Hunnicutt v. State

• Decision Date: 14 January 1976
• Docket Number: No. 50254,50254
• Parties: Phillip David HUNNICUTT, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 618

531 S.W.2d 618

Phillip David HUNNICUTT, Appellant, v. The STATE of Texas, Appellee.

No. 50254.

Court of Criminal Appeals of Texas.

Jan. 14, 1976.

Rehearing Denied Feb. 4, 1976.

Frank S. Wright, Dallas, on appeal only, for appellant.

Martin D. Eichelberger, Dist. Atty., Lynn Malone, Asst. Dist. Atty., Waco, Jim D. Vollers, State's Atty. and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for aggravated rape under the provisions of V.T.C.A. Penal Code, Sec. 21.03. Punishment for this first degree felony was assessed at life imprisonment by the trial court following a verdict of guilty.

Appellant contends that the trial court erred in admitting into evidence certain items seized from his automobile in violation of the Fourth Amendment, United States Constitution, and Article I, Sec. 9 of the State Constitution. He further urges that he was denied the effective assistance of trial counsel guaranteed by the Federal and State Constitutions--pointing out, among other things, that his retained and only counsel was an out-of-state lawyer not licensed to practice in Texas.

The sufficiency of the evidence is not challenged. Suffice it to say, the record reflects the prosecutrix, 17 years of age at the time, and her roommate, both apparently high school students, had rented an apartment at the Whispering Oaks Apartments in Waco. On May 19, 1974, the prosecutrix awoke at 5:30 a.m. to observe a hooded man standing beside her roommate's bed, telling her he would kill her if she screamed. The prosecutrix feigned sleep and had her head turned to the wall, but she could hear the conversation between her roommate and the man. Later, he came to the prosecutrix's bed, shook her and pulled the covers down. He began to fondle her, told her not to resist as he had a gun and would kill her. The prosecutrix observed the man had both a gun and a flashlight. He pulled her to the floor and raped her. Thereafter, he left through the front door. The prosecutrix identified the appellant as her assailant as she had seen him closely by the light of the flashlight after he had ripped off his hood or mask. She identified a pistol as one being similar to that exhibited by appellant, as well as gloves, as being similar to the ones she had seen on the carpet at the time of the alleged offense.

Appellant's written extrajudicial confession was admitted into evidence after a separate hearing on the voluntariness thereof. The only objection to the confession was that in addition to confessing the offense charged the appellant admitted that he had committed an act of oral sodomy upon the roommate and forced her to commit such an act upon him. The objection was overruled and the confession admitted into evidence before the jury. ¹

Turning to the search and seizure question, the record reflects that a week later on May 26, 1974, 25 or 30 Waco police officers were on a 'stake out' at various apartment complexes in Waco. Officer Michael Larrew was assigned to the Casa Linda apartments and Officer Lewis to Casa Royale apartments, which had a common parking lot with Casa Linda apartments. Larrew stated about 3:30 a.m. he observed a car circle the block and about 10 minutes later return and park around the corner. About 10 or 15 minutes thereafter, the officer observed a short, stocky white male walking across the parking lot. Sometime later, when he and Officer Lewis were on a foot patrol of the complexes, he observed the same man, whom he identified as the appellant, crossing the parking lot again going in the same direction as he had earlier. Later the appellant was seen going into an apartment at the Casa Royale, and 10 minutes later he was seen to emerge from the room. When he reached ground level, the officers decided to talk to him as he appeared to be roaming around aimlessly for an hour and 45 minutes after he was first observed. He gave his name, but had no identification. He admitted he was not a resident of Casa Royale, but stated he was waiting for an old girlfriend. The appellant suddenly complained of a stomach ache and was allowed to sit in the back seat of the police vehicle. At this point, he became very nervous and upset, his voice falling suddenly and then going higher. When asked about who his girlfriend was, he mumbled something unintelligible, and when asked what he was doing at the apartments, he stated he planned to swim nude in the swimming pool 'just for kicks.' At this point the officer told the appellant he was under arrest as a suspicious person and was going to be taken to the police station for further questioning. When asked if he was in a vehicle and, if so, if he would like for it to be taken to the police station, the appellant agreed and took the officers around the corner and pointed out a green Rambler and told Officer Larrew the keys were in the car. When Larrew opened the car door, the interior light came on and he began to look for the keys and noticed what appeared to be a pile of rags on the front seat. He reached over and picked up one of them and it appeared to be a pillowcase fashioned as a mask. Larrew related that as he stepped out of the car to show Lewis what he had found Officer Lewis stepped forward to say the appellant had just told him a pistol was in the car. ² Larrew then found the pistol under the 'rags,' which also included a white cotton glove, a white sock, a nylon stocking and a flashlight.

Appellant was initially arrested by the officers under the authority of Article 14.03, Vernon's Ann.C.C.P. ³ After being informed of his arrest, he agreed that his vehicle should be taken to the police station. Appellant does not contend that Officer Larrew did not have justifiable cause for being in his (appellant's) automobile, but contends that what followed was a warrantless search without probable cause and there was nothing in plain view. We cannot agree. The officer was in appellant's vehicle with his consent, and while looking for the keys, he saw in plain view a pillowcase altered to serve as a mask. ⁴ Officer Larrew was then informed that appellant had stated there was a pistol in the car. The information thus given Officer Larrew gave him probable cause to search the car. See, V.T.C.A. Penal Code, Sec. 46.02. Cf. Dugger v. State, 402 S.W.2d 178, 180 (Tex.Cr.App.1966); Thompson v. State, 398 S.W.2d 942, 944 (Tex.Cr.App.1966). In his search, Larrew found the pistol under the 'rags,' which were also found to include the items previously mentioned, all on the front seat of the car.

We conclude the search and seizure were permissible under both the State and Federal Constitutions.

There are, of course, other reasons why the error, if any, in admitting into evidence the items found in appellant's car do not present reversible error.

There was positive eyewitness testimony from the prosecutrix, who had an opportunity to observe the appellant from close proximity and at one time with a flashlight shining on his face. In addition, there is the voluntary extrajudicial confession of the appellant in which he mentions the use of a mask and pistol in the commission of a crime of rape. Even if it could be validly argued the items taken from appellant's car resulted from an improper search, the admission of such evidence in light of the eyewitness testimony and appellant's confession would render the error harmless beyond a reasonable doubt. See Clemons v. State, 505 S.W.2d 582 (Tex.Cr.App.1974); Bridger v. State, 503 S.W.2d 801 (Tex.Cr.App.1974); Clemons v. State, 501 S.W.2d 92 (Tex.Cr.App.1973).

Further, at the penalty stage of the trial the appellant took the stand. On cross-examination the prosecutor asked:

'Q Mr. Hunnicutt, are you guilty of what you're charged with?

The appellant replied, 'Yes, sir.'

Thus, any objection the appellant may have had was waived when he made a judicial confession of the offense with which he was charged. Richardson v. State, 458 S.W.2d 665 (Tex.Cr.App.1970); Boothe v. State, 474 S.W.2d 219 (Tex.Cr.App.1971); Palmer v. State, 475 S.W.2d 797 (Tex.Cr.App.1972); Sheridan v. State, 485 S.W.2d 920 (Tex.Cr.App.1972); McKenzie v. State, 487 S.W.2d 65 (Tex.Cr.App.1972). Cf. Creel v. State, 493 S.W.2d 814 (Tex.Cr.App.1973).

Next, we shall consider the appellant's claim of deprivation of effective assistance of counsel. It is his claim that since his sole counsel was not licensed in Texas and counsel was not associated with Texas counsel in the trial he made many procedural errors due to his lack of knowledge of Texas criminal procedure. The State argues the record fails to reflect that appellant's retained counsel was not licensed in Texas. The docket sheet and the transcription of the court reporter's notes reflect that defense counsel's address was 'Attorney at Law, 815 Cravens Building, Oklahoma City, Oklahoma, 73102,' and the affidavit of the assistant district attorney introduced at the hearing on the motion for new trial ⁵ reflects he was present when the trial judge granted defense counsel permission to practice in his court for the purpose of the instant case since counsel was not licensed to practice in Texas. Further, this court will take judicial notice of whether an attorney is licensed in Texas or not. Cf. Devereaux v. Daube, 185 S.W.2d 211 (Tex.Civ.App.1945--no writ). See also 23 Tex.Jur.2d, Evidence, Sec. 25, p. 45.

It seems clear that the fact that a private or retained counsel representing the accused in a criminal case was an attorney from another jurisdiction but was not admitted to practice in the court in which the accused was tried does not conclusively show that such counsel is incompetent. Dennis v. United States, 340 U.S. 887, 71 S.Ct. 133, 95 L.Ed. 644 (1950), 74 A.L.R.2d 1390 at p. 1426 and cases there cited.

Article 308, Vernon's Ann.C.S., provides:

'The Supreme Court shall make such rules and regulations as to admitting attorneys from other...