Williams v. State

621 S.W.2d 613, 1981 Tex. Crim. App. LEXIS 1168

Opinions

OPINION

DALLY, Judge.

This is an appeal from a conviction for the offense of burglary of a habitation. The punishment, which is enhanced by two prior felony convictions, is imprisonment for life.

The appellant asserts that: the evidence is insufficient to support the conviction, unlawfully obtained evidence was erroneously admitted, and punishment of life imprisonment under the provisions of V.T.C.A. Penal Code, Section 12.42(d) is cruel and unusual and violated his constitutional rights.

The apartment of Gilbert and Cathy Borton, in Arlington, was entered by someone without authority while they were at work. Two television sets, several items of jewelry, and a coin collection were stolen. That afternoon the appellant was arrested and some of the stolen items were found in the pockets of clothing he was wearing and the two television sets were found in the trunk of the car he was driving. The appellant told the officers he was trying to sell the jewelry. Evidence that the appellant had the exclusive, unexplained possession of this property recently stolen is sufficient to sustain the conviction. Ward v. State, 581 S.W.2d 164 (Tex.Cr.App.1979) (Opinion on Rehearing); Williams v. State, 504 S.W.2d 477 (Tex.Cr.App.1974); Bolden v. State, 504 S.W.2d 418 (Tex.Cr.App.1974); Rodriguez v. State, 417 S.W.2d 165 (Tex.Cr.App.1967).

The appellant urges that the stolen items found in his possession and the stolen television sets found in the trunk of the car he was driving were unlawfully obtained by the arresting officers. A Dallas police officer who knew the appellant saw him driving a Ford automobile, park at a lounge, and enter the lounge. The officer knew the appellant had a record of convictions for theft. A radio and computer check of the license plate number on the Ford revealed that this license plate number was registered to an Oldsmobile at an address in San Antonio. Two other officers were called; the officers entered the lounge, and arrested the appellant. The appellant was searched and jewelry which had been stolen from the Bortons was found in appellant’s clothing. The officers believing that the automobile was stolen impounded it and using keys found on the appellant unlocked and inventoried its contents; they found the television sets which had been stolen from the Bortons in the trunk of the automobile.

The officers had probable cause to believe the appellant was driving and in possession of a stolen automobile. The j e wel-ry obtained in the search of the appellant made incident to his warrantless arrest was lawfully obtained. See Laws v. State, 549 S.W.2d 738 (Tex.Cr.App.1977); Myre v. State, 545 S.W.2d 820 (Tex.Cr.App.1977).

The officers reasonably believed the automobile was stolen; its impoundment, the search, and the inventory of its contents were lawful. Daniels v. State, 600 S.W.2d 813 (Tex.Cr.App.1980); cf. Benavides v. State, 600 S.W.2d 809 (Tex.Cr.App.1980). Evidence concerning the discovery of the stolen television sets was properly admitted.

In searching the automobile the officers found another set of license plates. Subsequent investigation showed these were the license plates issued for the Ford automobile and that this automobile was not stolen. That the automobile was not a stolen automobile is immaterial since the officers at the time of the appellant’s arrest and search and the search and inventory of the automobile had probable cause to believe the automobile was stolen.

The appellant’s ground of error urging that V.T.C.A. Penal Code, Section 12.42(d) is unconstitutional is without merit. Hummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980).

The remaining grounds of error raised by the appellant in his pro se brief have been considered; they are without merit.

The judgment is affirmed.