Crowley v. State, 09-17-00133-CR

CourtCourt of Appeals of Texas
Writing for the CourtCHARLES KREGER Justice
Docket NumberNO. 09-17-00133-CR,09-17-00133-CR
Decision Date27 February 2019


NO. 09-17-00133-CR

Court of Appeals Ninth District of Texas at Beaumont

Submitted on August 2, 2018
February 27, 2019

On Appeal from the 435th District Court Montgomery County, Texas
Trial Cause No. 15-10-11144-CR


A jury convicted Appellant, James Dwayne Crowley, of aggravated robbery. See Tex. Penal Code Ann. §§ 29.02, 29.03(a)(2) (West 2011). Crowley appeals his conviction. In four issues, Crowley complains the trial court committed reversible error by: (1) denying his motion to suppress a search warrant for cellular telephone data; (2) refusing his requested article 38.23 jury instruction regarding cellular telephone data; (3) denying his motion to suppress evidence collected from a blue

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Dodge vehicle; and (4) refusing his requested article 38.23 jury instruction regarding evidence collected from a blue Dodge vehicle. We affirm the trial court's judgment.

I. Background

After midnight on October 18, 2015, Crowley entered the Flying J Truck Stop in New Caney, Texas. During the approximately five hours that followed, Crowley entered the store multiple times and changed his attire several times. In video surveillance from the truck stop, Crowley's distinctive hand tattoos are visible, as well as his wristwatch, and boots. These remained visible and consistent despite the clothing changes.

During those early morning hours, Crowley, wearing a short-sleeved gray Dallas Cowboys t-shirt, was captured on camera stealing multiple items from the store, including a flashlight and Cobra GPS units. At one point, Crowley is observed speaking to a clerk and pointing to items on an aisle in the electronics section of the store. After interacting with the clerk, he is then observed on video watching the clerk disappear down a hall toward an office into a restricted area, while he remained in the unrestricted part of the store. Later, Crowley entered the restricted area, proceeded down the hall to the back office, grabbed an armload of merchandise, including a Cobra GPS unit, and exited through the rear door of the store.

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He returned to the store after 3:00 a.m., wearing the same gray Dallas Cowboys t-shirt, but he had added a jacket and a blue Dallas Cowboys hat. Crowley stole multiple Cobra GPS units and was recorded checking the safe. At one point in the evening, the surveillance camera also captured him speaking with witness Ronald Hill.

Following the merchandise thefts, Crowley re-entered the store shortly before 5:00 a.m. wearing a different jacket and a camouflaged hat with flaps over the ears. A little before 5:00 a.m., the surveillance cameras captured Crowley taking a glove out of a package in the store and putting it on his right hand. He is then observed pointing a gun at Connie Prior and another employee in the office area. Prior can be seen opening the safe, and Crowley is seen removing two large bags of coins. As Crowley was struggling with the bags of coins from the safe, the gun went off and a projectile ricocheted off the floor, hitting Prior in the arm. Unable to sustain the weight of the coins, the handle from the cloth shopping bag Crowley was using broke and it was left on the floor in the store. Crowley dropped one of the bags of coins outside the store but got away with one bag of coins.

Officers responded to the scene and collected surveillance footage from the store. Upon reviewing the footage, an officer recognized Hill, the man Crowley spoke with briefly in the store. The officers located Hill, and after speaking with

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him, concluded James Crowley was a suspect. The lead investigator on the case, Montgomery County Sheriff's Office ("MCSO") Detective Hahs, obtained an arrest warrant for Crowley. The MCSO determined Crowley drove a blue Dodge vehicle owned by his wife and acquired its license plate number. At the scene, they recovered the handle from the shopping bag Crowley used and the projectile fired from the gun.

On October 21, 2015, Hahs and his partner received a call from MCSO Sergeant Swilling regarding a shots-fired incident in another part of the county, advising them that the description of the shooter matched their armed robbery suspect.1 On the way to the shots-fired location, Hahs observed a vehicle matching Crowley's vehicle traveling the opposite direction. Hahs testified he made a U-turn and followed it until it pulled into the parking lot of a local business. The license plate number matched the one on the vehicle owned by Crowley's wife. Hahs testified that because he had an arrest warrant for Crowley and was unsure who was in the vehicle at the time, he and his partner proceeded to perform a felony takedown. The individuals exited the vehicle, but Crowley was not with them. A blue Dallas

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Cowboys hat matching the one Crowley wore the night of the armed robbery was observed in plain view on the deck of the rear window.

Hahs testified the driver of the vehicle, John Colletti, said he borrowed the car from Crowley, and there was no evidence connecting the individuals in the vehicle to the crime. Colletti offered to ride with detectives and take them to the gun used during the robbery. Hahs testified that because Colletti left with them, and none of the other individuals owned the car or had been given permission to drive, they impounded the vehicle. Due to it being impounded, department policy required Hahs to conduct an inventory search of the vehicle, which he briefly did at the location of the felony takedown. During the inventory, Hahs located a GPS box consistent with the ones taken from the truck stop, as well as drug paraphernalia. Hahs confirmed he did not have a warrant to search the vehicle.

Detective Hahs testified that it appeared Colletti had information that might be useful to the investigation. Colletti took them to an RV park to the residence of Terry Goad. As soon as detectives told Goad why they were there, he directed them to a gun in the glove box of his motor home. The officers located a .380 pistol and magazine in the glove box and took the items as evidence. Goad confirmed he purchased the gun from Crowley on October 21, 2015, several days after the robbery.

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Later in the investigation, Hahs obtained a search warrant to retrieve data from Crowley's cell phone. The judge signed the warrant at 3:23 p.m. on October 27, 2015. However, the return is dated August 7, 2009. At trial, Hahs testified he executed the search warrant "immediately" and acknowledged the wrong date on the return was a clerical error.

The primary focus of the State's case was video surveillance footage from the store that captured the crime on film and photographs retrieved from those surveillance videos. The State's ballistics expert testified regarding the tests performed and concluded that the projectile retrieved as evidence from the store was fired from the gun Crowley sold to Goad. Moreover, DNA obtained from the shopping bag handle also linked Crowley to the crime. Evidence obtained from the blue Dodge included the blue Dallas Cowboys hat and a GPS unit from the trunk. Cell phone data from Crowley's phone showed multiple searches seeking information regarding the aggravated robbery at the Flying J and searches for criminal defense attorneys in the days after the robbery.

Following two hearings, the trial court denied Crowley's motion to suppress the evidence seized from the vehicle and the cell phone data. The trial judge also denied Crowley's requested article 38.23 jury instruction. The jury convicted Crowley of aggravated robbery, and Crowley elected to have the trial judge

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determine punishment. Crowley pled true to all six enhancements and the trial judge, having found four of the enhancements true, sentenced Crowley to life in prison.

II. Motion to Suppress: Issues One and Three2

Crowley contends the trial court committed reversible error by denying his motion to suppress the evidence seized from the vehicle and the cell phone data. Prior to trial, he filed a motion to suppress. In the motion to suppress, Crowley specifically argued that the "Sworn Inventory And Return is insufficient, false, and blatantly defective on its face and taints all aspects of the search and notice requirements" under article 18.06. See Tex. Code of Crim. Proc. Ann. art. 18.06 (West Supp. 2018).3 He further contends his 4th, 5th, and 14th Amendment rights were violated because the return was not verified in a timely manner.

Crowley also moved to suppress the GPS unit and GPS box located within the vehicle. He contends the evidence was seized as a result of a warrantless search, was illegal, did not comply with the Texas Code of Criminal Procedure and is a violation of his 4th, 5th, and 14th Amendment rights. Crowley did not address the hat in the

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motion to suppress or at the suppression hearing, but he argues on appeal the Dallas Cowboys hat should have been suppressed as well.

During the suppression hearing, the State first argued the items were identified as the result of a valid inventory search. Additionally, the State argued in the suppression hearing it had probable cause, because the vehicle matched the description of the one driven by Crowley, and the Dallas Cowboys hat identical to the one surveillance cameras captured Crowley wearing was in plain view on the rear window deck of the vehicle. The State contended that the hat in plain view matching the hat from the surveillance video led to probable cause for the stolen items.

In denying the motion to suppress in its entirety, the trial judge stated on the record,

I agree that items might not have been seized or taken out until a later date; however, I did hear testimony to support that he identified those items . . . there at the location of the traffic stop, and that stop was conducted based on arrest warrants (sic) - that Detective Hahs had in his possession that was legally obtained. So I'm going to deny your motion

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