Grundstrom v. State

733 S.W.2d 920, 1987 Tex. App. LEXIS 8055

• Court: Court of Appeals of Texas
• Decided: June 10, 1987
• Docket: No. 05-86-00778-CR
• Status: Published

Opinions

BAKER, Justice.

Daniel William Grundstrom and two co-defendants were charged by indictment for the aggravated robbery of Nancy Reichen-stein. This robbery took place in the parking lot of a bar in Dallas called “Confetti’s.” The jury was given an instruction on law of parties. The State was not permitted to introduce evidence of an extraneous offense committed by the trio, a robbery which occurred earlier the same evening at a restaurant called “On The Border.” Appellant was convicted of aggravated robbery and assessed life confinement and a $10,000 fine.

Grundstrom appeals on nine points of error as follows: (1) the evidence is insufficient to support his conviction in that the accomplice testimony was not corroborated, (2) the trial court erred by allowing the State to adduce evidence of an extraneous offense, (3) the trial court erred by admitting into evidence at the trial items seized by the police as a result of an illegal search and seizure, (4) the trial court erred by overruling appellant’s objection to the prosecutor’s jury argument that an accomplice had testified, “... after we robbed someone at On The Border ...” because that statement was not supported by testimony in the record, (5) the trial court erred by not appropriately instructing the jury to limit its consideration of the extraneous offense admitted into evidence, (6) the trial court erred by not instructing the jury that it should not consider the evidence of the extraneous offense without first finding from the evidence, beyond a reasonable doubt, that the appellant was guilty of such offense, (7) the trial court erred by not instructing the jury that it should not consider the evidence of the extraneous offense without first finding from the evidence, beyond a reasonable doubt, that the appellant was guilty of such offense, after applying the law of parties, (8) the trial court erred by instructing the jury, over the appellant’s objection, regarding parole and good time credit, in violation of the separation of powers doctrine and (9) the trial court’s instructions regarding parole and good time credit denied the appellant due process of law. Finding no merit in these points of error, we affirm the trial court’s judgment.

We first turn our attention to consideration of appellant’s point of error number three, wherein the appellant contends the trial court erred by admitting into evidence at the trial items seized by the police as the result of an illegal search and seizure. Pri- or to trial, appellant sought suppression of all evidence, whether testimonial or physical, relating to or resulting from, his arrest and subsequent search of his property. Following a hearing, this motion to suppress was denied by the trial court. During the course of the trial, the State introduced testimony concerning the appellant’s arrest and the search of the vehicle he was driving and also the physical evidence recovered as a result of that search.

At the suppression hearing, the police officer involved with the arrest testified that he had received information of an armed robbery that had occurred at the On The Border restaurant, and that a bluish-gray El Camino vehicle was involved, and the license number was known. Two white females were described as entering the El Camino vehicle driven by an unknown white male. The registered owner of the vehicle was traced by virtue of the license plate number, and it was ascertained that the vehicle had been loaned to the appellant earlier that evening. The actual owner of the El Camino vehicle took the officer to the home address of the appellant and also to several other locations where the appellant might have been found. Being unable to immediately locate the appellant, the officer returned to appellant’s residence address where at approximately 2:30 a.m. appellant, accompanied by two white females, drove in the driveway. At this point, the officer involved arrested both women and appellant and searched the vehicle. At the time of the arrest, there were no arrest or search warrants.

Appellant argues that the right of arrest without a warrant is controlled by statute subject to constitutional constraints. Appellant contends the only applicable statutory exception to the constitutional requirement of a warrant to arrest is found in TEX.CODE CRIM.PROC.ANN. art. 14.04 (Vernon 1977) which permits the arrest of an individual without a warrant if “... a felony has been committed, and the offender is about to escape ...” Appellant takes the position that in order to permit a war-rantless arrest, the State is burdened with the responsibility to adduce evidence to show the offender is about to escape and the failure to prove this element of the exception makes the arrest unlawful. Appellant conculdes his argument by stating since the arrest was unlawful, then the seizure of the physical evidence from the El Camino vehicle was likewise illegal.

The State contends that there was probable cause for the officer to stop and question the appellant and that the property seized was located in plain view and therefore subject to search and seizure. The State also asserts that the appellant at no time established that he had any expectation of privacy in the area searched. The State also contends that article 14.04, V.A. C.C.P. is not the only statute applicable to a warrantless arrest and points to article 18.16, V.A.C.C.P., and contends that this article is applicable to the case at hand.

We disagree with the State’s argument that article 18.16 is applicable to this case. While we agree with appellant’s general observation regarding authority to make warrantless arrests, we disagree with his contention that the State failed to adduce sufficient evidence to validate the appellant’s warrantless arrest under article 14.04, V.A.C.C.P. With respect to the appellant’s contention that his warrantless arrest was unauthorized, the question is whether or not the officer had probable cause to make the warrantless arrest of the appellant. The constitutional test for probable cause is whether, at the time of arrest, the facts and circumstances within the officer’s knowledge and of which he has reasonably trustworthy information were sufficient to warrant a prudent man in believing that a particular person has committed or is committing a crime. McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967); Lewis v. State, 598 S.W.2d 280 (Tex.Crim.App.1980).

I agree with Justice Lagarde for the reasons stated in her concurring opinion that the warrantless arrest of appellant was lawful by virtue of Article 14.04, TEX. CODE CRIM.PROC.ANN. (Vernon 1977) and that the search of the vehicle incident to arrest was authorized. The search of the vehicle can be further supported, as the Court of Criminal Appeals has acknowledged that an officer should be permitted to take every reasonable precaution to safeguard his life in the process of making an arrest. If, under the totality of the circumstances presented to the officer, he has reasonable grounds to believe that he is in danger of bodily harm or that the person he encounters is armed and dangerous, only then will justification for such a search exist. Satterwhite v. State, 726 S.W.2d 81, 87 (Tex.Crim.App.1986); Lewis v. State, 502 S.W.2d 699 (Tex.Crim.App. 1973).

In this case, the record reflects that the officer had reasonable grounds to believe that he was in danger of bodily injury and the limited search was conducted solely for his own protection. Officer Lusty testified that he and his partner received information from a patrol officer about a robbery involving two women suspects and a male suspect, the license of the vehicle, the physical descriptions of the two women including the fact that one was armed with a handgun and one with a knife. The license plate of the vehicle matched the report that the officers had received earlier. Officer Lusty testified that they felt their safety was in jeopardy as they approached the vehicle, and that they knew “the suspects were armed and dangerous, and had been taking property from people at gunpoint, and had made several threats to obtain that property.” After the occupants got out of the vehicle, one of the women threw down her purse, exposing a pistol. The officers conducted a search of the vehicle at which time they found credit cards and personal identification belonging to a female on the floorboard of the driver’s side of the car. The area searched by the officer was one in which the occupants could have easily reached and obtained a weapon. Satterwhite, 726 S.W.2d at 87; Imhoff v. State, 494 S.W.2d 919 (Tex.Crim.App.1973). The arrest was lawful, and the officers were authorized to search the interior of the vehicle incident to such arrest. Chambers v. Maroney, 399 U.S. 42, 47-52, 90 S.Ct. 1975, 1979-82, 26 L.Ed.2d 419 (1970). Point of error number three is overruled.

Appellant asserts in his first point of error that the evidence is insufficient to support his conviction in that the accomplice testimony was not corroborated. TEX.CODE CRIM.PROC.ANN. art. 38.14 provides:

A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.

To test the sufficiency of this corroborating testimony, the reviewing court must eliminate from consideration the evidence of the accomplice witnesses, and then examine the evidence of the other witnesses to see if it tends to connect the defendant with the commission of the offense. Brooks v. State, 686 S.W.2d 952 (Tex.Crim.App.1985); Hardesty v. State, 656 S.W.2d 73 (Tex.Crim.App.1983). If there is such evidence, the corroboration is sufficient. Brooks, 686 S.W.2d at 958; Hardesty, 656 S.W.2d at 76. The corroboration need only tend to connect the accused with the offense charged, TEX. CODE CRIM.PROC.ANN. art. 38.14 (Vernon 1979); Warren v. State, 514 S.W.2d 458 (Tex.Crim.App.1974), and make the accomplice’s testimony more likely than not. It is not necessary that the supporting evidence corroborate every aspect of the accomplice’s testimony. Warren v. State, 514 S.W.2d 458 (Tex.Crim.App.1974); Sheffield v. State, 371 S.W.2d 49 (Tex.Crim. App.1962), cert. denied, 375 U.S. 833, 84 S.Ct. 34, 11 L.Ed.2d 63 (1963). The corroborative testimony need not directly link the accused to the crime or be sufficient in itself to establish guilt. Brooks, 686 S.W.2d 958; Eckert v. State, 623 S.W.2d 359 (Tex.Crim.App.1981). All facts and circumstances in evidence may be looked to for corroboration, Brown v. State, 672 S.W.2d 487 (Tex.Crim.App.1984); Worthington v. State, 714 S.W.2d 461 (Tex. App. — Houston [1st Dist.] 1986, no pet.), and the corroborative evidence may either be circumstantial or direct. Brown, 672 S.W.2d at 488.

The trial court instructed the jury that Dana Mason and Lynn Butler were accomplices, and their testimony alone could not sustain a verdict of guilty, but that the jury must find other evidence tending to connect the defendant with the offense committed. The trial court further charged the jury that corroboration is not sufficient if it merely shows the commission of the offense.

With the above standards of review in mind, we consider the corroborating evidence offered by the State. The first witness, Francisco Gonzales, testified that he worked at a restaurant called “On The Border.” At approximately 9:30 p.m. December 18, 1985, while outside in the restaurant’s parking lot, the witness noticed two women “run like crazy.” He gave a description that matched one of the women later arrested for the robberies at Confetti’s. They ran across the parking lot and got into an El Camino that was “making around to come pick up the ladies.” He further testified that a white male was driving the car. Mr. Gonzales reported the license plate number of the El Camino to police shortly thereafter.

Dallas Police officer Dan Lusty testified that at 11:00 p.m. on December 18,1985, he received the license plate number which had been reported by Mr. Gonzales. He then ran registration on the plates to determine the car’s make and owner. He further testified that he contacted the owner of the vehicle who told police that she had loaned the car to appellant. The owner of the car then showed the police where appellant lived. Appellant was not at home nor was the car there. The owner also showed police a few other places where appellant might be found, but the vehicle was not found there. Police arrived the second time at appellant’s residence at approximately 2:30 a.m. on December 19, 1985. Appellant arrived driving the El Camino and accompanied by accomplices Dana Mason and Lynn Butler. The police ordered the three out of the car, whereupon Butler threw down her purse and the gun identified at trial as the one used in the robberies fell out. Officers confiscated several items from the car which were in plain view on the floorboard on the driver’s side. Among these items was a ladies’ purse which did not belong to Mason or Butler, and several cards, including an identification card bearing the name and picture of one of the victims that was robbed at Confetti’s just a couple of hours earlier.

Complainant is one of three women who was robbed at Confetti’s on December 19, 1985. She testified that she and two friends went to Confetti’s at 12:00 a.m. on the evening of the robberies and stayed approximately 20-30 minutes. She testified that two women whom she identified as Dana Mason and Lynn Butler, placed a gun in her side and a knife by her head, and ordered her to get into the car. The two women then robbed the victims of their purses and the contents as well as some jewelry. The two women then forced them to drive toward a Chinese restaurant where the robbers got out and ran back towards the Chinese restaurant.

There is evidence to corroborate Mason and Butler’s testimony that appellant assisted, encouraged, directed or aided them to commit the robberies. To summarize, these corroborating facts were:

1)appellant was loaned the El Camino seen leaving the parking lot of “On The Border” where a robbery occurred;

2) an eyewitness saw an unidentified white male driving the El Camino which had been loaned to appellant — he was accompanied by two white females — the description given one of the females matched one of the women later arrested for the Confetti robberies.

3) appellant was in the presence of the two accomplices just two hours after the Confetti robberies;

4) appellant and the accomplices had joint possession of stolen property some of which belonged to one of the three victims.

If a defendant is found in possession of recently stolen property and gives no reasonable explanation showing his honest acquisition of the property, the fact finder may draw a permissible inference of guilt from that possession. Holt v. State, 724 S.W.2d 914 (Tex.App. — San Antonio 1987, no pet.); Hardesty, 656 S.W.2d at 76. The presence of the accused with an accomplice when coupled with other circumstances, may be considered corroboration of the testimony of the accomplice. Holt, 724 S.W.2d at 917; Nelson v. State, 542 S.W.2d 175, 177 (Tex.Crim.App.1976). These corroborating facts shown by non-accomplice testimony are sufficient to corroborate the accomplice testimony of Mason and Butler in order to establish appellant’s guilt. See Tolley v. State, 717 S.W.2d 334 (Tex.Crim. App.1986); Tucker v. State, 689 S.W.2d 235 (Tex.App. — El Paso 1985, pet. ref’d). We overrule appellant’s first point of error.

Appellant’s second point of error complains of the trial court’s admission of evidence of an extraneous offense. Appellant contends, over his objections, the State was permitted to adduce testimony that three hours prior to the robbery at Confetti which was charged in the indictment, that the two female accomplices committed robberies at the On The Border restaurant and appellant was involved in those robberies. A review of the record reveals that the testimony complained of was elicited as a result of cross-examination by appellant’s counsel. It is well-established that an appellant may not complain of testimony which he himself elicited. Martinez v. State, 504 S.W.2d 897, 899 (Tex.Crim.App. 1974); Dyche v. State, 490 S.W.2d 568, 569 (Tex.Crim.App.1972); and Whatley v. State, 488 S.W.2d 422, 425 (1972). No error is shown, and point of error number two is overruled.

In point of error number four, appellant complains the trial court erred in overruling appellant’s objection to the prosecutor’s jury argument that one of the accomplice witnesses had testified, “... after we robbed someone at On The Border ...” because that statement was not supported by testimony in the record. The objection made by appellant at the time of trial was that there was no direct testimony and the prosecutor’s argument was outside the record. The point of error asserted by appellant is that the prosecutor’s argument was outside the record. However, appellant’s argument consists of a complaint that the statement was outside the record or involved an extraneous offense. The argument is multifarious, and, therefore, fails to present error to this court. Euziere v. State, 648 S.W.2d 700, 703-704 (Tex.Crim.App.1983); and Williams v. State, 605 S.W.2d 596, 599 (Tex.Crim.App.1980).

However, in viewing the point on its merits, we find that the claim that the statement was outside the record is without support. It appears in the record in response to appellant’s counsel’s cross-examination of the accomplice witness that she stated, "... after the robbery of On The Border ...” Accordingly, the argument was based upon evidence presented at the trial, and the comment by the prosecutor was a reasonable deduction from that evidence. Hightower v. State, 629 S.W.2d 920, 926 (Tex.Crim.App.1981); Loar v. State, 627 S.W.2d 399, 401 (Tex.Crim.App. 1981); and Alejandro v. State, 493 S.W.2d 230 (Tex.Crim.App.1973). With respect to appellant’s contention that the statement by the prosecutor involved an extraneous offense, no objection as such was made at the trial. Accordingly, that complaint does not correspond with the objection lodged in the trial court. The ground of error must comport with the objection by counsel at trial. Nothing is presented for review. Watkins v. State, 572 S.W.2d 339, 343 (Tex.Crim.App.1978). Appellant’s point of error number four is overruled.

In points of error numbered five, six, and seven, appellant complains that the trial court erred in failing to instruct the jury to (1) limit its consideration of the extraneous offense, (2) not consider the evidence of the extraneous offense without first finding from the evidence, beyond a reasonable doubt, that appellant was guilty of such offense, and (3) not consider the evidence of the extraneous offense without first finding from the evidence, beyond a reasonable doubt, that appellant was guilty of such offense, after applying the law of the parties. Appellant agrees that TEX. CODE CRIM.PROC.ANN. art. 36.14 (Vernon 1981) requires a trial court to instruct a jury on the law applicable to the case before the argument of counsel begins, but further states, however, that the court’s responsibility to correctly charge the jury extends until the jury’s verdict is returned. Although appellant admits that the requested instructions outlined in points of error numbered five, six, and seven were not made until after completion of argument by counsel on the issue of guilt/innocence, his position is that such request for the instructions was not untimely made. Article 36.14, V.A.C.C.P. requires any objections to the charge be made prior to the reading of the charge to the jury. Article 36.15 requires any requested special charges that may be asked for by the parties to be made prior to the time the court reads the charge to the jury. Article 36.16 provides in part that after argument begins no further charge shall be given to the jury unless certain exceptions are present. None of the exceptions set forth in article 36.16 are present here and accordingly, we hold that the requested instructions were untimely made and, therefore, waived by appellant. Pendleton v. State, 434 S.W.2d 694, 696 (Tex.Crim.App.1968); Villareal v. State, 429 S.W.2d 508, 510 (Tex.Crim.App. 1986); and Rojas v. State, 662 S.W.2d 466, 469 (Tex.App. — Corpus Christi 1983). Appellant’s points of error numbered five, six, and seven are overruled.

In points of error numbered eight and nine, the appellant contends that the trial court erred in instructing the jury regarding parole and good time credit because such instructions violate the separation of powers doctrine, and also denied the appellant due process of law. The contentions raised by appellant in these two points of error have been decided adversely to him by this Court. See Joslin v. State, 722 S.W.2d 725 (Tex.App. — Dallas 1986, pet. filed); Rose v. State, 724 S.W.2d 832 (Tex.App. — Dallas, 1986, pet. granted). For the reasons stated in Joslin and Rose, points of error numbered eight and nine are overruled.

The trial court’s judgment is affirmed.

LAGARDE, J., concurs with an opinion.

WHITHAM, J., dissents with an opinion.