¶1dissenting.
¶2With respect, this dissent is filed.
¶3The record on the Motion to Suppress clearly shows that the location in question was a high crime area. The area involved was known as the Virginia Village Apartments. There existed, at these apartments, a problem with trespassers and loiterers some of whom played a part in the drug scene. The problem was severe because it was enhanced and aggravated by so much trafficking with drugs that the management of the apartment simply had to do something to counteract the trafficking with illegal drugs. Hence, the management warned certain persons to stay off the property of the Virginia Village Apartments, including one Irvan Keith Beverly, Appellant herein. Beverly had been specifically warned and told to stay off of the property in question. This warning was given in September. The manager of the apartments saw Beverly the following October. On October 15th, the manager told a police officer that Beverly had been properly warned to stay off the property but he was on the premises. The September warning from the manager to Beverly had been given to Beverly in person and, actually, face to face, and in front of an officer. No consent had been given permitting Beverly to return to the apartments.
¶4About 9:00 o’clock P.M., on October 15, 1987, a policeman was at the Virginia Village Apartments. He knew that it was a high crime area. The police officer was speaking to two males and the manager of the apartment that night, concerning the problem of trespassing and other problems. The two males had been standing on the premises of the apartments and had been drinking. The manager did not want these two males on the property. While this dialogue was proceeding, Beverly drove up and into the premises of the Virginia Village Apartments. Almost immediately, the manager said that Beverly had been previously warned about his forbidden trespassing. The manager knew Beverly by name. Then the officer looked at the list, that had been provided to him previously, and the name of the Appellant, Beverly, appeared as having been one definitely previously warned.
¶5After further checking this matter with his list and his own observation of the facts, as well as checking the warning matter again with the manager, the officer then placed Beverly under arrest.
¶6Under all the surrounding circumstances, it is clear that the officer certainly acted in good faith. Certainly a reasonable person, acting under the same surrounding circumstances, would reasonably and justifiably reach the conclusion that Beverly was trespassing and had been previously warned not to do so.
¶7When Beverly was taken to the Jefferson County Jail, the arresting officer stood by and observed a jailer search the Appellant. A hypodermic needle was removed from Mr. Beverly’s pocket. There was a yellow-colored substance on the needle which had become a yellow, hardened, substance which definitely indicated to the arresting officer that the needle had been used in connection with drugs or narcotics, the most common use being with cocaine. The officer from previous experience knew this. Mr. Beverly had no prescription of any kind for the use of a hypodermic needle with any type of prescribed drug or medication.
¶8After the needle was discovered with the yellow-colored, hardened, substance, a strip search was made, which the record shows was incidental to the lawful arrest and for inventory purposes. He was asked to remove his clothing, which he did. First, he removed an outer layer of pants. There was a second set of pants beneath. The officer observed the jailer removing four packages from the right front of the second set of pants. These so-called packages were like glassy bags. They were approxi*356mately one inch by one inch, zip lock, cellophane baggies. The officer, upon observing them, believed that each baggie contained six cocaine rocks per package. The cocaine rocks were described as approximately one-quarter inch square. They were generally beige in color. They were approximately ½6⅛ to Vsth of an inch thick. Then, what was described as cocaine and the packages and the hypodermic syringe or needle were submitted to the property lab for examination by the Regional Crime Laboratory.
¶9The manager’s instructions and statements to the arresting officer were operative facts. They were made in Beverly’s presence and hearing. These instructions and statements were not subject, when correctly analyzed, to the hearsay rule. Hence, under all the surrounding circumstances, the arresting officer did have probable cause to make the arrest. In fact, the manager actually approached Beverly and, in front of the officer and well within his hearing and his observation, told Beverly that he (Beverly) had been warned and instructed not to come back to the premises of the apartments. See Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527, reh. den., 463 U.S. 1237, 104 S.Ct. 33, 77 L.Ed.2d 1453 (1983); Hicks v. State, 753 S.W.2d 419 (Tex.App. — Beaumont 1988, no pet.)
¶10The manager’s statements were against Beverly’s interest and called for a reply from him. Indeed, these statements demanded a reply. The statements were hostile to this accused. These operative fact instructions were made actually face-to-face toward the accused and, hence, under established criminal evidence rules, were not subject to the hearsay objection.
¶11The Appellant, Mr. Beverly, took the stand in the suppression hearing. By way of impeachment, the State showed that Mr. Beverly was convicted of robbery in January of 1983, in Jefferson County and he was also convicted in August of 1986 of forgery in the very same court. He also acknowledged on the stand at one point that the manager of the apartment complex had warned him not to trespass and forbade him to do so.
¶12A lawful arrest, without a warrant, exists if an offense is committed in the presence, or within the view, of a peace officer. Another basis or grounds for a lawful war-rantless arrest is that there is a reasonable belief on the part of the police officer that an individual either threatens or is about to commit some offense against the law. In other words, probable cause would exist if the arresting officer believed that a person was committing an offense or was about to commit an offense or threatened to commit an offense. The officer here, of course, had a reason to believe that Beverly was committing the offense of criminal trespass.
¶13The trial court made Findings of Fact and Conclusions of Law on the Motion to Suppress and found that the Appellant, when arrested, was in possession of the items listed in his own Motion to Suppress and that he had been previously warned by the apartment manager and had been admonished not to enter the premises and that this information had been given to the arresting officer prior to the Appellant’s arrest. The trial court concluded the arresting Officer Hoag had probable cause to believe that the accused had committed the offense of criminal trespass in the officer’s presence, under TEX.PENAL CODE Sec. 30.05 (Vernon Supp.1989) and TEX.CODE CRIM.PROC.ANN. AH. 14.01 (Vernon 1977). The trial judge arrived at a conclusion of law that the arrest and search of the accused were, under the whole record, legally authorized and the evidence was obtained lawfully and the same would be admissible at the trial of the case, citing Bodzin v. City of Dallas, 768 F.2d 722 (5th Cir.1985). I think the trial judge, who had the chance to observe the actions, the facial expressions, the demeanor, the tone of voice and the ring of the answers, had a better opportunity to carefully observe the witnesses and was in a much superior position to weigh their credibility.
¶14The other opinion states that the central question in this appeal is: “Does the presence of a person at a place within the *357arresting officer’s view coupled with a hearsay report that the person had been given notice constitute probable cause to believe trespass is being committed in the officer’s presence?” The other opinion concedes that the United States Court of Appeals for the Fifth Circuit has held, applying Texas law, that a warrantless arrest for criminal trespass is unlawful upon an officer’s reasonable belief of a complainant’s representation that the then defendant was on the complainant’s property as a trespasser.
¶15The other opinion concedes that probable cause for arrest arises from facts within the arresting officer’s own knowledge and observation but not from “hearsay” information. I respectfully disagree because of the unusual record in this case; an important distinction exists. It is correct that the mere presence of a person at the time an offense is committed at its scene without any other evidence is insufficient to support a conviction. Beardsley v. State, 738 S.W.2d 681 (Tex.Crim.App.1987). Nevertheless, the presence of a person at the scene of a criminal offense combined with certain other incriminatory or inculpa-tory evidence or testimony is sufficient to sustain a conviction. Thompson v. State, 697 S.W.2d 413 (Tex.Crim.App.1985); Thomas v. State, 645 S.W.2d 798 (Tex. Crim.App.1983).
¶16The crucial issue here is whether the Appellant, Beverly, had been warned about his trespasses at the apartment complex in question. The “trespass warned” loiterers were described as those loiterers or trespassers who had been warned by the apartment complex manager in front of and in the presence of city police officers, the manager definitely advising these loiterers and trespassers that they were not to come back on the property. These warnings were triggered by the circumstance that the apartment complex and especially the parking lot thereof had become a serious and crucial problem area involving dope or narcotics trafficking. I definitely perceive that the Appellant clearly had notice and that the other opinion misapplied the hearsay rule, resulting in a baseless, useless reversal. Where a statement or remark is made in a defendant’s presence, which he understood and which called for a reply, as here, his silence or acquiescence “may be shown as an admissible fact or even as a confession on his part where the same defendant is not at that time under arrest”. Crestfield v. State, 471 S.W.2d 50 (Tex. Crim.App.1971); Smith v. State, 635 S.W. 2d 591 (Tex.App. — Dallas 1982, no pet.). The rule in Crestfieldand Smith, supra,applies here. This is true because of the fact that the statement was made in the presence of Beverly and it was a statement adverse to his interest and it inculpated him, calling for a reply. He understood he was being accused of criminal trespass. He remained silent, making no reply.
¶17Here, of course, the conviction of Beverly was for the possession of a controlled substance, namely, cocaine, but the gravamen of Beverly’s appeal is that the trial court erroneously denied a motion to suppress the evidence, being the cocaine, which was seized as a result of an arrest which was warrantless; but the arrest was lawful and so was the search. Slaughter v. State, 439 S.W.2d 836 (Tex.Crim.App. 1969); Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). Indeed, the reasonable, prudent, dedicated officer could and should consider this: that where a statement or remark is made in the accused’s presence where he (the accused) understood and which called for a reply, then his silence may be shown also as a confession.
¶18Furthermore, the officer had probable cause to make a lawful arrest since he had trustworthy information which would warrant and amply justify a reasonable, prudent person’s belief that a particular person had committed or was in the process of committing a crime. Illinois v. Gates, supra; Lewis v. State, 598 S.W.2d 280 (Tex. Crim.App.1980).
¶19Pursuant to the reasons and authorities set out above, I must respectfully dissent.