Kinsey v. State

• Decision Date: 22 June 1982
• Docket Number: No. 6-81-018-CR,6-81-018-CR
• Citation: 639 S.W.2d 486
• Parties: Gary Lynn KINSEY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 486

639 S.W.2d 486

Gary Lynn KINSEY, Appellant, v. The STATE of Texas, Appellee.

No. 6-81-018-CR.

Court of Appeals of Texas Texarkana.

June 22, 1982.

Rehearing Denied Aug. 24, 1982.

James P. Finstrom, Dallas, for appellant.

Henry Wade, Dist. Atty., Karen Chilton Beverly, Asst. Dist. Atty., Dallas, for appellee.

CORNELIUS, Chief Justice.

Gary Lynn Kinsey appeals his conviction for credit card abuse. Trial was to a jury which set punishment at 10 years confinement, enhanced by a prior conviction. The appeal contends that Kinsey's identification as the offender was impermissibly influenced by a prior illegal arrest, and that various items linking him to the offense were inadmissible because they were produced by the illegal arrest and also improperly connected him to extraneous offenses. We overrule these contentions and affirm the judgment.

Kinsey was accused of unlawfully using a VISA credit card belonging to Fred Michaels. According to the State's evidence, Michaels' truck was stolen on November 15, 1978, along with his wallet, VISA credit card, checks from his business, and some electronic equipment. On November 30th Kinsey, accompanied by a female companion, purchased a ring at Expo Leather, paid for it with Michaels' VISA card, and signed Michaels' name to the charge slip. Kimberly and Tammy Williams, manager and clerk at the store, identified Kinsey at trial as the man who used the card and signed the slip. Kinsey's defense was that he was in Houston when the card was used.

In Ground of Error One Kinsey argues that his identification which led to his prosecution in this case was the product of two prior illegal searches and should have been suppressed. A hearing on a motion to suppress the evidence revealed the following facts.

An Athens pharmacist called a local deputy sheriff and informed him that a young, blond female had attempted to obtain controlled drugs by using a forged prescription. He gave a description of her and of the van in which she was riding. A few minutes later, officers in Athens saw a van matching the description, being driven by an unidentified male with a young blond female and Appellant Kinsey as passengers. On searching the occupants, the officers found Kinsey with two prescriptions for the same drugs the woman had attempted to obtain from the druggist. Kinsey also had a driver's license with his picture on it but bearing the name "Larry Mills." Photographs were taken of Kinsey and the other occupants. A search warrant was then issued and the van was searched.

The Athens police received information from authorities in Mesquite that Kinsey was manufacturing driver's licenses in Dallas. Athens Police Officer Burton relayed this information to Dallas law enforcement personnel on January 26, 1979, and he went to Dallas three days later. While he was there his partner called from Athens to advise that he had overheard the van's driver ask his (the driver's) mother to retrieve certain items from a house at Clarendon and Polk Streets. Also while Burton was in Dallas he visited with Dallas Sheriff's Deputy Howard Taylor. Taylor testified that on that same day he received information from a confidential informant that "Kinsey" residing at the west side of a duplex at 1103 Clarendon was in possession of the drug Preludin.

A warrant was issued on January 29, 1979, for the search of the Clarendon property and outbuildings. When the search team arrived they asked the persons occupying the west side of the duplex about a U-Haul van parked in the rear. The occupants stated they did not know who owned the van but told the officers to go ahead and search it. Inside the van, the officers found a number of checks belonging to Fred Michaels and a number of counterfeit driver's licenses. They also found narcotics.

Sandra Tucker, Gary Evans, and defendant's brother, Ronnie Kinsey, were arrested. Taylor testified that after the search he learned that his informant was referring to Kinsey's brother, Ronnie, but he also testified that, at the time of the search, he was pursuing a continuing investigation of Gary Kinsey.

During the investigation of the use of Michaels' credit card at the Expo Leather store, the Williams sisters picked Kinsey out of a photographic lineup that included his picture taken after the January 25, 1979, arrest in Athens. Testimony concerning the lineup was presented at trial without objection. Kinsey posits that the arrest and search in Athens were illegal, and therefore, his identification and subsequent prosecution in this case are "fruit of the poisonous tree."

The warrantless arrest in Athens, to be valid, must have been justified by probable cause and exigent circumstances. Reed v. State, 522 S.W.2d 916 (Tex.Cr.App.1975); Washington v. State, 518 S.W.2d 240 (Tex.Cr.App.1975); Hooper v. State, 516 S.W.2d 941 (Tex.Cr.App.1974). At the time of this arrest, the Texas Controlled Substance Act provided that obtaining certain narcotics by a forged prescription was unlawful. Tex.Rev.Civ.Stat.Ann. art. 4476-15, Sec. 4.09(a)(3) (Vernon Supp. 1982). Here, however, the drug was not obtained. There was only an attempt. Since the Controlled Substances Act contains no general criminal attempt provision, attempting to acquire and obtain a controlled substance by forgery is not an offense. Ex Parte Brantley, 574 S.W.2d 567 (Tex.Cr.App.1978); Moore v. State, 545 S.W.2d 140 (Tex.Cr.App.1976). Because there was no evidence that Kinsey or his companion had committed an offense, there was not sufficient probable cause for his arrest and search in Athens.

The State argues that possession of a forged prescription is an offense under Tex. Penal Code Ann. Sec. 32.21 (Vernon 1974), the general forgery provision. However, Section 32.21 requires that a person must intend "to defraud or harm another" by his action. Tex. Penal Code Ann. Sec. 32.21(b) (Vernon 1974). There is no evidence of intent to defraud or harm in this case.

Ordinarily, an identification resulting from an illegal arrest is inadmissible. 3 LaFave, Search and Seizure Sec. 11.4(g)(1978). But as Professor LaFave has pointed out, that result does not follow in all cases. Each case is to be judged on its own merits by an analysis employing the elements used by the United States Supreme Court in assaying the connection between an illegal arrest and a confession. The elements are (1) temporal proximity, (2) presence of intervening circumstances, and, particularly, (3) the purpose and flagrency of the official misconduct. Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). We find that when the third element is applied here, any taint associated with the photographic lineup identification disappears because the purpose of the arrest in Athens was not to take Kinsey's picture for a photographic lineup. See State v. Thomas, 491 S.W.2d 328 (Mo.1973); People v. McInnis, 6 Cal.3d 821, 494 P.2d 690 (1972). In addition, there were sufficient intervening circumstances and independent bases for the identification to render the connection with the illegal arrest too attenuated to require exclusion. Moreover, defendant did not object to testimony concerning his identification in the photographic lineup, and the in-court identification was...