Hensley v. State

494 S.W.2d 816, 1973 Tex. Crim. App. LEXIS 2739

• Court: Court of Criminal Appeals of Texas
• Decided: March 14, 1973
• Docket: 45559
• Status: Published

Opinions

OPINION

MORRISON, Judge.

The offense is robbery by assault with a prior conviction for an offense of the same nature alleged for enhancement; the punishment, life.

The sufficiency of the evidence to sustain the conviction is not challenged. The robbery charged occurred at a different U Totem store sometime before his arrest.

Appellant’s sole ground of error grows out of an allegedly illegal search of his person and of his automobile at the time of his arrest.

Prior to trial appellant made a motion to suppress the evidence secured as the result of the search of his person and his automobile. After the hearing, the motion was overruled. See Powers and Dion v. State, Tex.Cr.App., 456 S.W.2d 97.

Concerning the arrest the witness Gilpin, a supervisor of U Totem stores in Houston and a reserve Deputy Sheriff, testified that on the night of appellant’s arrest he was cruising in the neighborhood of a U Totem store located on Braeburn Glenn Drive and observed an automobile parked near a closed service station which had not been there when he passed five minutes earlier. No persons who might have driven the automobile were visible in the area. The key was in the ignition and a check of the hood of the automobile revealed that it was warm. This service station was adjacent to the U Totem store. The hour was 15 minutes before the store was to be closed for the night. The witness was familiar with the fact that several U Totem stores, as well as their competitors, had recently been robbed by a bandit who wore a motorcycle helmet. As Gilpin approached the store he observed appellant standing “between the garbage ben [sic] and the front of the building on the side” [Emphasis Supplied] in an area which was not well lit. Appellant was in the act of putting on the motorcycle helmet which he had in his hand. When being questioned about where his motorcycle was, appellant replied that it was broken down at another location. When asked if the automobile parked at the service station was his, appellant replied that it was not. When asked what caused the bulge in his jacket pocket appellant replied that it was a gun. The pistol would appear to have been admissible under Article 487, Vernon's Ann. P.C., and our holding in Cox v. State, Tex.Cr.App., 442 S.W.2d 696.

We now discuss the search of the automobile. Gilpin detained appellant until members of the regular Houston police arrived at the scene. It was they who searched the automobile. They found therein, “Several disguises, a ski mask, a wig, a check book with [appellant’s] name in it.” They also found a money pouch and money bag which, together with the wig, were introduced in evidence. Initially, we observe where, as here, the appellant disclaims ownership of an automobile he forfeits his standing to contest the search thereof. Cf. Boatwright v. State, Tex.Cr.App., 472 S.W.2d 765.

Further, we conclude that the officers were in possession of sufficient probable cause to believe that the appellant had driven to the scene of the planned robbery in the automobile and that immediately upon completion of such robbery he planned to use the same to flee the scene.

The facts here are more nearly akin to those before the Court of Appeals in California in People v. Brown, 4 Cal.App.3d 382, 84 Cal.Rptr. 390 (no writ history), than any other case we have been able to find. There the officers apprehended Brown in the actual commission of a robbery. (In the case at bar this appellant was apprehended as he was preparing to rob the U Totem store). We quote from the opinion:

“Suspecting that Brown had come to the scene of the robbery by automobile, one of the officers walked down East 14th Street in the direction from which Brown had entered the station. He saw but one car on the street. He found its doors unlocked, the keys in the ignition lock, and the hood of the car still warm. No registration certificate could be seen, so the officer opened the glove compartment. ‘Primarily for the ownership of the car, the registration, who might own it.’ In the glove compartment were found live .22 calibre bullets and an ‘employment book’ with Brown’s name on it. More such bullets were then found in a jacket.”

Later on in the opinion the Court said:

“Under the circumstances the police had reason to suspect that Brown had an automobile despite his declaration to the contrary. . . . If he did have a car it would probably be in the area from which he was seen entering the station. Looking in that direction the police saw but one automobile. The car’s warm hood suggested it had recently been driven, and the key in its ignition would enable a quicker getaway. This enhanced the probability that the car was Brown’s. There was thus reasonable cause to believe that the vehicle itself was an instrumentality of Brown’s crime, a getaway car, and that evidence pertaining to the robbery might be found therein.”

We, therefore, conclude the police were authorized to search the automobile.

The sentence reflects a punishment of five years to life. However, since appellant’s conviction was enhanced under Article 62, V.A.P.C., a mandatory life sentence must be imposed and the judgment is therefore reformed to so reflect.

Finding no reversible error, the judgment, as reformed, is affirmed.