Nikrasch v. State

698 S.W.2d 443
CourtCourt of Appeals of Texas
DecidedSeptember 27, 1985
Docket05-82-00332-CR to 05-82-00349-CR
StatusPublished
Cited by55 cases

This text of 698 S.W.2d 443 (Nikrasch v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nikrasch v. State, 698 S.W.2d 443 (Tex. Ct. App. 1985).

Opinions

WHITHAM, Justice.

These cases, which constitute the appeal of appellant, Terrance E. Nikrasch, come to us on remand from the court of criminal appeals. In a previous unpublished opinion, we reversed and remanded the cases to the trial court because at oral argument the State conceded that the judgment in each of these cases should be reversed and remanded to the trial court and requested that this court do so. In its review of our decision, the court of criminal appeals reaffirmed the holding in Morgan v. State, 688 S.W.2d 504 (Tex.Crim.App.1985), that the existence of a judicial confession or admission does not bar an appellate court from reaching the merits of a pretrial motion properly preserved under TEX.CODE CRIM.PROC.ANN. art. 44.02 (Vernon 1979). Citing this as its rationale, the court of criminal appeals remanded to this court [446]*446so that we could rule on appellant’s motion to suppress.

Appellant, Terrance E. Nikrasch, appeals his conviction for unlawful use of a criminal instrument (trial court cause number F-81-12439-M, court of appeals number 05-82-00332-CR). Appellant also attempts to appeal convictions for burglary of a building. Appellant, however, failed to properly perfect an appeal with respect to these purported convictions. Appellant’s five grounds of error relate both to his properly perfected appeal and to his defective attempted appeals. We find no merit in any of appellant’s grounds of error. Accordingly, we affirm the conviction for unlawful use of a criminal instrument in trial court cause number F-81-12439-M, court of appeals number 05-82-00332-CR, and dismiss the appeal in all other causes.

In his first ground of error, appellant contends that the trial court erred in denying his motion to suppress because the initial stop was a “pretext” stop. The arresting officers testified that the basis for the initial stop of the driver, appellant’s co-defendant Charlesworth, was that Charlesworth had committed a “flagrant” traffic violation, namely, turning left from the rightmost of three southbound lanes instead of the left turn lane. Some of the officers who took part in the stop of the automobile also had been investigating appellant and Charlesworth and had suspicions that appellant and Charlesworth were guilty of other crimes. Appellant argues that this investigation and these suspicions make it clear that the stop was a pretext stop. We disagree. There was ample testimony that Charlesworth had committed a traffic violation. Thus, the stop was justified, regardless of suspicions the officers might have had that the occupants of the car had committed other crimes, Dodson v. State, 646 S.W.2d 177 (Tex.Crim.App.1983) (on rehearing), and regardless of any prior investigation of the occupants. Adams v. State, 669 S.W.2d 391 (Tex.App.—Dallas 1984, no pet.).

Appellant also argues—multifariously—that the officer who actually stopped the car had no authority to do so, since he did not see the offense, but only heard of it on the police radio. The officer who made the stop did so after hearing a radio broadcast direct from an officer who testified that he observed the traffic violation. A police officer who hears a report of an offense on the police radio may make a stop and arrest on the basis of that report. Black v. State, 503 S.W.2d 554, 555-56 (Tex.Crim.App.1974). We overrule appellant’s first ground of error.

In his second ground of error, appellant contends that the trial court erred in denying his motion to suppress because of an invalid inventory search. Appellant makes two closely related arguments: (1) that the police illegally impounded the automobile after they stopped it, and (2) that the police illegally searched the trunk immediately after they stopped the automobile. These two arguments are related because the police’s stated justification for the search of the trunk was that the search was a post-impoundment inventory search. Thus, appellant asserts, among other things, that the search was unlawful because the im-poundment was unlawful.

We conclude that appellant has no right to complain about the search, even if the impoundment was unlawful. We reach this conclusion for the following reasons. Our review of the record reveals that even if the police officer’s purpose in searching the trunk was to do a post-impoundment inventory, the search was justified on the basis of principles outside the law relating to post-impoundment inventories. One arresting officer testified that he asked Charlesworth if Charlesworth “minded” if the officer looked inside the trunk and that Charlesworth said that “he really didn’t care; it wasn’t his car; it belonged to Mr. Ort and that that would be up to Mr. Ort ...” Thus, the record shows that Charles-worth disclaimed any possessory interest in the automobile but said that he personally did not care if the officers searched the trunk. The record does not show appellant either asserting or disclaiming any posses-sory interest in the automobile. Nor does [447]*447it show appellant either consenting or objecting to the search. The only evidence that appellant had a possessory interest in the automobile came from Charlesworth’s testimony that he and appellant were the co-owners of the automobile. If Charles-worth’s testimony were accepted, then it would follow (1) that there is evidence that one of the, co-owners of the automobile, Charlesworth, had effectively given his consent to a search of the trunk (by saying that he did not care if it were searched) and (2) that there is no evidence that the other co-owner, appellant, had objected. If Charlesworth’s testimony were not accepted, it would follow that .there is no reason to believe that appellant had a possessory interest in the automobile and, thus, any right to challenge the search of the trunk. Esco v. State, 668 S.W.2d 358, 361 (Tex.Crim.App.1982). In either case, appellant cannot complain about the search of the trunk.

Thus, even if the impoundment of the vehicle had been unlawful, there still would be no reason to suppress the challenged evidence. The initial search of the trunk was justifiable regardless of whether the impoundment was lawful. It is true that after impounding the automobile the police executed a search warrant on luggage in the trunk. Yet, if the police had simply left the automobile on the street, they still could have executed that warrant. The seizure of the challenged evidence was, therefore, in no way a fruit of the impoundment. An illegal impoundment would consequently not justify suppression. See Autry v. State, 626 S.W.2d 758, 764 (Tex.Crim.App.1982), cert. denied, 459 U.S. 882, 103 S.Ct. 180, 74 L.Ed.2d 147. We overrule appellant’s second ground of error.

In his third ground of error, appellant contends that the trial court erred in denying his motion to suppress because of a defective search warrant. The search warrant in question was the warrant authorizing search of the luggage found in the trunk. This warrant also authorized appellant’s arrest for possession of a criminal instrument.

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Bluebook (online)
698 S.W.2d 443, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nikrasch-v-state-texapp-1985.