Willis v. State, 49249
| Citation | 518 S.W.2d 247 |
| Decision Date | 22 January 1975 |
| Docket Number | No. 49249,49249 |
| Parties | Marvin J. WILLIS, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
James W. Shoff, II, San Antonio, for appellant.
Ted Butler, Dist. Atty., Lucien B. Campbell, Bill Harris, Don Clowe and Douglas C. Young, Asst. Dist. Attys., San Antonio, Jim D. Vollers, State's Atty., Austin, for the State.
BROWN, Commissioner.
This appeal is taken from a conviction for robbery by assault with firearms with punishment enhanced under Article 64, Vernon's Ann.P.C. The punishment assessed was life.
Appellant's first complaint is the refusal of the trial court to grant his plea of double jeopardy after the first trial of the case was terminated when the court declared a mistrial.
The record of the first trial reflects that the testimony began at 2:25 P.M. on October 2, 1973 and terminated at 4:55 P.M. on that date. At 9:00 A.M. the following morning testimony resumed and was concluded at 9:25 A.M., a total of two hours and fifty-five minutes. The jury retired to deliberate at 10:30 A.M. and reported unable to reach a verdict at 4:38 P.M., a total elapsed time of six hours and eight minutes. When brought into court the foreman stated that the jury had stood seven to five on the last four ballots and that in his opinion the jury would be unable to reach a verdict by further deliberation. Although the court did not inquire further, the defendant did not request inquiry of other jurors and a mistrial was declared at 4:45 P.M. There was no objection by the appellant. On the second trial no charge on former jeopardy was requested by appellant.
In the light of these facts we cannot say that the court abused his discretion in declaring a mistrial. See Boone v. State, 506 S.W.2d 227 (Tex.Cr.App.1974); Brown v. State, 508 S.W.2d 91 (Tex.Cr.App.1974); Satterwhite v. State, 505 S.W.2d 870 (Tex.Cr.App.1974). We hold that the court did not commit error in denying appellant's plea of double jeopardy.
Appellant next complains of the failure of the court to suppress the fruits of the warrantless search of a container used for burning trash. The record reflects that appellant occupied a room with a girl, Sandra Durham, in an apartment house in San Antonio. On the occasion in question the officers were on the premises with the consent of the said Sandra Durham. The can in question was a fifty gallon oil drum with its top removed and was maintained across the driveway from the apartment building (but on the apartment premises) for the disposal of burnable trash and the contents were burned daily. The officers looked into the drum and among the ashes observed a partially burned billfold which was taken in the robbery for which the appellant was on trial. We hold that this billford having been deposited for burning in a receptacle for that purpose was effectively abandoned by the appellant. It is well settled that a warrant is not required for the seizure of abandoned property. Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924); Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960); United States v. Gulledge, 469 F.2d 713 (5th Cir. 1972).
Appellant cites People v. Krivda, 5 Cal.3d 357, 96 Cal.Rptr. 62, 486 P.2d 1262 (1971) holding one who places contraband in a trash barrel located on his own property for pickup by a rubbish collector is not deemed to have abandoned the contraband while it is still in his trash barrel. We feel that those facts can be distinguished from those involved in this appeal. The wallet was found in a steel drum used by all the tenants of the apartment for the purpose of being burned, and the contents of the steel drum had, in fact, been subjected to the burning process. The fact that the fire did not completely destroy the billfold does not affect the abandonment of the billfold by the appellant. Krivda is in direct conflict with United States v. Dzialak, 441 F.2d 212 (2nd Cir. 1971) which held that...
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