Morris v. State

• Decision Date: 05 July 1985
• Docket Number: No. B14-84-131-CR,B14-84-131-CR
• Citation: 696 S.W.2d 616
• Parties: Thomas MORRIS, III, Appellant, v. The STATE of Texas, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 616

696 S.W.2d 616

Thomas MORRIS, III, Appellant, v. The STATE of Texas, Appellee.

No. B14-84-131-CR.

Court of Appeals of Texas Houston (14th Dist.)

July 5, 1985.

Charles F. Baird, Northwoods Park, Houston, for appellant.

John B. Holmes, Dist. Atty., Calvin A. Hartmann and Karen Zellars, Asst. Dist. Attys., Houston, for appellee.

Before PAUL PRESSLER, MURPHY and DRAUGHN, JJ.

OPINION

DRAUGHN, Justice.

Thomas Morris appeals from a jury conviction for theft of a motor vehicle. The jury assessed punishment, enhanced by one prior conviction, at 20 years' confinement and a fine of $740. In six grounds of error, appellant complains of (1) the improper admission of evidence seized pursuant to an invalid warrantless arrest, (2) an unnecessarily suggestive pretrial identification procedure, (3) an improper denial of his motion for new trial, and (4) ineffective assistance of counsel. We find no reversible error and affirm the trial court's judgment.

Sergeant R.L. Reed of the Houston Police Department's Auto Theft Division received a tip from a confidential informant that appellant had stolen a Camaro. The informant provided appellant's name, address, and general physical description. On July 20, 1983, Reed initiated surveillance of two stolen Camaros parked near units # 170 and # 172 of appellant's apartment complex; appellant resided in unit # 170. While Reed sat in an unmarked car observing the stolen Camaros, someone entered one of them and drove off. Reed apparently could not tell who the driver was or what apartment or direction he had come from, because passing traffic had blocked his view. Reed followed the Camaro as it pulled out of the complex and observed the driver stop to use a telephone outside a local convenience store. Reed continued surveillance when the driver returned to the car and again drove off.

Shortly thereafter, the driver apparently discovered he was being followed, because he suddenly executed a sharp U-turn across several lanes of traffic and increased his speed in the opposite direction. Reed pursued the Camaro and called for assistance. Officer Morris, who was on patrol in the area, joined the pursuit and observed the driver as he halted the Camaro and escaped over a wire fence through another apartment complex.

Later Sergeant Reed learned from an informant that appellant was scheduled for a meeting with Houston Probation Officer Randy Frisch on August 10, 1983. On this date, Reed met with Mr. Frisch regarding his investigation of the stolen vehicles. While Reed discussed the situation with Frisch, the appellant appeared for his appointment. Reed recognized appellant as the driver of the stolen Camaro and immediately effected a warrantless arrest for the unauthorized use of a motor vehicle. Appellant then ran from the officer but was soon captured in a wooded area outside the building and arrested a second time. Sergeant Reed seized certain items from appellant's custody pursuant to this arrest.

Ground of error one alleges trial court error in refusing to suppress the evidence obtained from appellant through an allegedly invalid warrantless arrest. Appellant contends that Sergeant Reed possessed sufficient information based upon the informant's tips and the officer's observation of the driver's physical characteristics during the car chase to obtain an arrest warrant before he met with Mr. Frisch. The State counters this argument with the assertion that although Sergeant Reed possessed this information, he did not know that appellant, the person who lived in apartment # 170, was actually the driver of the car whom he had observed, until he saw him at Mr. Frisch's office.

In any event, we need not address the legality of the initial arrest for the unauthorized use of a motor vehicle. The appellant in this case also committed the offense of felony escape when he ran from Sergeant Reed after first being taken into custody. TEX.PENAL CODE ANN. § 38.07 (Vernon 1974). Appellant committed this felony even if the original arrest from which he fled was unlawful. TEX.PENAL CODE ANN. § 38.09 (Vernon 1974). Therefore, appellant's attempted escape provided probable cause for the second warrantless arrest, and the evidence seized pursuant to this second arrest was properly admitted into evidence. TEX.CODE CRIM.PROC.ANN. arts. 14.01 & 14.04 (Vernon 1977); Willis v. State, 669 S.W.2d 728, 730 (Tex.Crim.App.1984) (en banc). Ground of error one is overruled.

Appellant contends in ground number two that he was denied due process because of an unnecessarily suggestive pretrial identification procedure. Sometime after the August 10th arrest, Sergeant Reed took one picture of the appellant to Officer Morris for identification of appellant as the driver of the Camaro. Appellant contends this procedure was unnecessarily suggestive and conducive to irreparable misidentification. We find no merit in this assertion, however, because of the officers' testimony at trial. The officers testified that they are highly trained observers and that they clearly observed the appellant during the surveillance and subsequent car chase on July 20, 1983. Although their opportunity to view the appellant was relatively brief, they stated that their positive identification was based upon the events of that day and not upon any photograph. United States v. Wade, 388 U.S. 218, 240, 87 S.Ct. 1926, 1939, 18 L.Ed.2d 1149 (1967). Under the totality of circumstances in this case, we conclude that the likelihood of irreparable misidentification was minimal. See Garza v. State, 633 S.W.2d 508, 512-513 (Tex.Crim.App.1982) (opinion on state's motion for rehearing) (en banc). We overrule ground of error two.

Appellant next complains of trial court error in failing to grant his motion for new trial. Appellant's motion contained allegations of trial counsel's negligence and ineffective assistance. At the hearing on this motion, counsel on appeal claimed that trial counsel was negligent in failing to call witnesses Cindy Griffin (appellant's girlfriend) and Frederick Griffin (an acquaintance unrelated to Cindy Griffin). ¹ Counsel dictated into the record a "proffer" of what these witnesses would have said if they had testified at trial.

He alleged that Cindy Griffin would have testified that she owned a Camaro in June of 1983; that she owned clear title to this Camaro; that she had given appellant permission to sell this Camaro for her; and that appellant later did sell her Camaro for $1800. (Ms. Griffin's Camaro was red or maroon in color, while the stolen Camaro for which appellant was convicted of theft was brown.)

Counsel then dictated that Frederick Griffin would have testified that he is an employee of Silk's Nightclub; that he met with appellant at the nightclub on or about July 14, 1983; that appellant was seeking to sell Cindy Griffin's Camaro; and that Ms. Griffin possessed clear title to the Camaro. Counsel further read into the record that neither Cindy Griffin nor Frederick Griffin was contacted by trial counsel to testify in appellant's behalf, although they were willing to do so.

Following this proffer of testimony by counsel on appeal, appellant testified as the only witness at this hearing. He claimed that he urged his trial attorney several times to subpoena these witnesses but to no avail. He further claimed that Cindy Griffin could have corroborated his explanation at trial as to why his fingerprints were found on the hood of the stolen Camaro. Appellant's explanation at trial was as follows: The stolen car was in the possession of his roommate, Herman Byrd, a used car salesman whose general physical characteristics allegedly resemble those of appellant. According to appellant's story, Herman Byrd and Cindy Griffin were going on vacation to Mexico and needed a jump-start for the stolen Camaro. Appellant assisted with the jump-start and placed his hand on the stolen car when he closed the hood. At the hearing on motion for new trial, appellant still maintained that his fingerprints appeared on the hood because he jump-started the car, but this time he claimed that he, Ms. Griffin, and Ms. Griffin's daughter were on their way to the movies when Mr. Byrd required assistance in starting the car. Appellant's testimony, both at trial and at the subsequent hearing, was replete with inconsistencies. Nevertheless, appellant now claims he is due a new trial because his attorney was specifically negligent in failing to call these witnesses as well as generally incompetent in his presentation of the defense.

With respect to a motion for new trial, the judge possesses broad discretion in assessing the credibility of witnesses and in determining from the evidence presented whether a different result would occur upon retrial. Ochoa v. State, 653 S.W.2d 368, 372 (Tex.App.--San Antonio 1983, no pet.). An appellate court will reverse the trial court's denial of a new trial only upon a clear showing of abuse of discretion. Beal v. State, 520 S.W.2d 907, 912 (Tex.Crim.App.1975). As previously stated, appellant was the sole witness at this hearing. Appellant's uncorroborated testimony, however, is suspect by its very nature. It is also suspect because of the numerous inconsistencies throughout. We understand why the trial court found such testimony lacking in credibility.

Even if witnesses Cindy Griffin and Frederick Griffin had testified as suggested, such testimony would not have precluded appellant's theft of the Camaro in question. The essential nature of appellant's proffer was that if a confidential informant had seen him driving a Camaro, it was Cindy Griffin's Camaro. Such testimony would not have been so favorable as to counter all the other evidence adduced at trial against him. The proffer clearly does not support the...