Coe v. State

• Decision Date: 21 November 1984
• Docket Number: No. 64125,64125
• Citation: 683 S.W.2d 431
• Parties: Peter Hunt COE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 431

683 S.W.2d 431

Peter Hunt COE, Appellant, v. The STATE of Texas, Appellee.

No. 64125.

Court of Criminal Appeals of Texas En Banc.

Nov. 21, 1984.

Rehearing Denied Feb. 6, 1985.

Robert Tarrant, Donald Ervin, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., Calvin A. Hartmann and Gene Nettles, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

McCORMICK, Judge.

Appellant was convicted of aggravated robbery. Punishment, enhanced by a prior conviction, was assessed at sixty-three years.

In his first ground of error appellant contends that the trial court erred in overruling his motion to suppress evidence in that his arrest was predicated upon mere suspicion, rather than probable cause.

Officer W.E. Spies of the Village Police Department testified that he was on patrol around noon on February 12, 1979, when he received a radio broadcast from his dispatcher concerning the commission of a burglary at 11918 Doncaster. The homeowner had returned home shortly before noon to find his home being burglarized. The door knob to the home had been pried off and marks left at the scene indicated the use of channel-lock pliers. The burglar had been scared off and the homeowner reported seeing a well-dressed white male of average height and build, in his mid-twenties to early thirties, drive away from the scene in a two tone blue Ford Thunderbird, with fancy wheel covers and with red paper buyer's tags in the left rear window. Around 2:15 that afternoon, Officer Spies saw a car matching that description parked in the driveway of 260 Hedwig Road, some two and a half miles from the scene of the earlier burglary.

As Officer Spies watched he saw an individual matching the description set out above and later identified as the appellant get out of the Thunderbird, walk to the front door of the house and knock. The individual then walked to the south corner of the house and looked back. Upon seeing Officer Spies watching him, appellant returned to the front door and resumed his knocking. Realizing that the individual and the car matched the description he had earlier received, Officer Spies pulled his patrol car up into the driveway behind the Thunderbird. As Spies got out of his car appellant walked over to him. Spies asked appellant if he lived there. Appellant replied that he did not and he pulled out a business card, gave his name and said he was trying to see about doing some landscaping work at the house. Officer Spies thought this was strange in that the yard was already in the process of being landscaped. Officer Spies looked into the Thunderbird and lying in plain view was a pair of channel-lock pliers, a bank bag and a type of club. Spies called his dispatcher and checked appellant's name. This check revealed that appellant had a lengthy criminal record and was currently on parole. At that point, Spies placed appellant under arrest for suspicion of burglary and for carrying a club.

The arresting officer, a veteran of twenty-eight years on the police force, at the time of his sighting of appellant had specific and articulable facts when taken with rational inferences from those facts which clearly warranted him in stopping and inquiring of appellant. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Marrs v. State, 647 S.W.2d 286 (Tex.Cr.App.1983). The officer's conversation with appellant, combined with the facts and information already known to the officer, his observation of the channel-lock pliers lying in plain view in appellant's car, and the information regarding appellant's criminal history warranted the officer in believing that appellant had committed the earlier burglary. Hawkins v. State, 660 S.W.2d 65, 70 (Tex.Cr.App.1983); Marrs v. State, supra. Furthermore, the observation of the club, described by the officer as a tire tool from which the round end had been removed and which was wrapped with tape, warranted the officer in arresting appellant for the offense of carrying a club. V.T.C.A., Penal Code, Section 46.02; V.T.C.A., Penal Code, Section 46.01. We find probable cause existed for arresting appellant. This ground of error is overruled.

Next, appellant contends that because his arrest was illegal the trial court erred in admitting into evidence the channel-lock pliers and the bank bag which were seized without a search warrant. As noted above, appellant's arrest was not illegal. Furthermore, both the channel-lock pliers and bank bag were in plain view and thus subject to seizure under the rule espoused in Coolidge v. New Hampshire, 403 U.S. 443, 465, 91 S.Ct. 2022, 2037, 29 L.Ed.2d 564 (1971). Finally, as to the channel-lock pliers, they were never admitted into evidence during the trial of this cause. Appellant's second ground of error is overruled.

In his third and fourth grounds of error appellant argues that the court erred in overruling his motion to suppress the identification of appellant. The record shows that after the arresting officer seized the items lying in plain view in appellant's car, one of which was the bank bag, he opened the bank bag and found a pair of sunglasses, a black wig and a .357 Magnum. These items tied appellant to the instant offense, the robbery at a theater. Two theater employees, Jeff Norman and John Hinojosa, were summoned to the police department to view a lineup. Before the lineup began, Norman and Hinojosa were shown the black wig, the sunglasses, the gun, a couple of bank bags, some makeup and two cotton gauze pads. The officers asked the two employees if they could identify the items and both employees identified the sunglasses, the wig and the gun as being used in the robbery.

Evidence from both the pretrial hearing and the trial showed that both Norman and Hinojosa thought they recognized appellant when they first saw him in the lineup. However, at the request of Norman, all the people in the lineup put on the wig and the sunglasses. Both Norman and Hinojosa testified that after seeing appellant in the wig and the sunglasses, they became positive in their identification. Officer M.D. Beale, the Houston police department detective who conducted the lineup testified that bboth Hinojosa's and Norman's identifications were not positive but were "strong tentative."

Appellant argues that the wig and sunglasses were illegally seized from the bag and had they not been used at the lineup, the witnesses would not have been able to identify him. Thus the witnesses' identification of him was "fruit of the poisonous tree" and should not have been admissible.

As we held above, the seizure of the bag which contained the items was proper. Thus the issue to be resolved is whether the officer should have opened the bag and seized the items contained therein. Recently, in Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502, 514 (1983), the Supreme Court wrote:

"As the Court frequently has remarked, probable cause is a flexible, common-sense standard. It merely requires that the facts available to the officer would 'warrant a man of reasonable caution in the belief,' Carroll v. United States, 267 U.S. 132, 162 [45 S.Ct. 280, 288, 69 L.Ed. 543] (1925), that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false. A 'practical, nontechnical' probability that incriminating evidence is involved is all that is required. Brinegar v. United States, 338 U.S. 160, 176 [69 S.Ct. 1302, 1311, 93 L.Ed. 1879] (1949)." Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502, 514 (1983).

In United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982), the Supreme Court held that police officers who have probable cause to believe that contraband is contained somewhere in an automobile "may conduct a search of the vehicle that is as thorough as a magistrate could authorize in a warrant 'particularly describing the place to be searched.' " 102 S.Ct. at 2157. In Ross, the Supreme Court approved the officer's search of a closed brown paper bag and a zippered red leather pouch which they found in the trunk of Ross' car.

Applying these considerations to the instant case, we find that under the circumstances a reasonable man could have believed that the bag might have contained evidence incriminating appellant in the burglary that had occurred earlier in the day. The fact that the items found in the bag incriminated appellant not as to the burglary but as to the instant offense does not in any way negate the lawfulness of the opening of the bag and the seizure of its contents. Esco v. State, 668 S.W.2d 358 (Tex.Cr.App.1984, No. 61,501, May 2, 1984) (opinion on rehearing). Because we have found the seizure of the items in the bag was lawful, we also find that the use of some of those items, that is the sunglasses and the wig, in the lineup did not in any way taint the witnesses' identification of appellant. Both witnesses testified at trial that their identifications of appellant were based upon their observations of appellant on the day of the offense. There is nothing in the record to suggest any type of suggestive procedures that would have unfairly aided the witnesses in identifying appellant as the individual who committed the instant offense. Appellant's third and fourth grounds of error are overruled.

In his fifth ground of error, appellant argues that the trial court erred in not granting a mistrial when defense counsel asked the officer who conducted the lineup if the two witnesses had made a positive identification of appellant and the officer gave the following answer:

"A. No, sir; they were the other complaining witnesses in the other robberies.

MR. TARRANT: I ask for a mistrial.

THE COURT: Overruled."

Pursuant to defense counsel's request, the trial judge then instructed the jury to disregard the officer's statement.

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