Kelley v. State

• Decision Date: 19 September 1984
• Docket Number: No. 63869,63869
• Citation: 677 S.W.2d 34
• Parties: John Wilburn KELLEY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 34

677 S.W.2d 34

John Wilburn KELLEY, Appellant, v. The STATE of Texas, Appellee.

No. 63869.

Court of Criminal Appeals of Texas En Banc.

Sept. 19, 1984.

Don Ervin, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., Joan Fisher and Gene Nettles, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

OPINION

McCORMICK, Judge.

Appellant was convicted of aggravated robbery. Punishment, enhanced by a prior felony conviction, was assessed at thirty years. The sufficiency of the evidence is not challenged.

In appellant's second ground of error, he argues that the trial court erred in refusing to grant a mistrial after the arresting officer testified concerning needle marks on appellant's arms. On direct examination, Officer G.A. Jensen of the Galena Park Police Department testified that he stopped appellant's vehicle at 2:27 a.m. on September 1, 1978. On cross-examination, appellant's counsel elicited the fact that the officer initially stopped appellant for driving while intoxicated. On redirect, the prosecutor elicited testimony that the officer thought appellant was under the influence of drugs:

"Q. All right, at the time that you pulled him over, did you determine whether or not there was any alcohol on his breath?

"A. Yes, sir, I could smell no alcohol.

"Q. Did you have an opinion as to whether or not--what he was under the influence of at that time?

"A. I thought he was under the influence of drugs.

"Q. All right. Was there anything else that led you to believe that he was under the influence of drugs?

"A. Yes, sir, his pupils were dilated, his eyes were red, he had slurred speech and he staggered when he walked.

"Q. Anything else that led you to believe he might have been under the influence of drugs?

"A. That's all.

"Q. Anything else down at the station that led you to believe that?

"A. That's all, sir.

"Q. Okay. Would you point out to the members of the jury for the purposes of the record the man that you arrested that night?

"A. Yes, sir, the defendant there in the yellow flowered shirt.

"Q. Okay. Did you have occasion to observe his person down at the Galena Park police station?

"A. Yes, sir.

"Q. Anything unusual about his arms?

"A. He had needle marks on them."

Appellant promptly objected that the officer was attempting to bring in an extraneous offense. The trial judge instructed the jury to disregard the testimony but denied appellant's motion for a mistrial.

It is a general rule of evidence that extraneous transactions or prior specific acts of misconduct committed by a party are irrelevant to the contested material issues in the case on trial and therefore inadmissible. Introduction of an extraneous offense is inherently prejudicial because (1) the accused is entitled to be tried on the accusation made in the State's charging instrument which specifies the "material issues" of the case and cannot--consistent with the rudiments of due process--be tried for some collateral crime of which he has no notice, Jones v. State, 568 S.W.2d 847 (Tex.Cr.App.1978); Walls v. State, 548 S.W.2d 38 (Tex.Cr.App.1977); Young v. State, 159 Tex.Cr.R. 164, 261 S.W.2d 836 (1953); and (2) an accused's propensity to commit crimes is not an issue which is material to whether he is guilty of the specific conduct charged by the State, Collazo v. State, 623 S.W.2d 647 (Tex.Cr.App.1981); Albrecht v. State, 486 S.W.2d 97 (Tex.Cr.App.1972). Although there are exceptions to the general rule, the instant case does not fit under one of those exceptions. Thus, it was error for the officer to testify regarding the needle marks.

An error in the admission of improper testimony is cured by the trial court's instruction to the jury to disregard, except in extreme cases where it appears that the question or evidence is clearly calculated to inflame the minds of the jury and is of such character as to suggest the impossibility of withdrawing the impression produced on their minds. Davis v. State, 642 S.W.2d 510 (Tex.Cr.App.1982); Campos v. State, 589 S.W.2d 424 (Tex.Cr.App.1979). It is in this regard that Powell v. State, 478 S.W.2d 95 (Tex.Cr.App.1972), may be distinguished from the instant case. In Powell, the trial court overruled the defendant's objection. We find that the trial court's action in instructing the jury to disregard the testimony cured any error concerning needle marks on appellant's arm. The ground of error is overruled.

In appellant's first ground of error, he complains that the trial court erred in overruling his motion to suppress. Appellant contends the court erred in failing to suppress the sawed off shotgun which he contends was found as a result of an illegal search and seizure incident to an illegal arrest. Officer Jensen testified that on September 1, 1978, he was on patrol when he saw the appellant's vehicle weaving across the center of the roadway. The officer stopped the car and asked appellant, who was driving, to step out of the vehicle. As appellant exited the vehicle, Officer Jensen noticed that appellant's pupils were dilated, his eyes were red and his speech was slurred. In addition, appellant walked very unsteadily. Jensen testified he thought that appellant was intoxicated. Additionally, Jensen testified that, as appellant exited the vehicle, Jensen saw a .45 Colt automatic pistol on the floorboard of the passenger side of the car. Jensen arrested appellant for suspicion of driving under the influence of drugs and for possession of a prohibited weapon. He arrested appellant's passenger for possession of a prohibited weapon. After appellant and his passenger were placed in the patrol car and a wrecker was called, Officer Jensen conducted an inventory of the car and found the sawed off shotgun in the locked trunk of the car.

Clearly, Jensen had probable cause to arrest appellant for driving while under the influence of drugs. Article 6701d, Sections 50 and 153, V.A.C.S. Thus, we now turn to the legality of the inventory which resulted in the seizure of the sawed off shotgun from the trunk.

In South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), it was held that inventories conducted pursuant to standard police procedures are reasonable. The purpose of an inventory is to protect the owner's property while it remains in police custody, to protect the police against claims or disputes over lost or stolen property, and to protect the police from potential dangers. South Dakota v. Opperman, supra.

Further, in Opperman, the Court found no need to consider the existence of less intrusive means of protecting the police and the property in their custody--such as locking the car or impounding it in safe storage under guard.

Officer Jensen testified that it was standard procedure to inventory the contents of a vehicle when the vehicle is turned over to a wrecker. He further stated that he inventoried the contents of the passenger compartment and the trunk after appellant gave him the keys to the trunk. We find that under the circumstances of this case the officer properly conducted the inventory.

This case can be distinguished from Gill v. State, 625 S.W.2d 307 (Tex.Cr.App.1980), wherein we held that the forcible entry into a locked trunk during an inventory was an unlawful intrusion under both the State and Federal Constitutions. In Gill, the police employed the aid of a wrecker driver to remove the back seat of a vehicle in order to gain access to the vehicle's trunk. Had they not forced their way into the trunk, the police in Gill would have had no means of access and thereby would have been free from any claims of tampering with appellant's property which was located in the trunk of the car. In the instant case, there was no forced entry. Jensen obtained the keys to the trunk from the appellant. As a means of protection against possible future claims of theft of property by the police from the trunk, Jensen properly conducted an inventory of the trunk of the car. The sawed-off shotgun was properly seized. Therefore, the trial court did not err in overruling appellant's motion to suppress. See Martinez v. State, 644 S.W.2d 104 (Tex.App.-San Antonio, 1982). Appellant's first ground of error is overruled.

Appellant has filed two pro se briefs on appeal. Although appellant is not entitled to hybrid representation, we have reviewed his briefs and find no reversible error.

The judgment is affirmed.

TEAGUE, Judge, dissenting.

After making the following correct holding, "it was error for the officer to testify regarding the needle marks," the majority opinion thereafter makes the following incorrect holding: "We find that the trial court's action in instructing the jury to disregard the testimony cured the error concerning needle marks on appellant's arm."

Ordinarily, I would not take issue with the latter holding. However, almost 12 years ago, in a case from Travis County, this Court in Powell v. State, 478 S.W.2d 95 (Tex.Cr.App.1972), reversed the defendant's conviction because the prosecuting attorney injected into the case over objection inadmissible evidence in the form of an extraneous offense. That testimony originated "at the Austin Police Department" and concerned a police officer looking at the defendant's arms and observing needle marks thereon. This Court held, prior to reversing the defendant's conviction: "The chain of inferences is too long and contains too many gaps to allow the introduction of evidence of needle marks alone to show possible motive for theft. The prejudicial effect of such evidence far outweighs any probative value it might have. To admit such testimony without showing some affirmative link between the theft [of two lawnmowers which the defendant was on trial for stealing] and narcotics would show only that the accused is 'a criminal generally.' This, the general rule heretofore quoted prohibits." (98).

What occurred in this cause is, if not identical to what occurred in Powell...