Swinney v. State

• Decision Date: 05 November 1975
• Docket Number: No. 50340,50340
• Citation: 529 S.W.2d 70
• Parties: Kenneth Earl SWINNEY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 70

529 S.W.2d 70

Kenneth Earl SWINNEY, Appellant, v. The STATE of Texas, Appellee.

No. 50340.

Court of Criminal Appeals of Texas.

Nov. 5, 1975.

Malcolm Dade (Court-Appointed), Melvin C. Bruder (Court-Appointed on appeal), Dallas, for appellant.

Henry Wade, Dist. Atty., John E. Rapier, Asst. Dist. Atty., Dallas, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

BROWN, Commissioner.

Appellant was convicted by a jury of assault with intent to commit rape. The jury assessed punishment at 75 years in the Texas Department of Corrections.

The sufficiency of the evidence is not challenged. The record reflects that late in the afternoon of February 10, 1969 a man identified as the appellant entered the complainant's apartment, assaulted the complaining witness and then attempted to rape her. After leaving the complaining witness' apartment the appellant was seen by two other residents of the same apartment complex. One, Jim Brownell, gave chase and obtained a description of the car in which the assailant left the scene. He also noted the license number and gave it to the police.

On February 11, 1969, Dallas Police Officer R. M. Sims made a check of the license number reported to the police. This check showed the car in question to be registered to Bobbie Swinney, the wife of the appellant herein. After securing an arrest warrant for an unnamed white male, Sims and his partner went to the home of the appellant. At about the time the officers arrived the appellant drove up in his wife's car. The appellant was placed under arrest by the officers after he identified himself to them. At this point the appellant's wife came out of the house and approached the officers. The appellant was placed in the squad car with one of the officers. Officer Sims asked the appellant's wife for permission to search the house. Appellant's wife consented and escorted the officer through the house. Sims then asked the appellant's wife for permission to search her car in which the appellant had driven to the house before his arrest. Appellant's wife consented to the search. The search of the car revealed a pair of gloves that were introduced into evidence at the appellant's trial.

Appellant's first ground of error is that the trial court erred in admitting into evidence the gloves that were found in the car that he had been driving prior to his arrest.

Appellant contends in his original brief and in his second supplemental brief that the consent given by his wife was ineffective to waive his Fourth Amendment rights. He contends that the solicitation of consent to search the car was a subterfuge designed to by-pass the appellant's right to refuse permission to search without a warrant being obtained. During the oral argument of this case and in his second supplemental brief appellant makes clear that his contention does not turn on the husband-wife relationship.

It is clearly established in Texas that third parties have authority to consent to a search when they have equal control over and equal use of the premises being searched. Nelson v. State, 511 S.W.2d 18 (Tex.Cr.App.1974); Swift v. State, 509 S.W.2d 586 (Tex.Cr.App.1974); Williams v. State, 502 S.W.2d 130 (Tex.Cr.App.1973); Lowery v. State, 499 S.W.2d 160 (Tex.Cr.App.1973); Jemmerson v. State, 482 S.W.2d 201 (Tex.Cr.App.1972); Potter v. State, 481 S.W.2d 101 (Tex.Cr.App.1972); Sorensen v State, 478 S.W.2d 532 (Tex.Cr.App.1972); Powers v. State, 459 S.W.2d 847 (Tex.Cr.App.1970); Jefferson v. State, 452 S.W.2d 462 (Tex.Cr.App.1970).

The appellant's contention seems to be grounded on the proposition that the wife cannot give a valid consent to search an area over which she has at least equal control when the husband is present. Appellant cites no cases directly supporting this proposition. The case of Paprskar v. State, 484 S.W.2d 731 (Tex.Cr.App.1972) is cited by the appellant for inferentially supporting his position. This Court in Paprskar v. State, supra, expressly declined to pass on this point since the Court found that the wife's consent was coerced.

In Sorensen v. State, supra, this Court upheld a search for marihuana consented to by the defendant's parents When he was present, saying:

'Appellant had no 'reasonable expectation of privacy' in this particular 'area.' His mother had a right to be where the marihuana was found, she could consent to a search of that area, and her consent would vitiate the need for any search warrant and would be binding upon anyone having rights in that 'area.' See Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969).'

See also United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974).

The appellant also argues that his wife's consent is not shown to have been freely given. Whether the appellant's wife freely and voluntarily consented to the search must be determined from the record as a whole. The record reflects that when the appellant's wife was asked if the search was conducted with her full consent, permission and authority, she answered, 'Yes, I didn't have anything to hide from them.' We have examined the record and find that it supports the contention that consent to search was freely and voluntarily given. Cf. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).

Appellant's first ground of error is overruled.

Appellant's second ground of error is that the trial court improperly placed the burden of proof in its charge to the jury concerning the alibi defense.

The court instructed the jury on the alibi defense as follows:

'You are instructed that a defense of alibi is that, if an offense was committed, as alleged, that the defendant was, at the time of the commission thereof, if any, at another and different place from that at which such offense was committed, if it was, and therefore was not and could not have been the person who...