Hardy v. State, 46428

• Decision Date: 27 June 1973
• Docket Number: No. 46428,46428
• Citation: 496 S.W.2d 635
• Parties: James Ray HARDY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 635

496 S.W.2d 635

James Ray HARDY, Appellant, v. The STATE of Texas, Appellee.

No. 46428.

Court of Criminal Appeals of Texas.

June 27, 1973.

Rehearing Denied July 17, 1973.

David F. Farris (Court appointed on appeal only) Fort Worth, for appellant.

Doug Crouch, Dist. Atty., Robert A. Sewell, Roger W. Crampton, Asst. Dist. Attys., Fort Worth, Jim D. Vollers, State's Atty., and Robert A. Huttash, Asst. State's Atty., Austin, for the State.

OPINION

JACKSON, Commissioner.

The conviction by a jury on a plea of not guilty was for theft of an outboard motor of the value of over $50; the punishment, six (6) years.

No question as to the sufficiency of the evidence is raised. Appellant, Garland Wayne Copeland and Leon Deryl Pinkston were found in possession of a 33 horse- -power Evinrude outboard motor of the value of over $50 about 4:30 in the morning of September 23, 1971. The outboard motor proved to have been stolen from the possession of E. G. T. Bates on that night, having been taken from a barge on Lake Arlington.

Appellant and his two companions were observed by Officer Larry Wayne Robertson of the Arlington Police Department in a Mustang automobile, which was stuck in the mud, near the lake shore, moving showly toward the roadway. As it pulled onto the roadway, Officer Robertson stopped the car to see 'what it was doing down there near the boat docks' where there were a number of boats kept. The Mustang was very muddy, and was sitting very low as if it had a heavy load in the back of it. The officer noticed muddy hand prints on the trunk area, and on the rear bumper area there appeared to be mud and sand running out of the trunk lid onto the bumper and on the ground.

The officer approached the car on the driver's side and asked the three male occupants for identification. The driver was Copeland, who showed Robertson a 'mug' shot with a number on it, showing it was from the Louisiana State Penitentiary, and said he had been out of the penitentiary three months before. He said the car belonged to his mother, that he and the other two had gone fishing, but the officer could not see any fishing poles, gear or equipment. Officer Robertson testified:

'I asked Mr. Copeland if he would mind if I did look in his vehicle, and he replied, no, he did not care.

'Q And he gave you permission to look and search the car?

'A Yes, sir, he did.'

The three occupants of the car, one of whom was appellant, were asked to get out of the car. Officer Seals arrived in response to a radio call. When the three men got out of the car, they were wet and muddy to the waist. In the meantime, Sgt. Dan Martin of the Arlington Police also arrived.

Officer Robertson further testified:

'Q Did you ask the driver of the car for the keys to the trunk of the car?

'A Yes, sir.

'Q What did he tell you?

'A He said that he didn't have a key to the trunk. It was a car belonging to his mother.

'Q All right. Then did he give you the keys he did have?

'A Yes, sir, he did.

'Q What did you do with the keys that he had?

'A I gave them to Sgt. Martin.

'Q Were you with Sgt. Martin after he had the keys?

'A Yes, sir.

'Q What did Sgt. Martin do with the Keys?

'A He took the key that was separate, it was a large key ring, and then one key that was separate, that was the ignition key, put the ignition key in the trunk and the trunk opened, the lock.

'Q When he opened the trunk, were you present?

'A Yes, sir. . . .'

'THE WITNESS: We found several items in the car, a large thirty-three horsepower Evinrude motor, blue and white, very muddy and had moss on the lower extension of it. The moss appeared to be fresh as if the motor had been in the water recently. It was muddy as if it had been dragged through the mud, and all the cables and fuel lines had been cut on it.

'There was a rubber pair of fishing waders, waist waders in the trunk that were muddy, and then wet on the inside. There was a canvas pouch with hand tools, pliers and screw drivers. All these tools were wet and muddy, and there was also a large pair of bolt cutters, which were muddy.'

The Evinrude motor was identified by the owner E. G. T. Bates. It had the shipping cable, the throttle cable, the electrical cable and the steering cables cut. The remainder of those cables were on the barge from which the motor had been removed.

The other police officers testified in harmony with Robertson's testimony but appellant did not testify or present any evidence in his behalf before the jury.

On his motion to suppress he testified that he did not give his consent to search the automobile. He did not claim coercion or in any manner raise an issue as to the involuntary nature of the consent testified to by Officer Robertson.

Appellant objected to evidence as to the Evinrude outboard motor found in the trunk of the Mustang occupied by himself, Copeland and Pinkston on the ground of an unlawful search and seizure. At the conclusion of a hearing outside the presence of the jury, the trial court found that the officer lawfully stopped the Mustang to make an investigation, that he lawfully made an arrest under Art. 14.03, Vernon's Ann.C.C.P., that permission was granted to search the automobile, and denied the motion to suppress.

Consent to search was clearly shown by the evidence, and we overrule the contention of unlawful search and seizure raised by appellant's ground of error.

See the many cases collated in Texas Digest, Search and Seizure, k7(27) and also Allen v. State, Tex.Cr.App., 487 S.W.2d 120; Sorenson v. State, Tex.Cr.App., 478 S.W.2d 532; and Schneckluth v. Bustamonte, --- U.S. ---, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).

Appellant complains that the court erred in not charging the jury that, if they had a reasonable doubt that any evidence was obtained by an unwarranted or unreasonable search, the jury should not use it against appellant.

Since appellant did not testify before the jury that he did not give his consent to search the automobile, the evidence was therefore...