in Re GMAC Commercial Finance, LLC ( 2005 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-05-00186-CV

In re GMAC Commercial finance, l.l.c.

Original Proceeding

O R D E R

          In this original proceeding, we denied the petition for writ of mandamus of Relator GMAC Commercial Finance, L.L.C. in a Memorandum Opinion on April 27, 2005.  Thereafter, on May 16, 2005, Humboldt Wedag, Inc. (HWI), a real-party-in-interest, filed a “Verified Motion to Expunge Record and for Return of Documents.”  In this motion, HWI requests us to expunge from our record in this proceeding a privileged document that it inadvertently included in its “Optional Appendix to Brief of Humboldt Wedag, Inc. in Opposition to Petition for Writ of Mandamus.”  It further requests us to order all parties in this proceeding to return all copies of this document to HWI.  HWI unsuccessfully sought voluntary return of the document from the parties in this proceeding.

          The fourteen-page document at issue is a November 10, 2003 letter from James K. Bidgood, Jr., HWI’s attorney in Atlanta, Georgia, to Clay Lewis Jenkins, HWI’s attorney in Waxahachie.  In its verified motion, HWI explains how the letter was inadvertently included as Exhibit 3 in its Optional Appendix.  On its face, the letter plainly contains core work product (as defined by Tex. R. Civ. P. 192.5(b)(1)) and further constitutes a communication protected by the lawyer-client privilege (Tex. R. Evid. 503(b)(1)(E)).  The other parties to this proceeding—Relator GMAC and real-parties-in-interest Holcim (Texas) Limited Partnership and HC GP Inc.—filed responses opposing HWI’s verified motion.  We believe that HWI is entitled to relief.

          We find no authority allowing us to expunge the letter from our record.  But we do have authority to seal a privileged document inadvertently made a part of an appellate court record.  See Monsanto Co. v. Davis, 110 S.W.3d 28, 29-30 (Tex. App.—Waco 2002, order). Accordingly, we order the Clerk of this Court to seal the original and all copies of the November 10, 2003 letter from James K. Bidgood, Jr. to Clay Lewis Jenkins, attached as Exhibit 3 in the Optional Appendix to Brief of Humboldt Wedag, Inc. in Opposition to Petition for Writ of Mandamus, on file in this cause (10-05-00186-CV).  These documents shall remain under permanent seal until the entire case file is destroyed pursuant to the Records Retention Schedule approved for this court (normally six years from the date of judgment), unless otherwise ordered by this court.

          Rule 193.3(d) of the Texas Rules of Civil Procedure, while applicable to the inadvertent production of privileged material in discovery, provides guidance and authority on the return of the document from the parties to this proceeding and any persons who obtained or received a copy of the document from any party to this proceeding.  Accordingly, we order all parties to this proceeding to return to Clay Lewis Jenkins, HWI’s Waxahachie counsel, all copies and images of the November 10, 2003 letter from James K. Bidgood, Jr. to Clay Lewis Jenkins, attached as Exhibit 3 in Optional Appendix to Brief of Humboldt Wedag, Inc. in Opposition to Petition for Writ of Mandamus, including all copies and printed images of this letter that any party to this proceeding provided to any other person.  All copies and printed images of this letter shall be returned to Mr. Jenkins by certified mail within ten days of the date of this order.  All electronically stored images of the letter shall be permanently deleted or destroyed.  All parties to this proceeding shall, within ten days of the date of this order, certify to this court by correspondence that they have complied with the orders in this paragraph.

                                                                   BILL VANCE

                                                                   Justice

Before Chief Justice Gray,

          Justice Vance, and

          Justice Reyna

          (Chief Justice Gray dissenting)

Motion granted in part

Order delivered and filed July 27, 2005

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f his warrantless arrest. Henderson then pleaded no contest to both counts of the indictment. The trial court found him guilty and assessed punishment, enhanced by two prior felony convictions, at forty-five years in prison on count one and twenty years in prison on count two. In two points of error, he appeals his conviction for possession of a controlled substance.

      At the hearing on Henderson's motion to suppress, Officer Hugh Wallace, an officer with the Bryan Police Department's Street Crimes Apprehension Team, testified that on January 15, 1993, he and four other officers were working surveillance for Billy Jarrett and Dennis Thane, two undercover officers conducting a "buy-bust" operation in the 1200 block of Henderson Avenue. Wallace testified that at 11:30 p.m. he and the other surveillance officers were dispatched by Jarrett and Thane, who had just purchased two rocks of cocaine in exchange for a marked twenty dollar bill. Over a police radio the undercover officers transmitted a description of the suspect—a tall black man wearing a blue cap and dark blue coveralls. Wallace testified that he arrived at the pre-arranged location within twenty to thirty seconds of the radio transmission.

      After securing the area and talking to two other people, Wallace directed his attention to Henderson, who matched the description provided by the undercover officers. Another officer had already conducted a pat-down search and indicated that there were some items in the left- and right-front pockets of Henderson's coveralls. Wallace informed Henderson that they were conducting a narcotics investigation, that someone matching his description had just sold some drugs, and that they were searching for narcotics and some money. Henderson indicated that he did not have any narcotics on him. According to Wallace, when he asked if it was okay to conduct a search, Henderson said, "That's fine." Wallace found a piece of paper currency and a matchbox in Henderson's left-front pocket, a zippered pocket that was left open. Wallace removed the currency and compared it to a photocopy of the twenty dollar bill used in the "buy-bust" operation. At that point, Henderson was informed that he was under arrest. Continuing the search, Wallace found chips of crack cocaine in the right-front pocket of Henderson's coveralls. Henderson was then taken to the county jail, where Jarrett and Thane verified that he was the suspect from whom they had purchased two rocks of cocaine.

      At the hearing on the motion to suppress Henderson argued that, because he was in fact wearing a black cap and his coveralls were actually dark green, the surveillance officers lacked probable cause to stop and arrest him for delivery of cocaine. Wallace testified, however, that it was very dark at the location and that Henderson's coveralls were dark green, "darker than olive drab." According to Wallace, because the suspect was wearing dark colors, the description provided by the undercover officers during the nighttime hours was "a good description." Furthermore, the jail administrator and records custodian, called as a witness for the defense, testified that the inventory of Henderson's property, made at the time Henderson was booked into jail, listed a pair of "blue coveralls."

      In point one Henderson contends that the trial court erred in denying his motion to suppress evidence obtained as a result of his warrantless arrest because the arrest was not based on probable cause as required by the Fourth Amendment to the United States Constitution. Under federal law, probable cause to arrest depends upon whether, at the moment the arrest was made, facts and circumstances within the officers' knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent person in believing that the suspect had committed or was committing an offense. Because Wallace and the other surveillance officers immediately responded to the radio transmission, and Henderson was the only one in the area who substantially matched the description provided by the undercover officers, we hold that the officers had probable cause to arrest Henderson for delivery of cocaine. We overrule point of error one.

      In point two Henderson contends that the trial court erred in denying his motion to suppress evidence obtained as a result of his warrantless arrest because the arrest was not based on probable cause as required by article I, section nine, of the Texas Constitution. In his argument and authorities under point two, Henderson argues that the arrest was improper under Texas law because it was not authorized by article 14.04 or article 14.03(a)(1) of the Texas Code of Criminal Procedure. The State argues, however, that because the delivery of cocaine offense was committed in the presence of Officers Jarrett and Thane, the arrest was authorized by article 14.01 of the Code of Criminal Procedure. Article 14.01 does not require the officer who views the commission of a crime to be the arresting officer. Jarrett and Thane did not have to personally make the arrest under article 14.01 because they were an integral part of the arrest team. They transmitted Henderson's description to the surveillance officers, who arrived at the location in less than a minute. Furthermore, Wallace was specifically working "surveillance" for a preplanned "buy-bust" operation and was familiar with the area. Finally, Jarrett and Thane verified Henderson's identity a short time later at the county jail. As a result, we find that the viewing officers' participation in and awareness of Henderson's arrest made them just as much a participant in Henderson's arrest as if they had seized Henderson themselves. Therefore, the arrest was proper under article 14.01.

      In his argument under point two Henderson also relies upon Rance v. State for the proposition that probable cause was not sufficient to support an arrest under the Texas Constitution . In Rance, however, the arresting officer could remember only a general description of the suspect as provided by the viewing officer, even the general description was substantially different from that of the defendant at the time of the arrest, and the undercover officer later informed the arresting officer that the defendant was not one of the suspects from whom he had purchased cocaine. In this case the State presented evidence that Wallace had probable cause to arrest Henderson, a tall black man wearing dark coveralls and a dark cap, because he substantially matched the description provided by the undercover officers. Accordingly, we overrule point of error two.

      We affirm the judgment.

                                                                                 BOBBY L. CUMMINGS

                                                                                 Justice

Before Chief Justice Thomas,

          Justice Cummings, and

          Justice Vance

Affirmed

Opinion delivered and filed November 17, 1993

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