Johnson v. State

629 S.W.2d 99

Opinions

OPINION

OSBORN, Justice.

Alfonso Ray Johnson appeals from a conviction for the offense of burglary of a habitation. The Court assessed his punishment at six years. We affirm.

On May 3, 1979, El Paso Police Officer Jose Castro, Jr., was on patrol, when he noticed a car backed up on the driveway of the house at 1675 Lomaland. He observed the Appellant and another person walking from the front of the house. He saw them carrying some unidentified object. When he turned around and returned to this residence, one of the men began to run and the Appellant closed the trunk on his car and got into the car to drive off. The officer blocked the driveway and inquired if the Appellant lived at that address. Mr. Johnson told the officer he did not live there.

When he went to the front door, the officer observed that the door had been splintered and broken into, and he could see many items thrown around on the floor inside. The Appellant was arrested and advised of his rights. A search of Appellant revealed a key to the trunk of the car. When the officer opened the trunk to inventory it he found numerous articles taken from the home.

By his first point of error, the Appellant contends the trial Court erred in refusing to charge the jury on the law of circumstantial evidence because there was no direct evidence of entry into the habitation by the Appellant. Under the definition of the offense, entry is an essential element of the crime. Sec. 30.02(a) Tex.Penal Code. But, there was no need for a circumstantial evidence charge in this case, primarily because Officer Brightenger testified that the Appellant told him that he had been in the house. Such statement was admitted without objection and established this element of the crime. In addition, such instruction is not required where the facts proven are in such close juxtaposition to the fact constituting an element of the crime. Newton v. State, 509 S.W.2d 610 (Tex.Crim.App.1974). Point of Error No. One is overruled.

The next point asserts the trial Court erred in overruling a motion to suppress evidence because items seized from the trunk of Appellant’s car were obtained without a search warrant. The officer testified that before the trunk was opened, he called a wrecker to take possession of the Appellant’s vehicle. But, he thought it was necessary to inventory the vehicle before it left the premises where the arrest was made. Much has been written about Fourth Amendment rights under the United States Constitution and the search of automobiles. In Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), the Court announced a' rule that was to “be easily understood and applied by courts and law enforcement officers alike.” It required “that the officers must obtain a warrant when they intended to seize an object outside the scope of a valid search incident to arrest.” Five years later in South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), the Court noted the “distinction between automobiles and homes or offices in relation to the Fourth Amendment.” It pointed out that “warrantless examinations of automobiles have been upheld in circumstances in which a search of a home or office would not.” In recognizing an exception in the application of the Amendment to searches of automobiles, the Court said:

In applying the reasonableness standard adopted by the Framers, this Court has consistently sustained police intrusions into automobiles impounded or otherwise in lawful police custody where the process is aimed at securing or protecting the car and its contents.

The struggles of a much divided court still continues in the automobile cases. Robbins v. California, 453 U.S. 420, 101 S.Ct. 2841, 69 L.Ed.2d 744 (1981); New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981).

We conclude that the rule which the Court applied in Opperman applies here, and the evidence was not obtained in violation of the Fourth Amendment. Point of Error No. Two is overruled.

The next point contends the trial Court erred in overruling the Appellant’s motion to suppress because the arresting officer did not have sufficient facts to believe a crime was being committed in his presence which authorized him to detain and investigate the Appellant. We recognize that a temporary detention must be based on specific, articulable facts which, taken together with the rational inferences from those facts, reasonably warrant further detention of the individual while more information is obtained, and, further, that the inarticulate hunch, suspicion, or good faith of a police officer will not warrant a temporary detention. Ozuna v. State, 587 S.W.2d 385 (Tex.Cr.App.1979). In this case, the officer observed a car backed up on the driveway at a residence, saw two people carring something out of the house, and the Appellant was walking barefooted across a rock covered front yard. As the officer passed, the two men were observed to be talking and watching his car. When he turned around and came back to the house, one of the individuals began to run and Appellant entered his car to drive off. Based upon all these facts, the officer was justified in detaining Appellant while he checked and found the house had been broken into through the front door and saw many articles thrown about in the house. He then made the arrest. Appellant’s Point of Error No. Three is overruled.

The last point of error urges the trial Court erred in not granting a mistrial because the prosecutor made an improper argument. This point is based upon an argument in which the assistant district attorney said: “ * * * based on the evidence, I’ve never seen a case as clear cut and convincing * * *.” It is improper for counsel to inject his personal opinion into the case. Villalobos v. State, 568 S.W.2d 134 (Tex.Cr.App.1978); Baldwin v. State, 499 S.W.2d 7 (Tex.Cr.App.1973). But in this case, the argument was based upon counsel’s analysis of the evidence and was not based on something outside the record. Sikes v. State, 500 S.W.2d 650 (Tex.Cr.App.1973). Any error was cured by the trial Court sustaining the objection and instructing the jury to disregard the statement. Point of Error No. Four is overruled.

The judgment of the trial Court is affirmed.