for the offense had been filed
justice in- The Court said this was court. toll
sufficient to the statute of limitations. bar, no
In the case at the indictment has contending tolling
allegations of limita-
tions.
In Donald 165 Tex.Crim. (1957),
306 S.W.2d we find:
“We think the stated is sound ... rule requires that the time mentioned
in an indictment be some date anterior presentment and so
its remoted prosecution of is the offense barred
by limitation and also with the well-es- rule that the is on the
tablished burden show that the com-
state to offense was period
mitted of limitation and within plead limi- required
the accused is not
tation as a defense.” parte County,
See also Ex
(Tex.Crim.App.1980). Appellant’s two sustained; judgment
points of are error reversed, prosecution ordered
below
dismissed.
Reversed and Dismissed. Woodlands, ap- Spielvogel, L.
Janet pellant. *2 Bluestein, Atty.,
David Asst. thereafter, Dist. Con- the detective did notice what he roe, appellee. for “buck-type termed a knife” with a blade long.
about
inches
It was described as a
OPINION
“lock blade”. It
pocket-type
was a
of knife
that,
opened,
after it was
the blade would
BROOKSHIRE, Justice.
place
lock itself in
and it
necessary,
was
Basically,
appeal
this is an
from the over-
apparently,
press
a button to close the
ruling
Suppress
of a Motion to
Evidence.
again.
blade
When the detective first
The
Appellant
evidence was contraband.
knife,
viewed this
it was
a scabbard and
was indicted for the
possession
offense of
he could not see all of the knife.
substance;
of a controlled
namely, meth-
The
extremely
accused was
nervous.
amphetamine
grams.
of less than 28
The detective also said that the accused
October, 1986,
the
through
appeared
very
spoke
to be
furtive and
ir-
his court-appointed attorney, filed several
regularly and failed to finish his sentences.
pretrial motions. One of these motions
others,
For these reasons and
the detective
Suppress
was a Motion to
Evidence. After
asked
place
the accused to
the knife at a
hearing,
the Court overruled the Motion place away
Appellant’s
from the
reach.
Suppress
Evidence which resulted in this
Appellant appeared
The
disheveled. He
appeal.
denying
Sup-
Motion to
also became even more nervous. Because
Evidence,
press
Appellant pleaded
circumstances,
surrounding
of all the
and
guilty
possession
to the offense of
of a
demeanor, speech
and
of
actions
judge
controlled substance. The
assessed Appellant,
pocket
the officer asked that the
punishment
his
years
at 13
confinement.
placed
knife be
on the hood of the officer’s
years
The 13
assessment
inwas
accordance patrol car. The officer testified that that
plea bargaining agreement
with a
between
practice
was his usual
he did
Appellant
attorney.
and the State’s
protect
same
his own
Appellant vigorously
The
contends that
knife,
knife,
After the
or buck
himself
had been
denying
the trial
pretrial
court erred
his
placed
patrol
on the hood of the
suppress
motion to
and that denial is the
car, the
Appellant
officer asked the
if he
Indeed,
appeal.
basis for this
it is the sole had any
weapons.
Appellant’s
other
The
appeal.
for this
basis
“No,
reply, according to the
was:
search me.” Either those words were used
hearing,
parties agreed,
Prior to the
or words
“You can search me.”
court,
similar to:
Appellant
before the
was
permission
The
he had
detective swore that
arrested without an arrest warrant and
any
type
Appellant
to search the
other
August 5,
also without a search warrant
weapon.
The detective stated that
1986. A
Ap-
Detective Smith arrested the
down, using
patting
was
the back
pellant for a traffic violation. The testimo-
(the detective’s) hands,
and he
ny of the arrest does not seem to be in
tapped something
pocket
shirt
dispute.
arrest,
serious
At the time of the
very
that was
hard. The detective did
Detective Smith was
De-
with
Sheriffs
flap
pocket
remember a
over the
partment Montgomery County
and was
shirt.
It seemed to be a standard
patrol
in a
There
no
vehicle.
other
magnetic
pocket.
object
The hard
was a
stopping
Appellant
reason for
other
first,
key case.
the detec-
Apparently, at
than the traffic violation.
apprehension
tive had some
that the hard
Immediately
stopping
Appel-
some other
object was a roll of nickels or
lant, the
did not intend to
detective
coin.
Appellant
that he had
the sense
detective,
According
determined in
mind to
when
his own
take
Appellant
custody, probably
pulled
magnetic key case from the
into
with hand-
cuffs,
very deflated
transport
county jail. pocket,
Appellant
him the
looked
“Please,
go
pris-
merely
I can’t
detective testified that it was
and said:
that recit-
stop. Immediately
routine traffic violation
on.” There
another version
“Please,
trial
Appellant said:
I don’t
We think that
court’s
ed that the
prison.”
ruling
Suppress
want to
Whatever
on the Motion
Evidence
were,
opine
the detective
correct under this record. We
words
plastic
baggie
contained a
case and it
that it is now well-established
statute
whiteish,
in which there was a
precedent
that a law enforcement offi
*3
yellowish, sticky-type of substance which
person
stop
cer
a
seen to be commit
appeared
pasty. From
either wet or
ting
be
a traffic offense. TEX.REV.CIV.
experience
training
his
and
with the Mont-
6701d,
147, 148, 153
STAT.ANN art.
secs.
gomery County
Department,
Sheriffs
the
(Vernon 1977).
pro
sec. 153
Article
type
that it
some
detective determined
vides:
strongly
of controlled substance. He
felt
peace
is
ar-
“Any
officer
authorized to
it was a narcotic or contraband.
any person
a warrant
found
rest without
Whereupon,
gave
he
all
the detective swore
committing
any provision
a violation of
warnings
Appellant.
the
to the
Miranda
of this Act.”
giving
warnings,
the Miranda
he
(Tex.Crim.
State,
v.
Tores
S.W.2d
Appellant
sub-
asked the
what was the
App.1975).
Appellant
stance and
detective said the
Furthermore, a
officer
law enforcement
replied: “Crystal. Please don’t send me
permitted
precautions
is
to take reasonable
record,
prison.” According
personal
safeguard
his
or
crystal
slang
methamphet-
is a
term for
making
security
process
stop
in
of
a
put
point,
amine. At that
the detective
Riley,
an
240 Or.
arrest. State
Appellant
and called dis-
handcuffs on
be
P.2d 741
These cases should
patch
Organized
and asked for an
Crime
judged
totality
from a
of the circumstances
Unit,
officer,
or a narcotics
to meet them.
Wimberly
surrounding
stop or arrest.
officer,
The narcotics
who met the officer
State,
(Tex.Crim.App.
434 S.W.2d
Appellant,
Armatys.
a
and
was Detective
1968).
stand,
Appellant
The
took
for limited
wrote,
court, Wimberly, supra,
in
The
purposes,
giving permission
denied
pages 859 and 860:
the search and denied the words attributed
permitted to take
“An ‘officer should be
to him Detective Smith.
safeguard
precaution to
reasonable
part
proceeding,
In a later
of the
on the
ar-
process making
life
of
an
his
Suppress,
reempha-
Motion to
the detective
rest.’
appearance
that the
of the knife in
sized
totality of circumstances
“If from the
belt,
apparent,
his
ex-
combined with
presented
the officer he has a
treme
and demeanor of the
nervousness
bodily
danger of
is in
believe that he
accused, gave Detective Smith real concern
person
injury
harm
safety.
for his own
dangerous, jus-
or is
is armed
encounters
judge
The trial
conducted a careful and
weapons
of
exists.
tification for search
hearing
accepted
arresting
detailed
[Citations omitted]”
detective’s narrative. When
detective
that the case Williams
object
Appellant’s
felt
We determine
the hard
(Tex.Crim.App.
apprehensive
pocket, he was
that it
probably
1986)
highly persuasive and
weapon.
a
patting
could
a
When
down
Williams, a
controlling
appeal.
this
shirt,
said that he was search-
detective
pickup
truck
ing
something
police
officer observed
only for
that could harm
truck was
concern,
parked. Since the
only
point,
illegally
at that
and that
suspicious
be
parked
acts
searching
illegally
safety in
was for his own
person were
another
looking
driver and
saying:
tween the
weapons,
“That’s all was
stop, brief
for a
taking place,
proper
it was
only
The detective swore that
for....”
follow.
possible
investigation
Appellant
after the
case
a sec
person,
observed a
police
The
officer
voluntary
had made his
remark about
driver, hand
other than the
prison.
ond individual
wanting
officer,
something
and then
viewing
to the defendant
walk We decide that
demeanor, attitude,
the total
actions and
away.
appeared
paper
It
to be a brown
speech
properly pat
of the
could
bag.
police
sack or
person
Appellant.
down the
of the
To do
Williams, stated,
substance,
that when
so, Appellant could not leave the scene and
individual,
guy standing
“the
second
practical
liberty
had no
to do so. Under
vehicle”,
away
outside the
walked
from the
record,
exigencies
this unusual
and vi-
truck,
pickup
the driver looked like he
jus-
of this
cissitudes
unusual fact situation
made some kind of a downward movement
pat
contemporaneous
tified
down or
pickup
in the
truck.
search,
warrant,
without a
By
police
the time the Houston
officer
case,
Appellant.
Appellant
In this
truck,
accused, Williams,
arrived at the
riding motorcycle
and was not a
standing by
truck
was outside the
passenger
or driver
an automobile.
*4
point
police
door.
It was at this
that
Therefore,
reality,
in
there
no sur-
paper bag
officer noticed a brown
on the
rounding
to
searched and such
area
truck,
pickup
floorboard of the
on the driv-
pat
procedures
searches and
down
have
pulled the
er’s side. The officer then
sack
reasonable,
long
and consti-
been held
valid
towards him and looked inside of it. He
imperative need to
tutional because of the
reached inside and removed a shirt. The
“stoppee”, or
any weapons
remove
inner,
lying
top
“arrestee”, might attempt
shirt was
of another
to use to resist
bring
escape.
arrest or to
about his
point,
At that
the Houston
smaller sack.
police
gunbarrel protruding
officer saw a
hand,
officer,
under this
on the other
officer,
from the second inner sack. The
record,
Ap-
pat down the
had the
to
Gildehaus, testified that the sack was with-
pellant
any weapons that could
to remove
accused’s, Williams’,
in the
reach as
security.
or
imperil
personal
stood outside the truck. When
Williams
ample that the offi-
Again, the evidence is
why
Gildehaus was asked
he went into the
his own safe-
very
cer was
concerned about
for such
sack,
ty.
important
Another
replied:
truck and took the
he
“Two
prevent
need to
pat
search and
down is the
my safety.”
reasons. Narcotics and for
of evidence.
the concealment or destruction
Appeals
The Court of Criminal
held that
Belton,
454, 101
New York v.
453 U.S.
a search inci-
the search of the sack was
(1981).
2860,
767 discretion, except offense escape prevent or the conceal- arrest to issue a written summons speeding, of evidence. New ment or destruction Although Belton, a custodial arrest. supra. effectuate York v. language quotes the in Scott v. Williams States, 128, 1717, 98 S.Ct. 436 U.S. United Indeed, “stop” if later “frisk” (1978), 168 the footnote seems 56 L.Ed.2d gave rise to cause to believe look, the court to some to indicate that will was, suspect had committed a crime or extent, leading up to sur the facts time, probably present committing at the rounding the arrest. crime; then it for the was reasonable law case, per- enforcement official to effect a custodial In the instant the officer was full, adequate motorcycle fectly justified stopping conduct a meaningful signal of the search for failure to for a turn. TEX. rider if, search, during accused. And sec. 68 REV. art. CIV.STAT.ANN. reasonably 1977). thought (Vernon justified officer that a container He was further evidence, concealing opening weapons. Terry then the pat down the rider for 1, 1868, here, key Ohio, of such a metallic con- L.Ed.2d 392 U.S. 88 S.Ct. 20 container— justified. compare (1968). magnetic tainer —was See and Once found Ohio, container, Terry v. U.S. S.Ct. I do not believe searching L.Ed.2d 889 justified See also Illinois v. further. The officer Gates, placed 462 U.S. under S.Ct. admitted he had not the rider *5 527, L.Ed.2d reh. den. 463 U.S. He stated custodial arrest at that moment. S.Ct. 77 L.Ed.2d policy make the determination it was his to as or not he would issue a
later to whether Accordingly, we determine that Detective a custodial arrest. summons effect pocket Smith’s search of the shirt and the the officer’s words: magnetic key justified container was as a Q. pull to him you And when intended search incident to arrest. Williams pull him for the in fact did over over and State, supra. judgment af- below is violation, you expect did did traffic firmed. any to that there you believe have activity going on than criminal other
AFFIRMED. violation? the traffic BURGESS, Justice, dissenting. No, A. ma’am. respectfully majority I dissent. The at that Q. you intend arrest him Did pocket holds that the search of for the traffic violation? time magnetic key justi and the No, A. ma’am. relying fied as a search incident arrest strictly Q. your it intention Was (Tex. Williams and allow him a traffic citation write that Crim.App.1986). They determine to leave? proba “highly persuasive Williams No, A. ma’am. agree I it bly controlling.” that your to do? Q. was it intention What disagree that it is highly persuasive, but investigate the was to My A. intention necessarily controlling. veryA wide read determine if the cita- traffic offense and ing seem to would indicate of Williams necessary or arrest was nec- an tion was peace
that officer can search the a I not know what essary. At the time did any any stopped for motorist vehicle going I was to do. speeding. This is except traffic violation ability to predicated on the officer’s operator at- Q. Upon viewing an speeders. Okay. except jail every offender right turn without tempt make hand a sec. art. TEX.REV.CIV.STAT.ANN. of a your observance signaling upon (Vernon Supp.1987)
148(a) does envi time, at happening that violation stop traffic for a traffic violation sion that op- intend to arrest you normally stop has do the officer is an arrest. a place per- of that majority having so, erator vehicle and that of error. The not done custody? son respectfully I dissent. is normally
A. There no intention at the I
time observe traffic violation other investigate I leave
than the offense. open.
my mind
Q. your open And was also at the mind you Layton
time that witnessed Mr. fail signal? make his hand turn Yes, investiga-
A. ma’am. It deserved point. tion that all I was That was al., ANDERSON, Appellants, et Chester doing. search Absent a incident to arrest or an
inventory person following a valid AND JASPER FEDERAL SAVINGS incarceration, ASSOCIATION, arrest and before et LOAN required. al., cause for the search Proba- Appellees. suspicion cause is more ble than hunch. 09No. 86 127 CV. very candidly supplied his rea- The officer opening He son for container. Texas, Court of stated: Beaumont. Q. right. you. All Prior to Thank opening keycase, you ask Mr. Oct. 1987. did Layton what was inside? Rehearing 1987. Denied Oct. No, A. ma’am. Q. merely your curiosity as Was then
to the comment he had made that keycase? you up
caused having with the
A. am little trouble *6 ‘curiosity’ suppose pretty
word but I Suspicion it. would be
well describes
more accurate term.
Q. Okay. point you open At what did the remark keycase, before he made
or after? remark,
A. Before or after he made the
immediately upon removing it and it my visible,
becoming the remark. he made things that you
If ask me to number
happened, say I would I reached into out he looked
pocket, pulled keycase, it, then he remark. made the
Q. only You had
made the remark? Yes, made me sus-
A. sir. That’s what being
picious keycase of what the more simply just weapon
than
might harm me or not. cause
This does amount sup- keycase. search the The motion granted. For the
press should have been stated, points
reasons would sustain