Troy Andre Marcel v. State

Marcel v. State

IN THE

TENTH COURT OF APPEALS

NO. 10-92-062-CR

        TROY ANDRE MARCEL,

                                                                                       Appellant

        v.

        THE STATE OF TEXAS,

                                                                                       Appellee

From the 56th District Court

Galveston County, Texas

Trial Court # 91CR0801

O P I N I O N

          In this case the appellant was convicted in a jury trial for the unlawful possession of a controlled substance, to-wit: cocaine. The indictment was enhanced by two prior felony convictions. Prior to trial, Appellant filed a motion to suppress based upon an asserted unlawful search and seizure. After hearing, the trial court denied the motion to suppress. The guilt stage of the trial was tried before a jury which found Appellant guilty.

          Appellant agreed to accept a term of 25 years in the Texas Department of Criminal Justice, Institutional Division, rather than proceeding with a full scale punishment proceeding. The State abandoned the second enhanced previous conviction.

          Appellant asserts two points of error, both points contending the trial court erred in overruling Appellant's motion to suppress because:

(1) The evidence did not reveal a warrantless search was justified; and

(2) There was not evidence of another criminal violation in plain view.

          We overrule both points of error and affirm the trial court's judgment.

          In the late afternoon of May 9, 1991, Officer Brian Riedel of the Galveston Police Department was on patrol when he spotted Appellant consuming a beer while driving. Riedel pursued him for eleven blocks with emergency equipment on before Appellant stopped. During the pursuit, the officer observed him leaning over to one side which indicated to Riedel that he was getting into his pocket. It concerned him because he believed Appellant was trying to get out of his pocket either a gun or narcotics. Riedel then saw his shoulder moving like he was trying to stuff something under the seat. When Appellant's car came to a stop, he got out of his vehicle and walked towards the patrol car. Riedel asked him for his driver's license and his proof of insurance. Appellant said he did not have a driver's license or proof of insurance. He could have been arrested at that point for the three class c offenses. The officer ordered him to stay at the back of the vehicle and saw a Bud Light can on the floorboard. He then pulled the cushion on the seat back in order to get a better look at the center console area where he believed either a gun or narcotics had been placed. He saw two tied-off bags of cocaine. Appellant was then placed under arrest.

          This court need not review the propriety of the trial court's overruling this motion to suppress, because Appellant's complaint was rendered moot when the State during the trial offered the cocaine which was found in Appellant's car and Defendant-Appellant's counsel affirmatively stated, "I have no objection, Your Honor." Moody v. State, (Tex. Crim. App. 1992) 827 S.W.2d 875, 889; Harris v. State, (Tex. Crim. App. 1983) 656 S.W.2d 481, 484.

          However, aside from the foregoing, the trial court did not err in denying the motion to suppress. The officer saw Appellant in plain view drinking a can of beer while driving, in violation of the Open Container Law, and thereby the officer possessed probable cause to arrest Appellant and to conduct a search incident to arrest, which revealed the cocaine. See Chimel v. California, (1969) 395 U.S. 752, 89 S. Ct. 2034 at page 2040 (syl. 3 and 4), 23 L. Ed. 2d 685.

          When a policeman has made a lawful arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of the automobile. New York v. Belton, (1981) 453 U.S. 454, 460; 101 S. Ct. 2860, 2864; 69 L. Ed. 2d 768; Russell v. State, (Tex. App.—Dallas 1982, pet. ref'd) 644 S.W.2d 554, 555.

          Appellant's second point is also moot for the reasons hereinabove stated; however, aside from this, Appellant's contention that there was not evidence of another criminal violation in plain view is without merit. Officer Riedel plainly saw Appellant drinking a can of beer while driving his automobile when the officer first saw him.

          We overrule both of Appellant's points of error and affirm the judgment of the trial court.

                                                                                 JOHN A. JAMES, JR.

                                                                                 Justice (Retired)

Before Justice Cummings,

          Justice Vance and

          Justice James (Retired)

Affirmed

Opinion delivered and filed January 13, 1993

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