McCain v Sate

• Decision Date: 03 June 1999
• Citation: 995 S.W.2d 229
• Parties: <!--995 S.W.2d 229 (Tex.App.-Houston 1999) JODY D. MCCAIN, Appellant v. THE STATE OF TEXAS, Appellee NO. 14-97-00143-CR In The Fourteenth Court of Appeals
• Court: Texas Court of Appeals

Page 229

995 S.W.2d 229 (Tex.App.-Houston[14th.Dist.] 1999)

JODY D. MCCAIN, Appellant v THE STATE OF TEXAS, Appellee

NO. 14-97-00143-CR

In The Fourteenth Court of Appeals

June 3, 1999.

On Appeal from the 268th District Court Fort Bend County, Texas Trial Court Cause No. 27,094A

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Panel consists of Justices Amidei, Fowler, and Lee.^*

O P I N I O N

Wanda McKee Fowler, Justice

Affirmed

Over his plea of not guilty, a jury found Appellant, Jody D. McCain, guilty of murder. See TEX. PENAL CODE ANN. 19.02 (Vernon 1994). The jury assessed punishment at life imprisonment in the Texas Department of Corrections, Institutional Division. McCain appeals on four points of error. He alleges three errors by the trial court: (1) denying a motion to suppress evidence, (2) allowing improper cross-examination of Jody McCain at a motion to suppress, and (3) giving an improper charge instruction. In the fourth point of error, McCain raises numerous allegations of ineffectiveness of counsel.

This is a tragic case, involving a heinous crime. It is tragic for the deceased-an innocent victim-and his family; and, it is tragic for Jody McCain, a twenty year old, who, a day or two before the incident, buried his father. It is also a difficult case, because McCain received imperfect representation at trial. Mistakes were made by his lawyer and the judge, and we have the difficult task of determining whether the mistakes made a difference in the outcome of the trial. It is difficult in part because we do not have the benefit of seeing the witnesses and the lawyers. We have to base our decision solely on the transcribed testimony and the evidence. The question before us in some of the points is whether these mistakes contributed to McCain's conviction and punishment. In other points, the question is whether the mistakes caused a different outcome in his conviction and punishment. As we discuss below, we affirm the trial court's judgment because we find that none of the mistakes affected the out come of the trial.

I. THE CONTROVERSY

The tragedy began this way. On June 19, 1995, McCain, his brother, Don Paul McCain, and a friend, Christopher Bench, were involved in a fight with several individuals outside a dance hall. These individuals, who were riding in a blue Neon, bested McCain and his companions in the fight. Their egos hurt, the McCains and Chris Bench left the dance, went to Jody McCain's house, retrieved two guns, and went back to the dance in their truck. Not seeing the blue Neon, they returned to Jody McCain's house. There, they apparently had some disagreement about whether to go out again and look for the blue Neon. Ultimately, however, they decided to try again; this time they took a fast car-a red mustang. With Don McCain driving, Jody McCain in the front passenger seat holding a .22 caliber pistol, and Chris Bench in the back seat holding a .22 caliber rifle, they returned to the dance hall and waited across the street. Before long, they saw a blue Neon leave the dance. They followed, mistakenly believing the car contained the individuals with whom they had fought. They pulled even with the Neon. Jody McCain fired two or three shots directly at the driver's window of the Neon,¹ while Bench fired as many as 10-13 shots at the car. In all, they fired 16 shots. They killed the driver of the car, Scott Tatar. Nicole Meyer, who was riding in the front seat, was injured. At trial, McCain admitted firing a handgun at the tires of the car in an attempt to stop the car but denied firing the shots that killed Scott Tatar. The jury apparently did not believe McCain, found him guilty of murder, and sentenced him to life in prison.

II. DISCUSSION AND HOLDINGS

A. Motion to Suppress the Guns.

In his first point of error, McCain contends that the trial court erred when it (1) overruled a motion to suppress and (2) wrongly admitted evidence during the guilt-innocence stage of the trial. Specifically, McCain argues that the trial court should have suppressed the weapons used during the offense because they were the result of an unlawful search and seizure by the police. McCain filed five motions to suppress and his brief is unclear as to which of the motions is the subject of this complaint. However, after reviewing McCain's brief, his five motions to suppress, and the events at trial, we conclude McCain is claiming that the trial court should have granted his fourth motion to suppress. In that motion, McCain sought to suppress any evidence seized on or about July 3, 1995, including, but not limited to, guns and ammunition. According to McCain, law enforcement officials obtained this evidence as a result of an illegal warrantless arrest conducted outside the jurisdiction of the arresting officers. We agree.

On July 2, 1995, Larry Feinstein, an investigator with the Fort Bend County Sheriff's Department and the lead officer investigating Scott Tatar's death, received a phone call from an anonymous caller. This caller told Feinstein about the shooting and several of the facts of the shooting. The caller stated that she had learned the facts from her boyfriend and that she knew who the shooters were. She gave Feinstein their names: Chris Bench, Jody McCain, and Don McCain. The caller also told Feinstein that the McCain brothers and Bench had been doing a lot of talking about the shooting and that they were becoming nervous because so many people knew of their involvement. The caller stated that they were planning to go to Houston to "hide out".

This information agreed with what Feinstein had learned about the shooting and with information he had heard the night before from the Chief of Police of Wallis, Texas, that Jody McCain was one of the shooters. According to the Chief, McCain's name came from one of the Chief's reliable confidential informants. Acting on this information, Feinstein contacted his office and asked for some officers to meet him at the McCain residence. Feinstein's greatest fear was that the shooters would flee before he could obtain a warrant. So, he immediately drove to the McCains' residence in Wharton County.

There, Feinstein detained Jody and Don McCain. According to law enforcement officials, Jody McCain was immediately read his Miranda rights and told that he was being detained for questioning in a homicide investigation. He signed a consent to search form authorizing the officers to search the premises, buildings, and vehicles at his residence there in Wharton county. The officers then transported Jody McCain to the Sheriff's office in Fort Bend County, where Feinstein read Jody McCain his Miranda rights, placed him in an interview room and asked him if he wanted to waive his rights. McCain declined and stated that he did not want to say anything. Feinstein left the room and told McCain to relax and compose himself. Twenty minutes later, another officer, Officer Rick Sousley, went to McCain's interview room and asked him if he wanted anything to drink. While in the kitchen at the Sheriff's office, McCain ultimately admitted that he was involved in the shooting; he also told Sousley that Chris Bench had hidden the guns somewhere on his property. He then told Sousley that he thought he needed an attorney. Upon hearing this request, Sousley ceased all conversation with Jody. Around this time, officers obtained arrest warrants for both Don and Jody McCain.

The following day, the Fort Bend officers went to the McCain residence in Wharton County and began to search the heavily wooded fifteen acres. After twenty or thirty minutes, an officer with the Sheriff's Department discovered the pistol used in the shooting. It was inside a bag stuffed in a hole at the base of a tree.

It is the discovery of this pistol that McCain sought to suppress. But, after a hearing on his motion to suppress, the trial court denied McCain's motion.

According to Article 2.12(1) of the Texas Code of Criminal Procedure, sheriffs and their deputies are peace officers. See TEX. CODE CRIM. PROC. ANN. art. 2.12(1) (Vernon Supp. 1999). A peace officer cannot make warrantless arrests anywhere in the State. See Angel v. State, 740 S.W.2d 727, 732 (Tex. Crim. App. 1987). Common law and statutory law limit a peace officer's authority to his own geographic jurisdiction. See Dominguez v. State, 924 S.W.2d 950, 953 (Tex. App.-El Paso 1996, no pet.); Thomas v. State, 864 S.W.2d 193, 195 (Tex. App.-Texarkana 1993, pet. ref'd). "Generally, a peace officer is a peace officer only while in his jurisdiction and when the officer leaves that jurisdiction, he cannot perform the functions of his office." Dominguez, 924 S.W.2d at 953-54 (emphasis added). The officers who searched the property and recovered the pistol were officers in the Fort Bend County Sheriff's Department, and they were unable to perform the functions of their office while they were in Wharton County. Thus, the trial court should have suppressed the pistol and not allowed it into evidence. But, in spite of this conclusion, our inquiry is not ended. We must still determine if the court's error was harmful. As we discuss below, any error committed by the trial court was harmless.

Rule 44.2 of the Texas rules of Appellate Procedure states,

(a) Constitutional Error. If the appellate record in a criminal case reveals constitutional error that is subject to harmless error review, the court of appeals must reverse a judgment of conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment.

(b) Other errors. Any other error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.

TEX. R. APP. P. 44.2. As the error in this case is the failure to grant the fourth motion to suppress and the subsequent admission of the pistol and some ammunition, we find no constitutional error and apply Rule 44.2(b). That rule...