Aitch v. State

• Decision Date: 12 May 1994
• Docket Number: No. C14-92-00264-CR,C14-92-00264-CR
• Citation: 879 S.W.2d 167
• Parties: Hilton Murdock AITCH, Appellant, v. The STATE of Texas, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 167

879 S.W.2d 167

Hilton Murdock AITCH, Appellant, v. The STATE of Texas, Appellee.

No. C14-92-00264-CR.

Court of Appeals of Texas,

Houston (14th Dist.).

May 12, 1994.

Rehearing Denied June 23, 1994.

Discretionary Review Refused Nov. 16, 1994.

E.J. Van Buren, Jr., R. Scott Shearer, Houston, for appellant.

Rikke Graber, Houston, for appellee.

Before ROBERTSON, CANNON and DRAUGHN, JJ.

OPINION

CANNON, Justice.

Hilton Murdock Aitch appeals his conviction for theft by receiving. Appellant was charged by indictment, pled not guilty, and was found guilty by the jury. The court assessed punishment, enhanced by two prior convictions, at 45 years confinement. In eleven points of error appellant complains that evidence should have been suppressed as the fruit of a warrantless arrest and search. Appellant also complains of the testimony of a witness, the prosecutor's closing argument, and the sufficiency of the evidence. We affirm.

The facts are as follows. On June 6, 1991, Carol Ragland was accosted by two black men. One man slugged her in the face, the other pointed a gun at her. They attempted to steal her Rolex watch, but fled when some people responded to Ms. Ragland's screams. According to a witness, the men escaped in a blue Buick Regal, license plate number "CYL-06N". Ms. Ragland gave a description of the men.

The following day Nancy Harrison was returning home. As she began to step out of her car, two men with stockings over their faces ran up to her. One pointed a pistol at her. They stole her Rolex watch, jewelry, purse, and car.

Meanwhile, Sergeant T.G. Turner was investigating the offense against Ms. Ragland. He traced the license plate to a car owned by a rental agency. He discovered that the car had been rented by appellant, Hilton Murdoch Aitch, and that it was to be returned by 5:00 p.m. that afternoon. Sergeant Turner set up surveillance.

Sergeant Turner saw two people drive up and return the car at about 6:00 p.m. Appellant was in a Mercedes which followed the Buick into the agency. After the two people returned the car, they got into the Mercedes with appellant. They then drove away.

Turner radioed for a patrol officer to stop the Mercedes on suspicion of robbery. Officer Richard Babin responded and pulled over appellant's car. He asked appellant for his driver's license and proof of insurance. Appellant grabbed a black purse that was sitting on the console and removed his identification. Officer Babin asked appellant to open the purse wider so that he could see the contents. He noticed a set of keys, a pair of diamond earrings, and a ring. There was no weapon.

Officer Babin radioed Sergeant Turner and told him the names of the suspects. Sergeant Turner told Babin to arrest all three on suspicion of robbery. Babin placed the suspects under arrest and put them in the back of his patrol car. He put the purse in the trunk of the Mercedes, locked the vehicle, and left it parked in a nearby parking lot.

At the police station, Sergeant Turner discussed both robberies with another investigator, Sergeant Armbruster. When Babin arrived, they asked him if he had seen any jewelry in appellant's possession. Officer Babin told them about the purse containing the jewelry which he had placed into the trunk of the Mercedes. An officer was sent to retrieve the items. Nancy Harrison positively identified the keys and earrings as belonging to her.

In his first four points of error appellant argues that the trial court erred in overruling his motion to suppress because the evidence was seized as the result of an illegal detention, a warrantless arrest under the Fourth Amendment, an illegal arrest under Chapter 14 of the Texas Code of Criminal Procedure, and because appellant's arrest was a "pretext arrest."

In order to justify an investigative detention, an officer must have specific articulable facts which, in light of his experience and personal knowledge, together with other inferences from those facts, would warrant the intrusion on the person stopped for further investigation. Terry v. Ohio, 392 U.S. 1, 20, 30, 88 S.Ct. 1868, 1880, 1884, 20 L.Ed.2d 889 (1968); Glass v. State, 681 S.W.2d 599, 601 (Tex.Crim.App.1984). These facts must create a reasonable suspicion in the officer's mind that some activity out of the ordinary is occurring or had occurred, some suggestion to connect the detained person with the unusual activity, and some indication that the activity is related to a crime. Johnson v. State, 658 S.W.2d 623, 626 (Tex.Crim.App.1983).

Sergeant Turner knew that a crime had occurred against Ms. Ragland. He knew that the car which had been used to flee the scene of the attack was rented in appellant's name. He saw two people return the rental car to the agency, then get into a Mercedes driven by a third person and leave. At that time Sergeant Turner had reasonable articulable facts upon which to base a belief that the occupants of the car were involved in the offense against Ms. Ragland. Sergeant Turner radioed Officer Babin to stop the Mercedes and determine the identities of the three people. The driver of the vehicle was appellant. The officer properly stopped appellant and his companions in order to identify them and obtain more information. Mays v. State, 726 S.W.2d 937, 944 (Tex.Crim.App.1986); cert. denied, 484 U.S. 1079, 108 S.Ct. 1059, 98 L.Ed.2d 1020 (1988). The detention was reasonable and legal.

Appellant's arrest was a valid warrantless arrest under Article 14.03(a)(1) of the Texas Code of Criminal Procedure. That article permits an officer to arrest, without a warrant, persons found in suspicious places and under circumstances which reasonably show that such persons have been guilty of a felony. The Texas Court of Criminal Appeals has held that a place may become suspicious due to facts and circumstances known to the officer and any reasonable inferences which can be drawn from those facts. Johnson v. State, 722 S.W.2d 417, 421 (Tex.Crim.App.1986).

Sergeant Turner already knew the rental car had been used in the commission of a felony against Ms. Ragland. He knew the Buick was rented in appellant's name. He observed two people return it and then get into a Mercedes driven by appellant. The facts already known to Sergeant Turner, coupled with this new information, allowed for a reasonable inference that appellant and/or the passengers in his car committed the offense against Ms. Ragland. These facts permitted Sergeant Turner to determine that the Mercedes was a suspicious place. See, Hamel v. State, 582 S.W.2d 424, 427 (Tex.Crim.App. [Panel Op.] 1979) (information obtained pursuant to a legal detention of an automobile empowered officers to make a warrantless arrest, because the vehicle itself became a suspicious place). We hold that the detention and arrest of appellant was legal. We further note that the "pretext arrest" doctrine defense asserted by appellant in his fourth point is no longer recognized in Texas. Garcia v. State, 827 S.W.2d 937, 944 (Tex.Crim.App.1992). We overrule appellant's first four points of error.

In his fifth, sixth, and seventh points of error, appellant alleges the trial court erred in overruling his motion to suppress because the evidence was seized by a warrantless search in violation of the Fourth Amendment of the United States Constitution, and Article I, Section 9 of the Texas Constitution, it was seized as a result of an illegal inventory search of his car, and because the trial court relied upon a nonexistent "inevitable discovery" exception to the Texas exclusionary rule. Appellant's arguments present both state and federal constitutional issues which must be analyzed separately.

In Heitman v. State, 815 S.W.2d 681 (Tex.Crim.App.1991), the Court of Criminal Appeals, concluding that the Texas Constitution was not intended "to mirror that of the federal government," reserved the power to interpret Article I, Section 9 on independent state constitutional grounds. Id. at 690. This allegedly results, of course, in a different analysis than that applied by the United States Supreme Court to the Fourth Amendment. Aycock v. State, 863 S.W.2d 183, 185 (Tex.App.--Houston [14th Dist.] 1993, pet. ref'd). Since its pronouncement in Heitman, however, the Court of Criminal Appeals has departed from traditional Fourth Amendment analysis only in one instance. In that case, the Court concluded that use of a pen register may well constitute a search under Article I, Section 9. Richardson v. State, 865 S.W.2d 944, 953 (Tex.Crim.App.1993). The Court's decision differed from that reached by the United States Supreme Court in Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979) (installation of pen register is not a search). Barring Richardson, however, this Court cannot find any other instance in which the Court of Criminal Appeals has interpreted Article I, Section 9 in a manner any different from analysis applied to the Fourth Amendment of the United States Constitution. See also, Aycock, 863 S.W.2d at 185. Nor can we find an instance where one of the courts of appeal has likewise departed from traditional Fourth Amendment principles. In fact, our sister courts are in agreement that current interpretation of Article I, Section 9, in Texas is consistent with interpretation of the Fourth Amendment. Hernandez v. State, 867 S.W.2d 900, 908 (Tex.App.--Texarkana 1993, no pet.); Johnson v. State, 834 S.W.2d 121, 124 (Tex.App.--Houston [1st Dist.] 1992, pet. ref'd); Cook v. State, 832 S.W.2d 62, 65 (Tex.App.--Dallas 1992, no pet.). We find Johnson v. State, 864 S.W.2d 708 (Tex.App.--Dallas 1993, pet. granted), particularly instructive. The Dallas court engaged in a lengthy analysis of the historical application of Article I, Section 9. That court noted it could find no case in which the Court of Criminal Appeals held a search and seizure to be valid under the Fourth Amendment, but invalid under Article I, Section 9. Id. at 718. Relying on...