Stephenson v. State

• Decision Date: 23 May 1973
• Docket Number: No. 45707,45707
• Parties: Willie Clarence STEPHENSON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 900

494 S.W.2d 900

Willie Clarence STEPHENSON, Appellant, v. The STATE of Texas, Appellee.

No. 45707.

Court of Criminal Appeals of Texas.

May 23, 1973.

Rehearing Denied June 13, 1973.

Don Stokes, Marshall, for appellant.

Jim D. Vollers, State's Atty., and Robert A. Huttash, Asst. State's Atty., Austin, for the State.

OPINION

ODOM, Judge.

This appeal is from a conviction for the offense of rape; punishment was assessed at death.

The sufficiency of the evidence is not challenged; therefore a detailed recitation of the facts is not necessary. The relevant facts will be discussed as they apply to the various ten grounds of error. Suffice it to say that the prosecutrix testified that on February 15, 1971, she and her husband were awakened by appellant in a trailer park where they were staying. She stated that appellant raped her while holding a pistol in one hand and a shotgun in the other. Her husband was forced to remain on the floor beside the bed with his head on a chicken crate during the assault. The prosecutrix identified appellant as her assailant, both at a lineup and at trial. Certain items of clothing obtained from appellant's house were introduced in evidence. Lint from the clothing was compared with lint from the blankets on the proscutrix' bed and was found to be 'visually and chemically alike.' Also introduced was a piece of paper which the prosecutrix testified fell from her assailant's pocket. A handwriting expert testified that the writing on the paper matched the handwriting of appellant's half-brother, whom a state witness testified the appellant had visited in the Harrison County Jail. An inmate of the jail testified that he had witnessed a note being passed between appellant and his half-brother. The pistol and shotgun allegedly used by appellant were never found.

Initially, appellant contends that the trial court erred in admitting evidence obtained as the result of an illegal search and seizure. The state relies upon consent to search given by appellant's mother.

The record reflects that appellant lived at home with his mother. He does not challenge the mother's right to consent; he argues, however, that her consent is invalid in that it was coerced under color of law. His argument is based on the fact that the officer admitted that he told the mother that if she did not sign the consent-to-search form, he could get a search warrant to search the house.

It is well established that an individual may waive the protections afforded by the Fourth Amendment against unreasonable searches and seizures by consenting to a search. E.g., Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Allen v. State, Tex.Cr.App., 487 S.W.2d 120; Paprskar v. State, Tex.Cr.App., 484 S.W.2d 731; DeVoyle v. State, Tex.Cr.App., 471 S.W.2d 77. Equally well established is that the burden is upon the prosecution to show that the consent was freely and voluntarily given. Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). The burden requires that the prosecution show that the consent was positive and unequivocal, and there must not be duress or coercion, actual or implied. Allen v. State, supra.

In determining whether a search is justified by the consent of a person who has a right to the possession and control of the property, this court looks to the totality of the circumstances surrounding the questioned conduct. Cf. Paprskar v. State, supra. The facts and circumstances attendant to the search of appellant's home were developed in the hearing that was had on appellant's motion to suppress.

Officer Stanfield testified that he went to the door of appellant's home around 5:00 P.M. on February 16, 1971, and there met Mrs. Stephenson, appellant's mother. He identified himself and told her that he was looking for a black suit and that her son was a suspect in a rape case. He testified that he read a consent form to her and that the blanks on the form were filled in before he got to the house. According to the officer's testimony, Mrs. Stephenson, after reading the consent-to-search form, signed it, went to a closet in the house, got appellant's clothes and gave them to the officer. The consent-to-search form was introduced into evidence. It states:

'I, Virginia Stephenson, have been informed of my constitutional rights not to have a search made of the premises hereinafter mentioned without a search warrant and of my right to refuse to consent to such a search, (sic) hereby authorize S. J. Stanfield and I. W. Hays to conduct a complete search of my residence located at 1507 Harrison.

These agents are auth rized (sic) by me to take from my residence 1 Black suit & Gold Shirt which they may desire (sic).

This writen permission is being given by me to the above name (sic) agents voluntarily and without threats or promises of any kind.

Signed: x Virginia Stephens (sic)

Witnesses: Sgt. I. W. Hays' ¹

Mrs. Stephenson's testimony regarding the circumstances of the search sharply conflicts with that of Officer Stanfield. ² Undisputed, however, is the fact that the officer was polite in behavior; that only two officers entered the house, one wearing a uniform and the other dressed in plain clothes; that no physical coercion was exercised; that she was handed the consent-to-search form; and, that she signed the form.

Although a finding of consent is not simply a finding of fact and includes also a finding of law, (Hoover v. Beto, 439 F.2d 913 (5 Cir. 1971)), a conflict in testimony is best resolved by the trier of the facts who has the benefit of viewing the demeanor of the witnesses. It was the trial judge's prerogative at the motion to suppress to believe the officer's version of the facts and disbelieve the mother's. ³

On cross-examination Mrs. Stephenson testified tht she went through the tenth grade in school and that she could read and write. She read aloud the consent-to-search form in court. She stated that she had no objection to the search because she did not want the officers to think that she had anything to hide.

There is no doubt that a search cannot be justified as lawful on the basis of consent where that 'consent' has been given only after the official conducting the search has asserted that he possesses a warrant. Bumper v. North Carolina, supra. However, we refuse to hold, as a matter of law, that an assertion by the officer conducting the search that he could or would obtain a search warrant if consent is refused, standing alone, invalidates an otherwise voluntary consent. ⁴ Instead, we hold that the assertion is but one factor albeit an important one, to be evaluated realistically, within the context it was uttered and in relation to all the facts surrounding he search.

With this approach, we find no indication in the record that, but for the assertion by the officer, the mother would not have consented to the search. To the contrary, the record supports the conclusion that this statement played little or no part in her decision to voluntarily retrieve the items the officers sought. Mrs. Stephenson did not mention the officer's assertion in her rendition of the facts, and when asked the question, 'Would you have refused the search had you known you had the right to?' she answered, 'I don't know--according to the circumstances, I really don't know what I would have done, I am just going to tell the truth, I don't know.'

Viewing the evidence from the standpoint most favorable to the court's ruling, we conclude that the consent was valid. Further, since the mother voluntarily retrieved the items sought by the officers, there was in fact no search as contemplated by the Fourth Amendment. Collidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564; Sorensen v. State, Tex.Cr.App., 478 S.W.2d 532.

By his second and third grounds of error appellant complains of the action of the trial court in overruling his motion for attachments to issue against 71 absent, prospective jurors and his motion to quash the entire venire.

A copy of the venire, containing the names of 150 veniremen, was served on appellant. However, when empaneling the venire, the District Clerk called out the names of but 79 persons of which only 62 responded as present. Appellant requested that the 71 veniremen whose names were not called by the clerk be attached. His request was denied. He then filed a motion to quash the entire venire on the grounds that (a) the trial court had refused to issue the attachments and (b) that the 71 veniremen were improperly excused.

Article 35.07, Vernon's Ann.C.C.P., sets out the procedure for a challenge to the array:

'Each party may challenge the array only on the ground that the officer summoning the jury has wilfully summoned jurors with a view to securing a conviction or an acquittal. All such challenges must be in writing setting forth distinctly the grounds of such challenge. When made by the defendant, it must be supported by his affidavit or the affidavit of any credible person. When such challenge is made, the judge shall hear evidence and decide without delay whether or not the challenge shall be sustained.' (Emphasis added)

Appellant's challenge to the array was not supported by affidavits as required by Article 35.07, V.A.C.C.P. and therefore presents nothing for review. Gonzalez v. State, Tex.Cr.App., 468 S.W.2d 85; Donald v. State, Tex.Cr.App., 453 S.W.2d 825.

Appellant relies upon Article 35.01, V.A.C.C.P., for support of his contention that the trial court reversibly erred by refusing his motion for attachments.

Article 35.01, supra, provides:

'When a case is called for trial and the parties have announced ready for trial, the names of those summoned as jurors in the case shall be called. Those not present may be fined not exceeding fifty dollars. An attachment may issue on request of either party for any absent summoned juror, to have him brought forthwith before the court. A person who is summoned but not...