Duncantell v. State, 51749

• Decision Date: 15 March 1978
• Docket Number: No. 51749,51749
• Parties: Ovide DUNCANTELL, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 252

563 S.W.2d 252

Ovide DUNCANTELL, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 51749.

Court of Criminal Appeals of Texas, En Banc.

March 15, 1978.

Rehearing Denied April 5, 1978.

Peter D. Williamson, Houston, for appellant.

Carol S. Vance, Dist. Atty., James C. Brough, Alvin M. Titus and Jack Bodiford, Asst. Dist. Attys., Houston, for the State.

Before the court en banc.

OPINION

DOUGLAS, Judge.

This is an appeal from a conviction for possession of marihuana. The jury assessed punishment at seven years, probated.

At approximately three o'clock in the morning of November 12, 1971, Houston Police Officers Miller and Trumble observed appellant's automobile slowly enter Dowling Street. Appellant was driving with his lights off although it was dark. Subsequently, he turned the lights on and accelerated to an excessive rate of speed. He was eventually clocked at 47 miles per hour in a thirty miles per hour zone.

The officers were forced to pursue appellant for several blocks before he stopped. As Trumble approached appellant's automobile, appellant became angry and abusive and demanded to know why he was stopped. The automobile then "started to proceed forward from a dead stop" whereupon the officer removed the ignition key from appellant's car. Appellant then struck Trumble on the head.

Both officers opened the car door and told appellant that he was under arrest. When he refused to get out of the car they pulled him out. A brief struggle ensued but the officers were able to wrestle appellant to the ground and place handcuffs on him.

Several other officers then arrived to give assistance in response to a call made by Trumble during the struggle. Miller asked Officer Bell to search the car. Bell testified that he was looking for "weapons or evidence." He found several matchboxes on the dashboard, one of which contained a substance later identified as marihuana.

Appellant testified that he was driving only about twenty-five miles an hour. When he stopped, the officers started cursing and beating him with flashlights. While he was under arrest he told the officers that he was not drunk and that Officer Bell was not coming from the direction of appellant's car when Bell showed appellant what he had found. On cross-examination he testified that Bell must have planted the marihuana on him.

Appellant initially complains of systematic exclusion of blacks from the jury. The thrust of his argument is that the State used its peremptory challenges to strike qualified blacks from the jury panel. The same argument was confronted and rejected in Ridley v. State, 475 S.W.2d 769, 772 (Tex.Cr.App.1972), wherein we stated:

"We hold that no systematic exclusion has been shown. To hold otherwise would in effect be abolishing our peremptory challenge practice which has always been a part of our system to help an accused as well as the State obtain an impartial jury and a fair trial."

See also Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965).

Appellant next contends that the court erroneously admitted evidence of an extraneous offense. He complains of testimony given by two State witnesses that he was under the influence of alcohol when he was arrested and that he was given a breathalyzer test at the police station.

Albrecht v. State, 486 S.W.2d 97 (Tex.Cr.App.1972), is contrary to appellant's position. In that case we stated that evidence of extraneous offenses may be admissible "(t)o show the context in which the criminal act occurred what has been termed the 'res gestae' under the reasoning that events do not occur in a vacuum and that the jury has a right to hear what occurred immediately prior to and subsequent to the commission of that act so that they may realistically evaluate the evidence (footnote omitted). . . . " 486 S.W.2d at 100. See also Williams v. State, 535 S.W.2d 637 (Tex.Cr.App.1976).

Next, appellant urges that the court improperly commented on the weight of the evidence. The court commented while Officer Miller was being cross-examined:

"Q. And you are as positive of that as you are of all of the other testimony that you have given up to this point?

"A. Yes, sir.

"Q. And then if you find out that you were not positive about that and you were wrong about that, then your testimony to this jury would be that you are wrong about everything else that you have stated?

"THE COURT: That is argumentative."

No objection was made. Thus, nothing is presented for review. Adams v. State, 165 Tex.Cr.R. 523, 309 S.W.2d 245 (1958); Sikes v. State, 500 S.W.2d 650 (Tex.Cr.App.1973).

Appellant contends the court erred in permitting the State to bolster the testimony of Officer Miller.

Miller testified on direct examination that he initially noticed appellant's vehicle because its lights were off. Appellant attacked this testimony on cross-examination by having the officer read from his offense report. That report stated that the officers noticed appellant's vehicle because it pulled onto the street at an excessive rate of speed. The State later introduced into evidence Miller's relevant examining trial testimony as follows:

"Q. Do you remember being asked the question: 'What called your attention to the defendant?'

"A. Yes, sir.

"Q. Would you read your answer?

"A. (Reading) 'We were on routine patrol in that neighborhood, and I approached a station wagon backing onto Dowling Street headed into a southerly direction. The car seemed to halt without turning on his lights, and I did not know if he would turn on his lights or what, so I got in behind the vehicle.'

"Q. Do you remember being asked this question: 'What else called your attention to the vehicle?'

"A. Yes, sir, I do.

"Q. Would you read your answer?

"A. (Reading) 'When we got behind him, he seemed to speed up at a high rate of speed, and I was behind him to obtain a speed clock.' "

The court overruled the objection to the admission of this testimony.

Appellant attempted to impeach the witness by showing he made a prior inconsistent statement and the State then attempted to rehabilitate him by introduction of prior consistent testimony. In Kepley v. State, 167 Tex.Cr.R. 233, 320 S.W.2d 143 (1959), this Court held that where an attempt is made to impeach a witness by showing he made statements inconsistent with his trial testimony, he may be supported by showing that he made statements consistent with his trial testimony after the offense in question. See also 1 McCormick and Ray, Evidence, Section 774 (2d Ed. 1956). No error is shown.

Appellant next urges that the search of his automobile was unlawful and that as a result the trial court erred in overruling the motion to suppress evidence.

Appellant argues that neither the traffic offenses nor the assault carried with them fruits or instrumentalities for which there was probable cause to search. Officer Miller testified that he smelled alcohol on appellant's breath after the arrest. Miller observed "slow reaction, slurred speech, slow reaction and movement to the eyes." When asked whether he had formed the opinion that appellant was under the influence of intoxicating liquors, the officer replied only that, in his opinion, appellant was under "a form of intoxication."

It is common knowledge that usage of marihuana, or of a combination of marihuana and alcohol, often results in a form of intoxication. Such usage by appellant on the night of his arrest would explain his slow reactions and slurred speech as well as intoxication by alcohol only would explain them.

Therefore, Miller's observation of appellant's intoxicated condition, in conjunction with the evidence of flight and resistance of the arrest, established probable cause to search appellant's automobile for alcohol or narcotics and other contraband. The marihuana found in the matchbox on the dashboard was thus secured as the result of a legal search. Cf. Attwood v State, 509 S.W.2d 342 (Tex.Cr.App.1974); Cazares v. State, 488 S.W.2d 455 (Tex.Cr.App.1972). As this Court stated in Taylor v. State, 421 S.W.2d 403, 407 (Tex.Cr.App.1967):

"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.Tex., 255 F.Supp. 777; United States v. Barnett, D.C.Tenn., 258 F.Supp. 455; United States v. Clark, D.C.Mont., 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 Cadillac Hardtop, D.C.Wis., 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." (First emphasis supplied.) See also Borner v. State, 521 S.W.2d 852 (Tex.Cr.App.1975).

In the instant case, probable cause to search appellant's automobile developed after he had been arrested for the traffic offenses and the assault. Applying the principle enunciated in Taylor, we hold that the trial court did not err in denying the motion to suppress the seized evidence.

Appellant next complains of improper cross-examination regarding a post-arrest conversation he had with Lieutenant DeFoor at the police station. Appellant apparently told the lieutenant that he had no complaints regarding his treatment by the arresting officers.

On direct examination appellant testified that he was brutally beaten by the arresting officers. The State...