Brown v. State

• Court: Texas Court of Criminal Appeals
• Writing for the Court: ONION
• Citation: Brown v. State, 443 S.W.2d 261 (Tex. Crim. App. 1969)
• Decision Date: 16 July 1969
• Docket Number: No. 42229,42229
• Parties: Ivison BROWN, Appellant, v. The STATE of Texas, Appellee.

Page 261

443 S.W.2d 261

Ivison BROWN, Appellant, v. The STATE of Texas, Appellee.

No. 42229.

Court of Criminal Appeals of Texas.

July 16, 1969.

Gerald K. Fugit, Odessa, for appellant.

Calvin W. Wesch, Dist. Atty., Kermit, Ken G. Spencer, County Atty., Crane, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ONION, Judge.

The offense is felony theft; the punishment, enhanced under the provisions of Article 63, Vernon's Ann.P.C., life.

The State's evidence reflects that late in the afternoon of January 25, 1967, before 5 p.m. the appellant, another but younger Negro man and a young Negro woman entered the Cone Jewelry store in the City of Crane. Mrs. J. W. Agnew, a saleslady who was alone in the store at the time, was asked to show the younger man some watches while the appellant and his woman companion stood at the end of the counter near the accessible front window display. Shortly thereafter Mr. Cone, owner of the store, returned from the post office and proceeded to wait on a customer who had just entered the store. After a few minutes appellant and his companions left the store. Directly after their departure Cone observed that the revolving display case in the front window had stopped and that two diamond rings were missing therefrom. The police and the sheriff's office were called. After Sheriff Weatherby had obtained a description of the threesome he learned from an employee of a service station across the street from the jewelry store that the three Negroes had driven off in a 1959 blue and white Oldsmobile in the direction of Odessa. Sheriff Weatherby then made a radio call to the Ector County sheriff's department requesting that the trio be stopped, giving their description and a description of the automobile.

At approximately 5:30 p.m. Ector County Deputy Sheriffs Wisener and Garrett stopped appellant and his companions 7 or 8 miles south of the City of Odessa while driving the described automobile and radioed Sheriff Weatherby. Not long thereafter Sheriff Weatherby arrived in company with Cone and Mrs. Agnew who immediately identified the trio as the ones who had been in the store some 40 minutes or so earlier. At this time appellant was observed to hand an open pack of cigarettes to his woman companion who refused it. When appellant attempted a second time to give the pack of cigarettes to the woman and was again rebuffed Sheriff Weatherby took the pack from him, shook it and out fell two diamond rings which were immediately identified by Cone as the rings taken from his store.

Thereafter, with appellant's consent, the automobile was searched. The appellant and his companions were then taken before a magistrate in Odessa (See Articles 14.06 and 15.17, V.A.C.C.P.) and then were taken to Crane County jail.

The next day, after it was discovered that a watch was also missing from the jewelry store, appellant's automobile was searched with his written consent. The missing watch was discovered in the car door.

The value of each ring as well as the watch was shown to have been in excess of $50.00.

The appellant did not testify or call any witnesses in his behalf.

In his first two grounds of error appellant contends the court erred in admitting 'certain evidence' against him which was obtained as a result of an illegal search and seizure and in violation of the Fourth, Fifth and Fourteenth Amendments, United States Constitution.

Under the circumstances described the officers were clearly authorized to arrest appellant and his companions without a warrant under the terms of Article 14.04, V.A.C.C.P., ¹ based upon probable cause alone. The search incident to that arrest was clearly authorized and the fruits thereof (the diamond rings) were admissible in evidence. Trammell v. State, Tex.Cr.App., 445 S.W.2d 190; Miller v. State, Tex.Cr.App., 442 S.W.2d 340; Houston v. State, Tex.Cr.App., 428 S.W.2d 353; Price v. State, Tex.Cr.App., 410 S.W.2d 778. Further, as we view it, Article 18.22, V.A.C.C.P. (permitting arrest to prevent the consequences of theft) also authorized the officers to arrest the appellant.

Under the terms of Article 14.04, supra, Sheriff Weatherby had probable cause to arrest the appellant. Based upon the radio message the Ector County Officers had probable cause to arrest appellant and his companions. The test as to probable cause is the information known to the officer who requests another officer to effect an arrest. See Miller v. State, supra; McDuff v. State, Tex.Cr.App., 431 S.W.2d 547; Weeks v. State, Tex.Cr.App., 417 S.W.2d 716; cert. den. 389 U.S. 996, 88 S.Ct. 500, 19 L.Ed.2d 494; Jones v. State, 171 Tex.Cr.R. 608, 352 S.W.2d 270; Beeland v. State, 149 Tex.Cr.R. 272, 193 S.W.2d 687; Marsh v. United States, 5 Cir., 344 F.2d 317; Cf. Smith v. United States, 123 U.S.App.D.C. 202, 358 F.2d 833.

We reject appellant's claim that the search was illegal since the magic words of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, were not uttered by the officers prior thereto. No confession nor statement by appellant was taken or offered in evidence. Soon after the arrest and search the appellant was taken before a magistrate in the county of his arrest. See Articles 14.06 and 15.17, supra.

We cannot agree with appellant's contention that the search was not incident to a lawful arrest but was conducted prior to the actual arrest. Nevertheless, we call attention to the fact that the test of the validity of the search...