Draper v. State

Court of Criminal Appeals of Texas

Draper v. State

539 S.W.2d 61, 1976 Tex. Crim. App. LEXIS 1033

CourtCourt of Criminal Appeals of Texas

DecidedJuly 19, 1976

Docket51127

StatusPublished

Cited by41 cases

This text of 539 S.W.2d 61 (Draper v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Draper v. State, 539 S.W.2d 61, 1976 Tex. Crim. App. LEXIS 1033 (Tex. 1976).

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Opinion

OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for theft of property over the value of $200.00 and less than $10,000.00. After the jury returned a verdict of guilty, punishment was assessed by the court at ten years probated and a $1,000.00 fine. 1

At the outset, appellant contends, “The trial court erred in overruling the appellant’s Motion to Suppress evidence illegally acquired by the State.”

Appellant’s complaint is directed to the admission into evidence of an insurance application, a check written by a complaining witness to pay for a first quarter premium, and a “pitch sheet,” all taken from appellant’s briefcase, which he left in the Goliad County Sheriff’s office in the early morning hours of September 5, 1974, the day after he had sold the insurance policy which gives rise to this prosecution.

The record reflects that Deputy Sheriff Mills had received reports that there were people in Goliad County purporting to sell insurance through the Agricultural Stabilization and Conservation Service, commonly referred to as the ASCS. Howard McRae, an investigator for the State Board of Insurance, came to Goliad County at the request of the sheriff’s office. Arrangements were made for McRae to camp on land belonging to Garland and Sandra Hoff. After learning of McRae’s occupation, the Hoffs told McRae about their purchase of an insurance policy from some ASCS men. As a result of this conversation, McRae advised Mills that he wanted to talk to appellant. Upon a check at the motel where appellant was staying, it was learned that appellant had gone to have “a few drinks.” Appellant was located about midnight on his way back to Goliad from Victoria in the company of his cousin, one Terry Newsom. They were stopped by Texas Highway Patrolman Montgomery, who advised them that an investigator from the State Insurance Board wanted to talk to them and asked them to follow him to the courthouse. Appellant testified at the motion to suppress that he did not consider himself under arrest at this time. The testimony as to the events which ensued at the courthouse is in conflict. Appellant testified that he felt that he was in custody from the time he arrived at the courthouse until “. . . McRae said I was free to go.” Appellant further testified that McRae threatened to file on Newsom for DWI and appellant for “drunk in public” if appellant didn’t turn over to the officers the “insurance paraphernalia I had in my car.” After appellant gave the officers his briefcase, he was allowed to return to his motel. No complaint was filed against appellant, and it was about five months before an indictment was returned against appellant.

McRae testified that appellant was never threatened in any way. According to McRae, appellant “contended that the insurance had been properly sold, he’d be glad to leave his sales material. . . . Mr. Draper [appellant] turned his briefcase and contents over to the deputy.” It was agreed that appellant would come in the next day and discuss the matter. Appellant did not return the next day, nor did ever come back for his briefcase.

Mills testified that appellant “voluntarily turned them [briefcase and papers] over to us.” Mills stated that appellant was never placed under arrest on the night in question and “was advised a number of times that he wasn’t under arrest and that he could leave at any time.” No warning of rights was given appellant.

The trial judge was the judge of the credibility of the witnesses and the facts on the motion to suppress. The testimony of *63 the officers reflects that appellant voluntarily turned over his briefcase and its contents to the officers in an apparent effort to dispel suspicion. The court could reject all of appellant’s testimony, as it apparently did, relative to threats being made to obtain the briefcase. The record does not support appellant’s contention that he was in custody, but to the contrary reveals that he was only under suspicion. See Heredia v. State, Tex.Cr.App., 528 S.W.2d 847; Brown v. State, Tex.Cr.App., 475 S.W.2d 938.

In Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), where, as here, the party alleged to have given his consent was not advised that he had a right to refuse consent, the United States Supreme Court said:

“Voluntariness is a question of fact to be determined from all the circumstances, and while the subject’s knowledge of [his] right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent.”

We reject appellant’s contention that a “Miranda warning” should have been given since appellant was not under arrest. Even if appellant had been under arrest, his consent would not have been vitiated provided it had been freely and voluntarily given. Ribble v. State, 503 S.W.2d 551. We find that the failure to advise appellant that he had a right to refuse to consent to search of his briefcase did not render his consent involuntary under the circumstances here presented.

No error is shown in the court overruling appellant’s motion to suppress.

Appellant contends that the evidence is insufficient to support the conviction.

Appellant urges that, “to have obtained the check unlawfully from the alleged injured parties the appellant would have had to obtain the check without their ‘effective consent’ and with the ‘intent to deprive,’ and the intent to deprive had to exist at the time of the taking.”

At the time of the commission of the instant offense, V.T.C.A. Penal Code, See. 31.03, “Theft,” provided in pertinent part:

“(a) A person commits an offense if, with intent to deprive the owner of property:

(2) he exercises control over 2 the property, other than real property, unlawfully.

(b) Obtaining or exercising control over 3 property is unlawful if:

(1) the actor obtains or exercises control over the property without the owner’s effective consent; . . . .”

V.T.C.A. Penal Code, Sec. 31.01, “Definitions,” provides in pertinent part:

“In this chapter:

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