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Adkins v. State3/24/2003
OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
We withdraw our December 19, 2002 opinion and judgment and substitute the following in its place.
INTRODUCTION
Appellant Kenneth Dwain Adkins was indicted for the offense of possession of a controlled substance with intent to deliver. The indictment included a deadly weapon paragraph, an enhancement paragraph, and three habitual offender paragraphs. See Tex. Penal Code Ann. § 12.42(b), (d) (Vernon Supp. 2002); Tex. Code Crim. Proc. Ann. art. 42.12, § 3g(a)(2) (Vernon Supp. 2002). Appellant filed a motion to suppress, which the trial court denied. Appellant pled not guilty to the charged offense, but the jury found him guilty of the lesser-included offense of possession of a controlled substance. The jury also found that appellant used or exhibited a deadly weapon in committing the offense. The trial court found two of the habitual offender paragraphs to be true and assessed punishment at forty years' confinement. See Tex. Penal Code Ann. § 12.42(d). In five issues, appellant complains that: (1) the trial court erred when it overruled his motion to suppress and corresponding objection at trial; (2) the trial court erred when it denied his motion for directed verdict; (3) the trial court admitted statements he made to the arresting officers in violation of Miranda; and (4) the trial court should have set aside the indictment for failure to afford him a speedy trial. We reform the trial court's judgment and affirm it as reformed.
BACKGROUND
On October 29, 1998, Officer Ray Morales of the Arlington Police Department was dispatched to a 7-Eleven convenience store to meet with Joseph Hayworth. Hayworth, who had previously provided Officer Morales with reliable information, told Morales that he had seen a brown prescription bottle full of narcotics fall on the floorboard of appellant's white 1988 Chevy truck as appellant was getting out of it. Hayworth informed Morales that the truck was located in a parking lot in front of a CiCi's Pizza restaurant, a half-block to the north of the 7-Eleven. Officer Dale Horton arrived, and he and Officer Morales parked their patrol cars and walked to the parking lot.
Appellant was not present when Horton and Morales reached his truck. Through the window, using flashlights, Officer Morales could not see any drugs, but noticed a wooden stick lying on the seat. Morales, who had encountered appellant previously, saw appellant and another male walking toward Cici's Pizza. Officer Morales called out to appellant. Appellant continued towards the restaurant. After Morales called to appellant twice, appellant stopped, reached his hand inside his pants pocket, and told the officers that he didn't have any drugs. Officer Morales performed a patdown on appellant, looking for any weapons. Officer Horton then asked appellant if the truck was his and if he had driven it there. Appellant responded yes to both questions. Appellant asked if there was a problem, and began to walk toward his truck. The officers followed appellant and his companion towards the truck.
When they reached the truck, Officer Horton asked appellant who the wooden stick belonged to, and appellant said it was his. Appellant asked the officers if they wanted to see the stick and unlocked the passenger side door with a remote keyless entry device. Officer Horton instructed appellant, however, not to get in the truck. Despite Officer Horton's instruction, appellant entered the truck and emerged with the stick. Both officers testified that they both drew their guns and ordered appellant to drop the stick. Appellant stood there holding the stick and, after two or three seconds, dropped it.
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