Armstrong v. State

• Decision Date: 14 July 1976
• Docket Number: No. 51763,51763
• Citation: 550 S.W.2d 25
• Parties: Lennie Keith ARMSTRONG, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 25

550 S.W.2d 25

Lennie Keith ARMSTRONG, Appellant, v. The STATE of Texas, Appellee.

No. 51763.

Court of Criminal Appeals of Texas.

July 14, 1976.

State's Motion for Rehearing May 3, 1977.

Robert C. Roe, Jr., Fort Worth, for appellant.

Tim Curry, Dist. Atty., and Marvin Collins, Jerry C. Buckner and Paul E. Gartner, Asst. Dist. Attys., Fort Worth, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

BROWN, Commissioner.

This is an appeal from a conviction for the offense of burglary of a habitation under V.T.C.A. Penal Code, Sec. 30.02. The trial was before a jury which found appellant guilty; punishment was assessed by the court at fifteen (15) years in the Texas Department of Corrections, the punishment being enhanced under the provisions of V.T.C.A. Penal Code, Sec. 12.42(c). Appellant was represented by appointed counsel at trial and by different appointed counsel on appeal.

The record shows that at 2:20 p. m., January 5, 1975, Officer L. T. Murphy of the Fort Worth Police Department stopped a "black over blue" 1966 Plymouth on the east side of Fort Worth. The officer stated that he stopped the car because he "had received information about ten days before of such a vehicle being wanted for the investigation of a burglary."

Appellant was driving the car and with him were Willie Arthur Sneed and Alice Miller. The officer arrested Sneed on outstanding warrants and then requested permission to search the vehicle. Appellant consented, and opened the trunk of the car. In the trunk were a portable color television, an electronic calculator, two tape players and a trumpet and case, and a small blue suitcase containing transistor equipment. Appellant and Mrs. Miller were arrested for investigation of burglary and transported to the Fort Worth city jail along with the Plymouth and the contents of the trunk.

At 7:00 p. m. on January 5, 1975, Prince Charles Ray returned to his home at 3901 Hardeman on the east side of Fort Worth and discovered that the kitchen door of the home had been broken open. Broken glass from the window pane in the door was scattered on the kitchen floor. Ray searched the home and determined that a portable color television, an electronic calculator, two tape players, and a trumpet and case were missing.

Appellant's Motion to Suppress was overruled and the items were introduced into evidence over appellant's objections. Ray identified the items in court as the same items stolen from his home on January 5. Officer Murphy identified the items as the same items found in the trunk of appellant's car.

We have reviewed the three grounds of error asserted by appellant's appointed counsel as well as the numerous grounds of error raised in the series of pro se briefs filed in this Court between November 5, 1975 and May 14, 1976 and find them to be without merit. In light of our disposition of this appeal, no further discussion of those grounds of error is necessary.

Although not raised as a ground of error in appellant's brief, we have determined that the admission into evidence of the items seized from the trunk of appellant's car was error. Appellant timely filed a Motion to Suppress the evidence seized during the search of the car on the grounds that the search and seizure were illegal. After a hearing, the trial court overruled appellant's Motion to Suppress. The items were introduced into evidence at the trial over appellant's timely objections that they were the results of an illegal search and seizure. Though not assigned as error either in appellant's motion for new trial or in appellant's brief, we have reviewed the record in the interest of justice pursuant to Art. 40.09, Section 13, V.A.C.C.P.

The record at the hearing on appellant's Motion to Suppress contains the following testimony of Officer L. T. Murphy concerning his apprehension of appellant, Sneed and Mrs. Miller:

"Q When you saw the Defendant, Lennie Keith Armstrong, what was he doing?

"A He was driving a vehicle northbound on Dillard Street.

"Q Do you recall the description of the vehicle?

"A It was a black over blue.

"Q All right. What kind of

"A '66 Plymouth.

"Q What did you do when you saw Mr. Armstrong driving this vehicle?

"A I proceeded to stop him with my emergency lights.

"Q Okay. And what did he do when you turned on the lights?

"A He had pulled over to the curb and exited from the vehicle.

"Q Would you tell the Judge why you stopped him?

"A I had received information from the Records Bureau and other officers that a certain vehicle and suspects were wanted on several burglaries. I went to the Records Office at this time and looked up the record of the suspect and did see a 'wanted' on this suspect.

"The suspect I am talking about is Willie Arthur Sneed.

"Q Okay.

"A And there was notes on the record that he was possibly driving a '66 Plymouth.

"Q That Sneed was?

"A Yes, a light blue car.

"Q Did you have any information Was your information on just Sneed, or did you have information on about anybody else or whether he was wanted all by himself or what?

"A No, sir. The only information that I had was with Willie Arthur Sneed.

"Q What was the description of the vehicle that you got?

"A It was a light blue, '66 Plymouth. I received the last three digits of the license number, but I didn't have the first two digits first three letters of the license plate.

"Q Were you able to ascertain who this vehicle belonged to?

"A Yes, sir, it belonged to Lennie Keith Armstrong.

"Q Okay. So, what was your purpose in stopping the car? Did you place him under arrest when you stopped him or what happened?

"A I asked him for their identification.

"Q Did they produce identification?

"A Yes, sir. When they identified theirselves, I advised them they were under arrest for investigation of burglary."

Officer Murphy also testified that appellant consented to the search of his car which revealed the stolen items.

On cross-examination Murphy stated that his first knowledge about a '66 Plymouth being involved in a burglary came from another officer about a week prior to appellant's arrest. He said that he and the other officer looked in the records and found that Willie Arthur Sneed was wanted on an outstanding warrant and that he was possibly driving a light blue '66 Plymouth. The car was first seen by Murphy the day before the arrest of appellant. He said he saw it parked in the 2700 block of Dillard Street and that on the next day he saw the car again but it "appeared that it had been painted over with spray cans like you buy in the store," giving it the "black over blue" appearance he described during his testimony at the trial. Murphy further stated that he did not know that the car belonged to appellant until after the arrest when he checked the registration number of the car.

The legality of the search hinges on whether or not the facts and circumstances recited by Officer Murphy were sufficient to justify his initial stop of appellant's car.

In Colston v. State, 511 S.W.2d 10 (Tex.Cr.App.1974) the arresting officers relied on a federal narcotics agent's detailed teletype message that a car fitting the description of Colston would be in the Waco area. The message named Colston and his companion, gave the color, make and license number of the car and indicated that the persons were armed and believed to be carrying narcotics. The Waco officers ran a license check and determined that the vehicle was registered to Colston at a Waco address. An officer spotted the vehicle parked at a lounge, radioed for back-up officers and then arrested Colston as he was about to enter the car.

We held the search of Colston's vehicle invalid, stating:

"The officers involved did not rely upon any unusual conduct on the part of the appellant observed by them to conclude that criminal activity may be afoot and that the appellant may be armed and dangerous for their 'probable cause' to investigate, but relied solely upon the teletype. They had a right to rely thereon and assume the officer causing the same to be issued had 'probable cause' for an investigative stop, but where the record fails to reflect that the issuing officer had such 'probable cause,' the investigative stop is not insulated from challenge. Whiteley v. Warden, Wyoming State Penitentiary (401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971)).

"The State might very well have proven probable cause, but it did not prove probable cause either for the warrantless arrest or investigative stop so as to justify the initial intrusion involved."

The information relied on by Officer Murphy is not so detailed as that provided by the federal narcotics agent's teletype message in Colston, supra. Furthermore, there were no suspicious circumstances involved in appellant's driving down the street in the middle of the day. There was no traffic violation to justify the stop as in Hampton v. State, 511 S.W.2d 1 (Tex.Cr.App.1974). There were no "specific, articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion" that the vehicle contained evidence of a crime. United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). The mere presence of a "black over blue '66 Plymouth" seven days after Officer Murphy received his information fails to justify a stop of appellant's car just as the "apparent Mexican ancestry" of a car's occupants failed to justify the auto search in Brignoni-Ponce, supra. Under the circumstances the trial court reversibly erred in overruling appellant's Motion to Suppress.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.

OPINION ON STATE'S MOTION FOR REHEARING

ONION, Presiding Judge.

In our opinion on original submission we reversed appellant's conviction for the offense of burglary of a habitation based on the illegality of the search involved.

On rehearing the State urges we reconsider our position. It argues that...