Miller v. State

• Decision Date: 14 March 1984
• Docket Number: No. 347-83,347-83
• Parties: Roger MILLER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 773

667 S.W.2d 773

Roger MILLER, Appellant, v. The STATE of Texas, Appellee.

No. 347-83.

Court of Criminal Appeals of Texas,

En Banc.

March 14, 1984.

Douglas D. Behrendt, Austin, for appellant.

Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

ONION, Presiding Judge.

This appeal was taken from a conviction for possession of cocaine. The jury assessed punishment at seven (7) years' imprisonment, probated.

On appeal the Corpus Christi Court of Appeals sustained the appellant's first and fourth grounds of error and reversed the conviction. With regard to the fourth ground of error, the court initially held the trial court erred in overruling appellant's motion for instructed verdict of not guilty based on insufficient evidence in that the State failed to prove his identity as the person who committed the crime. Next the Court of Appeals held the conviction would also have to be reversed for admission into evidence of cocaine, which was seized as a result of an illegal warrantless search and seizure. See Miller v. State, 653 S.W.2d 510 (Tex.App.--Corpus Christi--1983).

We granted the State's petition for discretionary review to determine the correctness of the holding of the Court of Appeals. We reverse.

With regard to the fourth ground of error, we observe that appellant's motion for instructed verdict was made orally. It was devoted principally to the search and seizure question. At the conclusion appellant's counsel simply stated:

"Moreover, I move for an instructed verdict of acquittal on the grounds that as a matter of law, the evidence is thus insufficient to support any verdict other than not guilty...."

At no time did the appellant argue, contend or call to the trial court's attention that he was not identified as the person who committed the crime. He raised this argument for the first time on appeal. Nothing is presented for review.

Even if it was preserved for review, we cannot agree with the conclusion reached by the Court of Appeals.

The arresting police officer, Gilbert Hernandez, testified that on May 1, 1980, while on night patrol, he "came across Roger Miller." The record then reflects:

"Q When you proceeded to turn into that alley, what next happened?

"A I almost ran over Mr. Miller here, as I was turning into the alley.

"Q Is Roger Miller seated here in the courtroom?

"A Yes, sir, he is.

"Q Would you identify him, please sir.

"A This is Mr. Miller right there, sir.

"MR. FINLEY (Assistant District Attorney): Let the record so reflect."

There was no objection to this latter statement.

Officer Hernandez then detailed the events of the charged offense and his arrest of "Mr. Miller."

Officer Robert Flores, who was riding with Officer Hernandez, testified that on the occasion in question they came "across Roger Miller." The record then reflects:

"A ... and we had to stop. We almost ran into the person.

"Q Do you know who that person was?

"A Yes, sir.

"Q Who was it?

"A It was Mr. Roger Miller, seated right there.

"Q The person you have just pointed to?

"A Yes.

MR. FINLEY: Let the record so reflect."

Here again, there was no objection to the prosecutor's statement.

From the time the trial judge had "Roger Miller" stand before the panel of prospective jurors through the unequivocal identification testimony of Officers Hernandez and Flores, the issue of whether appellant was the person charged was never contested. ¹

The Court of Appeals correctly held that the State has the burden of proving appellant committed the offense charged. Mayo v. State, 156 Tex.Cr.R. 26, 238 S.W.2d 777 (1951). See also McCullen v. State, 372 S.W.2d 693 (Tex.Cr.App.1963). In reversing upon the identification issue, the Court of Appeals relied upon McDonald v. State, 513 S.W.2d 44 (Tex.Cr.App.1974). There the defendant was indicted for sodomy as Bufford Lenell McDonald, alias Joe McDonald. He contended the complaining witness' testimony failed to identify him as the perpetrator of the offense, was vague, indefinite and uncertain. The record reflected said witness testified:

"Q Now, are you acquainted--do you know Buddy McDonald?

"A Yes.

"Q Is that the man sitting right over there?

"A Yes."

Thereafter the complaining witness referred to the man who committed the offense as "Buddy." Keeping in mind that the defendant's given names were "Bufford Lenell alias Joe," the court in the McDonald case wrote:

"While the interrogation above, standing alone, leaves open to argument whether the man identified was in fact the appellant--other witnesses offered by the State clearly identified the appellant and testified he was known as Buddy McDonald. The jurors were the judges of the facts, the credibility of witnesses, etc., and we cannot say the evidence is insufficient on the ground urged." (Emphasis supplied.)

Thus this court in McDonald looked to all the evidence in passing on the contention, a totality of the circumstances type of approach or test. Rohlfing v. State, 612 S.W.2d 598 (Tex.Cr.App.1981), took a similar approach. There, in a panel opinion, it was stated at page 601:

"... Although at no time did the prosecutor request that the record be made to reflect that the person referred to in the courtroom (by the witnesses) was appellant, we conclude from a totality of the circumstances the jury was adequately apprised that the witnesses were referring to appellant. Absent any indication, prior to appeal, that the jury may have been misled by the in-court identification procedure, we will not presume that some person other than appellant may have been identified and that the jury nonetheless chose willfully to convict appellant without evidence that he was the sole perpetrator of this offense. Furthermore, the jury verdict in this cause reflects: 'We, the Jury, find the defendant, MICHAEL HENRY ROHLFING, 'guilty' of aggravated robbery, as charged in the indictment.' The record bears out that appellant and no other was on trial in this cause. No objection was made by appellant to the employed identification procedure. If it be appellant's contention that another person, and not he, was identified by the state's witnesses, and he does not so claim in his brief, we believe it was incumbent upon him, by objection to the identification procedure employed or by an offer of a bill of exception detailing the circumstances which would reflect any possible confusion or misidentification in the in-court identification process, to preserve the issue by making same part of the record. Appellant's contention is, therefore, overruled." (Footnote omitted.)

In a footnote (# 2) the Rohlfing panel urged prosecutors to use the words "Let the record reflect ...." See also and cf. Hicks v. State, 525 S.W.2d 177 (Tex.Cr.App.1975).

Not mentioning Rohlfing and using the test of the complaining witness' testimony in McDonald, standing alone, the Court of Appeals found the in-court identification of appellant by Officers Hernandez and Flores insufficient to establish that he was the person who committed the crime. We do not agree. The facts of this case are a far cry from the in-court identification of the complaining witness' testimony in McDonald standing alone. Applying the totality of the circumstances test, the identification evidence here was clearly sufficient and was not controverted. The Court of Appeals was in error.

The appellant also contended the court erred in admitting the cocaine over objection that the officers had obtained it without probable cause as a result of an unreasonable warrantless search and seizure. The Court of Appeals agreed, finding that the search and seizure could not be justified by the plain view doctrine because it was not immediately apparent to Officer Hernandez that the substance was contraband. In arriving at this conclusion, the Court of Appeals relied upon Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), and Brown v. State, 617 S.W.2d 196 (Tex.Cr.App.1981).

The State's petition urges that Texas v. Brown, --- U.S. ----, 103 S.Ct. 1535, 75 L.Ed.2d 502 (April 19, 1983), ² reversed Brown v. State, supra, and altered the analyses set forth in Coolidge and Brown. In view of Texas v. Brown, supra, it is not now required that it be immediately apparent to the officer that the substance is contraband, but that the officer have probable cause for the seizure, that is probable cause to associate the property with criminal activity.

A review of the evidence concerning the search and seizure in the instant case becomes necessary. Officer Gilbert Hernandez testified that he had been a Gonzales city police officer for a year and a half, that he was a patrol sergeant, a night shift supervisor. Hernandez stated he had trained as a police officer at the Alamo Area Law Enforcement Academy in San Antonio, had attended other law enforcement schools and taken additional courses. He testified he had attended alcohol beverage school, arrest, search and seizure school and other schools on crime prevention and had 240 hours' credits in various courses.

On May 1, 1980, Hernandez was patrolling with Officer Flores about 9:20 p.m. It was dark. They turned off of St. Paul Street into an alley to check doors of businesses, etc. It was an area where there had been burglaries, thefts and criminal mischief offenses. As the police vehicle turned into the alley, it almost ran over the appellant coming out of the alley. Officer Hernandez jumped out and asked if the appellant was all right. As the appellant stood there, Hernandez observed that he appeared to be intoxicated. His speech was slurred, he mumbled, his eyes were "real glassy" and he swayed and leaned against the patrol vehicle. When asked what he was doing in the alley, he answered he "was keeping a low profile." Officer Hernandez determined that he was going to arrest the appellant for public intoxication. Before he verbalized...