Williams v. State
| Decision Date | 16 June 1982 |
| Docket Number | No. 09-81-043,09-81-043 |
| Citation | 644 S.W.2d 751 |
| Court | Texas Court of Appeals |
| Parties | Fred Donley WILLIAMS, Appellant, v. The STATE of Texas, Appellee. CR. |
Appellant was charged with the offense of credit card abuse, enhanced by two previous convictions of felonies. A jury found him guilty of the primary offense and also found the enhancement counts to be true. He was sentenced by the trial court to life imprisonment as a habitual offender, from which he has appealed.
Appellant's first two grounds of error really attack the police officer's warrantless arrest and search of his automobile. The officers in response to a call went to the security guard at the K-Mart store in Beaumont. He told them that the stores in Orange and Lake Charles had been victimized by persons who charged the market price on items and then demanded a cash return. The officers then questioned a young black female who first said her name was "Gold Dust" but later revealed she was Shurice Minnis. She was arrested for investigation as a juvenile runaway. When Shurice was in the patrol car, she told officer Cole she was working the stores with a black male and a white female who were driving a grayish-white Mercedes with Florida license tags. As the officers were exiting the parking lot, they saw a Mercedes which fitted the description, and inside were a black male and a white female.
They stopped the vehicle, searched it, found narcotics in a keycase in the door, arrested appellant, then began an inventory of the trunk which produced among other items a credit card receipt and a Remington shaver, which became the basis of appellant's primary conviction.
Appellant forcefully argues in a well prepared brief that the officers had no probable cause to search, arrest, or investigate. See Brown v. State, 481 S.W.2d 106 (Tex.Cr.App.1972). Vernon's Ann.C.C.P., Art. 14.04 provides:
"Where it is shown by satisfactory proof to a peace officer, upon representation of a credible person, that a felony has been committed, and that the offender is about to escape, so that there is no time to procure a warrant, such peace officer may, without warrant, pursue and arrest the accused."
The facts and circumstances known to the officer must be reasonably trustworthy information which would lead a man of reasonable caution and prudence to believe the search will produce evidence pertaining to a crime. Brunson v. State, 506 S.W.2d 594 (Tex.Cr.App.1974).
Appellant argues as in Brunson v. State, supra, and Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), the lack of credibility of the informant Shurice Minnis. It is true, the officers had never dealt with her before, did not know of her credibility, and at first was given by her an incorrect name as appellant argues. However, the great difference in Minnis and the informants in Brunson v. State, supra, and Aguilar v. Texas, supra, is that Minnis revealed she was a part of the criminal combination, which in itself, together with the other circumstance learned by the officers at K-Mart, gave great credibility to Minnis' information. Apparently, the question of whether statements made against penal interest are alone sufficient to establish credibility has not been decided. See Abercrombie v. State, 528 S.W.2d 578 (Tex.Cr.App.1974). We think such a statement alone should be sufficient. But even if not, the information obtained by the Beaumont officer from the K-Mart security guard, together with the corroboration of the tip by the sight of the light colored Mercedes, with Florida license plates, and containing a black male and white female, buttressed the tip. See Polanco v. State, 475 S.W.2d 763 (Tex.Cr.App.1971). See also, United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971):
Quoted in Vol. 1 LaFave, Search and Seizure, § 3.3 at 503 (1978).
Of course, in Aguilar v. Texas, supra, the court was dealing with an affidavit for a warrant; whether the affidavit showed probable cause for search. And in the case at bar the search was made without a warrant.
Vol. 1 LaFave, Search and Seizure, § 3.1 at 439-440 (1978).
We hold that the exigencies of the situation in the case at bar made it not feasible for the officers to first secure a warrant, and that they had probable cause to stop and search the Mercedes car. The grounds of error are overruled.
Appellant's final ground of error asserts: "The evidence is insufficient to support the appellant's conviction as a habitual criminal because the prosecution failed to prove that the second prior conviction alleged for enhancement purposes was committed subsequent to the first prior conviction alleged for enhancement purposes as required by the Texas Penal Code Section 12.42(d)." Appellant cites: Wiggins v. State, 539 S.W.2d 142 (Tex.Cr.App.1976); Hickman v. State, 548 S.W.2d 736 (Tex.Cr.App.1977); Gutierrez v. State, 555 S.W.2d 457 (Tex.Cr.App.1977); Porier v. State, 591 S.W.2d 482 (Tex.Cr.App.1979). This, of course, is the rule in Texas. However, State's Exhibit No. 16 which came into evidence without objection contains an authenticated copy of the information upon which appellant was convicted of the offense of writing a forged check. Made a part of that charging instrument is a copy of the check which was alleged to have been forged. This check is dated "3/9/76." The judgment and sentence in the first conviction was entered on January 28, 1972. This ground of error is overruled.
The judgment of the trial court is affirmed.
AFFIRMED.
Primarily, my dissent is confined to an application of the rule enunciated by the Supreme Court of the United States very recently to the facts of this case. While this cause was under submission, that Court changed profoundly the rules regulating the warrantless search of automobiles and the contents thereof.
In United States v. Ross, --- U.S. ----, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982), hereinafter "Ross" or volume and page of Law Week), the Court reconsidered several recent cases, concluding (at ---- - ----, 102 S.Ct. at 2172):
1
Before addressing the two specific holdings in Ross, an expanded summary of the underlying record is needed to place the operative facts in focus. The facts essentially are undisputed and my account differs from the majority only in setting out more of the details relating to the stopping of the vehicle and the search thereof.
At the suppression hearing, Beaumont Police Officers Charles Cole and Michael Sticker told of being called to the K-Mart store "to investigate a possible shoplifting." There they talked with the store's security officer, Johnson, who had a young black female in custody who told the officers that she "had been changing prices, and trying to get a refund." Johnson gave Cole a bulletin from the K-Mart offices describing a swindling operation in Florida, the details of which are immaterial to this case.
Johnson also told the officers that the black female had been accompanied by a white female who had eluded capture. The black female had no identification with her and told Cole her name was "Gold Dust", but "finally said her name was Shurice Minnis." She was young and was arrested "for investigation of Juvenile Runaway," as well as for investigation of credit card abuse.
After Minnis had been placed under arrest, she told the officers that she was a member of a group engaged in a refund scam, and had been accompanied by "another black male and a white female" who were driving a gray or light colored Mercedes car with Florida tags. No names were given.
The officers saw a car such as that described by Minnis a few blocks from the K-Mart store. They stopped the car and the driver, our appellant, emerged leaving the car door open. A white female, Carol Louise Pridgeon, was on the back seat of the car. Appellant produced a driver's license.
I turn now to a summary of Officer Cole's cross-examination since it sets out more succinctly the basic information possessed by the police officers when they stopped the car.
The only information concerning credit card use or...
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Cornealius v. State, A14-92-01018-CR
...statement against penal interest is inherently credible and may be sufficient, in and of itself, to establish probable cause. Williams v. State, 644 S.W.2d 751, 752 (Tex.App.--Beaumont 1982, no pet.). In reviewing the sufficiency of probable cause, the appellate court will look to the facts......