Grundstrom v. State

• Decision Date: 10 June 1987
• Docket Number: No. 05-86-00778-CR,05-86-00778-CR
• Citation: Grundstrom v. State, 733 S.W.2d 920 (Tex. App. 1987)
• Parties: Daniel William GRUNDSTROM, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 920

733 S.W.2d 920

Daniel William GRUNDSTROM, Appellant, v.The STATE of Texas, Appellee.

No. 05-86-00778-CR.

Court of Appeals of Texas Dallas.

June 10, 1987.

Rehearing Denied July 16, 1987.

Melvyn Carson Bruder, Dallas, for appellant.

Michael A. Klein, Asst. Dist. Atty., John Vance, Dist. Atty., Dallas, for appellee.

Before WHITHAM, BAKER and LAGARDE, JJ.

BAKER, Justice.

Daniel William Grundstrom and two co-defendants were charged by indictment for the aggravated robbery of Nancy Reichenstein.This robbery took place in the parking lot of a bar in Dallas called "Confetti's."The jury was given an instruction on law of parties.The State was not permitted to introduce evidence of an extraneous offense committed by the trio, a robbery which occurred earlier the same evening at a restaurant called "On The Border."Appellant was convicted of aggravated robbery and assessed life confinement and a $10,000 fine.

Grundstrom appeals on nine points of error as follows: (1) the evidence is insufficient to support his conviction in that the accomplice testimony was not corroborated, (2)the trial court erred by allowing the State to adduce evidence of an extraneous offense, (3)the trial court erred by admitting into evidence at the trial items seized by the police as a result of an illegal search and seizure, (4)the trial court erred by overruling appellant's objection to the prosecutor's jury argument that an accomplice had testified, "... after we robbed someone at On The Border ..." because that statement was not supported by testimony in the record, (5)the trial court erred by not appropriately instructing the jury to limit its consideration of the extraneous offense admitted into evidence, (6)the trial court erred by not instructing the jury that it should not consider the evidence of the extraneous offense without first finding from the evidence, beyond a reasonable doubt, that the appellant was guilty of such offense, (7)the trial court erred by not instructing the jury that it should not consider the evidence of the extraneous offense without first finding from the evidence, beyond a reasonable doubt, that the appellant was guilty of such offense, after applying the law of parties, (8)the trial court erred by instructing the jury, over the appellant's objection, regarding parole and good time credit, in violation of the separation of powers doctrine and (9)the trial court's instructions regarding parole and good time credit denied the appellant due process of law.Finding no merit in these points of error, we affirm the trial court's judgment.

We first turn our attention to consideration of appellant's point of error number three, wherein the appellant contends the trial court erred by admitting into evidence at the trial items seized by the police as the result of an illegal search and seizure.Prior to trial, appellant sought suppression of all evidence, whether testimonial or physical, relating to or resulting from, his arrest and subsequent search of his property.Following a hearing, this motion to suppress was denied by the trial court.During the course of the trial, the State introduced testimony concerning the appellant's arrest and the search of the vehicle he was driving and also the physical evidence recovered as a result of that search.

At the suppression hearing, the police officer involved with the arrest testified that he had received information of an armed robbery that had occurred at the On The Border restaurant, and that a bluish-gray El Camino vehicle was involved, and the license number was known.Two white females were described as entering the El Camino vehicle driven by an unknown white male.The registered owner of the vehicle was traced by virtue of the license plate number, and it was ascertained that the vehicle had been loaned to the appellant earlier that evening.The actual owner of the El Camino vehicle took the officer to the home address of the appellant and also to several other locations where the appellant might have been found.Being unable to immediately locate the appellant, the officer returned to appellant's residence address where at approximately 2:30 a.m. appellant, accompanied by two white females, drove in the driveway.At this point, the officer involved arrested both women and appellant and searched the vehicle.At the time of the arrest, there were no arrest or search warrants.

Appellant argues that the right of arrest without a warrant is controlled by statute subject to constitutional constraints.Appellant contends the only applicable statutory exception to the constitutional requirement of a warrant to arrest is found in TEX.CODE CRIM.PROC.ANN. art. 14.04(Vernon 1977) which permits the arrest of an individual without a warrant if "... a felony has been committed, and the offender is about to escape ..."Appellant takes the position that in order to permit a warrantless arrest, the State is burdened with the responsibility to adduce evidence to show the offender is about to escape and the failure to prove this element of the exception makes the arrest unlawful.Appellant conculdes his argument by stating since the arrest was unlawful, then the seizure of the physical evidence from the El Camino vehicle was likewise illegal.

The State contends that there was probable cause for the officer to stop and question the appellant and that the property seized was located in plain view and therefore subject to search and seizure.The State also asserts that the appellant at no time established that he had any expectation of privacy in the area searched.The State also contends that article 14.04, V.A.C.C.P. is not the only statute applicable to a warrantless arrest and points to article 18.16, V.A.C.C.P., and contends that this article is applicable to the case at hand.

We disagree with the State's argument that article 18.16 is applicable to this case.While we agree with appellant's general observation regarding authority to make warrantless arrests, we disagree with his contention that the State failed to adduce sufficient evidence to validate the appellant's warrantless arrest under article 14.04, V.A.C.C.P.With respect to the appellant's contention that his warrantless arrest was unauthorized, the question is whether or not the officer had probable cause to make the warrantless arrest of the appellant.The constitutional test for probable cause is whether, at the time of arrest, the facts and circumstances within the officer's knowledge and of which he has reasonably trustworthy information were sufficient to warrant a prudent man in believing that a particular person has committed or is committing a crime.McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62(1967);Lewis v. State, 598 S.W.2d 280(Tex.Crim.App.1980).

I agree with Justice Lagarde for the reasons stated in her concurring opinion that the warrantless arrest of appellant was lawful by virtue of Article 14.04, TEX.CODE CRIM.PROC.ANN.(Vernon 1977) and that the search of the vehicle incident to arrest was authorized.The search of the vehicle can be further supported, as the Court of Criminal Appeals has acknowledged that an officer should be permitted to take every reasonable precaution to safeguard his life in the process of making an arrest.If, under the totality of the circumstances presented to the officer, he has reasonable grounds to believe that he is in danger of bodily harm or that the person he encounters is armed and dangerous, only then will justification for such a search exist.Satterwhite v. State, 726 S.W.2d 81, 87(Tex.Crim.App.1986);Lewis v. State, 502 S.W.2d 699(Tex.Crim.App.1973).

In this case, the record reflects that the officer had reasonable grounds to believe that he was in danger of bodily injury and the limited search was conducted solely for his own protection.Officer Lusty testified that he and his partner received information from a patrol officer about a robbery involving two women suspects and a male suspect, the license of the vehicle, the physical descriptions of the two women including the fact that one was armed with a handgun and one with a knife.The license plate of the vehicle matched the report that the officers had received earlier.Officer Lusty testified that they felt their safety was in jeopardy as they approached the vehicle, and that they knew "the suspects were armed and dangerous, and had been taking property from people at gunpoint, and had made several threats to obtain that property."After the occupants got out of the vehicle, one of the women threw down her purse, exposing a pistol.The officers conducted a search of the vehicle at which time they found credit cards and personal identification belonging to a female on the floorboard of the driver's side of the car.The area searched by the officer was one in which the occupants could have easily reached and obtained a weapon.Satterwhite, 726 S.W.2d at 87;Imhoff v. State, 494 S.W.2d 919(Tex.Crim.App.1973).The arrest was lawful, and the officers were authorized to search the interior of the vehicle incident to such arrest.Chambers v. Maroney, 399 U.S. 42, 47-52, 90 S.Ct. 1975, 1979-82, 26 L.Ed.2d 419(1970).Point of error number three is overruled.

Appellant asserts in his first point of error that the evidence is insufficient to support his conviction in that the accomplice testimony was not corroborated.TEX.CODE CRIM.PROC.ANN. art. 38.14 provides:

A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.

To test the sufficiency of this corroborating testimony, the reviewing court must eliminate from consideration the evidence of the accomplice witnesses, and then examine the evidence of the other witnesses to see if it tends to connect the...