Johnson v. State, 70999

• Decision Date: 13 October 1993
• Docket Number: No. 70999,70999
• Citation: 871 S.W.2d 183
• Parties: Eddie James JOHNSON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 183

871 S.W.2d 183

Eddie James JOHNSON, Appellant, v. The STATE of Texas, Appellee.

No. 70999.

Court of Criminal Appeals of Texas,

En Banc.

Oct. 13, 1993.

Rehearing Denied Dec. 8, 1993.

Certiorari Denied April 18, 1994.

See 114 S.Ct. 1579.

Carl E. Lewis, Corpus Christi, for appellant.

Thomas L. Bridges, Dist. Atty. and Michael E. Welborn and Patrick L. Flanigan, Asst. Dist. Attys., Sinton, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

WHITE, Judge.

Appellant was convicted of the offense of murder committed in the course of kidnapping. See TEX.PENAL CODE ANN. § 19.03(a)(2). This offense originated in Aransas County, where appellant was indicted and assigned Cause No. 2223. On July 26, 1988, pursuant to appellant's motion, venue was changed to Victoria County. On September 11, 1989, pursuant to appellant's motion, venue was then changed to Bee County. After the jury affirmatively answered both of the special issues submitted to them, the trial court assessed appellant's punishment at death. TEX.CODE CRIM.PROC.ANN. Art. 37.071(b)(1) & (2). Direct appeal to the this Court is automatic. Art. 37.071(h). We will affirm the judgment of the trial court.

In seven points of error, appellant argues the trial court erred in: denying his motion to suppress evidence seized during a search of his trailer; admitting evidence seized as a result of an illegal search of his trailer; admitting evidence of analysis of blood taken from him pursuant to a search warrant as the affidavit in the search warrant contains no probable cause to support issuance of the warrant; in admitting evidence seized pursuant to a search warrant which was overbroad in authorizing seizure of his blood where the affidavit presented to the magistrate provided no probable cause for seizure of blood; in admitting evidence seized pursuant to a search warrant where there was no probable cause for the issuance of the search warrant and there was no showing of a good faith exception to the requirement for a validly issued search warrant; and, in overruling his motion for mistrial after the State made a patently improper argument before the jury at the close of the punishment phase of the evidence. Appellant also contends that the jury's verdict in convicting him of the offense of capital murder was not supported by the evidence in that the evidence presented at the trial was insufficient to show his guilt beyond a reasonable doubt.

The crime spree involved in the instant case actually resulted in two charges of capital murder against appellant. ¹ The first, which was assigned Cause No. 2222 in Aransas County, was addressed on direct appeal by this court in Johnson v. State, 803 S.W.2d 272 (Tex.Cr.App.1990). For simplicity sake, we will refer to this as "appellant's first capital murder conviction" throughout this opinion. Although two separate trials were held, pre-trial motions for both cases, Cause No. 2222 and No. 2223, were combined and resolved in Aransas County. The same motion to suppress and arguments were presented by appellant in both cases.

When the instant trial was convened in Bee County, the trial court, pursuant to appellant's request, accepted into evidence the transcript and evidence of the combined pre-trial hearing in Aransas County. There was no further evidence or argument offered by appellant or the State. The trial court in the instant case then issued the same ruling as did the trial court in appellant's first capital murder conviction.

In this Court's opinion in appellant's first capital murder conviction, we addressed the several arguments which appellant makes in the instant case involving pre-trial rulings. Since the same evidence, arguments, and rulings are involved, we find Johnson, supra, dispositive of points of error one through five.

In point of error one, appellant argues that the trial court erred in denying his motion to suppress evidence seized during a search of his trailer where the State showed neither voluntary consent nor a validly issued search warrant. Specifically, appellant contends that the consent to search given by his wife was not freely and voluntarily given.

This argument corresponds with point of error three in appellant's first capital murder conviction. Johnson v. State, 803 S.W.2d 272, at 285. Having already addressed this argument in appellant's first capital murder conviction and found that the record was sufficient to support the trial court's finding that consent was freely and voluntarily given, we will defer to our prior holding. Johnson, supra, at 287. Point of error one is therefore overruled.

In point of error two, appellant alleges that the trial court erred in admitting evidence seized as a result of an illegal search of his trailer. Specifically, he argues that since the consent to search the trailer was not freely and voluntarily given (see point of error one, supra), a boot with blood stains that was recovered during the search and related testimony should have been suppressed.

We held in point of error one, supra, that the record supported the trial court's finding that consent to search the trailer was freely and voluntarily given. Absent any other argument urged by appellant, we find that the admission of evidence discovered as a result of that search was proper. Point of error two is overruled.

By way of point of error three, appellant contends that the trial court erred in admitting evidence of analysis of blood taken from his person pursuant to a search warrant. The warrant authorized seizure of his blood, hair or saliva. He argues that the affidavit in the warrant contained no probable cause to support issuance of this warrant. In his fourth point of error, appellant asserts that the same search warrant was overbroad in authorizing seizure of his blood because the affidavit provided no probable cause for the seizure of blood.

These points of error are a revisitation of points of error four and five, respectively, in appellant's first capital murder conviction. Johnson v. State, 803 S.W.2d 272, at 287-89. Our prior opinion contained a lengthy discussion of the probable cause necessary to support a search warrant. Id., at 288-289. Applying the standard to the one sub judice, we find that the affidavit underlying the search warrant involved in the instant case contained sufficient probable cause to support issuance of the warrant. See Id., at 289. Additionally, we find that the affidavit did supply probable cause for the seizure of appellant's blood. See Id., at 289.

Appellant's argument in points of error three and four are identical to those we have already addressed. Johnson v. State, 803 S.W.2d 272, at 287-89. Moreover, they involve the same search warrant. Id. Finding no reason to depart from our prior holdings, we overrule points of error three and four.

Appellant argues in his fifth point of error that the trial court erred in admitting evidence seized pursuant to a search warrant where there was no probable cause for the issuance of the search warrant. Additionally, he argues that there was no showing of a "good faith" exception to the requirement for a validly issued search warrant. Appellant asserts that the magistrate wholly abandoned his judicial role in making his probable cause determination. This is the same search warrant addressed in points of error three and four.

This argument is the same as that raised in point of error six in appellant's first capital murder conviction. Johnson v. State, 803 S.W.2d 272, at 289. When we previously addressed this argument, we found that the search warrant was validly issued based on probable cause. As such, we held that the magistrate did not abandon his judicial role and no showing of a good faith exception was required. Since appellant urges the identical argument, we are compelled to overrule point of error five.

In his seventh point of error, appellant claims the jury's guilty verdict "was not supported by the evidence in that the evidence presented at the trial was insufficient to show appellant's guilt beyond a reasonable doubt." Appellant argues that this Court should not consider the evidence discovered during the search of his trailer because it was illegally seized. See points of error one through five, infra.

Even if this evidence was inadmissible, and the trial court erred in permitting its admission, we would still consider it in conducting our review of the sufficiency of the evidence. In Thomas v. State, 753 S.W.2d 688, at 695 (Tex.Cr.App.1988), this Court stated, "In assessing the sufficiency of the evidence to support a conviction, a reviewing court must consider all evidence which the jury was permitted, whether rightly or wrongly, to consider. Beltran v. State, 728 S.W.2d 382, 389 (Tex.Cr.App.1987); Porier v. State, 662 S.W.2d 602, 605-606 (Tex.Cr.App.1984) ..." See, also, Chambers v. State, 805 S.W.2d 459, at 460 (Tex.Cr.App.1991); Faulder v. State, 745 S.W.2d 327, at 330 (Tex.Cr.App.1987); and Dunn v. State, 721 S.W.2d 325, at 327 (Tex.Cr.App.1986). This Court explained the rule:

"In the event a portion of this evidence was erroneously admitted, the accused may complain on appeal of such error. If his complaint has merit and the error is reversible, see Rule 81(b)(2), Tex.R.App.Proc., a new trial should be ordered. But jurors do not act irrationally taking such evidence into account, since they are bound to receive the law from the trial judge. All evidence which the trial judge has ruled admissible may therefore be weighed and considered by the jury, and a reviewing court is obliged to assess the jury's factual findings from this perspective." (emphasis added).

Thomas v. State, 753 S.W.2d, at 695. Regardless of the legality of the search of appellant's trailer, we shall consider all of the evidence admitted at trial to determine if it was sufficient.

Appellant correctly points out that the evidence at trial was circumstantial....