Harris v. State

• Decision Date: 14 September 1983
• Docket Number: 65763,Nos. 65762,s. 65762
• Citation: 656 S.W.2d 481
• Parties: Arthur Ross HARRIS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 481

656 S.W.2d 481

Arthur Ross HARRIS, Appellant, v. The STATE of Texas, Appellee.

Nos. 65762, 65763.

Court of Criminal Appeals of Texas En Banc.

Sept. 14, 1983.

Ross Teter, on appeal only, Dallas, for appellant.

Henry Wade, Dist. Atty., Gilbert P. Howard, Christopher Milner and William M. Fry, Jr., Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., and Alfred Walker, Asst. State's Atty., Austin, for the State.

Before the court en banc.

OPINION

W.C. DAVIS, Judge.

Appellant was convicted of the offenses of burglary of a building and burglary of a vehicle. In each case the State alleged that appellant had been previously convicted of credit card abuse and possession of marihuana. Upon the jury's finding that these allegations were "true," the trial court assessed appellant's punishment in each case at life imprisonment.

The sufficiency of the circumstantial evidence is challenged in both causes.

The evidence adduced at trial reflects that Scott Eric Rogers, accompanied by Brenda Lynn Cash, pulled up and parked his company van at the Mid-America Office building, where he worked, at approximately 11:00 p.m. on June 30, 1979. The couple entered the building, but after only five minutes Cash went back out to get her purse which she had left on the front seat of the unlocked van. Unable to find her purse, Cash reported this to Rogers who instructed her to call the police and lock herself inside the building. Rogers went outside, circled the office building, then started down an alley where he found Cash's makeup case. He went back to his van, picked up a flashlight and began looking on the ground. In a large trash dumpster, he found "some of the stuff that was in her purse." Rogers continued his search in the vicinity.

In the interim, Mounir Korban, the cook at Woody's Restaurant (which is adjacent to the Mid-America Building) was busy cooking sometime between 11:00 and 11:15 p.m., when he noticed a man standing in the corner of the kitchen by a grease barrel; the man was taking a white hose off the barrel. Korban said he "didn't really become very suspicious because I thought he had something to do with the owner of the restaurant," though he noticed the man was wearing a sun visor held on by a green strap around his head.

At approximately 11:40 p.m., Abdel G. Zoubi, the owner of Woody's, was on his way to the restaurant, which he testified was open from 6:00 p.m. to midnight. Arriving at the restaurant, Zoubi observed a black man coming out of the delivery room. Zoubi testified he first thought the man had made a delivery which was unusual at that hour. He then decided that the man was a friend of the cook.

Zoubi went directly into the kitchen where he and Korban advised each other that the man was not a friend of either. Zoubi went to the grease barrel near which Korban had seen the intruder; in the barrel he found a woman's cloth purse. Zoubi immediately went to his office and found the door open. Finding everything in his desk to be in order, Zoubi noticed that a lock on a "metal closet in the wall" was bent.

Zoubi thought he might catch the interloper, so he went outside, where he encountered Eric Scott Rogers. Asked by Zoubi, "What are you doing?," Rogers replied, "I'm looking for ... a purse." Zoubi took Rogers to see the purse he had found in the barrel and Rogers identified it as belonging to Cash.

Rogers, Cash and Zoubi spoke with Irving police officer Bill Brazle. Walking through the restaurant complex, Cash observed her comb sitting on Zoubi's desk. Zoubi checked for a deposit bag in a drawer and found it was gone.

Officer Brazle then received a call that a person matching the description of the suspect could be found on a nearby corner, standing by an automobile. Brazle drove to the corner where he encountered appellant standing next to his car. Brazle requested identification from appellant and while appellant was apparently attempting to comply with the officer's request the two witnesses from Woody's arrived and immediately identified appellant as the person they had earlier seen in the restaurant.

Appellant was arrested for "investigation of burglary" and taken to jail. The car he was standing near was impounded. At the police station, Rogers and Cash were shown the car and Rogers identified several tools on the front seat as having been taken from his van. ¹ After going back inside the jail, Brazle searched appellant and found seven twenty-dollar bills. Brazle had been told by Zoubi that seven twenty-dollar bills were missing from his office.

Appellant was found in possession of the fruits of both offenses. Appellant was positively identified as having been in the private area of Woody's restaurant where one offense took place, and where the purse stolen in the earlier burglary was discovered, at the approximate time of the offenses. Where there is independent evidence of a burglary, unexplained possession of the recently stolen goods may constitute sufficient evidence of guilt to support a conviction. Williams v. State, 621 S.W.2d 613 (Tex.Cr.App.1981); see also Mulchahey v. State, 574 S.W.2d 112 (Tex.Cr.App.1978). Such evidence is sufficient in the instant cases. Ground of error one is overruled in each case. ² In ground of error two in the conviction for burglary of a building, appellant contends that the trial court committed fundamental error in failing to charge the jury on the law of circumstantial evidence. This contention has no merit. Hankins v. State, 646 S.W.2d 191 (1983).

In Cause No. 65,762, the conviction for burglary of a vehicle, appellant's second and third grounds of error complain of the trial court's overruling his motion to suppress evidence obtained as a result of illegal seizures and searches of his person and automobile. We need not recount the evidence because the point was rendered moot when the State offered items belonging to Eric Scott Rogers which were found in appellant's car, and defense counsel affirmatively stated, "no objection." Compare McGrew v. State, 523 S.W.2d 679 (Tex.Cr.App.1975) with Graves v. State, 513 S.W.2d 57 (Tex.Cr.App.1974).

Appellant's second and third grounds of error are overruled.

In his third ground of error in Cause No. 65,763, appellant contends that the trial court erred in overruling his motion to suppress the seven twenty-dollar bills seized from him after he was arrested. He maintains that the arresting officer lacked probable cause to arrest, and further that the search of his person was unlawful in that a warrant was not obtained and exigent circumstances did not exist.

The testimony adduced from Officer Brazle at the suppression hearing reveals that after receiving a report of two burglaries, Brazle arrived at Woody's Restaurant where he conducted an investigation. During the course of the investigation, Brazle spoke to the two witnesses from Woody's who gave him a general description of a black man "they had seen inside the Woody's Restaurant where he shouldn't have been." Brazle thereafter received the call relating to the suspect on the nearby corner. While Brazle attempted to discover the identity of the suspect, the two witnesses from Woody's arrived and positively identified appellant as the man they had seen in the restaurant. Appellant was arrested and taken to the Irving City Jail where a search of his person disclosed the seven twenty-dollar bills later admitted into evidence.

In Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983), the United States Supreme Court made its most recent analysis of the probable cause standard, and stated as follows:

"As the Court frequently has remarked, probable cause is a flexible, common-sense standard. It merely requires that the facts available to the officer would 'warrant a man of reasonable caution in the belief,' Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed.2d 543 (1925), that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false. A 'practical, nontechnical' probability that incriminating evidence is involved is all that is required. Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949). Moreover, our observation in United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981), regarding 'particularized suspicion,' is equally applicable to the probable cause requirement:

" 'The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as factfinders are permitted to do the same--and so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.' " 103 S.Ct. at 1543.

We find that probable cause existed to justify appellant's arrest. The facts available to Brazle at the time of the arrest, to wit: the receipt of two burglary complaints related in both time and place, an investigation revealing an unauthorized entry of Woody's, and two eye witnesses identifying appellant as the intruder, would "warrant a man of reasonable caution in the belief" that a burglary may have been committed, and that appellant may have committed it. While not yet reaching a "hard certainty," Brazle's knowledge undoubtedly rose to the level of probable cause to arrest. The arrest was lawful and therefore the search at the city jail was also lawful irrespective of the existence of exigent circumstances. King v. State, 166 Tex.Cr.R. 231, 312 S.W.2d 501 (1958); Heck v. State, 507 S.W.2d 737 (Tex.Cr.App.1974); Warrick v. State, 634 S.W.2d 707 (Tex.Cr.App.1982). The ground of error is overruled.

By ground of error four in both convictions, appellan...