Foster v. State

647 S.W.2d 27, 1982 Tex. App. LEXIS 5531
Court of Appeals of Texas·Decided December 16, 1982·No. No. 01-81-0416-CR·Published·Cited by 1 cases

Opinion

[28] OPINION

EVANS, Chief Justice.

After a joint trial, a jury convicted the appellant and his two co-defendants, Herman Foster and Frank Moore, of aggravated robbery. The jury assessed appellant’s punishment at 99 years imprisonment and a $5,000 fine.

A Houston police officer, on radio patrol, observed the appellant sitting in the driver’s seat of a yellow Oldsmobile Cutlass parked next to a Republic of Texas Savings building. He followed the vehicle when it drove away and, checking the registration on the vehicle’s license plates, he found the plates registered to another vehicle. After observing the vehicle run through a stop sign, he pulled the car over and placed the driver under arrest. When the officer looked into the vehicle, he saw the butt of a gun sticking out from under the driver’s side of the front seat, and he placed the other two occupants under arrest. All three men were returned to the savings building offices for purposes of identification. A deputy sheriff, who had arrived at the scene of the stopped vehicles, obtained a search warrant and subsequently conducted a search of the Oldsmobile. He testified that he found two pistols, a ski mask, gloves, and teller boxes containing money. At trial, the arresting officer identified the appellant as the driver of the vehicle and his co-defendants, Herman Foster and Frank Moore, as the other two persons in the car.

In his first ground of error, the appellant contends that the trial court committed reversible error by admitting into evidence the fruits of the search of the vehicle. The appellant concedes that the search was made pursuant to a warrant, but he argues that the record does not show that the State made the requisite proof as to the legality of the warrant.

The appellant’s court-appointed counsel on appeal recognizes that in order to obtain appellate review of the search warrant and supporting affidavit, it was necessary that a bill of exceptions be made in the trial court, offering copies of such documents. Cannady v. State 582 S.W.2d 467 (Tex.Cr.App.1979). However, he argues that because he was not appointed until after the appeal was in progress, and since he was unaware, until he read the appellate record, that the State had failed to prove the contents of the affidavit and warrant, the appeal should be abated and the cause remanded to the trial court to permit the late filing of a bill of exceptions.

The appellant’s motion to abate and remand is denied. The record shows that at the hearing on appellant’s motion to suppress, no objection was made on behalf of appellant that the search warrant was insufficient, and the only objection was that the stop and arrest was illegal for want of probable cause. A bill of exceptions not timely filed in the trial court will not be reviewed on appeal. Webb v. State, 460 S.W.2d 903 (Tex.Cr.App.1970); Ortega v. State, 493 S.W.2d 828 (Tex.Cr.App.1973). In this case there has been no showing of good cause for the appellant’s failure to timely file a bill of exceptions attacking the sufficiency of the warrant. The first ground of error is, therefore, overruled.

In his second ground of error, raised in a supplemental brief, the appellant contends that he had ineffective assistance of counsel at the punishment stage of trial. Although this ground is not properly presented for review, we have decided to consider it in the interest of justice. Tex.Code Crim.Pro.Ann. 40.09, Section 13.

With commendable candor, the appellant’s court-appointed counsel on appeal concedes that the evidence clearly established the appellant’s guilt and, in his brief, he recognizes that during the guilt stage of the proceedings, appellant’s trial counsel “made the best of a bad situation.” However, counsel on appeal further contends that, during the punishment stage of trial, the record demonstrates an entirely different quality of representation.

The State called five witnesses to testify about the general reputation of the three defendants for being peaceful and law abiding citizens.

[29] The first witness, Debbie Marquis, testified that she became acquainted with appellant’s co-defendant, Herman Foster, when he came into her Bayshore Savings office about 10:40 a.m., on November 13, 1980; that she knew Foster’s reputation for being a peaceful and law abiding citizen; and that such reputation was bad. On cross-examination appellant’s trial counsel, who was also counsel for the other two defendants, established that the witness was not really acquainted with the appellant, “He just walked into our office one day.”

The second witness, Leuse Compa, branch manager of San Jacinto Savings, testified that she had come into contact with appellant’s co-defendant, Frank Moore, at approximately 9:25 a.m. on February 4, 1981; that she was familiar with his reputation and that his reputation was bad. On cross-examination, appellant’s counsel established that the witness had no idea where appellant lived or what his reputation was where he resided.

The third witness, Orena Atwell, testified that she had come into contact with Frank Moore and the appellant at about 9:25 a.m. on February 4,1981 at San Jacinto Savings: that she knew the reputation of the men for being peaceful and law abiding citizens, and that their reputation was bad. On cross-examination the following occurred:

Q. What community does he reside in?
A. Well, he came in and robbed us.
Q. What community does he reside in?
A. Who?
Q. Willie Foster.
A. His community?
Q. Yes.
A. I don’t know his community.
Q. You don’t know where he lives?
A. No.
Q. How do you know the reputation in his community of the place where he resides?
A. Well, he came in—
THE COURT: Just answer what he asks and wait for the next question.
Q. Do you know anybody that lives in the community where he resides?
A. No.
Q. And you’re telling the Court and jury that you know his reputation as being bad in the community where he lives and you don’t even know where he lives?
A. Yes.
MS. DAUGHTREY: I would ask him not to badger the witness and allow her to answer the questions.
THE COURT: She has the opportunity. Go ahead.
Q. Have you been in his home?
A. No.
Q. Have you been anywhere where he goes to school or work?
A. No.

Free access — add to your briefcase to read the full text and ask questions with AI

Foster v. State, 647 S.W.2d 27, 1982 Tex. App. LEXIS 5531 (Tex. Ct. App. 1982).

647 S.W.2d 27 (Foster v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Foster v. State
652 S.W.2d 474 (Court of Appeals of Texas, 1983)