Thornton v. State

451 S.W.2d 898, 1970 Tex. Crim. App. LEXIS 1399

• Court: Court of Criminal Appeals of Texas
• Decided: February 11, 1970
• Docket: 42353
• Status: Published

Opinions

OPINION

DOUGLAS, Judge.

The conviction is for robbery by assault; the punishment eighty-five years. Appellant was tried jointly with Walter Thomas, Jr., our Cause No. 41,962, 451 S.W.2d 907 and Elroy Lampkin, No. 42,342, 451 S.W. 2d 911.

The record reflects that Thomas Johnson and Gerald Lamb had been drinking at nightspots on a Saturday night, and rather than go into Johnson’s apartment, where his mother lived, they went to sleep in Johnson’s car at the apartment. At approximately three or three-thirty o’clock on Sunday morning, Johnson was awakened when Walter Thomas, Jr., tapped him on the head with a pistol. Johnson got out of the car and saw two other armed men (Lampkin and Thornton); the three men took Johnson’s billfold and Lamb’s watch. Johnson and Lamb were ordered to get into the trunk of Johnson’s car. When Johnson hesitated, Lampkin cursed him and punched him in the back with a gun. The order was then complied with, the complainants got inside the trunk, and it was closed.

The three armed men got into the car, and more than ten hours of captivity for the occupants of the trunk began. When it became daylight and during one of the many stops, Johnson looked out of a hole where a lens of a taillight had been broken and saw a pickup truck behind the car. The three men got out of the car and talked to the driver of the pickup truck. The truck followed and stopped every time the car stopped. Johnson was able to get the license number of the truck and observe some of the activities of the three men during the day. The car stopped at several business establishments in the Dallas and Oak Cliff areas. At most of the stops, two of the men would get out of the car and one would remain inside. On one occasion Johnson saw Lampkin, Thomas, Thornton and Durden (the driver of the truck) return to the car with brown paper sacks in their hands. After they jumped into the car, complainants heard change hit the floor.

At about one-thirty o’clock that afternoon, the three abandoned the car, after stripping its gears, and departed in the truck. Complainants opened the trunk with a tire tool and called the officers.

In the first ground of error, it is contended that the trial court erred in refusing to grant appellant’s motion for severance, because each of his co-defendants had several prior felony convictions and appellant had only one felony conviction for robbery and a misdemeanor conviction for carrying a pistol.

Article 36.09, Vernon’s Ann.C.C.P., provides :

“Two or more defendants who are jointly or separately indicted or complained against for the same offense or an offense growing out of the same transaction may be, in the discretion of the court, tried jointly or separately as to one or more defendants; provided that in any event either defendant may testify for the other or on behalf of the State; and provided further, that in cases in which, upon timely motion to sever, and evidence introduced thereon, it is made known to the court that there is a previous admissible conviction against one defendant or that a joint trial would be prejudicial to any defendant for any reason, the court shall order a severance as to the defendant whose joint trial would prejudice the other defendant or defendants.”

Appellant contends that if another defendant has a prior admissible conviction that a severance should be granted as a matter of right. After appellant’s brief was filed in the trial court, this Court held in Robinson v. State, 449 S.W.2d 239, that the mandatory ground for severance applies only where one defendant has no prior admissible conviction and a co-defendant has a prior conviction or convictions which are admissible, and if all the defendants have prior admissible convictions, there must be a showing that a joint trial would be prejudicial to the defendant. Such ground for severance is addressed to the sound discretion of the trial judge.

In Robinson v. State, supra, and Johnson v. State, Tex.Cr.App., 449 S.W.2d 237, no evidence was offered in support of the motion for severance, and this Court held in the absence of such evidence which is required under Article 36.09, supra, no error was presented.

In the present case, no evidence was offered before trial in support of the motion and no error is presented.

Ground of error number one is over* ruled.

Complaint is made in the second ground of error that the trial court erred in overruling his motion to suppress the evidence seized as a result of the search of the apartment without a warrant.

Officer Don Norman of the Dallas Police Department testified that he received a call at approximately one-thirty Sunday afternoon, January 28, 1968, and went to Oak Cliff where he saw Johnson and Lamb, the complainants, who were visibly shaken. They told him that they had been robbed and gave him a description of the robbers and of the pickup truck and its license number. He saw that the trunk of Johnson’s car had been pried upon and damaged. Near the car he found a change box from a cash register. A CID unit composed of Detective Carl Railey and Officer Van Cleve, who were also present, got the description of the robbers and the pickup truck and left. A short time later they apprehended two men on Oakland Street in a 1953 Chevrolet pickup truck which had the same license number as the one described by Johnson and Lamb. Officer Norman met Railey and Van Cleve again on Oakland Street at approximately two o’clock. Another CID unit was called, and it arrived within twenty-five or thirty minutes. The officers obtained information from James Lee Buster and another man who were apprehended in the pickup truck that the robbers were in an apartment at 3100 Birmingham Street.

The record further reflects that one of the officers knocked at the door of the apartment and Durden (who had been a driver of the pickup truck earlier in the day) told the officers to come in. The officers saw eight men, including Thornton, Lampkin and Thomas, and one woman in the one-bedroom apartment. In the commode that had just been flushed, the officers found the drivers license and social security card of the complainant Johnson. Officer Norman found a .22 caliber revolver and a large amount of change rolled up in a pair of trousers in a closet. Officer Railey found another pistol under the mattress of one of the beds. An automatic pistol and Lamb’s watch were in a dresser drawer. All three of the guns were loaded. A toy gun was found under the mattress of another bed. The arrests were made at approximately three-fifteen or three-thirty o’clock in the afternoon.

When questioned on cross-examination why a search warrant was not obtained, Officer Norman testified that they did not have time to obtain one. Officer Babb testified that they could not determine who owned or rented the apartment. Babb was also asked how long it took to get a warrant in an ordinary case. He answered: “Well, there is no ordinary case, because you have to locate a judge.”

Article 14.04, V.A.C.C.P., provides:

“Where it is shown by satisfactory proof to a peace officer, upon the representation of a credible person, that a felony has been committed, and that the offender is about to escape, so that there is no time to procure a warrant, such peace officer may, without warrant, pursue and arrest the accused.”

The trial court did not err in admitting the guns and other items found in the apartment. The record reflects that this was on Sunday afternoon, and the officers had been informed that the felony offense of robbery had been committed, and they did not have time to obtain a warrant. The appellants had left the pickup truck that they had been using. The officers were told that the robbers were in an apartment at the Birmingham Street address, but they could not ascertain the name of the landlord or tenant of the apartment.

Their arrest was justified under Article 14.04, supra.

In view of the fact that after the officers entered this one-bedroom apartment they saw nine people with three of them fitting the description given by the complaining witness Johnson as the armed robbers, the search of the apartment for the pistols was justified. See O’Neal v. State, Tex.Cr.App., 416 S.W.2d 433; Trammell v. State, Tex.Cr.App., 445 S.W.2d 190; Price v. State, Tex.Cr.App., 410 S.W.2d 778, and Ware v. State, 151 Tex.Cr.R. 228, 207 S. W.2d 868.

After this case was tried, the Supreme Court of the United States decided Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (June 23, 1969), a burglary case, where officers with an arrest warrant searched the entire three-bedroom house, including the attic, the garage and a small workshop. The officers directed Chimel’s wife to “open drawers and physically move contents of the drawers from side to side so that [they] might view any items that would have come from [the] burglary” of a coin store. The officers seized coins, medals, tokens and other objects. The Court held that the entire house could not be searched without a search warrant.

Chimel is distinguishable. There, the officers were searching for stolen coins and property taken in the burglary. In the present case officers under this record were justified after their entry in searching the apartment for the pistols for their own protection.

United States v. Bennett, 415 F.2d 1113 (2d Cir. 1969), in an opinion by Judge Friendly, held that Chimel, supra, was not applicable to searches (other than Chimel itself) prior to June 23, 1969. The Court stated:

“In Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 1970, 18 L.Ed.2d 1199 (1967), the Court explained that in determining how far a newly announced constitutional rule of criminal procedure would be made prospective only, attention should be given to ‘(a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of retroactive application of the new standards.’ All three considerations point to making Chimel prospective in the full sense of Stovall and Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969), namely, ‘only to the petitioner involved in the case in which the new rule is announced and to all future cases in which the proscribed official conduct has not yet occurred.’ Desist v. United States, supra, 394 U.S. at 257, 89 S.Ct. at 1038 (dissenting opinion of Mr. Justice Harlan). See United States v. Hutto, 393 F.2d 783, 784 & n. 3 (4 Cir. 1968). The purpose to be served by Chimel is deterrent; law enforcement officers had justifiably relied upon Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947), and United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950); and the effect of retroactive application of Chimel on the administration of justice would thus be substantial even if this were limited to cases where the judgment had not become final. In contrast there is little to be said in favor of retroactivity under the standards the Court has announced. As pointed out in Linkletter v. Walker, 381 U.S. 618, 638, 639, 85 S.Ct. 1731, 1742, 1743, 14 L.Ed.2d 601 (1965), ‘there is no likelihood of unreliability or coercion present in a search-and-seizure case’; the exclusionary rule is but a ‘procedural weapon that has no bearing on guilt’; and ‘the fairness of the trial is not under attack.’ See Desist v. United States, supra, 394 U.S. at 250-252, 89 S. Ct. 1030.”

In Lyon v. United States, 416 F.2d 91 (5th Cir. 1969), the Court also held that Chimel was not retroactive.

We agree that Chimel is not retroactive and is not applicable in the present case. The second ground of error is overruled.

In the third ground of error, it is contended that the trial court erred in allowing the complainant Johnson to identify appellant at the trial, because he had been in a lineup without counsel.

Reliance is had on United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L. Ed.2d 1149, and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178.

The lineup was held at approximately four-thirty p. m. Johnson, on direct examination, identified Thornton, Thomas and Lampkin as the robbers without objection. The State did not offer evidence of the lineup to bolster the in-court identification testimony. After the defense brought out the fact that a lineup had been held, the State did show that Johnson had identified the three as the robbers in the lineup without hesitation. He had previously described them to the officers. He testified that he could have identified them if no lineup had been held, because he had seen them in the lighted garage at the apartment, and through the broken taillight of his car throughout the day.

Lamb, without objection, identified Lampkin at the trial and at the lineup. He could not identify Thornton or Thomas.

Officers Norman and Babb testified that written waivers of counsel and consent for a lineup were signed by each of the defendants. Neither the State nor the defense pursued this matter further. The waivers of counsel or consent to the lineup do not appear in the record. It was shown that Johnson identified the three at an examining trial and had also identified them from pictures.¹

There was no showing of any material discrepancy between the descriptions given prior to the arrest and the actual appearance of the accused. A short period of time elapsed between the acts and the lineup identification. The record shows that the in-court identification was of independent origin.

In Martinez v. State, Tex.Cr.App., 437 S.W.2d 842, it was observed that a timely objection to identification testimony must be made at the first opportunity. This was not done, and no reason is shown for delaying his objection. See Lucas v. State, Tex.Cr.App., 444 S.W.2d 638, Evans v. State, Tex.Cr.App., 445 S.W.2d 180, and Evans v. State, Tex.Cr.App., 444 S.W.2d 641.

The third ground of error is overruled.

In the fourth ground of error, appellant contends that reversible error was committed when one of the prosecutors asked the witness Gerald Lamb, “Would you have gotten out of this car for three nigger men at night if they hadn’t had guns?” An objection to the question was sustained. The court instructed the jury to disregard the reference of counsel and overruled the motion for mistrial.

In view of the instruction of the court to disregard the remark, we conclude that no reversible error was committed.

The judgment is affirmed.

1 . It was not shown when Johnson saw the photographs. The showing of photographs prior to arrest does not in itself make the in-court identification a violation of due process. See Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247, and United States v. Collins, 416 F.2d 696 (4th Cir. 1969), and Bowman v. State, Tex.Cr.App., 446 S.W. 2d 320.