Freddie Ray Lockett v. State

• Court: Court of Appeals of Texas
• Decided: February 1, 1995
• Docket: 10-93-00146-CR
• Status: Published

Opinion

Lockett v. State

IN THE

TENTH COURT OF APPEALS

No. 10-93-146-CR

     FREDDIE RAY LOCKETT,

                                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                                              Appellee

From the 278th District Court

Grimes County, Texas

Trial Court # 12475

O P I N I O N

      A jury convicted Freddie Lockett of possessing, with the intent to deliver, more than 400 grams of a controlled substance, cocaine, and the court assessed punishment of forty-five years' imprisonment. See Tex. Health & Safety Code Ann. § 481.112 (Vernon Supp. 1995). In the first of three points of error, he argues that the prosecution was barred by the statute of limitations. See Tex. Code Crim. Proc. Ann. art. 12.01(5) (Vernon Supp. 1995). Next, he argues that the court erred by allowing evidence of his statement at the time of the arrest. See id. art. 38.22 (Vernon 1979 & Supp. 1995). Finally, he challenges the sufficiency of the evidence to support his conviction. We will affirm.

      On April 10, 1989, Department of Public Safety Trooper Gary Shaw and two Navasota Police Officers, Randall Jones and Janice Fife, arrested Lockett and Rebecca Gails alongside State Highway 6. At Lockett's trial, Gails testified about her and Lockett's actions leading up to the arrest. She and Lockett drove to Houston from College Station that morning. In Houston, he placed a phone call, after which they met an unidentified man near the Astrodome. They followed the man to a Stop-N-Go convenience store in Missouri City. Lockett left Gails at the store and drove down the street, where he and the unidentified man conferred. He then returned to the store to pick her up. In response to Gails' queries, Lockett showed her a half kilogram of cocaine in a Burger King bag. According to Gails, Lockett stated that he intended to put the cocaine "back on the streets with [the] sellers."

      Lockett drove on the return trip to College Station. Trooper Shaw stopped them for speeding on Highway 6 in Grimes County. Shaw spoke with Lockett at the rear of the car while Gails remained in the passenger seat. Lockett told Shaw that Gails was his girlfriend. When Shaw checked the car's inspection sticker, he asked Gails about her relationship to Lockett and she stated that he was her brother. Shaw described Lockett and Gails as "very nervous." Because of their conflicting stories and nervousness, Shaw asked for and obtained Lockett's consent to search the car for weapons. During this search, Shaw discovered the cocaine in the Burger King bag between Gails' feet.

      While Trooper Shaw was searching the car, Officer Jones arrived. Shaw carried the Burger King bag back to where Jones was standing with Lockett and showed Jones the cocaine. Jones asked Lockett what was in the bag and he replied, "[I]t's cocaine, okay, go ahead and take me to jail." Lockett and Gails were both arrested and taken to jail.

      In point one, Lockett argues that the indictment showed, on its face, that the prosecution was barred by the three-year residual felony statute of limitations. See Tex. Code Crim. Proc. Ann. art. 12.01(5). The offense occurred on April 10, 1989. The indictment that the State went to trial on was handed down by the Grimes County grand jury on June 30, 1992, some three years and two months after the offense, apparently over two months too late. However, Lockett should have objected to this defect prior to trial to preserve his right to complain about it on appeal. See Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon Supp. 1995); State v. Yount, 853 S.W.2d 6, 8 (Tex. Crim. App. 1993). This he did not do. Thus, he cannot now complain about the defect in this court. Point one is overruled.

      In point two, Lockett claims that the court erred by admitting evidence of his self-incriminating statement at the scene. He argues that he was under arrest at the time of the statement and, because the statement was not recorded, it is admissible only if it led to the discovery of evidence establishing his guilt. See Tex. Code Crim. Proc. Ann. art. 38.22, § 3(c). The State replies that the statement was admissible as res gestae of the arrest under section (5) of article 38.22, which provides, "Nothing in this article precludes the admission of a statement made by the accused . . . which is res gestae of the arrest . . . ." Id. art. 38.22, § 5.

      A statement is res gestae when it is made in response to a startling event, spontaneously, without time for reflection or fabrication. Davis v. State, 780 S.W.2d 945, 947 (Tex. App.—Fort Worth 1989, pet. ref'd). An arrest qualifies as such a startling event. Id. The rule of res gestae, as indicated by the statute, is superior to the rules regarding the admissibility of confessions or other admissions after arrest. Miles v. State, 488 S.W.2d 790, 792 (Tex. Crim. App. 1972). That the statement is made in response to an inquiry does not render it inadmissible. Harryman v. State, 522 S.W.2d 512, 516 (Tex. Crim. App. 1975). Thus, the Court of Criminal Appeals concluded that the admission of the statement, "You know what it is. It is heroin," by the defendant when asked by the arresting police officer, "What is this?" was not error. Id. Because the facts in Harryman are essentially identical to the facts here, point two is overruled.

      In his third point, Lockett challenges the sufficiency of the evidence to support the jury's conclusion that he possessed the cocaine. See Martin v. State, 753 S.W.2d. 384, 387 (Tex. Crim. App. 1988); Collins v. State, No. 10-94-119-CR, slip op. at 5 (Tex. App.—Waco, December 14, 1994, no pet. h.). However, Gails testified extensively to Lockett's care, custody, control, and management over the cocaine, and his statements indicating that he knew it was cocaine. See id. Additionally, her testimony is corroborated by the testimony of Shaw and Jones concerning Lockett's statement when confronted with the cocaine. See Gill v. State, 873 S.W.2d 45, 48 (Tex. Crim. App. 1994). Thus, the evidence is sufficient, and point three is overruled.

       The judgment is affirmed.

                                                                                 BOB L. THOMAS

                                                                                 Chief Justice

Before Chief Justice Thomas,

          Justice Cummings, and

          Justice Vance

Affirmed

Opinion delivered and filed February 1, 1995

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