Juan VARGAS, Appellant, v. The STATE of Texas, Appellee.
No. 51385.
Court of Criminal Appeals of Texas.
Oct. 20, 1976.
542 S.W.2d 151
Rоbert O. Smith, Dist. Atty., and Richard E. Banks, Asst. Dist. Atty., Lago Vista, Jim D. Vollers, State‘s Atty., and David S. McAngus, Asst. State‘s Atty., Austin, for the State.
OPINION
DALLY, Commissioner.
These are appeals from final judgments forfeiting appearance bonds.
The appellant, a surety on the bonds, asserts there is insufficient evidence to support the judgment because the judgments nisi were not admitted in evidence. A final judgment forfeiting a bail bond must be supported by the judgment nisi. Fears v. State, 500 S.W.2d 815 (Tex.Cr.App.1973); Purkey v. State, 494 S.W.2d 541 (Tex.Cr.App.1973); Morgan v. State, 157 Tex.Cr.R. 117, 247 S.W.2d 94 (1952). The State did not offer in evidence the judgments nisi; the State concedes error.
The judgments are reversed and the causes are remanded.
Opinion approved by the Court.
Ted Butler, Dist. Atty., Keith W. Burris and Susan Spruce, Asst. Dist. Attys., San Antonio, Jim D. Vollers, State‘s Atty., and David S. McAngus, Asst. State‘s Atty., Austin, for the State.
OPINION
DALLY, Commissioner.
This is an appeal from a conviction for the offense of possession of heroin; the punishment, which is enhanced by proof of two prior felony convictions, is imprisonmеnt for life.
The appellant asserts the trial court erred in admitting evidence which it is alleged was unlawfully obtained; the appellant also asserts that he was unlawfully arrested.
The record reflects that on September 1, 1974, Officer Frank Garсia responded to a call regarding a “sick party” at a fire station; when he arrived, the appellant was unconscious in an ambulance. Officer Garcia looked for identification and found in appellant‘s back pocket a card that appeared to be a subpoena from Municipal Court that bore appellant‘s name; after finding the identification, the officer left; the Emergency Medical Service then trans
In the emergency room, appellant was prepared for examination by Marlene Kuechele, a registered nurse; she had been advised that the appellant had beеn tentatively identified as Juan Vargas. Appellant appeared to be conscious, but he was lethargic, sleepy, and had abscesses in his arm. Kuechele asked the appellant if he had taken an overdose of heroin and he failed to respond; the second time she asked, he admitted that he had overdosed. As required by hospital policy, Kuechele removed appellant‘s clothes to inventory and store his property; she stated the purpоse of the policy was to prepare patients for examination and for protection of the hospital and the patient‘s property. She felt a heavy bulge in appellant‘s pocket, reached inside and found а .22 caliber pistol. Pursuant to hospital policy she called for a security officer and told the officers who responded, Tony Valdez and Rita Barriere, that she had found a gun in appellant‘s trousers and that he had admitted taking an ovеrdose of heroin. After calling the city police, Officer Barriere, a deputy sheriff with the Bexar County Hospital District, looked in appellant‘s wallet and confirmed that his name was Juan Vargas.
Officer Garcia, the same officer who hаd earlier seen appellant in the ambulance, responded to the call from the hospital security officers. Upon his arrival at the hospital Officer Garcia was informed that a gun had been found in appellant‘s pants. He took possession of the gun and had the nurse initial it. Officer Barriere and Officer Garcia then searched the rest of appellant‘s clothes, finding therein three or five live rounds of ammunition and a yellow balloon containing a substance later identified as the heroin that was admitted in evidence.
There has been no question raised regarding the search for identification conducted in the ambulance upon the unconscious appellant by Officer Garcia. If the herоin-filled balloon had been discovered during the warrantless search of the appellant in the ambulance, the heroin would have been admissible in evidence because a search would have been justified under the “emergency” or “exigent circumstances” doctrine. A search of a person found in an unconscious condition is reasonable and necessary for the purposes of identification and possible discovery of a medical history carried on the person. See Perez v. State, 514 S.W.2d 748 (Tex.Cr.App.1974); Crawford v. State, 163 Tex.Cr.R. 358, 292 S.W.2d 123 (1956).
While the initial examination of appellant‘s clothing, which produced the pistol, was conducted by the nurse, the heroin was discovered by the security guards and Officer Garcia. If, upon discovery of the gun, instead of calling the security officer, the nurse had continued her cataloging of appellant‘s effects, and subsequently found the heroin-filled balloon, the heroin would have been admissible in evidence. A “search” in which the exclusionary rule may aрply is one in which there is a quest for, a looking for, or a seeking out of that which offends against the law by law enforcement personnel or their agents. See Long v. State, 532 S.W.2d 591 (Tex.Cr.App.1976); Turner v. State, 499 S.W.2d 182 (Tex.Cr.App.1973). Appellant was not undressed by, or at the direction of, a police officer. The purpose in the nurse‘s undressing appellant and cataloging his effects was not to discover contraband or other illicit property or to obtain evidence to be used against him in criminal action. Therefore, had the nurse discovered the heroin in appellant‘s clothes, her purely private action would not have constituted a “search.” See State v. Wooten, 18 N.C.App. 269, 196 S.E.2d 603 (1973); State v. Courtney, 25 N.C.App. 351, 213 S.E.2d 403 (1975).
The United States Supreme Court has approved the practice of securing and inventorying the сontents of automobiles in police custody and control, holding that it is not violative of the Fourth Amendment‘s prohibition of unreasonable searches and seizures. Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973); South Dakota v. Opperman, — U.S. —, 96 S.Ct. 3092, 49 L.Ed.2d 100 (1976). The
The nurse removed and exаmined appellant‘s clothing pursuant to hospital policy which provided that patients awaiting treatment in the emergency room were to be completely disrobed and given a hospital gown to wear. Further, it was the hospital‘s policy to inventory and place under lock and key all of a patient‘s personal effects, both to protect the patient‘s property and to protect the hospital from unwarranted claims stemming from lost or stolen property. The discovery of a pistol in appellant‘s pants indicated that the appellant was possibly a dangerous individual and brought into focus the need for the safety and protection of the other patients and the emрloyees of the hospital. The nurse called the security guards who, in turn, called the police. After Officer Garcia arrived and had been given the pistol found in appellant‘s pants, he and the security guards continued the inventory of aрpellant‘s personal effects initiated by the nurse.
The appellant contends that the continued inventory of his possessions conducted by security officers Valdez and Barriere and Officer Garcia resulted solely from a suspicion on the part of the officers that the fruits of another crime would be found. Attention is directed to the following exchange:
[DEFENSE COUNSEL]:
“Q. Then earlier you had stated that you had made a search in order to find the identification at this point?
[OFFICER BARRIERE]:
“A. Right, at the time wе weren‘t sure—the nurse had told us who he was but to verify his identification, that‘s when we searched the pants, the back pockets, and we found a wallet with his name.
“Q. The wallet was found earlier, was it not?
“A. Yes, it was.
“Q. It was found on the way to the Security Office. You found identification?
“A. Right.
“Q. So, the search which yоu conducted in front of Officer Garcia, you had stated that this was for identification?
“A. No, I didn‘t.
“Q. Now you are saying—
“A. No, I didn‘t. The search, the first time was for identification. We had a weapon in our possession; when we later searched again, we searched for other weapons.
“Q. All right, so you actually conducted two searches of his trousers?
“A. Technically, yes.
“Q. All right, and at this time, you had not spoken to the defendant, did you say?
“A. No, not until after we had searched his clothing the second time.
“Q. Did you at any time you were searching—would it be correct that you suspected you would find something in his pants?
“A. Yes, I did.
“Q. You had a hunch that something would be there that you would find?
“A. I had a hunch he might have something.
“Q. I see, but, you were looking for at this time—
“A. Possibly another weapon.
“Q. Did you have any reason to believe that he might have a weapon?
“A. We had one weapon, there‘s a possibility that he could have had another one.”
It would not be realistic to require that in justifying an inventory search the police must affirm that they had absolutely
Appellant also asserts that he was not lawfully arrested. The record reflects that appellant was not formally arrested until after the heroin-filled balloon was discovered and seized. At the time the heroin was discovered, Officer Garcia had knowledge of facts and circumstances which warranted his belief that the appellant had сommitted the offense of possession of heroin.
The judgment is affirmed.
Opinion approved by the Court.
ROBERTS, Judge (concurring).
I agree that the search was reasonable.
The appellant‘s clothes were initially in the custody of Nurse Kuechele; she had an affirmative responsibility to conduct an inventory of this clothing for the physical and legal benefit of the appellant, the hospital staff, and the other patients in the hospital. For this reason, and because the clothes were actually in her custody, the rationale of South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), is applicable. See the dissenting opinion in Robertson v. State, 541 S.W.2d 608, 611-615 (Tex.Cr.App.1976).
This lawful inventory produced tangible evidence that the appellant had сommitted the offense of unlawfully carrying a handgun, in violation of