Hector RAMIREZ, Appellant, v. The STATE of Texas, Appellee.
No. 1039-83.
Court of Criminal Appeals of Texas, En Banc.
July 18, 1984.
The rule is clear and well settled that an accused is entitled to an affirmative instruction on the law as to every defensive issue raised by the evidence, including those raised by his testimony alone. Jackson v. State, 646 S.W.2d 225, 227 (Tex.Cr.App.1983); Montgomery v. State, 588 S.W.2d 950, 952-953 (Tex.Cr.App.1979); Barton v. State, 172 Tex.Cr.R. 600, 361 S.W.2d 716, 717 (1962). See also, 23 Tex. Jur.3d, Sections 2851, 2852, page 600.
Appellant requested the following charge:
“It is a defense to this prosecution if the Defendant through mistake formed a reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability required for commission of the offense charged.
“The term ‘reasonable belief’ means a belief that would be held by an ordinary and prudent person in the same circumstances as the Defendant.
“Therefore, if you believe from the evidence beyond a reasonable doubt that the Defendant committed the acts alleged, but you further believe, or you have a reasonable doubt thereof, that, at the time of the alleged acts, he had through mistake formed a reasonable belief about a matter of fact, to-wit: that he, KENNETH RAY KNOWLES, was liable and obligated on the bond of WILLARD THOMAS GRIFFITH, JR., and that said mistaken belief negated the culpability required for the commission of the offense, as stated in Paragraph XIV of this charge, you will find the defendant not guilty.”
We hold it was reversible error to deny appellant‘s timely request for a charge on the defense of mistake of fact.
The judgments of the Court of Appeals and the trial court are reversed аnd the cause remanded to the trial court.
Jerrold R. Davidson, Brownsville, for appellant.
Feynaldo S. Cantu, Jr., Dist. Atty., and Malcolm S. Nettles, Asst. Dist. Atty., Brownsville, Robert Huttash, State‘s Atty., Austin, for the State.
OPINION ON APPELLANT‘S PETITION FOR DISCRETIONARY REVIEW
MILLER, Judge.
Appellant was convicted of carrying a weapon on premises licensed to sell alcohоlic beverages, in violation of
A brief review of the facts surrounding the search is appropriate.
Officer Reynaldo Martinеz was patrolling the downtown area of Brownsville
Appellant‘s contention that the State failed to show sufficient probable cause to justify the warrantless search of appellant in that there was no showing that the informant had first-hand knowledge of the facts or reasonably trustworthy information is without merit.
As stated by the Court of Appeals, there is no evidence that the рerson supplying the information to Officer Martinez was anything but a witness to the crime. The man told the police officer that he was coming from the bar. Officer Martinez testified that he did not know the man who approached him with the information. Upon receiving the information, Martinez proceeded directly to the bar. At the time the officer entered the bar, he had uncorroborated information specifically describing appellant and indicating that he hаd a gun. He did not search or arrest appellant solely upon the information supplied by the man on the street. Only after approaching appellant, who matched the given description, and after observing the bulge in aрpellant‘s pocket did Officer Martinez pat down the appellant. A police officer in circumstances short of probable cause for arrest may justify temporary detention for the purpose of investigation sinсe an investigation is considered to be a lesser intrusion upon the personal security. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972);
“In view of these facts, we cannot blind оurselves to the need for law enforcement officers to protect themselves and other prospective victims of violence in situations where they may lack probable cause for an arrest. When an officеr is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officеr the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm.” 392 U.S. at 24, 88 S.Ct. at 1881, 20 L.Ed.2d at 907.
See also Cortinas v. State, 571 S.W.2d 932 (Tex.Cr.App.1978) and Perez v. State, 548 S.W.2d 47 (Tex.Cr.App.1977).
It is this limited pat down search for weapons that we, under the facts of this case, and the Supreme Court in Terry, supra, sanction; not a full-blown search for contraband. Under the facts of this case the police officer‘s actions that resulted in the finding of the weapon were justified. Upon finding the weapon, Officer Martinez was justified in arresting the appellant. See
The judgment of the Court of Appeals is affirmed.
CLINTON, J., dissents.
TEAGUE, Judge, dissenting.
Because the majority erroneously sustains the search of the person of Hector Ramirez, appellant, that was made by Reynaldo Martinez, a Brownsville police officer, inside of the Lighthouse Bar, located “on skid row” in Brownsville, I must dissent.
In light of what the majority upholds in this Orwellian year of 1984, I find the following comment rаther interesting: “One hopes the year 2000 will...find the courts manning [the search and seizure] barrier against whatever form unreasonable governmental intrusion then takes...As for [
Even though it is only unreasonable searches and seizures that are forbidden by
The facts that relate to the issue are undisputed.
A lay person, who was unknown to Offiсer Martinez, approached Martinez and told him that an individual was in a nearby bar in possession of a gun. He did not articulate to Martinez how he knew the individual had a gun in his possession. Thus, it is just as reasonable to assume that the information was based upon hearsay as it is to assume that the information was from personal knowledge. Martinez did not question the person as to why he had concluded that an individual in the bar had possession of a gun. However, the person did give Mаrtinez a physical description of the person he said was in possession of a gun in the bar.
Armed only with this information, Martinez went inside of the bar, where he eventually saw a person, who was later identified as appellant, who matсhed the physical description that the unknown person had given Martinez.
At that moment in time, appellant was merely sitting at a table, doing nothing of a criminal nature, nor acting out of the ordinary. Prior to this occasion, Martinez did not know appellant.
Martinez “ordered” appellant to stand up, and appellant obeyed that command, after which Martinez saw a bulge in appellant‘s right pants pocket. Martinez then frisked appellant and found a gun on his рerson, for which appellant was prosecuted for possessing. See
The majority holds that “Under the facts of this case [Martinez‘] actions that resulted in the finding of the weapon were justified.” I strongly disagree with this conclusion.
In arriving at its conclusion, the majority relies upon Terry v. Ohio, supra. Its reliance, however, is misplaced.
Terry v. Ohio, supra, mandates that before a lawful stop and frisk are permissible, the following must first be established: the detaining police officer must have specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant suspicion on his part that the suspect is armed and about to engage in criminal conduct. If the police officer has satisfied these requiremеnts, he may then, but only then, physically seize the suspect and conduct a protective frisk for weapons.
In this instance, Martinez was not armed with specific and articulable facts that would lead a reasonable and cautious person to believe that appellant was armed with a gun. Martinez was possessed only with a conclusory statement from an unknown person when he “ordered” appellant to stand up. From that moment forward, appellant had been “seized,” if not arrested, by Martinez.
By allowing a bare, uncorroborated conclusory statement by an unknown and unidentified person to constitute the “articulable suspicion” required by Terry v. Ohio, supra, to become the law of this State, the majority subjеcts all of our citizenry to warrantless searches by police officers based on nothing more than unsupported and uncorroborated statements by unknown persons.
Terry v. Ohio, supra, did not hold or approve of arrests or seizures of persons being made by the police for mere purposes of making an investigation. Nor did Terry v. Ohio, supra, hold that the good faith belief of the police officer justified an arrest or seizure of a person for mere purposes of making an invеstigation. Nor did Terry v. Ohio, supra, hold that an officer‘s
The majority, however, has now engrafted onto our law what the Supreme court did not hold in Terry v. Ohio, supra. To this novel, but frightening holding, I respectfully dissent. Orwell, have you read what the majority has written?