Tarpley v. State

• Decision Date: 10 May 1978
• Docket Number: No. 1,No. 54343,54343,1
• Citation: 565 S.W.2d 525
• Parties: Wesley TARPLEY, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 525

565 S.W.2d 525

Wesley TARPLEY, Appellant, v. The STATE of Texas, Appellee.

No. 54343.

Court of Criminal Appeals of Texas,Panel No. 1.

May 10, 1978.

Stan Brown, Jim Ahlstrand, on appeal only, Abilene, for appellant.

Lynn Ingalsbe, Dist. Atty., and James H. Smart, Jr., Asst. Dist. Atty., Abilene, for the State.

Before DOUGLAS, PHILLIPS and W. C. DAVIS, JJ.

OPINION

DOUGLAS, Judge.

This is an appeal from a conviction for the offense of credit card abuse. Punishment was assessed by the jury at eight years.

Appellant contends (1) that the evidence is insufficient to support his conviction; (2) that evidence introduced was obtained as a result of an unlawful arrest and search; (3) that the prosecutor commented on his failure to testify, and (4) that he was denied an examining trial and counsel at arraignment. We overrule these contentions and affirm.

Appellant contends that the evidence is insufficient to show that he solicited, encouraged, directed or aided his co-defendant in such a way as to make him a party to the offense.

On January 27, 1976, appellant and his co-defendant, John Wayne Hudson, entered the Sun Valley Motor Lodge in Abilene. There, Hudson rented hotel room number nine from Mrs. Emmett Martin, co-proprietor of the Lodge. In payment for the room, he presented a BankAmericard credit card in the name of J. M. Gassiot. Emmett Martin testified that, although he could not be positive, appellant looked like the man who accompanied John Hudson into the Sun Valley Lodge.

The next morning Emmett Martin observed that the car license number noted on John Hudson's room registration card did not match the license number of the car parked in the space reserved for room nine. Martin called BankAmericard security in Forth Worth and was informed that the credit card used by Hudson was stolen. BankAmericard Security notified the Abilene Police Department.

Abilene Police Detective Jack Dieken testified that after receiving a call from BankAmericard Security in Fort Worth he and a patrolman proceeded to room number nine at the Sun Valley Lodge. John Hudson opened the door and admitted the officer. Appellant emerged from the bathroom area and both men were placed under arrest. A search produced a brown leather wallet containing a BankAmericard and numerous other credit cards and receipts belonging to Imported Auto Parts Corporation and bearing the name of Jimmie Gassiot. Also found were fifty checks belonging to Imported Auto Center of Fort Worth. Among these were checks drawn to the order of Jimmie Gassiot in varying amounts. The number of the BankAmericard found in room number nine matched the number of the card used by John Hudson to pay for overnight lodging in the complainants' establishment. The key to room nine had been removed from its plastic tag and was found on appellant's key ring. Also found in room nine was a lockbox belonging to appellant which contained personal papers bearing the name of Wesley Joe Tarpley, a .32 caliber pistol and shells, and a BankAmericard in the name of Overseas Imported Auto Parts and bearing the signature of James L. Adams. Also found in appellant's lockbox were 73 blank checks belonging to "Overseas Imported Auto Parts" and "Imported Auto Center" of Fort Worth, several credit cards marked Overseas Imported Auto Parts, a Social Security card bearing the name James L. Adams, and a Selective Service card belonging to James M. Gassiot.

Jimmie Gassiot testified that he was employed as a travelling salesman for Imported Auto Center in Fort Worth, a division of Imported Overseas Auto Parts, and that numerous credit cards had been issued to him in this capacity. He further testified that in mid-December, 1975, a burglary had been committed at Overseas Auto Parts in which numerous company checks and credit cards belonging to him and other employees were stolen. Gassiot stated that none of the signatures appearing on the receipts introduced into evidence were his and he had given no one authorization to use his credit cards or to sign his name.

The evidence was sufficient to support appellant's conviction. A defendant is guilty as a party (principal under the former penal code) where he (1) is physically present at the commission of the offense and (2) encourages the commission of the offense either by words or other agreement. Baldridge v. State, 543 S.W.2d 639 (Tex.Cr.App.1976); Suff v. State, 531 S.W.2d 814 (Tex.Cr.App.1976); Bush v. State, 506 S.W.2d 603 (Tex.Cr.App.1974). In determining whether one has participated as a party, the trial court may look to events occurring before, during and after the commission of the offense and reliance may be placed on actions of the parties which show an understanding and common design to do a certain act. Ex parte Prior, 540 S.W.2d 723 (Tex.Cr.App.1976); Holloway v. State, 525 S.W.2d 165 (Tex.Cr.App.1975); Bush v. State, supra.

Appellant argues that, because he himself did not rent room number nine from the complainant and because the stolen BankAmericard used to fraudulently obtain lodging was found in the co-defendant's luggage, there is no evidence connecting him with the instant offense. This argument is without merit. One may be guilty as a party whether he aided in the commission of the offense or not. Prior v. State, supra; Bush v. State, supra, citing Middleton v. State, 86 Tex.Cr.R. 307, 217 S.W.2d 1046 (1920); Lombardo v. State, 503 S.W.2d 780 (Tex.Cr.App.1974). Appellant's presence at the commission of the offense is undisputed. Moreover, the facts and circumstances surrounding the offense were sufficient to show that (1) appellant was in possession of stolen credit cards, (2) that he knew John Hudson to be in possession of one or more stolen credit cards obtained from the same source, and (3) that an agreement existed between them to utilize a stolen credit card to fraudulently obtain lodging at the Sun Valley Motor Lodge.

Tarpley asserts that the court erred in admitting into evidence fruits of the search incident to appellant's warrantless arrest. He contends that sufficient time existed for the arresting officer to procure an arrest warrant. Article 14.04 of the Code of Criminal Procedure provides that a peace officer may, without a warrant, pursue and arrest an accused where a credible person represents to such officer that a felony has been committed, that the offender is about to escape, and where there is, consequently, no time to procure a warrant.

In the present case, Detective Dieken had a right to rely upon BankAmericard Security officer Joe Bellew as a credible source of information. It is well established that an officer who does not himself possess probable cause for making a warrantless arrest may act upon the basis of information relayed to him by another officer requesting that an arrest be made. Myre v. State, 545 S.W.2d 820 (Tex.Cr.App.1977); Hooper v. State, 516 S.W.2d 941 (Tex.Cr.App.1974); Muggley v. State, 473 S.W.2d 470 (Tex.Cr.App.1971); Brown v. State, 443 S.W.2d 261 (Tex.Cr.App.1969). The individual requesting arrest need not necessarily be a uniformed police officer. See Weeks v. State, 417 S.W.2d 716 (Tex.Cr.App.), cert. denied 389 U.S. 996, 88 S.Ct. 500, 19 L.Ed.2d 494 (1967), and Boatright v. State, 472 S.W.2d 765 (Tex.Cr.App.1971).

The test for probable cause for a warrantless arrest made on the strength of another's report is the information known to the person reporting. Washington v. State, 518 S.W.2d 240 (Tex.Cr.App.1975); Hooper v. State,supra; Colston v. State, 511 S.W.2d 10 (Tex.Cr.App.1974). If the requesting officer is in possession of sufficient knowledge to constitute probable cause, then he need not detail such knowledge to the arresting officer. Piper v. State, 484 S.W.2d 776 (Tex.Cr.App.1972); Branch v. State, 447 S.W.2d 932 (Tex.Cr.App.), cert. denied 403 U.S. 952, 91 S.Ct. 2287, 29 L.Ed.2d 864, rev'd on other grounds, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1969).

BankAmericard Security officer Bellew possessed information constituting probable cause for appellant's warrantless arrest, whether or not every detail of such information was communicated to Detective Dieken. Bellew was informed by Emmett Martin that the license number of appellant and Hudson's car was not the same as it was purported to be on the hotel registration card. Martin further informed Bellew of the number of the credit card used by Hudson and appellant to obtain lodging. Bellew knew this to be the number of a credit card stolen in a Fort Worth burglary.

In Harryman v. State, 522 S.W.2d 512 (Tex.Cr.App.1975), officers were informed by a motel manager that a rifle removed from the defendant's room had been stolen in a Colorado burglary and that the license plates listed on the defendant's guest registration card were also stolen. The officers had probable cause to make a warrantless arrest. In Skidmore v. State, 530 S.W.2d 316 (Tex.Cr.App.1975), police information that the defendants were using a stolen credit card and automobile constituted probable cause for their warrantless arrest. Officer Bellew had probable cause to believe that the felony of credit card abuse had been committed, and Detective Dieken was justified in arresting appellant upon this information.

Appellant contends that there was no basis for the belief that he and the co-defendant were preparing to escape. Officer Dieken testified at the hearing on appellant's motion to suppress that Bellew had been informed by Emmett Martin that the two men were about to leave the motel. He further stated that the procurement of an arrest warrant would not only have required forty-five minutes to an hour, but that it would have been impossible to obtain in view of the fact that appellant and his co-defendant's names were unknown to the police. Emmett Martin testified that appellant and Hudson did not appear for morning coffee in response to a 7:00 wake-up call, that he could not see their car from the hotel desk and that h...