Christopher v. State

OPINION

W.C. DAVIS, Judge.

This is an appeal from a conviction for possession of marihuana in an amount over four ounces. Trial was before the court which found the appellant guilty. Punishment was assessed by trial court at three years probated and a $5,000 fine.

The record reveals that on March 19,1978 at approximately 3:00 a.m., Charles Talbert, a game warden, observed the appellant driving a pickup truck with a camper and another vehicle driving through Dripping Springs, Texas. Officer Talbert became suspicious of the vehicles and followed them. While following the appellant, Tal-bert determined that the appellant was exceeding the speed limit. Talbert continued to follow appellant in order to determine whether the appellant was speeding deliberately.

Officer Talbert contacted Jim Kitchens of the Travis County Sheriff’s Department by radio to request Kitchens’ help in stopping the two vehicles in question. Talbert informed Deputy Kitchens that the vehicles were exceeding the speed limit. Deputy Kitchens caught up with Talbert as he was following the vehicles in question. Deputy Kitchens stopped the automobile, while Tal-bert stopped the pickup truck, driven by the appellant. Officer Talbert testified that although he was suspicious of the two vehicles, he only stopped the appellant after he determined that the appellant was speeding deliberately.

Deputy Kitchens and Officer Talbert both testified that as they approached the pickup truck they detected a strong odor of marihuana. Kitchens and Talbert testified that they detected the odor eight feet from the pickup truck. Officer Talbert and Deputy Kitchens detained the appellant and requested the assistance of Department of Public Safety Narcotics Agents.

DPS Agent Kenneth Dismukes testified that when he arrived, he also detected a strong odor of marihuana emanating from the camper shell of the pickup truck. Dis-mukes asked the appellant for a key to the camper; however, the appellant replied that he had no key. Officers subsequently found a key to the camper on the appellant’s key ring. Upon opening the camper, the officers found a large quantity of marihuana.

In ground of error one the appellant contends that his initial detention was illegal because a game warden has no legal authority to stop or arrest the appellant for exceeding the speed limit. Appellant argues that a game warden’s authority to arrest is limited specifically to violations of the laws relating to game, birds, fish and other marine life, see Sec. 12.102, Tex. Parks and Wildlife Code Ann. (Vernon’s 1976), or violations of the law occurring on a state park or historical site, see Sec. 11.-019, supra.

The State contends that because Art. 2.12(11), Vernon’s Ann.C.C.P., provides that law enforcement officers commissioned by the Parks and Wildlife Commission are peace officers, the provisions of the Code of Criminal Procedure delineating the arrest authority of peace officers apply equally to game wardens. See Art. 2.13 and 14.01(b), Vernon’s Ann.C.C.P. Appellant conversely maintains that an irreconcilable conflict exists between the provisions of the Parks and Wildlife Code, defining the authority of game wardens, and the provisions of the Code of Criminal Procedure, prescribing the arrest authority of peace officers. The appellant further argues that the Code of Criminal Procedure is a general law, whereas the Parks and Wildlife Code is specific, as it applies to game wardens. Therefore, the Parks and Wildlife Code should super-cede the application of the Code of Criminal Procedure. Article 5429b-2, Sec. 3.06, Vernon’s Ann.Civ.St. (Code Construction Act).

The purpose of the Parks and Wildlife Code, as set forth in Sec. 1.001 of that code, is to make general parks and wildlife law more accessible and understandable. See Tex. Parks and Wildlife Code Ann., Sec. 1.001, (Vernon’s 1976). Further, section 1.002 states that the Code Construction Act, see Art. 5429b-2, supra, applies to the construction of each provision in the Texas Parks and Wildlife Code.

See. 12.102, supra, provides in pertinent part:

“(b) An authorized employee of the department may arrest without a warrant any person found in the act of violating any law relating to game, birds, or fish.”

Sec. 11.019, supra, provides in pertinent part:

“(b) Employees commissioned under this section have the powers, privileges, and immunities of peace officers while on state parks or on state historical sites or in fresh pursuit of those violating the law in a state park or historical site.”

Article 2.12(11), Vernon’s Ann.C.C.P., provides that law enforcement officers commissioned by the Parks and Wildlife Commission are peace officers. Id. Further, Article 2.13, supra, provides that peace officers “shall arrest offenders without warrant in every case where he is authorized by law.” Id. Finally, Article 14.01(b), Vernon’s Ann.C.C.P. authorizes a peace officer to arrest without a warrant a person committing any offense in his presence; and Article 6701d, Sec. 153, Vernon’s Ann. Civ.St. authorizes any peace officer to stop any person who is violating a traffic law.

We now turn our attention to Section 3.06 of the Code Construction Act, supra, for guidance in harmonizing the preceding statutes. Section 3.06 provides that “if a general provision conflicts with a special or local provision, they shall be construed if possible, so that effect is given to both.” Considering the preceding sections of the Parks and Wildlife Code and the Code of Criminal Procedure we conclude that such provisions can be construed so that effect is given to the provisions of both codes. Although the Parks and Wildlife Code defines the duties of game wardens regarding wildlife laws, the cited sections do not specifically limit the game wardens authority only to the defined situations. The game wardens, therefore, retain the general arrest authority prescribed in Article 2.12(11); 2.13; 14.01(b) of Vernon’s Ann.C.C.P. This ground of error is overruled.

The appellant, in ground of error two, contends the initial warrantless stop was made without probable cause.

Although Officer Talbert admitted that he was suspicious of the appellant, Talbert stopped the appellant only after observing him speeding, requesting assistance from a Travis County deputy and following the appellant for a distance to determine that the appellant was speeding deliberately. The initial stop of appellant’s vehicle was authorized because a traffic violation was committed within the presence or view of Talbert. See Drago v. State, 553 S.W.2d 375 (Tex.Cr.App.1977); Dillard v. State, 550 S.W.2d 45 (Tex.Cr.App.1977). Talbert was thus acting within his authority as a Texas peace officer. See Article 6701d, Sec. 153, Vernon’s Ann.Civ.St.; Article 14.01(b), Vernon’s Ann.C.C.P. This ground of error is overruled.

In appellant’s third ground of error, he contends that the trial court erred in denying his motion to suppress the marihuana seized because the officers failed to obtain a warrant to search the vehicle.

A peace officer, after a bona fide stop for a traffic offense as in the instant case, may then make an additional arrest for any other offense discovered during the investigation. See Taylor v. State, 421 S.W.2d 403 (Tex.Cr.App.1967). Further, the officer may conduct a search incident to such arrest. See Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). Finally, when a peace officer possesses probable cause that a motor vehicle contains contraband or the instrumentalities of a crime, a valid search can be conducted in the area of the vehicle where the facts justify the officer’s belief that such evidence is there concealed. See Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Gill v. State, Tex.Cr.App., 625 S.W.2d 307 (1981); Borner v. State, 521 S.W.2d 852 (Tex.Cr.App.1975).

In the instant case exigent circumstances and probable cause existed requiring the officers to proceed to arrest the appellant and search the camper of the truck for marihuana without waiting for a warrant. See Borner v. State, supra; Attwood v. State, 509 S.W.2d 342 (Tex.Cr.App.1974). This ground of error is overruled.

In ground of error four appellant maintains the evidence was insufficient to show that he knew the substance he was transporting was marihuana. The appellant argues that, as in Reyes v. State, 575 S.W.2d 38 (Tex.Cr.App.1979), the evidence failed to establish that the pickup truck was registered in his name and there was no evidence to connect the appellant to the registered owner. Appellant, therefore, contends the evidence was insufficient to support his conviction.

To support a conviction for possession of marihuana the evidence must affirmatively link the accused to the contraband in such a manner and to such an extent that a reasonable inference may arise that the accused knew of the contraband’s existence and of its whereabouts. See Sewell v. State, 578 S.W.2d 131 (Tex.Cr.App.1979); Harrison v. State, 555 S.W.2d 736 (Tex.Cr.App.1977). This affirmative link is established by showing additional facts and circumstances which indicate the accused’s knowledge and control of the contraband. See Harrison v. State, supra; Long v. State, 532 S.W.2d 591 (Tex.Cr.App.1976).

In the instant case, the appellant was in possession of the key to the camper which reasonably implies his control over the contraband. Further, the evidence established that the odor of marihuana was detectable as far as eight feet from the camper. The presence of such a strong odor also suggests that the appellant would become aware of the existence of the marihuana before entering the cab of the pickup truck. Cf. Duff v. State, 546 S.W.2d 283 (Tex.Cr.App.1977). We find the evidence was sufficient to establish the accused’s knowledge and control of the contraband. This ground of error is overruled.

The judgment is affirmed.

TEAGUE, J., dissents.