Herring v. State

• Decision Date: 31 August 1988
• Docket Number: No. 13-87-422-CR,13-87-422-CR
• Citation: 758 S.W.2d 849
• Parties: Charles Otis HERRING, Appellant, v. The STATE of Texas, Appellant.
• Court: Texas Court of Appeals

Page 849

758 S.W.2d 849

Charles Otis HERRING, Appellant, v. The STATE of Texas, Appellant.

No. 13-87-422-CR.

Court of Appeals of Texas Corpus Christi.

Aug. 31, 1988.

Rehearing Denied Oct. 13, 1988.

James S. Munson, Wharton, for appellant.

Daniel W. Shindler, Bay City, Jim Vollers, Austin, for appellee.

Before NYE, C.J., and KENNEDY and SEERDEN, JJ.

OPINION

NYE, Chief Justice.

A jury found appellant, Charles Otis Herring, guilty of aggravated robbery. Two prior felony offenses were alleged in the indictment for enhancement purposes. The jury assessed punishment in the Texas Department of Corrections for life. We affirm.

At 6:15 a.m. on May 15, 1987, Officer Marcaurele was called to the scene of an armed robbery at the D & D Grocery. During his investigation, Marcaurele learned that the suspect had used a short barrel rifle or shotgun and stole ninety-three one dollar bills, sixteen five dollar bills, eight ten dollar bills, sixty-two quarters, sixty-three dimes, seventy-one nickels, sixty-five pennies, and nine one dollar food stamps. During the robbery, the suspect cut the telephone hand set cord and then fled the scene. Marcaurele testified that the victim "felt" the suspect was a black male. She described him as being five feet five to five feet six inches tall, medium build, wearing a brown jacket, blue jeans, dark shoes, one glove and a stocking over his head. Marcaurele learned that the robbery occurred shortly before 6:14 a.m. that day.

Officer Marcaurele testified that this robbery was very similar to other area robberies of which he had knowledge. These similarities were that each robbery occurred in the early morning; each involved a convenience store; each suspect had the same physical description; each wore a stocking over his head; and during each robbery, each suspect cut the telephone hand set cord. Officer Marcaurele also testified that in one of these robberies, the robber used a pair of orange-handled scissors to cut the telephone hand set cord.

In an attempted robbery in Needville, the store owner followed the vehicle used by the would be robbers. This vehicle was described as a brown Plymouth occupied by two black males. The store owner got the Plymouth's license number which was later determined to be 871-MWV. The suspect who attempted the robbery also had his face covered.

Officer Marcaurele sent out a teletype for all units to "be on the lookout" for the brown Plymouth. Shortly thereafter, he received a call informing him that a possible suspect vehicle involved in the robbery of the D & D Grocery was heading towards the D & D Grocery on Highway 71. At 7:00 a.m. that same day, Officer Marcaurele stopped the brown Plymouth with license number 871-MWV on Highway 71. The Plymouth was occupied by two black males. Marcaurele ordered them out of the vehicle and patted each down for weapons. He found no weapons during the pat down. A roll of money was found on the passenger, Mr. Orange. Marcaurele identified the driver of the Plymouth as appellant and testified that he fit the description of the suspect involved in the D & D Grocery robbery. Marcaurele made a visual inspection of the Plymouth and saw in plain view on the driver's side floorboard a pair of orange-handled scissors. When Marcaurele picked up the scissors, he noticed a wad of money stuffed between the back seat and back door on the driver's side. At this time, appellant was arrested for the robbery of the D & D Grocery. Marcaurele then called a tow truck and performed an "inventory search" of the vehicle.

A search of the trunk revealed a red vinyl zipper bag containing a short barrel, .22 caliber rifle. This bag also contained one roll of quarters, two rolls of pennies, and one roll of nickels. A search of the glove box revealed twenty-two quarters, thirty-one nickels, thirteen dimes, and nineteen pennies.

Appellant sought to suppress the evidence seized in the search of the vehicle he was driving at the time of the stop. In his first point of error, appellant argues that the trial court erred in overruling his motion to suppress evidence seized as a result of a warrantless search of his vehicle. He argued that the seizure of the evidence was unreasonable in violation of U.S. Const. Amends. IV and XIV and Tex. Const. art. 1, § 9 (Vernon 1984).

A police officer may, in appropriate circumstances, and in an appropriate manner, approach an individual for the purposes of investigating possible criminal behavior even though he does not have probable cause to effectuate an arrest. Terry v. Ohio, 392 U.S. 1, 21 (1968). When a police officer stops a person driving a motor vehicle on the basis of his possible involvement in a criminal offense, we look at the totality of the circumstances or the "whole picture" in determining whether the stop was lawful. The detaining officer must have a particularized and objective basis to suspect the person stopped of criminal activity. Two elements must exist in order to effectuate a lawful stop. First, you look to see if the police officer drew inferences and made his deductions based upon his observations, information from police reports, and consideration of the "mode of operation" exhibited by certain kinds of lawbreakers. Second, this procedure must raise a suspicion that the particular individual being stopped is engaged in wrongdoing. See United States v. Cortez, 449 U.S. 411, 418-419, 101 S.Ct. 690, 695-696, 66 L.Ed.2d 621 (1981) and Campbell v. State, 644 S.W.2d 154, 159 (Tex.App.--Austin 1982), pet ref'd, 647 S.W.2d 660 (Tex.Crim.App.1983).

We find it reasonable that on learning that the Plymouth was seen traveling on Highway 71 towards the D & D Grocery, Marcaurele would stop the vehicle. He possessed information that linked the Plymouth to an attempted robbery in Needville which had a similar modus operandi and a suspect with a similar physical description as did the robbery of the D & D Grocery. Also, the Plymouth was sighted shortly after the robbery occurred on Highway 71 which runs adjacent to the D & D Grocery. While the suspect who had committed the robbery was not reported to have left the store in a motor vehicle, Marcaurele reasonably assumed the possibility that his flight would be continued by means of a motor vehicle. Therefore, the "whole picture" contained sufficient facts and circumstances to raise a suspicion that appellant was engaged in wrongdoing. We hold that Marcaurele's decision to stop the Plymouth for possible complicity in the armed robbery of the D & D Grocery was a decision which issued from a judgment formed in the requisite manner set out in Cortez.

When Officer Marcaurele saw the scissors and the wad of cash, and determined that appellant's physical description fit that of the suspect involved in the robbery of the D & D Grocery, his reasonable suspicion evolved into a reasonable belief that he had the suspect in the robbery of the D & D Grocery. At this point, he had probable cause to arrest appellant for the armed robbery at the D & D Grocery. See Walker v. State, 555 S.W.2d 454, 456 (Tex.Crim.App.1977); Guzman v. State, 521 S.W.2d 267, 269 (Tex.Crim.App.1975); see also Campbell, 644 S.W.2d at 161.

As an incident to appellant's arrest, the officer was authorized to conduct a warrantless, roadside search of the vehicle, including the contents of the glove box and trunk, for weapons and evidence of the robbery. The rule is that a police officer may search an automobile without a warrant where there are both exigent circumstances and probable cause. United States v. Reyes, 792 F.2d 536, 538 (5th Cir.1986), cert. denied, 479 U.S. 855, 107 S.Ct. 191, 93 L.Ed.2d 124 (1986). Police officers have the right to search an entire vehicle when they have probable cause to believe there is contraband in the vehicle but do not know where it is located. The knowledge of the contraband constitutes an "exigent circumstance" under the "automobile exception" to the warrant requirement. United States v. Ross, 456 U.S. 798, 804-826, 102 S.Ct. 2157, 2162-2173, 72 L.Ed.2d 572 (1982); Harper v. State, 704 S.W.2d 546, 548 (Tex.App.--Houston [14th Dist.] 1986, pet. ref'd). Officer Marcaurele had probable cause to search the Plymouth based upon his knowledge that a weapon was used during the robbery and the probability that the weapon as well as other evidence may be somewhere inside the vehicle. See Esco v. State, 668 S.W.2d 358, 364-366 (Tex.Crim.App.1982) (on rehearing). The trial court properly overruled appellant's motion to suppress evidence which was seized by Marcaurele as a result of the search. Appellant's first point of error is overruled.

In his second point of error, appellant argues that the trial court erred in not granting a mistrial during voir dire examination.

During voir dire examination, the State mentioned to the jury panel that it hoped to present evidence that appellant had written a letter to Mr. Orange, who was in jail. (Orange was the passenger in the brown Plymouth automobile). The State mentioned that in this letter appellant called Orange the "look-out man." The State then said that appellant called Orange this name because they thought he served as a lookout when appellant went into the D & D Grocery.

Appellant objected, requested that the jury be instructed, and moved for a mistrial. The trial court instructed the jury but denied a mistrial. The trial court had previously granted appellant's motion in limine, preventing the State from exhibiting evidence before the jury prior to offering any item into evidence.

A mistrial will not be granted during voir dire unless the statement complained of injects injurious and prejudicial matters before the panel which are reasonably calculated to prevent a fair trial before an impartial jury. See Pennington v. State, 172 Tex.Cr.R. 40, 353 S.W.2d 451, 452 (1962). Error in admitting improper evidence may be corrected by a withdrawal and an instruction to disregard it except in extreme cases...