Dunavin v. State

• Decision Date: 28 January 1981
• Docket Number: No. 65731,No. 2,65731,2
• Citation: 611 S.W.2d 91
• Parties: Merritt DUNAVIN, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 91

611 S.W.2d 91

Merritt DUNAVIN, Appellant, v. The STATE of Texas, Appellee.

No. 65731.

Court of Criminal Appeals of Texas, Panel No. 2.

Jan. 28, 1981.

Paul W. Leech, Grand Prairie, for appellant.

Robert Huttash, State's Atty. and Alfred Walker, Asst. State's Atty., Austin, for the State.

Before DALLY, W. C. DAVIS and CLINTON, JJ.

OPINION

CLINTON, Judge.

In this probation revocation case the first ground of error is that a signed order revoking probation is not in the record. However, we have found one purportedly signed by the judge of the trial court and certified by the clerk of the court to be a true and correct copy of the order that appears of record in the stated volume and at the given page in the Criminal Minutes of the trial court. In pertinent part the order reads:

"The Court having heard and considered said motion (to revoke probation) and the evidence submitted, it appears ... that said defendant has violated the terms of his probation in that he did knowingly and intentionally violated (sic) conditions (a) of his probation order. ¹

It is accordingly, considered, ordered and adjudged by the Court that the probation be revoked and original judgment became operative. * * * " ²

The order further recounts the prior adjudication of guilt of the offense of theft of property and imposes sentence upon appellant for confinement for a term of not less than two nor more than ten years. Ground of error one is overruled.

The original conviction of appellant for theft of property is reflected by judgment of the trial court entered August 7, 1979 and grant of probation the same day. One condition specified is "a. Commit no offense against the laws of this State or any other State or the United States." Shortly the timestamp bears a date that seems to be October 31, 1979 the affected district attorney filed a motion to revoke probation that alleged appellant committed four particularized violations of "condition (a)" on September 19, 1979, viz :

(1) That he did "knowingly and intentionally possess a motor vehicle, to-wit: a 1979 Explorer Pick-Up, that has had the manufacturer's permanent identification number removed, changed, and obliterated."

(2) That he did "knowingly and intentionally, committ (sic) an offense by changing, altering and mutilating the vehicle identification number on a vehicle, which was in his possession; to-wit: a 1979 Explorer Pick-Up, for the purpose of changing the identity of said vehicle."

(3) That he "knowingly and intentionally committed an offense by transporting liquor through a dry area, to-wit: Rains County, Texas."

(4) That he did "knowingly and intentionally drive on the wrong side of a road, to-wit: Farm to Market Road 515, which is a public road maintained by the State of Texas, thereby endangering himself and others." ³

Because appellant urges error in overruling his pretrial motion to suppress which challenged the arrest and search that led to discovery of evidence of the first three violations alleged and also attacks evidentiary sufficiency in certain respects, we will trace the germane testimony and along the way deal with his remaining grounds of error.

It is evident that appellant was regarded by the law enforcement apparatus in and around Hopkins County as a consummate thief and an inveterate scofflaw, and with good reason: then a fifty six year old man, he did not pursue gainful employment, claiming a physical disability; his prior criminal record before the August 7, 1979 conviction for theft of property a 1953 Ford Jubilee Tractor included a 1952 felony DWI conviction and a 1945 conviction for bigamy; subsequently he was found guilty of appropriating a 1979 Ford pickup, knowing it had been stolen, on or about August 7, 1979 ⁴ the very day he was placed on probation. By the time of hearing on motion to revoke probation we may attribute to the judge of the trial court, therefore, some degree of familiarity with appellant and his perceived propensities.

Which, as a slight digression, leads us to ground of error two, that the trial court erred "in summarily" overruling appellant's motion for recusal, asserting factually that on September 10, 1979 the motor vehicle described in the motion to revoke probation ante was viewed by the judge in Emory, Rains County, and "certain facts were pointed out to him and certain information made known to him," thereby rendering the judge other than an impartial trier of fact in the revocation hearing. It must be understood that appellate counsel was not trial attorney for appellant, for that may explain his cavalier treatment of that portion of the record reporting the presentation of the motion for recusal. Appellate counsel faults the trial court for "although a judge knows he is not disqualified, the defendant should be given the opportunity to present evidence on the point, and the refusal to do so, as in this case, constitutes reversable (sic) error." Yet, the record shows that trial counsel for appellant stated to the trial court, inter alia, that he "would like for the Court to rule on" the motion, that his "information" was to the effect alleged in the motion, but "(o)f course, I already discussed this matter with you and you have indicated to me that you have no personal knowledge of these matters." The trial judge remarked that the "information" was untrue, and overruled the motion. To which counsel reacted with "All right. The next motion is..." Manifestly, trial counsel did not seek to present evidence in support of the motion, see Coronado v. State, 508 S.W.2d 373, 375 (Tex.Cr.App.1974), and certainly was not refused the opportunity to do so. Indeed, he was apparently satisfied with the record in the state he left it. Ground of error two thus presents nothing for review, and is overruled.

The next pretrial presentation was the motion to suppress evidence obtained by unlawful search and seizure following an unauthorized arrest, and in his ground of error three appellant claims the trial court erred in overruling his motion. There is in the record such a motion, and it does assail his arrest for an alleged traffic violation in that appellant "had not committed any offense within the presence or view of the arresting officer," and it does assert that the warrantless search that followed shortly was not authorized in the premises. The objects of the written motion are the identification numbers alluded to in the first two grounds of the motion to revoke, ante. However, appellant does not direct our attention to any indication in the record that the trial court ever ruled on that motion.

What happened is that during a colloquy concerning the motion to suppress appellant verbally expanded to include "anything obtained ... by the State," sought a ruling in it, but the trial judge explained that a ruling could not be made until facts were developed, so the court would "carry (it) along as we have the hearing" on the motion to revoke. There was no objection to that procedure. We thus come to pertinent facts that were developed by the State through its five witnesses, appellant not presenting any.

On or about April 17, 1979 Delbert Traylor, a selfemployed mechanic at his garage near Emory, bought and later cannibalized a wrecked blue 1976 Ford three-quarter ton pickup bearing vehicle identification number F25MLB28556. Thereafter, on a date not revealed by the record, Traylor sold what was left of the vehicle to appellant. That included "bits and pieces," photographs of which he identified as exhibits (but which are so dimly reproduced in our record as to be worthless), as well as the door to which the identification number plate was riveted; he also delivered a certificate of title to the skeleton that remained. Shown a photograph of the 1979 Ford Explorer pickup appellant would later be found driving, Traylor spotted the license number and back bumper from the erstwhile 1976 Ford bolted onto the rear of the Explorer. His testimony, of course, bases the theory of the State that appellant somehow came into possession of the stolen 1979 Explorer and with some of the "bits and pieces" acquired from Traylor attempted to make it appear to be the 1976 Ford for which he had a certificate of title.

Jimmie Jacobs was employed as an investigator in the motor vehicle theft division of the Department of Public Safety, operating out of Garland. On September 10, 1979 he had "occasion to be" in Emory, Rains County; shortly before noon he also had "occasion to come into contact" with appellant; which is to say Jacobs, himself dressed in mufti and in a motor vehicle, saw appellant, whom Jacobs knew on sight, ⁵ alone in a Ford pickup at a stop sign. Appellant was seen to drive "on out 515," the Farm to Market Road designated in paragraph four of the motion to revoke. Jacobs testified that he observed "erratic driving" by appellant, speeding and driving in the center of the road and then back over to the edge ⁶ as he made his way away from Emory, and followed him until appellant turned off and stopped at a yellow house, before reaching an oil road, approximately three miles out of Emory. Observing this, according to Jacobs, he made radio contact with DPS Highway Patrolman Dempsey Bullock, stationed in Emory, and reported, "Something to the effect that there is Old Merritt Dunavin going down Highway 515 driving all over the road, driving erratically ... (s)ide to side and keep a lookout for him." ⁷ Although not that clear in the record, we gather that when appellant stopped at the yellow house the Jacobs vehicle went on past, for in relating what he saw thereafter Jacobs said he was about three hundred yards ahead of appellant, turned his head around ⁸ and watched as appellant made a right turn off FM 515 onto the oil road, followed by Bullock. As he maneuvered the Ford pickup to make the turn, according to Jacobs, appellant crossed over the center line.

Trooper Bullock was "catching up" to appellant just as he...