Hooper v. State, 49091

• Decision Date: 18 December 1974
• Docket Number: No. 49091,49091
• Citation: 516 S.W.2d 941
• Parties: Donnell HOOPER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 941

516 S.W.2d 941

Donnell HOOPER, Appellant, v. The STATE of Texas, Appellee.

No. 49091.

Court of Criminal Appeals of Texas.

Dec. 18, 1974.

Rehearing Denied Jan. 15, 1975.

George Gilkerson and Danny E. Hill, Lubbock, for appellant.

Alton R. Griffin, Dist. Atty., Richard Palmer, Asst. Dist. Atty., Lubbock, Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

GREEN, Commissioner.

In a trial before the court without a jury, appellant was convicted of robbery by firearms. Punishment was assessed at five years.

The evidence, when considered most favorably to the judgment, reflects that at about 1:10 A.M., on February 15, 1973, a black man with a rifle entered a 7-Eleven store located at the corner of 37th and Slide Streets in Lubbock, and robbed Mrs. Audie Mae Holley, the clerk then in possession and control of the store, of $81.00 in money. Mrs. Holley identified appellant as the robber.

In his first three grounds, appellant argues that the court erred in admitting in evidence a black leather coat, ski mask, rifle and $81.00 in money, since said evidence was discovered as a result of an illegal stop, search and seizure of the car and illegal detention and arrest of appellant. Appellant contends that the actions of police officers in stopping the car, searching it, seizing the named articles, and in arresting him on this occasion without a warrant were not supported by probable cause, and were in violation of his rights under the Fourth and Fourteenth Amendments to our Federal Constitution, and under Article, Section 9, of our Texas Constitution, Vernon's Ann.St., and Article 14.03, Vernon's Ann.C.C.P.

Prior to the trial, a hearing was had on appellant's motion to suppress this evidence. Testimony was heard, and the motion was overruled. At the trial, which was before the court, this and additional evidence was introduced, which we shall summarize as follows:

Immediately after the robber had left the store, Mrs. Holley telephoned the police, notifying them of the robbery. A message was broadcast over the police radio of the armed robbery at the 7-Eleven store at 37th and Slide Streets. The robber was described in the broadcast as being a black man about six feet tall, weighing between 170--180 pounds, wearing a dark colored coat or jacket. Officers Barnett and Summerlin, on patrol in a police car, responded to the call. As they turned into Slide Street, they noticed the taillights of a car about four blocks ahead leaving from the neighborhood of the store. Barnett got out of the police car at the store, and Summerlin proceeded to follow the other car at a fast rate of speed. Barnett testified that the car was headed south on Slide toward Loop 289.

In the store, Officer Barnett spoke to Mrs. Holley, and then, since other police cars had arrived, sent out a second broadcast over police radio of the robbery, describing the robber as a black man about 6 feet or 6 feet 2 inches tall, weighing about 180 pounts, wearing dark clothing, having a rifle or a 410 gauge shotgun which he used in the robbery, and stating that in the robbery he wore a ski mask.

In the meantime, Officer Summerlin chased after the other car, finally losing it on a street which connected with Loop 289. He put out a police broadcast to the effect that he was in pursuit of a car that had left the vicinity of the 7-Eleven on 37th and Slide, and later that he had lost the car.

Loop 289 is a freeway which encircles Lubbock, and which intersects Slide Street at 70th Street.

Officer Mayfield testified that, while he and his partner Wheeler were on patrol in a marked police car, they heard the radio broadcast about the robbery at the 7-Eleven store on 37th and Slide Streets by a black man described as stated above. They also heard the broadcast by Officer Summerlin. They drove to Indiana Avenue and Loop 289, about 3 1/2 miles east of the 7-Eleven store, and stopped off the highway with the car lights off. In about five minutes, a car was seen coming on Loop 289 travelling east, a direction away from the scene of the robbery. This was the only car which they had seen on the highway during their period of waiting. As the car approached them, they each shined spotlights into the car. A woman was driving. They saw a black man sitting high in the passenger's side of the front seat, evidently tall, and wearing a dark coat. Mayfield and Wheeler each testified that this man fit the description given of the robber in the police broadcasts. This car was headed toward the section of Lubbock occupied mostly by black residents. Since the man in the car fit the description given in the police broadcasts of the robber, and having heard Summerlin's broadcast of chasing and losing a car seen to leave the location of the store right after the robbery, Mayfield and Wheeler turned on the red flashing lights and the siren of their car and took out after the car on Loop 289. There is no evidence of any traffic violation by that car or its driver. However, Officers Mayfield and Wheeler testified that as they turned on the red light and siren and started their car the automobile in front of them picked up speed. The officers caught up with it after following about a mile, and stopped it. They radioed for assistance, and ordered the two occupants to keep their hands against the windshield of their car until their back-up car arrived. Soon thereafter, when other police arrived, the two occupants were told to get out of the car and the car was searched. This search occurred at 1:28 A.M., about 18 minutes after the robbery. A refle loaded with five live shells was found under the passenger seat and seized. After the refle was found the officers handcuffed appellant and his companion and placed them in custody. This rifle was identified by Mrs. Holley as being very similar to the one used by the robber. The coat taken from appellant was identified in the same manner. Eighty one dollars in bills was found under seat and seized. After the rifle was found The ski mask identified by Mrs. Holley as the one worn by the robber and a pair of dark pants with appellant's name on the waistband were found shortly after the arrest in a ditch along the section of Loop 289 that the car was on when being chased by the two officers.

Appellant argues that the State failed to show probable cause to stop and search the car, and to arrest him.

In order for a warrantless arrest or search to be justified, the State must show the existence of probable cause at the time the search or arrest is made and the existence of circumstances which made the procuring of a warrant impracticable. Stoddard v. State, Tex.Cr.App., 475 S.W.2d 744; Colston v. State, Tex.Cr.App., 511 S.W.2d 10; Brown v. State, Tex.Cr.App.,481 S.W.2d 106.

Officers Mayfield and Wheeler had not acquired probable cause on their own, but were relying on the strength of the radio calls from Officers Barnett and Summerlin. They had the right to act upon the basis of the police messages, and were entitled to assume the officer making the call had probable cause to justify their acting in reliance thereon. Colston v. State,supra, and authorities cited. The test as to probable cause where the officers act solely upon police radio calls is the information known to the officer who makes the call. Colston, supra, and cases cited.

In the instant case, the calls were made by the very officers who were then investigating the case, and who received their information first hand. Both of said officers, Barnett and Summerlin, testified on the trial as to the source of their information. Mayfield and Wheeler had the right to act in reliance on the information received by them in the police calls. Merriweather v. State, Tex.Cr.App., 501 S.W.2d 887.

There is no static test to be applied in all cases in determining the existence of probable cause. The existence of probable cause and, therefore, the constitutional validity of a...