Finney v. State

• Decision Date: 09 May 1984
• Docket Number: No. 3-83-108-CR,3-83-108-CR
• Citation: 672 S.W.2d 559
• Parties: Jeffery FINNEY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 559

672 S.W.2d 559

Jeffery FINNEY, Appellant, v. The STATE of Texas, Appellee.

No. 3-83-108-CR.

Court of Appeals of Texas Austin.

May 9, 1984.

Penny Puryear Burt, Austin (court-appointed), for appellant.

Edward J. Walsh, Dist. Atty., Ken Anderson, Asst. Dist. Atty., Georgetown, for appellee.

Before PHILLIPS, C.J., and EARL W. SMITH and GAMMAGE, JJ.

EARL W. SMITH, Justice.

Jeffery Finney was found guilty by a jury of the offense of burglary of a habitation of Harold Stewart in Williamson County. The jury also found that Finney was the same person who previously had been convicted of burglary of a building, as alleged in the enhancement paragraph of the indictment, and assessed his punishment at fifteen years and six months. We affirm the judgment of the trial court, duly pronounced pursuant to the verdict.

On appeal, in his first two grounds of error, Finney contends that the trial court erred in refusing to grant his motion to suppress evidence for the reasons that the evidence was tainted by an illegal arrest and was the fruit of a warrantless search. In the next three grounds of error, he argues that the trial court erred in refusing to suppress his confession because it was involuntary in that it was obtained in violation of his Sixth Amendment right to counsel, it was given as a result of physical and psychological duress and coercion, and was the fruit of an illegal arrest and search. A hearing was held on Finney's motions to suppress the evidence and confession. Because the grounds asserted are interrelated, we discuss the evidence adduced at the hearing.

THE ARREST AND SEARCH

Some two or three weeks before March 17, 1981, a burglary occurred in Lee County. On March 17, at about 11:00 A.M., Officer Claxton, a Department of Public Safety trooper, was in the Lee County Sheriff's office, when the dispatcher received a telephone call from either Bonnie Menzel or her son, who Claxton said was a relative of the owners of the burglarized premises. According to Claxton, the caller reported that a vehicle matching the description of, and bearing the license number of a vehicle that was "though to be involved in a burglary in Lee County" that occurred two or three weeks earlier, was at a roadside park on U.S. Highway 290 approximately three miles west of Giddings. Claxton had no other details of the burglary. He had no knowledge as to whether the person who called the dispatcher was the same person that purportedly had seen the vehicle near the burglary. He had no recollection of whether the vehicle was supposed to be a long or short-based pickup. He checked the license number through the sheriff's office, but had no recollection as to who might be the registered owner. He did not make an offense report, nor did he participate in the investigation of the burglary.

Deputy Sheriff Meyer of Lee County was in the sheriff's office when the dispatcher received the phone call. According to him, the call came from the sister of the woman whose residence was burglarized. He said that the caller was not a witness to the burglary--it was another person (a neighbor of the owner of the residence) who had seen the vehicle driving out of the driveway of the burglarized premises, followed the vehicle, and obtained the license number.

On receipt of this information from the dispatcher, Claxton and Meyer left the sheriff's office to locate the vehicle. There is no evidence that the officers had any information as to how many occupants there were in the vehicle seen near the burglary, nor any description of a person or persons occupying the vehicle. There was no evidence that Finney or any other described person was seen to enter the residence, or remove any property therefrom. There was no evidence that Finney was an occupant of the described vehicle, nor that he was in any way involved in the burglary. Claxton testified that he was not aware of any of the facts of the burglary other than that some weapons were taken. On this basis, he thought the occupants of the vehicle might have been armed.

Claxton and Meyer traveled west on Highway 290 in Claxton's marked Department of Public Safety patrol car. They encountered a 1962 black Chevrolet pickup with a camper on the back which bore the reported license number. The vehicle was traveling east towards Giddings. Claxton turned his vehicle around, followed the pickup and turned his red lights on to stop it. The pickup stopped promptly and without any problem. Claxton stopped his patrol car some thirty feet behind the pickup, got out, and using his public address system, told the driver (later identified as Finney) that he wanted him to exit the pickup and "come to me." The driver promptly did so. Claxton said that

"once the driver of the vehicle came to the front of my vehicle, I believe I handcuffed him at that time. I may have talked to him for a few minutes before I did that. And we proceeded to get the passenger out of the vehicle in the same manner."

Claxton further testified that he did not recall any particular conversation with the driver before he was handcuffed, agreed that he handcuffed him before any conversation, and that he did not recall any conversation after the driver was so handcuffed. He said that when he told the driver to come to him that he, Claxton, might have had his rifle in his hand.

When the passenger (later identified as Mickey Emerson) exited the vehicle, it was determined that he was holding a small child, which he continued to do until both men were taken to the sheriff's office. Therefore, Emerson was not handcuffed. Both men were frisked. No weapons or contraband were found on either. Neither Finney nor Emerson was asked who owned the pickup nor any questions concerning where the pickup may have been on the date of the alleged burglary. Finney was asked to produce his driver's license. Both Finney and Emerson readily and correctly identified themselves.

Prior to the stop of the pickup, it was not seen to have violated any traffic laws nor to have been driven in other than an ordinary manner. There was no outstanding warrant for the arrest of Finney or Emerson. It is clear, nevertheless, that both men were placed under custodial arrest. Claxton, in fact, told Finney that he was under arrest for suspicion of theft or burglary. With both men in custody at the patrol car, the officers proceeded to search the pickup. There is no evidence that weapons or contraband were found in the passenger compartment of the pickup. As to the search of the camper, Claxton testified that they could not completely see the inside of the camper. He said:

We could see partially through the back door. We wanted to make sure that there were no other occupants of the vehicle. Like I said, prior to that time there were some weapons believed to be--that were stolen and in a prior burglary. We wanted to make sure for our safety that there were no other occupants inside the back of the camper.

Claxton waited for Meyer to make the search and said that it was not a "full blown search." He described it as "just an open-the-door search to, you know, make sure there were no people inside." He said: "Apparently there was a--I don't know whether it was a rug or towel or what covering the items on the floor [of the camper] and he [Meyer] naturally lifted [the covering] up to see if there was someone under there, or what." He said that Meyer discovered several items such as television sets, movie equipment, a camera and "things like that." No weapons, contraband or other person was found in the camper. It is important to note that none of the items in the camper were shown to be connected in any way with the earlier Lee County burglary. Neither Finney nor Emerson were asked their whereabouts on the date of the Lee County burglary, nor to whom the items in the camper belonged. Claxton said, as an explanation for opening the door to the camper, that he had "a concern for seeing if there was anything back there that could have been stolen property."

Meyer's testimony was similar to that of Claxton as to the stop of the pickup and ensuing events, except that he said "it was possible" that he did not learn the identity of the two men until they were taken to the sheriff's office. He admitted that the officers had no search warrant for the pickup or the camper. At no time in his search of the pickup and camper did he see any weapons or any other persons. Meyer said that after both men were removed from the pickup, he looked in the camper through the back-door window, and that it appeared that there was "a bunch of stuff" covered with a "tarp, or blanket, or something like that." When he opened the door and lifted the covering, he saw two television sets, some stereo speakers, and stereo equipment. He said the property did not "fit with the type of truck and also the two suspects." Just how it would be out of the ordinary for a person to own or have in his possession two television sets, stereo equipment, and speakers was not explained.

No Miranda warnings were given to either man. They were then taken to the sheriff's office in Giddings, where, for the first time the men were asked about the "stuff." Meyer said that the man told him that they were taking it to Houston to Sterling Emerson [later shown to be Mickey Emerson's brother]. Upon arrival at the sheriff's office, the camper was again searched. Meyer said: "When we got to the sheriff's office, we looked through it [contents of the camper] thinking maybe some of our items that had been taken in our [Lee County] burglary would be in there." No such items were claimed by the State to have been found. No complaints of any type were filed against either man in Lee County.

However, a camera bearing the name "Stewart Photo" was discovered. By searching telephone directories, it was determined that Stewart Photo, owned by Harold Stewart, was located in Leander, Williamson County. Stewart was contacted by telephone on...