Denham v. State

• Decision Date: 08 May 1968
• Docket Number: No. 41228,41228
• Citation: 428 S.W.2d 814
• Parties: Rex Reginald DENHAM, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 814

428 S.W.2d 814

Rex Reginald DENHAM, Appellant, v. The STATE of Texas, Appellee.

No. 41228.

Court of Criminal Appeals of Texas.

May 8, 1968.

Rehearing Denied June 19, 1968.

Grady Hight, Fort Worth, for appellant.

Frank Coffey, Dist. Atty., Truman Power and William A. Knapp, Asst. Dist. Attys., Fort Worth, and Leon B. Douglas, State's Atty., Austin, for the State.

OPINION

ONION, Judge.

The offense is Burglary with intent to commit theft; the punishment, assessed by the jury, ten (10) years confinement in the Texas Department of Corrections.

Though tried separately, this is a companion case to Corbin v. State, Tex.Cr.App., 426 S.W.2d 238 (March 27, 1968).

The record reflects without dispute that a building occupied by the Big State Mercantile Company in the City of Fort Worth was broken into, a safe opened and certain checks and cash (including $28.24 in coins) in the amount of $808.84 taken.

At approximately 2 a.m. on October 17, 1966, City Police Officer Pappas had his suspicions aroused when he observed the appellant near a coin-operated newsstand rack. As he approached the appellant got into a nearby automobile driven by Jimmy Ray Corbin and they immediately drove off. Pappas followed and having determined that Corbin was speeding and having called for assistance, stopped the vehicle in which appellant was a passenger. As he approached the automobile, Pappas observed in open view a number of tools including a sledgehammer, crowbar, chisel, pliers, screwdrivers, a punch and a flashlight on the back floorboard of the car. He further noticed that Corbin was hot and sweaty and had a chalky substance on his clothes. Upon discovering that Corbin had no driver's license, Pappas had him get out of the vehicle, and when he did the officer noticed a bulge in his front pockets. Searching him for what he assumed was a weapon, Pappas found several rolls of coins and a large amount of change. About this time assistance in the form of Officer W. K. Moore arrived. Shortly thereafter Corbin jumped from the patrol car where he had been seated saying, 'To hell with this' and started running. Officer Pappas pursued, firing several shots, and apprehended him after a chase. After being returned to the scene appellant, who had remained seated in the car and detained by Officer Moore during the above-described events, and Corbin were taken to the city jail. The jailer noticed that appellant appeared to be sweating profusely, and one of the officers observed that the appellant had a small cut on his left hand and blood on his ring. A search at the jail of appellant's person revealed $781 in bills, four checks made payable to the Big State Mercantile Company (later identified as having been in the company's safe). A search of Corbin at the jail revealed a small piece of metal which subsequently proved to have been a piece of a lock which was broken in the burglary of the Big State Mercantile Company.

The State also introduced into evidence the Suspicious Persons Ordinance of the City of Fort Worth enacted originally pursuant to the provisions of Article 214, Vernon's Ann.C.C.P., 1925, which became Article 14.03 without change in 1965.

In his first ground of error, appellant contends that the trial court erred in failing to grant his motion to suppress and in subsequently admitting into evidence before the jury, over his objection, the fruits of the search of appellant and his companion Corbin.

We deem the circumstances described above, including appellant's actions at or near the coin-operated newsstand and his immediate departure upon the approach of the officer, were such as to authorize appellant's arrest under the Suspicious Persons Ordinance without a warrant. See Roach v. State, Tex.Cr.App., 398 S.W.2d 560; Chambler v. State, Tex.Cr.App., 416 S.W.2d 826.

Under the record appellant's arrest without a warrant being lawful, the incidental search of appellant's person was clearly authorized. Chambler v. State, supra.

The arrest of the appellant being valid distinguishes this case from United States v. DiRe, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210, relied upon by the appellant.

We need not, however, rely solely upon the Suspicious Persons Ordinance. There can be no question but what the original arrest for speeding was authorized under Article 6701d, Sec. 153, Vernon's Ann.Civ.St., and as we said recently in Taylor v. State, Tex.Cr.App., 421 S.W.2d 403:

'Once a bona fide stop or arrest has been made for a traffic offense, the police can make an additional arrest for any other offense unexpectedly discovered during the course of the investigation. If, while questioning a motorist regarding the operation of his vehicle, an officer sees evidence of a criminal violation in open view, or in some other manner acquires probable cause on a more serious charge he may arrest for that offense and Incident thereto conduct an additional search for physical evidence. See Goodwin v. United States, 121 U.S.App.D.C. 9, 347 F.2d 793; Busby v. United States, 9 Cir., 296 F.2d 328; Riggins v. United States, D.C., 255 F.Supp. 777; United States v. Barnett, D.C., 258 F.Supp. 455; United States v. Clark, D.C., 247 F.Supp. 958. Under these circumstances, neither the arrest nor the search is tied to the traffic charge, but rather to the violation later discovered. Brown v. United States, 125 U.S.App.D.C. 43, 365 F.2d 976; United States v. One (1963) Cadillac Hardtop, D.C., 224 F.Supp. 210. This is true even if no specific statement of fact of the second arrest is made. Brown v. United States, supra.'

Appellant's ground of error #1 is overruled.

The record reflects that at the penalty stage of the proceedings, the court admitted into evidence, over the objection that proper notice had not been given that such evidence would be used, the duly authenticated records of the Texas Department of Corrections showing that appellant had one prior felony conviction in Tarrant County. Appellant contends that such action of the trial court was in violation of Article 3731a, V.A.C.S. and such alleged error is the basis of his next ground of error.

Section 3 of Article 3731a, supra, provides:

'Such writing shall be...