Munoz v. State (709 S.W.2d 34, 1986)

OPINION

NYE, Chief Justice.

This is an appeal from an order revoking appellant’s probation. Appellant was convicted of possession of marijuana in an amount over four ounces, pursuant to a guilty plea, in Wilson County, Texas, on October 30, 1981. Punishment was assessed at six years’ imprisonment, probated for six years. As a condition of his probation, appellant was not to commit or be convicted of any offense against the laws of this state.

On February 8, 1985, the state filed a motion to revoke appellant’s probation alleging that, during the term of his probation, appellant knowingly possessed a usable quantity of marijuana, to wit, more than four ounces but less than five pounds in Karnes County, Texas. Appellant pleaded not true to the allegation. His probation was revoked on July 26, 1985.

Appellant was convicted of the second possession offense in Karnes County in April of 1985. At that trial, appellant challenged the admission of the fruits of the search of his vehicle in a motion to suppress, which was denied. Appellant again urged this motion to suppress at his revocation hearing in Wilson County. It is the denial of that motion to suppress that he now appeals. The transcribed testimony from the Karnes County suppression hearing was admitted into evidence at the revocation hearing.

The evidence in the Karnes County trial regarding appellant’s motion to suppress is as follows. Danny Esparza, of the Karnes County Sheriff’s Department, testified that he was on duty on February 7, 1985, and received a telephone call complaining of a suspicious vehicle. The call was from a Mrs. Yosko who complained that a blue pick-up truck with a white camper and two Latin males in the front seat had parked on a county road next to her son’s house. Her son lived next door to her on FM 81, and “[a] couple of weeks or several weeks prior to this incident her son’s house had been broken into .... She was scared that these could have been the same subjects that broke into her son’s house_” Es-parza got in his patrol car and proceeded down Highway 123 until he observed the blue pick-up at the intersection of FM 81 and Highway 123, approximately three miles from Mrs. Yosko’s house. The truck and its occupants fit the description given by Mrs. Yosko.

Esparza testified the vehicle proceeded through the intersection and turned south on Highway 123. He stated that he followed the vehicle, and “whenever [he] got past the river bridge [he] stopped the vehicle to identify the driver.” As he was talking to appellant, he noticed “a baggy with two rolled cigarettes in it, and a leafy green substance that appeared to ... be marihuana” in appellant’s right or left front pocket. Esparza took the baggy and waited until another officer arrived. When Officer Ebrom arrived, he approached the passenger and noticed marihuana smoke inside the pick-up and “a leafy green substance on the floorboard, and baggies that appeared to be marihuana.” The officers then searched the bed of the truck and found a suitcase containing four to six ounces of marihuana. The two subjects were arrested and taken into custody. A subsequent body search at the jail revealed another ounce of marijuana on appellant’s passenger.

Officer Esparza had difficulty articulating exactly why he and Mrs. Yosko considered the vehicle to be suspicious. Mrs. Yosko did not indicate that the vehicle or its occupants engaged in any criminal activity at the time she observed them. On cross-examination, the following exchange took place between defense counsel and Officer Esparza:

Q. Up until that time [the stop], you had absolutely no reason to believe that any crime had been committed?

A. At that time whenever I stopped the car I thought possibly they could be involved in something.

Q. Possibly?

A. Yes, sir.

Q. Mere suspicion on your part?

A. And Mrs. Yosko.

Q. Okay, now, did Mrs. Yosko indicate to you that they had engaged in any criminal activity?

A. She didn’t but the woman was real upset.

But she didn t say they were the ones that burglarized her son’s house?' O'

She thought there was a possibility they could have.

But she didn’t say that they had? ©*

No, sir. <⅜

Now you didn’t say in your report that she said that she thought they were the ones, did you?