Grego v. State

• Decision Date: 02 June 1970
• Docket Number: No. 42918,42918
• Citation: 456 S.W.2d 123
• Parties: Robert Louis GREGO, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 123

456 S.W.2d 123

Robert Louis GREGO, Appellant, v. The STATE of Texas, Appellee.

No. 42918.

Court of Criminal Appeals of Texas.

June 2, 1970.

Rehearing Denied July 15, 1970.

Curtis Renfro, Vernon, Richard D. Bird, Childress, for appellant.

Bill Neal, Dist. Atty., Vernon, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

DOUGLAS, Judge.

The conviction is for theft of property over the value of $50.00; the punishment, five years.

A container filled with oxygen of the value of $59.50 was stolen from Val Blake, who operated a salvage yard near Vernon. Testimony concerning the arrest and search was given by Pat King, a highway patrolman of the Texas Department of Public Safety. At approximately ninethirty o'clock at night, Patrolman King saw an automobile without lights come out of a private driveway at Blake's Salvage Yard. The lights were not turned on until after the automobile had traveled some one hundred yards down from the highway. King knew that the business was closed and observed that the automobile had out-of-county license plates. Following the automobile into Vernon, he saw the appellant, who was driving, make a right turn at an intersection without giving a signal. Thereafter, he stopped him in a well-lighted place. Patrolman King had observed another man riding in the front seat. When King shined his flashlight into the car, a third man who had been lying down in the back seat raised up. King then shined the flashlight on him and observed a large object covered with three coats lying on the back floorboard. He then leaned over and pulled the coats back with a flashlight and saw that the object was an oxygen container such as the ones used in Blake's Salvage Yard. King then arrested the three men for theft.

Val Blake was called that night, and he identified the oxygen container as being identical with one that had been removed from his premises after he had closed his business at five o'clock that night.

Appellant contends that the court erred in permitting Patrolman King to testify about finding the oxygen container over the objection that it was found as a result of an illegal search.

Patrolman King's testimony shows that he saw appellant drive down a public highway at night without lights in violation of Article 6701d, Sec. 109(a), Vernon's Ann.Civ.St., and make a right-hand turn onto U.S. Highway 287 toward Chillicothe without giving a signal in violation of Article 6701d, Sec. 68, V.A.C.S. King had authority to arrest appellant for either traffic violation. Article 6701d, Sec. 153, V.A.C.S. His testimony further shows that after he stopped the car appellant showed an expired Montana driver's license. Appellant told him that the car belonged to Bob Daniels who was in the car. Upon checking the other men in the car, he found that neither was Bob Daniels and that the car did not have an inspection sticker, and because of this, he thought that the car was stolen.

After the automobile was stopped, King saw the third man in the back seat as well as the covered object which gave him additional grounds to believe that theft or burglary had been committed. In Taylor v. State, Tex.Cr.App., 421 S.W.2d 403, this Court held that once a bona fide stop or arrest has been made for a traffic offense and an officer acquires probable cause on a more serious charge, he may arrest for that offense and incident thereto conduct an additional search for physical evidence. The officer followed the car approximately one mile, and under the circumstances, he wisely waited to stop it in a well-lighted place. ¹ He had the right to make the search of the back seat and floorboard of the car to protect himself from possible injury especially after the third man came into view. See Terry v. Ohio, 392 U.S. 1 88 S.Ct. 1868, 20 L.Ed.2d 889, Cox v. State, Tex.Cr.App., 442 S.W.2d 696, and Thornton v. State, Tex.Cr.App., 451 S.W.2d 898.

The court did not err in permitting the officer to testify, because the uncontradicted testimony shows that the arrest and search were legal.

Complaint is made that the evidence is insufficient to show that the oxygen container was stolen from Val Blake and that appellant committed the theft.

Val Blake testified that he closed his business at five o'clock p.m., the day in question, and did not give appellant or anyone permission to enter his property or take an oxygen container; that State's Exhibit No. 2, the container which was in the car appellant had been driving, was a freshly painted green oxygen bottle of the kind furnished by his supplier and kept at the salvage yard. He also testified that he had twenty-six full bottles when he closed, and when he checked his place of business the next morning there were only twenty-five full bottles. When he saw the recovered bottle the night of the arrests, it appeared from its size, the new paint job and the labels that it was one of his bottles.

On cross-examination Blake testified that there were no definite means of identifying the bottle when he saw it the day of the trial but that he was one bottle short.

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