Archer v. State

• Decision Date: 12 November 1980
• Docket Number: No. 59442,No. 1,59442,1
• Parties: Robert Michael ARCHER, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 539

607 S.W.2d 539

Robert Michael ARCHER, Appellant, v. The STATE of Texas, Appellee.

No. 59442.

Court of Criminal Appeals of Texas, Panel No. 1.

Nov. 12, 1980.

Lawrence T. Newman, Houston, for appellant.

Carol S. Vance, Dist. Atty. Calvin A. Hartmann and Bob Moens, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before ONION, P. J., and DOUGLAS and TOM G. DAVIS, JJ.

OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for unlawful possession of a firearm by a felon. V.T.C.A. Penal Code, Sec. 46.05. Punishment, enhanced by two prior felony convictions, was assessed at life.

In his eighth ground of error, appellant challenges the sufficiency of the evidence to support his conviction.

Officer R. C. Brady, of the Houston Police Department, testified that on December 7, 1976, he obtained a search warrant from the Honorable Herbert J. Coleman, a "Substitute Judge" for the Municipal Courts of the City of Houston. The warrant directed the officers to search a residence at 4324 Clover, Apartment D for a controlled substance and authorized the arrest of a "Negro male known as Elmer Archer." Brady stated that after he obtained the warrant he radioed fellow officers on surveillance at the named location and informed them that the warrant had been issued by Judge Coleman.

Officer R. L. Ferguson, of the Houston Police Department, testified that he was on surveillance at the location named in the warrant. After receiving information that the warrant had been issued, Ferguson observed appellant leave the named location and get into a car. Ferguson followed appellant for approximately two blocks and then stopped the car he was driving. Appellant was taken into custody and a .22 caliber revolver was found to be stuck inside the waistband of the trousers he was wearing.

Ferguson and fellow officer B. J. Banks then returned appellant to the location named in the warrant. The apartment was searched, but no contraband was found.

Deputy Leslie Borgstedt, of the Harris County Sheriff's Office, testified that he compared a known fingerprint sample taken from appellant with the prints contained in State's Exhibit No. 5. The exhibit is a pen packet containing records from a conviction for assault to murder dated January 19, 1961, in Cause No. 94010 in the Criminal District Court of Harris County styled The State of Texas v. Robert M. Archer. Borgstedt stated that in his opinion, the prints in the exhibit were identical to the known fingerprint sample taken from appellant at trial.

Essie Thomas testified on behalf of appellant. She stated that she lived in the apartment named in the warrant. Thomas related that appellant would occasionally stay at her apartment and that the pistol recovered from appellant's trousers belonged to her. She stated that when she left for work on the evening of December 7, 1976, appellant was in her apartment.

We find the evidence sufficient to support the conviction. Appellant's eighth ground of error is without merit.

In his seventh ground of error, appellant challenges the sufficiency of the evidence to prove one of the enhancement paragraphs in the indictment. He maintains that the State failed to prove that the first prior conviction was a final conviction.

The first enhancement paragraph of the indictment alleges that on September 17, 1963, appellant was convicted of theft in Cause No. 104002 in Harris County. During the punishment phase, the State introduced a pen packet which contained a copy of the judgment and sentence from appellant's prior conviction in Cause No. 104002. The judgment and sentence do not indicate that notice of appeal was given. No evidence was offered by appellant during the punishment phase.

This Court recently rejected a similar contention in Johnson v. State, Tex.Cr.App., 583 S.W.2d 399, when it was stated:

"Johnson also contends the evidence was insufficient to prove his prior rape conviction was final before the commission of the instant offense. The prior conviction was proved with certified copies of the judgment and sentence. They reflected that Johnson entered a guilty plea and was convicted and sentenced on January 16, 1974. The record is silent concerning notice of appeal. Appellant offered no evidence.

"The judgment and sentence do not indicate notice of appeal was given. If this were the case, the prior conviction became final during January, 1974. Once the State introduces such prima facie evidence of a final conviction, the defense has the burden of proving that the conviction was not final. Ashley v. State, 527 S.W.2d 302 (Tex.Cr.App.1975). No such proof was presented. Thus, the evidence shows the prior rape was final in January, 1974 and the instant offense was committed on June 21, 1977. The proof was adequate to show the prior conviction was final before the commission of the present offense." Johnson v. State, supra at 403.

We find the evidence sufficient to prove that appellant's prior conviction in Cause No. 104002 resulted in a final conviction on September 17, 1963. The State also introduced evidence which showed that the offense forming the basis of the second conviction alleged for enhancement purposes was committed on June 27, 1969. Appellant's seventh ground of error is overruled.

In his fourth ground of error, appellant contends that the trial court erred in admitting evidence of an extraneous offense. In support of this contention, appellant directs our attention to testimony given by Ferguson concerning appellant's arrest. Over appellant's objection, Ferguson stated that in addition to finding the pistol stuck in appellant's trousers, he found between one hundred and one hundred and fifty pills and capsules in the pocket of appellant's coat.

Where an offense is one continuous transaction, or another offense is part of the case on trial or blended or closely interwoven, proof of all such facts is proper. Welch v. State, 543 S.W.2d 378, Tex.Cr.App.; Johnson v. State, 510 S.W.2d 944, Tex.Cr.App. Such an extraneous offense is admissible to show the context in which the criminal act occurred; this has been termed the "res gestae," under the reasoning that events do not occur in a vacuum and that the jury has a right to hear what occurred immediately prior to and subsequent to the commission of that act so that they may realistically evaluate the evidence. Albrecht v. State, 486 S.W.2d 97, Tex.Cr.App.

In Milligan v. State, 554 S.W.2d 192, Tex.Cr.App., the defendant maintained that the trial court erred in admitting evidence concerning a knife he was carrying at the time he was arrested for unlawful possession of a firearm by a felon. The Court found that such evidence was properly admitted as res gestae of the arrest and the offense. Milligan v. State, supra at 195. Cf. Heflin v. State, 574 S.W.2d 554, Tex.Cr.App.

We find that evidence concerning the pills and capsules found on appellant's person at the time of his arrest was properly admitted as res gestae of the arrest and the offense. No error is shown in the trial court overruling appellant's objection to Ferguson's testimony.

In his fifth ground of error, appellant maintains that the trial court erred in overruling his objection to the court's charge. He contends that the trial court should have limited the jury's consideration of the extraneous offense involving the contraband found in appellant's pocket at the time of his arrest.

We have held that it is not necessary to give a limiting instruction on an extraneous offense which constitutes res gestae of the offense for which an accused is on trial. Luck v. State, 588 S.W.2d 371, Tex.Cr.App.; King v. State, 553 S.W.2d 105, Tex.Cr.App. Having previously concluded that evidence concerning the pills and capsules was properly admitted as res gestae of the arrest and the offense, we find that the trial court did not err in overruling appellant's objection requesting a limiting instruction as to the extraneous offense. Appellant's fifth ground of error is overruled.

In his second ground of error, appellant maintains that the warrant secured by Brady was invalid because it did not contain appellant's true name. The warrant authorized the arrest of a "Negro male known as Elmer Archer."

The record reflects that appellant's name is Robert Michael Archer. The individual named in the warrant, Elmer Archer, was shown to be appellant's brother. Brady testified that an informant had identified appellant as Elmer Archer.

In Villegas v. State, 509 S.W.2d 314, Tex.Cr.App., it was found that a search warrant which described the occupant of an apartment as "one Latin American male known only as Pete," was a sufficient description to guide the officer in identifying the occupant. In that case, the following was noted:

"At the hearing on the motion Houston police officer J. J. Davis testified that on June 30, 1972, he obtained a search warrant for apartment G7 at 8282 Park Place Boulevard in Houston, and when he arrived no one was at home. Later, he explained that both appellants approached the premises, that he stopped them and asked Pedro Villegas if his name was 'Pete' and that Pedro replied 'Yes.' After showing the appellant the warrant, Davis related Pedro Villegas used a key and admitted the officers into the apartment. Testifying, Pedro Villegas admitted that he was sometimes called as 'Pete,' but he was not only known by this name. His brother corroborated such testimony. Both appellants testified they lived on the premises in question, but were not Latin Americans as that term is used to describe those from Central and South America, and they had never heard the term used to describe a Mexican or a Chicano.

"Under the circumstances, we find no error in the court's action in overruling the motion to suppress." Villegas v. State, supra at 315 and 316. Also see Turner v. State, 543 S.W.2d 629 (Tex.Cr.App.).

At the time the warrant issued and appellant was detained, he had been...