Ladmiro Espinal Lazo v. State ( 1994 )

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN





NO. 3-93-423-CR



LADMIRO ESPINAL LAZO,

APPELLANT

vs.





THE STATE OF TEXAS,

APPELLEE

FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT

NO. CR-92-594, HONORABLE FRED A. MOORE, JUDGE PRESIDING

PER CURIAM

A jury found appellant guilty of burglary of a habitation. Tex. Penal Code Ann. § 30.02 (West 1989). The district court assessed punishment at imprisonment for ten years, but suspended imposition of sentence and placed appellant on probation.

Elizabeth Koberg, a student teacher at Buda Intermediate School, was supervising the children on the playground at noon on October 7, 1992. She saw an old, blue, two-door car occupied by two Hispanic men slowly drive past the school building on the campus drive. Shortly after this, two girls approached Koberg and told her that one of the men got out of the car and ran toward them. Koberg and the girls reported the incident to Koberg's supervisor, who called the police.

Constable James Kohler responded to the dispatcher's report of this incident. He found a car matching the description of the suspect vehicle a short distance from the school. As he began to follow this car, Kohler noticed that the driver slowed down considerably--to approximately twenty miles-per-hour on a road with a speed limit of fifty-five miles-per-hour. Kohler testified that he stopped the suspect car, which was driven by appellant, because it was impeding the normal flow of traffic. Tex. Rev. Civ. Stat. Ann. art. 6701d, § 170(a) (West 1977). Appellant did not have proof of insurance and his driver's license had an incorrect address. Another officer brought Koberg to the scene and she identified appellant and his companion, Aaron Mejia, as the men she saw at the school.

Appellant's car was a hatchback, with the back seat folded down. A shotgun, a rifle, a television, a vacuum cleaner, a video game machine, and packages of meat that appeared to be frozen were visible through the car's windows. Jewelry and a microwave oven were also discovered in the car during a search pursuant to appellant's written consent. Appellant told the officers that he and Mejia found this property on the side of the road, but also admitted knowing that the property was stolen.

Appellant's first point of error is that the district court erred by overruling his motion to suppress the evidence found during the search of his car. Appellant argues that the initial detention was neither a valid traffic stop nor a valid investigative detention, but was instead an unlawful arrest without probable cause.

A police officer may detain a person for investigation if, based on the totality of the circumstances, the officer has a particularized and objective basis for suspecting the person stopped of criminal activity. United States v. Cortez, 449 U.S. 411 (1981). In order to justify the intrusion, the officer must have specific and articulable facts which, in light of his experience and personal knowledge, together with other inferences from those facts, reasonably warrant the intrusion for further investigation. Johnson v. State, 658 S.W.2d 623, 626 (Tex. Crim. App. 1983).

In this cause, Kohler was acting on the basis of the reported incident at the school. Appellant argues that this information was not reliable because it was anonymous. To the contrary, however, the report was shown to have come from the student teacher, Elizabeth Koberg. The two children who described to Koberg the activities of the man who got out of the car are also named in the record. Appellant's argument that the report was anonymous because Koberg's supervisor and the police dispatcher were not identified is without merit.

Appellant, his car, and his companion matched the description of the men and car seen at the nearby school minutes before the stop. One of the men had reportedly gotten out of the car at the school and chased one or more children. When the constable's vehicle was seen by appellant, he slowed his car to an unusually slow speed. We believe that these circumstances reasonably warranted appellant's detention for further investigation. The initial stop of appellant's car can also be upheld on the basis of the observed traffic violation. That the officer's primary motive for stopping appellant might have been his desire to investigate the reported disturbance at the school does not render the traffic stop unlawful. Garcia v. State, 827 S.W.2d 937, 943 (Tex. Crim. App. 1992). The discovery of the property in appellant's car and his admission that the property was stolen gave the officers probable cause to arrest. Point of error one is overruled.

In his second point of error, appellant contends the evidence is legally insufficient to sustain the verdict. In determining the legal sufficiency of the evidence to support a criminal conviction, the question is whether, after viewing all the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991); Griffin v. State, 614 S.W.2d 155 (Tex. Crim. App. 1981). James Moore testified that his residence is located approximately two miles from the Buda Intermediate School. On October 7, 1992, someone entered his residence without permission and stole numerous items of personal property. Moore identified the goods found in appellant's car as the property taken from his residence during the burglary.

In a prosecution for burglary, guilt may be inferred from evidence of the burglary together with the defendant's possession of the stolen property. Hardage v. State, 552 S.W.2d 837, 839 (Tex. Crim. App. 1977). To support such an inference, the defendant's possession of the stolen property must be personal, recent, unexplained, and must involve a distinct and conscious assertion of right to the property. England v. State, 727 S.W.2d 810, 811 (Tex. App.--Austin 1987, no pet.). In this cause, the fact of the burglary and appellant's personal possession of the recently stolen property are undisputed. When asked where he got the property, appellant said that he and Mejia found it on the side of the road and admitted knowing that the property was stolen. Mejia, on the other hand, told the officers that he purchased the property from two men in Austin. At trial, Mejia testified that he met these two unnamed men in Austin, but took possession of the property at a house in Buda.

Whether appellant's explanation for his possession of the stolen property was reasonable was a question for the jury. Adams v. State, 552 S.W.2d 812, 815 (Tex. Crim. App. 1977). Given the inherent implausibility of appellant's story and the existence of Mejia's contradictory explanation, the jury could rationally conclude that appellant's explanation for his possession of the stolen property was untrue. See Callahan v. State, 502 S.W.2d 3, 7 (Tex. Crim. App. 1973) (falsity of defendant's explanation may be shown circumstantially). Point of error two is overruled.

The judgment of conviction is affirmed.

Before Chief Justice Carroll, Justices Kidd and B. A. Smith

Affirmed

Filed: May 18, 1994

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