Adams v. State

• Decision Date: 14 June 1977
• Docket Number: No. 52702,52702
• Citation: 552 S.W.2d 812
• Parties: Curtis Wayne ADAMS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 812

552 S.W.2d 812

Curtis Wayne ADAMS, Appellant, v. The STATE of Texas, Appellee.

No. 52702.

Court of Criminal Appeals of Texas.

June 14, 1977.

Rehearing Denied July 6, 1977.

Charles M. Beacham, San Antonio, for appellant.

Ted Butler, Dist. Atty., E. Dickinson Ryman and Susan D. Reed, Asst. Dist. Attys., San Antonio, Jim D. Vollers, State's Atty. and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

ODOM, Judge.

This is an appeal from a conviction for the offense of burglary of a habitation. Punishment was assessed at 20 years' imprisonment.

Appellant challenges the sufficiency of the evidence and the validity of his arrest.

San Antonio Police Officer Edward Bourque testified that he and Sgt. Trinidad responded to a "burglars-in-action" call at the Three Dollar Motel about midnight, July 22, 1975. While the officers were talking to the manager of the motel, they noticed a white Buick automobile enter the motel parking lot at about 12:15 a.m. The trunk of the vehicle was open and Bourque could plainly see a television set in the trunk of the car. The vehicle stopped adjacent to an apartment occupied by Huthspet Mimms.

Bourque testified that Mimms had a reputation as a known police character and a fence, or one who buys stolen property. Based upon this knowledge and the suspicious circumstances of a vehicle with a television set in the trunk during the early morning hours, the officers determined to investigate further.

The officers approached the vehicle and asked appellant, the driver, for identification. They inquired about the television set, and appellant stated that he and his friends had brought the television to the motel to sell to Mimms. He informed the officers that his mother had given him the television set.

After receiving this explanation, Bourque asked appellant for a physical description of the television, but appellant was not able to give any description that was "similar to the merchandise which was in the trunk." The officers placed appellant and the two passengers under arrest for possession of stolen merchandise. Even though the record is not clear as to the chronological order of events, Bourque testified that he asked appellant if he could confirm with appellant's mother the explanation of the possession of the television, to which appellant replied in the affirmative, "freely" giving the officer his phone number. Bourque called the number in question and a female answered, identified herself as appellant's mother, and denied that she had ever given appellant a 23 or 24 inch console television set. ¹

The officers took the three suspects to the police station, where another officer told them he had taken a report of a television that matched the one the officers had removed from appellant's vehicle. Margie Mercado, the complainant in that report, was later taken to the police station for the purpose of identifying her allegedly stolen property.

Mercado testified at trial that on the evening of July 22, 1975, she left her home about 10:50 p.m. and when she returned about 11:45 p.m., she noticed that her home had been broken into. A 10-speed bicycle, a clock, and a television set were missing. She reported the burglary and theft to the police, and later that day she was taken to the police station to make an identification of her property. She positively identified her 23 inch black and white console television.

The defense rested with the State without offering any evidence.

Appellant contends the officers did not have probable cause to arrest him and the warrantless arrest was not justified under Art. 14.03, V.A.C.C.P.

The initial detention did not put the officers in a position to "plain view" the television, see e. g., McDougald v. State, Tex.Cr.App., 547 S.W.2d 40 (1977), as the television was in open view from the time appellant drove into the motel parking lot. However, the decision to seize the television was made after the initial detention and subsequent investigation and after the appellant was placed under arrest. Although the television was not contraband per se, it was seized as the result of appellant's arrest, thus we hold appellant does have standing to challenge the validity of his arrest. See Thompson v. State, Tex.Cr.App., 533 S.W.2d 825.

Circumstances which do not constitute probable cause for arrest may justify lesser intrusion upon the personal security, such as temporary detention for purposes of investigation. Leighton v. State, Tex.Cr.App.,544 S.W.2d 394; Hinson v. State, Tex.Cr.App., 547 S.W.2d 277 (1977). The detention is justified if the law enforcement officer has specific, articulable facts, when in light of his experience and general knowledge, together with rational inferences from those facts would reasonably warrant the intrusion on the freedom of the citizen stopped for further investigation. Terry v. Ohio,392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Ablon v. State, Tex.Cr.App., 537 S.W.2d 267; Mann v. State, Tex.Cr.App., 525 S.W.2d 174; Hernandez v. State, Tex.Cr.App., 523 S.W.2d 410.

It is appellant's position that the act of driving into the parking lot of the motel with the television did not generate any undue suspicion or probable cause to arrest or search, even though this act occurred during the early morning hours, and that the police officers' alleged knowledge of Huthspet Mimms being a fence was merely hearsay, and was not sufficiently reliable to invoke probable cause.

The officers were at the motel investigating a burglary call about 12:15 a.m. when they observed appellant's automobile, with a television in the trunk, pull into the parking lot, drive to the rear of the location, and stop adjacent to the apartment of a known fence. The officers did not know at that time of the reported burglary at the Mercado home. Cf. Hernandez v. State, supra. However, the officers' knowledge of Mimms' criminal activities indicated to them the television may have been stolen property. We hold they had more than a mere suspicion or inarticulable hunch that criminal activity was occurring and the subsequent investigation into the suspicious circumstances in order to maintain the status quo and to prevent further consequences of a possible theft was justified. Thompson v. State, supra; Greer v. State, Tex.Cr.App., 544 S.W.2d 125; Hernandez v. State, supra. Cf. Leighton v. State, supra; McDougald v. State, supra; Hinson v. State, supra.

Even though appellant properly identified himself to the officers, he was unable to give a proper description of the television he possessed and he appeared nervous throughout the interview. Upon investigating appellant's explanation of his possession of the television, the officers received information from the alleged source of the property which indicated that appellant's explanation was false. Under these circumstances, we find appellant's arrest was justified under Art. 14.03, V.A.C.C.P. See Hunnicutt v. State, 531 S.W.2d 618; Thompson v. State, supra.

Appellant contends there was an insufficient predicate for admission of Officer Bourque's testimony concerning his knowledge of Mimms' alleged reputation of being a fence. Bourque testified that he based his knowledge of Mimms' reputation on discussion with private citizens and known burglars who had done business with Mimms. This testimony sufficiently qualified him to testify as to Mimms' reputation. See Frison v. State, Tex.Cr.App., 473 S.W.2d 479; Mitchell v. State, Tex.Cr.App., 524 S.W.2d 510; Ellis v. State, Tex.Cr.App., 543 S.W.2d 135.

The final contention is that the evidence is insufficient to support the conviction because the State failed to rebut appellant's "reasonable explanation" of his possession of the television, given to the officers at the time of his arrest.

The record shows that appellant tendered his explanation to the officers when they challenged his possessory interest in the television. The record must demonstrate that the explanation is either false or unreasonable before the evidence to support the conviction will be deemed sufficient. Smith v. State, Tex.Cr.App., 518 S.W.2d 823; Callahan v. State, Tex.Cr.App., 502 S.W.2d 3; Huff v. State, Tex.Cr.App., 492 S.W.2d 532.

Whether the appellant's explanation is reasonable is an issue to be determined by the trier of fact. Smith v. State, supra. And, the falsity of the explanation may be shown by circumstantial evidence. Callahan v. State, supra.

The trial court, as the trier of fact, was confronted with many circumstances indicating that the appellant's explanation for his possession of the stolen property was both false and unreasonable. Compare, Huff v. State, supra. He was discovered just after midnight with recently stolen property. He was attempting, as stated in his explanation, to sell this property to a man known in the community as a "fence."

The trial court's finding that the appellant's explanation was unreasonable or false is supported by evidence.

The judgment is affirmed.

PHILLIPS, Judge, dissenting.

I dissent to that portion of the majority opinion which holds the evidence is sufficient to support the conviction. There is no evidence of appellant's involvement in the burglary of the Mercado home. The State relies on the inference or the presumption of guilt that can be drawn from the circumstance alone of unexplained possession of recently stolen property. To warrant an inference of presumption of guilt, such possession must be personal, recent, unexplained, and must involve the distinct and conscious assertion of property rights by the accused. Randolph v. State, Tex.Cr.App., 505 S.W.2d 845; Smith v. State, Tex.Cr.App., 472 S.W.2d 121; 4 Branch's Ann. P.C., 2nd Ed., Sec. 2537, pages 866-870; 5 Branch's Ann. P.C., 2nd Ed., Sec. 2650, pages 96-98.

"The presumption or inference against the defendant arising from the fact of possession is rebutted by reasonable explanation, if not shown to be false, and necessitates further...