Martin v. State

610 S.W.2d 491, 1980 Tex. Crim. App. LEXIS 1491

Opinions

OPINION

ODOM, Judge.

This is an appeal from a conviction for murder. Punishment was assessed at 25 years.

The third ground of error challenges the sufficiency of the evidence. Appellant was convicted for the murder of his wife. Her body and the body of their adult daughter were found in the trunk of a partially submerged automobile. Appellant was hitchhiking nearby and was given a ride by two men who testified at trial that his pants were wet from the waist down. A slug removed from the body of one of the victims was shown to have been fired from a pistol that was owned by appellant and was shown to have been in his possession shortly after the offense. We find this evidence sufficient to support the conviction.

The first two grounds of error are based on a challenge to the search of the house where appellant and the murder victims lived. The first ground of error asserts the evidence seized in the search of the house should have been suppressed because the search was unlawful. The second ground of error argues the in-court identifications of appellant by the two men who gave him a ride should have been suppressed because those witnesses had previously identified appellant in photographs seized in the challenged search.

At trial appellant filed a motion to suppress the seized evidence and the identification testimony on the theory that the search was conducted without a warrant and without consent. In Nastu v. State, 589 S.W.2d 434, the Court said:

“It is well established that a search conducted without a warrant issued on probable cause is per se unreasonable and that the warrant requirement is subject only to a few well-delineated exceptions. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).

* * * * * He

“However, ‘[o]ne of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent’ Kolb v. State, 532 S.W.2d 87, 89 (Tex.Cr.App.). But before consent can be effective, the prosecution must prove by clear and convincing evidence that the consent was given freely and voluntarily. Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968); Armstrong v. State, 550 S.W.2d 25 (Tex.Cr.App.); Kolb v. State, supra.

“ ‘Whether a consent to search was voluntary is a question of fact to be determined from the totality of the circumstances.’ Brem v. State, 571 S.W.2d 314, 319 (Tex.Cr.App.). Schneckloth v. Busta-monte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).”

These words from Nastu speak to the issue before us today. The search under attack was conducted on the afternoon of the two murders. Appellant resided in the house that was searched. Also living there were the two murder victims and Kimberly Webster, who gave consent to enter and search the house.

Officers were waiting at the house when Kimberly and her younger sister came home from school on the afternoon of the murders. When the issue of the lawfulness of the search was heard by the trial court, Kimberly testified that she consented to the search of the house and that she signed a written consent to search. The signed consent was written out by James Smith (described by Kimberly as her mother’s best friend’s husband) and dictated by Officer Branch, who also knew Kimberly. When Kimberly testified the questions did not ask and the answers did not show that her consent was involuntary in any way. Neither did Branch’s testimony show any coercion. This record is sufficient to support a finding by the trial court, by clear and convincing evidence, that Kimberly’s consent was given freely and voluntarily. This was adequate to establish an exception to the warrant requirement.

On appeal additional challenges to the lawfulness of the search are raised. It is asserted that Kimberly did not have authority to consent to a search of the room appellant occupied in the house. Some of the evidence was seized in his room and some in other parts of the house. No objection was made at trial directing the court’s attention specifically to those items seized from appellant’s room, nor was objection made to Kimberly’s authority to consent to a, search of that particular room. Consequently, the record was not developed with attention on this issue. Nothing is presented for review in this matter. See Morrison v. State, 508 S.W.2d 827, n. 4.

The same result must be reached as to appellant’s argument, raised for the first time on appeal, that fifteen-year-old Kimberly was too young to. consent to the search. Because the record was not developed on this issue we do not know if the officers knew whether anyone older than Kimberly resided at the house (they already knew Kimberly’s mother and grandmother had been shot). Neither do we know what other facts might have been developed had the issue been raised at trial. Because this issue was not raised at trial, we hold it may not be raised at this time.

Furthermore, it appears the search conducted here was of the murder scene. Although the record is not fully developed, it appears that the “common law ‘exigency rule’ ” of Brown v. State, 475 S.W.2d 938, 948-950, and Pearson v. State, 587 S.W.2d 393, would apply because the search and trial in this case occurred before the decision in Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978). Pearson, supra.

The first and second grounds of error are overruled.

The judgment is affirmed.