Ackenback v. State

• Decision Date: 26 July 1990
• Docket Number: Nos. 01-89-00430-C,01-89-00431-CR,s. 01-89-00430-C
• Citation: 794 S.W.2d 567
• Parties: Thomas Frank ACKENBACK, Appellant, v. The STATE of Texas, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 567

794 S.W.2d 567

Thomas Frank ACKENBACK, Appellant, v. The STATE of Texas, Appellee.

Nos. 01-89-00430-CR, 01-89-00431-CR.

Court of Appeals of Texas,

Houston (1st Dist.).

July 26, 1990.

Brian Wice, Houston, for appellant.

John B. Holmes, Jr., Harris County Dist. Atty., Timothy G. Taft and Robert N. Kepple, Asst. Dist. Attys., for appellee.

Before EVANS, C.J., and DUGGAN and MIRABAL, JJ.

OPINION

MIRABAL, Justice.

A jury found appellant guilty of aggravated robbery and attempted capital murder of a peace officer. After finding one enhancement paragraph true, the jury assessed punishment for the aggravated robbery at 20 years confinement and a $2,500 fine; and for the attempted capital murder, 75 years confinement and a $10,000 fine.

In four points of error, appellant complains the trial court committed error in connection with the admission into evidence of items seized during two warrantless searches.

At trial, Estee Larson, the complainant, testified that on June 2, 1989, at approximately 7:30 p.m., she was lying on her bed talking on the telephone, when she heard several knocks on her front door. She looked out the window, and after seeing a man at the door whom she did not recognize, opted not to answer the door. After the pounding at the front door grew louder, Larson retrieved her gun and started down the stairs. The intruder had kicked her front door in. Larson saw the intruder holding her television, video recorder, and cable converter box. After she screamed at him, he dropped everything but the video recorder and fled with Larson in pursuit. The intruder dropped the recorder in a ditch as he managed to outpace Larson. Two men, whom Larson later learned were police officers, chased the intruder. Larson did not fire her gun.

Ron Hulett, an officer with the narcotics division of the Houston Police Department, testified that he and his partner, Officer Fred Wood, were in the area to meet an informant. While driving down the street, Officer Hulett noticed a person he identified as appellant carrying what looked like a record player, coming out of a residence. After observing a woman running out of the same residence with a pistol in her hand, Officer Hulett concluded he was observing a burglary in progress. Officer Hulett communicated this to Officer Wood, who turned the car around and pulled up beside appellant, who was kneeling down behind a fence looking back at Ms. Larson. Officer Hulett got out of the automobile with his badge in hand, and told appellant he was a police officer and needed to talk with him. Appellant replied "F--- you guys!," dropped the video recorder, and started running through a yard. As he began to run, appellant reached into his rear pants pocket, pulled out a large woman's scarf and a glove, and dropped both items within five or six feet of the VCR he had dropped. Officer Wood picked up the items. Appellant ran toward a nearby apartment complex where he was unable to scale a fence, catching his right foot in the fence prongs and falling backward with his foot still suspended in the air. From the other side of the fence, Officer Hulett told appellant that he was under arrest and not to move, while his partner attempted to scale the fence. Appellant managed to dislodge his foot from the fence and began running into the apartment complex before Officer Wood made it over the fence. Several seconds later, Officer Wood reappeared and shouted that appellant had a gun. By the time Officer Wood had retrieved his gun from the police car, and with Officer Hulett still unable to scale the fence to give chase, appellant managed to escape. The police searched the area with the aid of a helicopter and patrol units, to no avail. About 15 minutes after appellant had escaped, Officer Hulett observed a light yellow automobile near the scene in a parking lot. The vehicle was parked in the area appellant was headed for when Officer Hulett had first seen him. Upon looking into the interior of the automobile, Officer Hulett saw a glove that matched the one appellant had discarded, and a woman's scarf. The glove and scarf were on the back seat floor board behind the driver's seat, visible through the window. The automobile's engine was still warm, there was a set of keys on the driver's side floor board, visible through the window, and the automobile was unlocked. ¹ When the officers saw the matching glove in the car, they concluded this was the robber's vehicle. They "inventoried the vehicle for information or evidence that would help us make the case." The contents of the automobile included some job applications and vehicle title papers. The police seized the car because "we believed it to be involved in the burglary investigation."

After seeing the job applications, vehicle title, and a rent receipt, that same evening Officer Hulett went to two addresses that were on the papers. Officer Hulett met Ms. Nickie Smith, who led the officers to an apartment complex seven or eight miles away, and knocked on a window next to the front door of an apartment. As a woman came out of the front door in response to Smith's knock, Officer Hulett observed appellant get up from a couch and run to the back door. Although the woman who answered the door attempted to block his path, Officer Hulett went inside and chased appellant through the apartment. Appellant was apprehended outside after a fierce struggle with three officers. En route back to appellant's apartment, Officer Hulett recovered a black .25 Beretta automatic firearm near the patio fence, which contained a live round with an indented primer. Officer Hulett testified that this meant the firing pin had met the primer. After placing appellant in a police car, Officer Hulett returned to the apartment to speak with the female resident of the apartment. The door was open, but no one was home. Although the officers attempted to perform a trace metal detection test to determine whether appellant had handled the gun, appellant refused to permit the officers to spray his hands.

Officer Fred Wood, Officer Hulett's partner, testified to the same facts. After Officer Wood scaled the fence, he opted not to grab the appellant for fear appellant had a weapon. After he had chased appellant through the apartment complex, appellant stopped and pulled out what Officer Wood believed to be a .25 automatic pistol. Appellant pointed the weapon at Officer Wood and was trying to fire it, but the weapon did not discharge. After appellant told Officer Wood he was going to kill him, Officer Wood retreated and yelled to his partner that appellant had a gun. By the time Officer Wood returned to the police car to retrieve his gun, appellant was nowhere in sight. Later that evening, after arresting appellant at the apartment complex, the officers returned to the apartment where the front and rear doors were open, but no one was home. After looking through the apartment for any people, the officers locked the apartment and examined the scene for evidence. Officer Hulett recovered State's exhibit 25, a loaded pistol.

The only witness called by the defense was a nurse, who testified about surgery performed on appellant's foot. Appellant did not testify.

In his first point of error, appellant contends the trial court erred in overruling appellant's motion to suppress the items seized during a warrantless search of appellant's automobile, because the search was illegal.

In his second point of error, appellant contends the trial court erred in overruling appellant's motion to suppress items seized during a warrantless search of appellant's residence, because the search was illegal.

The State maintains appellant did not preserve points of error one and two because appellant failed to bring forth any statement of facts from the hearing on appellant's motions to suppress.

Defense counsel filed written motions to suppress items seized in warrantless searches of appellant's automobile and residence. The record reflects the trial court disposed of defense counsel's motions to suppress on the basis of affidavits. Neither motion reflects a written ruling thereon, but the record shows a docket entry on January 26, 1989, "mot. suppress denied." Although the docket entry does not explicitly specify whether one or both motions to suppress were denied, it is apparent from the trial statement of facts that both motions had been denied. There is no statement of facts from the motions hearing because the trial judge disposed of the motions on the basis of affidavits rather than oral testimony, as authorized by TEX.CODE CRIM.P.ANN. art. 28.01, § 1(6) (Vernon 1989).

Under point of error one, appellant does not complain about the seizure of the glove and the scarf from the automobile. Rather, his complaint is that the police unlawfully searched the car, resulting in an unlawful seizure of the job applications, a title to the motor vehicle, and a rent receipt; these items were admitted before the jury over appellant's renewed objections.

Any finding of the trial court in connection with its ruling on a motion to suppress, that is supported by the evidence, is not to be disturbed. Green v. State, 615 S.W.2d 700, 707 (Tex.Crim.App. [Panel Op.] 1980), cert. denied, 454 U.S. 952, 102 S.Ct. 490, 70 L.Ed.2d 258 (1981). Appellant re-urged his objections to the admission of the evidence during trial, and the presiding visiting judge overruled the objections, stating for the record that the pre-trial rulings made on appellant's motions to suppress would not be disturbed. Appellant is complaining about the rulings on both his pre-trial and trial motions to suppress, and he directs our attention to the evidence submitted in connection with each. The relevant trial testimony has already been summarized in this opinion; the following is the relevant affidavit testimony submitted in support of the pre-trial motions to suppress.

Appellant's affidavit states:

My name is THOMAS FRANK ACKENBACK....