Grundstrom v. State

LAGARDE, Justice,

concurring.

I join Justice Baker in much of his opinion in this case and concur in the result reached. However, concerning appellant’s first point, in applying the standard of review expressed by Justice Baker, I find the evidence sufficient to corroborate the accomplice witness testimony for slightly different reasons.

I agree with Justice Whitham that neither association of defendant with the two accomplices at the time of arrest, the “On The Border” extraneous offense, nor the fruit of the Confetti’s robberies, standing alone,¹ is sufficient corroborating evidence; however, I would hold that the “combined and cumulative” weight of all of these circumstances, examined relative to each other and to other proven facts, is sufficient to provide facts “tending to connect” the appellant with the commission of the offense. See Edwards v. State, 427 S.W.2d 629, 632 (Tex.Crim. App.1968).

In applying the test as to sufficiency of corroboration of accomplice witness’s testimony, each case must be considered on its own merits. Holladay v. State, 709 S.W.2d 194, 200 (Tex.Crim.App.1986); Walker v. State, 615 S.W.2d 728, 732, n. 2 (Tex.Crim.App.1981). The phrase “tending to connect” has the ordinary dictionary definition, “to serve, contribute or conduct in some degree or way ... to have a more or less direct bearing or effect.” Holladay, 709 S.W.2d at 198; Boone v. State, 235 S.W. 580, 584 (Tex.Crim.App.1922).

Testimony and evidence which “meshes perfectly” with an accomplice witness’s testimony makes that testimony more likely than not. Carillo v. State, 566 S.W.2d 902, 908 (Tex.Crim.App.1978); Byers v. State, 641 S.W.2d 629, 634 (Tex.App. — Tyler 1982, no pet.). The State need only “strengthen [accomplice] testimony by proof of connected incidents tending to show its reasonableness and consistency.” Holladay, 709 S.W.2d at 200.

The record in this case shows that Dana Mason and Lynn Butler were accomplices with the appellant during the commission of this offense. At about 11:00 on the morning of December 18,1985, Butler went to appellant’s house. During that morning they talked about robberies in general and the appellant told her about “some stuff in his background.” Appellant borrowed an El Camino from Jane Moses. Appellant and Butler then went to the house of a friend of appellant’s and appellant got a gun and gave it to Butler. Butler put the gun in her purse. At about 6:30 or 7:00 p.m. that same day appellant and Butler picked up Mason. They went to eat, following which they returned to appellant’s house and stayed about an hour. Appellant gave Mason a knife. The three continued to talk about committing robberies. Mason was a heroin addict. Her boyfriend was in jail and she needed money. They drove to Harry Hines and Hondo to “make some money.” They drove by an adult bookstore to see a man. He was not there. They stopped and bought some cigarettes. They then returned to Oak Cliff to buy some heroin. They drove back to a bar on Greenville. The bar was closed. They drove by several bars and restaurants and for various reasons chose not to commit robberies at those establishments.

Appellant told the accomplices how to rob victims. He instructed them to look straight at their victims, to not appear nervous, and to “wish them a Merry Christmas.” Butler testified that appellant “made it sound so easy.” During their discussions of how to go about committing the robberies, they discussed the strategy of appellant sitting in the car and parking somewhere and the two women walking through the parking lot and robbing people as they came out of clubs and restaurants. One of the restaurants they went to was “On The Border”. After leaving “On The Border” they drove back to Oak Cliff and got some more heroin. They then drove by a bail bonding company on Industrial. The three then drove through European Crossroads. They then drove through the parking lot of Old Town Village.

At some time shortly after midnight the trio drove by Confetti’s and saw three “well dressed” females who “looked like they had money” coming out of the club. The appellant parked the El Camino at the side of a restaurant next door to Confetti’s. Butler, by exhibiting the gun, forced the three females into a BMW belonging to one of the victims. Mason got into the back seat with one of the victims. Butler got into the front seat with the other two victims. The accomplices took the victims’ purses and their contents and some jewelry and forced the driver to drive to the restaurant where the appellant was waiting. Appellant and the accomplices divided the money obtained during the robbery. Appellant and Butler threw the stolen purses in a dumpster near a bar on Lemmon Avenue. They then returned to Oak Cliff to buy some more heroin. They then drove to appellant’s house, arriving there about 2:30 a.m. December 19, 1985.

Immediately after stopping the El Cami-no in the driveway, they were approached by the police. The police had previously received information of an armed robbery that had occurred at “On The Border” and that a bluish-gray El Camino, driven by an unidentified male and occupied by two unidentified white females, was involved. The police had also received the license number of the El Camino involved in the robbery and that license number matched the license number of the El Camino driven by appellant. Butler got out of the car first. The police identified themselves. At this time Butler threw down her purse. The purse was open and the police officer saw a pistol laying on top of the contents of her purse. The police ordered appellant and Mason out of the car. The three persons were arrested and searched. A knife, located inside her boot, was recovered from Mason. Incident to the arrest, certain personal property and identification cards and a purse, not owned by Butler or Mason, were recovered from inside the El Camino. Among the recovered items was an Ursuline Academy I.D. card bearing the name Amy Pierce and a photograph of a female, a wallet, some credit cards and jewelry belonging to Amy Pierce. These items were in plain view on the floorboard on the driver’s side. The day following the robbery these items were returned to Amy Pierce. The Ursuline I.D. card was admitted into evidence before the jury at trial.

I now consider only the non-accomplice witness evidence. Francisco Gonzales worked at a restaurant called “On The Border.” At about 9:30 p.m. on the night of December 18, 1985, he was outside in the parking lot behind the restaurant. He saw an unidentified white male sitting in an El Camino at the back of “On The Border” with the “lights off and everything else running.” He also saw two white females “run like crazy” and get in the El Camino. The El Camino, driven by a white male and occupied by the two women, pulled out into the street and, at that time, turned on its lights. The eyewitness thought that the circumstances were “suspicious” and got the license number of the El Camino and gave it to the police.

Dan Lusty, a Dallas Police officer, testified that around 11:00 on the night of the robbery he received from Francisco Gonzales certain information, including a license plate number. He ran the number on the computer. He learned that the car was registered to a woman named Jane Moses. Lusty went to Moses’ home and learned that the woman did not have the car. She had loaned it to appellant. The woman then took the officer to appellant’s residence. Appellant was not at home. Moses then showed the officer some other bars where appellant might be but the officer did not find appellant. Lusty then took. Moses back to her home and returned to appellant’s residence in Oak Cliff.

At about 12:00 midnight on December 18, 1985, Nancy Reichenstein went to Confetti’s with two of her friends, Barbara Marshall and Amy Pierce. They stayed at the bar for about twenty to thirty minutes. As they were leaving the bar, Reichenstein and her friends were approached by Mason and Butler. Mason put a knife by her head and Butler placed a gun in her side. Butler had on a red jacket. Reichenstein was told to get into her BMW and that they “were going for a ride.” Mason got into the back seat and Butler got into the front seat. The two accomplices then took the purses and all of their contents from the three victims. The two accomplices forced the driver to drive to a nearby restaurant.

At about 2:30 a.m. on the morning of December 19, 1985, as Officer Lusty approached appellant’s home, he saw an El Camino, with a license plate bearing the same license number he had been given earlier by Gonzales, drive into the driveway. Appellant was driving the El Camino and Butler and Mason were passengers. Butler got out first. The police identified themselves and ordered the other two persons out of the car. Butler threw down her purse; the purse opened and exposed a pistol laying on top of the contents. The three persons were arrested and searched. A knife, found inside her boot, was taken from Mason. Officer Lusty looked inside the automobile and observed, in plain view on the floorboard on the driver’s side, personal papers and identification cards belonging to Amanda (sic) Pierce. The officer also found a purse, not belonging to Butler or Mason, in the automobile. The day following the robbery Amy Pierce went to the police station and claimed as her property some of the items recovered from the floorboard of the El Camino. The Ursuline I.D. card, bearing the name of Amy Pierce and a photograph of a female, was admitted into evidence before the jury. Although Amy Pierce did not testify, she was brought into the courtroom, in the presence and view of the jury, and identified by Reichenstein.

To summarize, the non-accomplice testimony establishes: (1) appellant was loaned an El Camino by a woman named Jane Moses; (2) that same El Camino was seen at “On The Border” at 9:30 p.m. on December 18, 1985, parked at the back of the restaurant on the parking lot with “lights off and everything else running;” (3) two women wearing blue jeans and jackets, “run like crazy” from “On The Border” and get in the El Camino; (4) the El Cami-no, driven by a white male and occupied by the two women, then pulls out of the parking lot onto the street and at that time the lights go on; (5) at approximately 12:30 a.m. the morning of December 19, 1985, two women identified as Lynn Butler and Dana Mason, wearing blue jeans and jackets, exhibited a gun and a knife, respectively, and robbed Nancy Reichenstein, Barbara Marshall and Amy Pierce outside Confetti’s; (6) the two accomplices forced their victims to take them to an area where there existed no apparent means of transportation for fleeing; (7) at 2:30 a.m. that morning the police arrested appellant in the company of the two accomplices as they exited the same El Camino; (8) Amy Pierce was a victim of the Confetti robbery, and during that robbery her purse and its contents were stolen; (9) an Ursuline Academy 1.D. card, bearing the name Amy Pierce and a photograph of a female, was in plain view on the driver’s side of the El Camino which was driven by appellant immediately prior to his arrest; (10) during the course of the trial Amy Pierce and Barbara Marshall were brought into the courtroom and identified by Reichenstein; (11) the identification card bearing the name of Amy Pierce and a photograph of a female was admitted into evidence; (12) the jury was able to compare the photograph on the I.D. card with the appearance of the person who was brought into the courtroom and identified as Amy Pierce in order to determine that it was the same Amy Pierce; (13) Amy Pierce went to the police station the day following the robbery and claimed as her property certain items recovered from the floorboard of the El Camino at the time of arrest.

The appellant maintains that there is no evidence of probative value proving that the property found in the El Camino belonged to any victim of the robbery or that the property found was “fruits of the robbery.” At oral argument appellant urged that the photograph on the I.D. card would not “tend to connect” because Amy did not testify. It is true that Amy Pierce did not testify; however, during the course of the trial she was brought into the courtroom, in the presence and view of the jury, and was identified by Reichenstein. The jury at that time had an opportunity to see her in person and compare her appearance to the photograph that was on the I.D. card. I agree with the appellant that there is no direct evidence in the record showing that the I.D. card and the property recovered on the occasion was stolen during the robbery; however, there is strong circumstantial evidence that the property was “fruit of the robbery.” I disagree with Justice Baker that the unexplained possession of recently stolen property rule can be applied, under the facts of this case, to infer that the property was stolen. The dissent argues that since appellant was not the primary actor, but simply a party, the inference that one in unexplained possession of recently stolen property was a thief does not apply. See Morrison v. State, 608 S.W.2d 233, 235 (Tex.Crim.App.1980). It is noted, however, that in Morrison the inference was not sought to be used to “tend to connect” but rather to prove defendant’s guilt as a party. Aside from the limitation announced in Morrison, however, it is my belief that the rule would not apply under the facts of this case. There is no direct evidence that the recovered property was “fruit of the robbery.”

Before the unexplained possession of recently stolen property rule may be applied, the State must first establish all of the elements of the rule. One of the elements of the rule is that the property is stolen property. There is no direct non-accomplice testimony² that the property was “fruit of the robbery.” To apply the rule under the facts of this case would be to use the resulting inference to establish a factual element of the rule from which the inference arises. I, therefore, agree with the dissent that reliance on such rule is misplaced. Even though there is no direct evidence that the property recovered was “fruit of the robbery,” there is very strong circumstantial evidence that the property found was stolen property. There is direct testimony that the purse of Amy Pierce and its contents were taken. The Ursuline I.D. card is consistent, both in size and type, with items traditionally carried by a female in her purse. Even though the property was not shown by direct evidence to be “fruit of the robbery” there is direct evidence that it was property belonging to Amy Pierce and that the same Amy Pierce was a victim of the robbery. Amy Pierce claimed as her property certain of the items the day following the robbery. Therefore, I conclude that the joint possession by appellant of this property is a circumstance properly to be considered in determining the “combined and cumulative” weight of the corroborating evidence, together with other facts and circumstances, to determine sufficiency of facts “tending to connect” the accused with the commission of the crime. See Cherb v. State, 472 S.W.2d 273, 280-81 (Tex.Crim.App.1971) (possession of coins not identified by non-accomplice testimony as “fruit of the crime” properly considered as a circumstance in evaluating sufficiency of corroborative evidence).

Appellant argues that hearsay testimony linking the El Camino to appellant and establishing the recovered property as belonging to one of the robbery victims has no probative value. He relies on Ex parte Hebert, 579 S.W.2d 486 (Tex.Crim.App. 1979) and Maden v. State, 542 S.W.2d 189 (Tex.Crim.App.1976). The record reflects that no objection, based on hearsay grounds, was lodged at trial to the admission of such testimony.

In Chambers v. State, 711 S.W.2d 240, 247 (Tex.Crim.App.1986), the Court of Criminal Appeals held that “inadmissible hearsay admitted without objection is to be treated the same as other evidence in a sufficiency context and is capable of sustaining a verdict.” Surely it would, likewise, be capable of “tending to connect.”

The corroboration need not directly link the accused to a crime or be sufficient in itself to establish guilt. Walker v. State, 615 S.W.2d at 782; Lyman v. State, 540 S.W.2d 711, 714 (Tex.Crim.App.1976). Also, timing of the events may in particular cases “tie in” a defendant with the commission of the offense. Byers v. State, 641 S.W.2d at 634.

The Court of Criminal Appeals, in Minor v. State, 108 Tex.Crim.R. 1, 299 S.W. 422, 428 (1927), cited by the court in Edwards v. State, 427 S.W.2d 629, 632 (Tex.Crim.App. 1968) stated:

The law forbidding a conviction upon the uncorroborated testimony of an accomplice does not demand that there be direct evidence pointing to the accused as the offender but merely requires that there be ‘other evidence tending to connect the defendant with the offense committed.’ ... Circumstances proved by credible witnesses may be as potent as direct testimony intending to connect the accused with the commission of the offense. The State is not called upon to point to some single or isolated fact which, in itself, unrelated to other proven facts, will be sufficient corroboration. It is the combined and cumulative weight of the evidence furnished by non-accomplice witnesses which supply the test. If by this rule it appears on appeal that before the jury there was proof confirming the testimony of the accomplice to material facts tending to connect the accused with the commission of the offense, the law is satisfied.

(Citations omitted).

Viewing the evidence in the light most favorable to the jury’s verdict, as this court is required to do, and applying the standards discussed above, I conclude that the evidence independent of the accomplice witnesses “meshes perfectly,” both in timing and content, with the accomplice witness testimony. Thus, it tends to show its reasonableness and consistency and thereby “to some degree” strengthens it. Admittedly, each of the circumstances discussed, standing alone, would not be sufficient to support the conviction. However, I conclude that the “combined and cumulative weight” of all of these circumstances is sufficient to provide facts “tending to connect” the accused with the commission of the crime. Thus, the evidence is sufficient to corroborate the testimony of the accomplice.

In point of error number three, appellant contends that the trial court erred by admitting into evidence at the trial items seized by the police as the result of an illegal search and seizure. I conclude that, under the facts of this case, the warrant-less arrest was lawful and the search and seizure, incident thereto, was likewise lawful. I do so, however, for different reasons than does Justice Baker.

Appellant contends the warrantless arrest was not authorized under TEX.CODE CRIM.PROC.ANN. art. 14.04 (Vernon 1977) which 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.

Appellant argues that in order to bring a warrantless arrest within the ambit of article 14.04, a showing by the State that the offender is about to escape is indispensable. He relies on Pearson v. State, 657 S.W.2d 120 (Tex.Crim.App.1983); Randall v. State, 656 S.W.2d 487, 490 (Tex.Crim. App.1983); Hogan v. State, 631 S.W.2d 159 (Tex.Crim.App.1982); Hardison v. State, 597 S.W.2d 355 (Tex.Crim.App.1980); Honeycutt v. State, 499 S.W.2d 662 (Tex. Crim.App.1973); Truitt v. State, 505 S.W.2d 594 (Tex.Crim.App.1974) and Rippy v. State, 53 S.W.2d 619 (Tex.Crim.App. 1931).

The State argues that the arrest and subsequent search and seizure were lawful because: (1) appellant had no expectation of privacy in the vehicle because it was a “borrowed” vehicle and appellant only had “possession” of the vehicle; consequently, appellant had no standing to complain; relying on United States v. Salvucci, 448 U.S. 83, 92,100 S.Ct. 2547, 2553, 65 L.Ed.2d 619 (1980); Rawlings v. Kentucky, 448 U.S. 98, 104-105 (1980) and Wilson v. State, 692 S.W.2d 661 (Tex.Crim.App.1984); (2) the officers had within their knowledge sufficient information to justify the initial stop of appellant; relying on Esco v. State, 668 S.W.2d 358, 360 (Tex.Crim.App.1982) and Myre v. State, 545 S.W.2d 820, 825-26 (Tex.Crim.App.1977); (3) the seizure was lawful as a confiscation of stolen property that was located in plain view, relying on Myre, supra, and TEX. CODE CRIM. PROC.ANN. art. 18.16 (Vernon 1977).³

The record reflects that at the Motion to Suppress hearing, the arresting officer testified that: (1) at about 11:00 p.m. he received information from a patrol officer that a robbery had occurred; (2) a bluish-gray two-toned El Camino vehicle was involved; (3) he was given the license number of the vehicle; (4) an unidentified white male was driving the vehicle; (5) two unidentified women in their early to mid-twenties were involved; both women were about 5'2" to 5'4" and one had light brown hair, the other dark brown hair. One was wearing a blue ski jacket, the other a red cloth-type jacket; (6) the women were armed with a handgun and a knife; and (7) the two women were seen getting into the El Camino vehicle driven by the unidentified white male.

Upon receipt of the above information, the officer testified that: (1) he ran the license number on the computer and determined the owner of the vehicle to be Jane Moses; (2) he personally contacted the owner; (3) the owner told the officer that she had loaned her vehicle to the appellant; (4) the owner took the officer to appellant’s residence; (5) appellant was not home and they waited a little white for him to return and then left; (6) they continued, unsuccessfully, to look for appellant at various places at which he was known to hang out; (7) they returned to appellant's residence between 2:00 a.m. and 2:30 a.m.; (8) as they arrived the El Camino was pulling into the driveway; (9) the officers, in an unmarked police car, pulled in right behind the El Camino; (10) the license number and description of the vehicle matched the information previously given to the officer; (11) one woman got out of the vehicle; (12) the police identified themselves; (13) the woman outside the vehicle threw down her purse; the purse was open and a pistol was laying on top of the contents of the purse; (14) the remaining occupants, upon being ordered out of the vehicle by the police, exited the vehicle; (15) the doors of the vehicle remained open; (16) the officers looked inside the car and, in plain view, saw credit cards and personal identification cards on the floorboard on the driver’s side; (17) all suspects were searched and a knife was recovered from inside the boot of the second female.

The officer specifically testified that it was “after I saw the pistol, and saw the suspects, and from the detailed clothing description that we had gotten from the witnesses, then we felt that we probably had the suspects there, and they were detained by us.”

In West v. State, 720 S.W.2d 511, (Tex. Crim.App.1986), the Court of Criminal Appeals recently held:

We hold that where, as in the instant case, officers who reasonably believe that further investigation of an offense may be necessary in order to justify the issuance of a warrant, and where those officers undertake that investigation lawfully and without impinging upon reasonable expectations of privacy, and where that investigation leads to the receipt of information which in combination with their other information constitutes probable cause to arrest the suspect, but that information is obtained in the presence of the suspect under circumstances which would lead the officers reasonably to believe that the suspect would take flight if given the opportunity to do so, the officers are authorized by Art. 14 to arrest the suspect without first procuring a warrant.

Under the facts of this case, the evidence reflects that while the officers may have had good cause to suspect that the appellant and the two female accomplices were indeed the robbers he sought, it was by no means a certainty. At this point the officer only had information that the car had been loaned to appellant; he had no specific physical description of the driver, by which he could identify appellant as the driver of the car seen leaving On The Border, beyond the fact that the driver was an unidentified white male. Here, as in West, the officers’ attempt to confirm their suspicion that the driver of the car at On The Border was the appellant, to whom the car had been loaned, or to turn their attention immediately to the fresh trail of a recently committed crime rather than to let that trail grow stale while seeking a warrant for unnamed persons fitting the suspects’ descriptions was, in my opinion, reasonable and constituted good police work. While continuing his investigation, it was not until Officer Lusty “saw the pistol, and saw the two women, and from the detailed clothing description that [he] had gotten from the witnesses,” that he felt confident that he had sufficient probable cause to arrest appellant. He had determined, firsthand, that appellant was indeed the driver of the car seen leaving On The Border. At this point, the officer took what seems to me to be a reasonable course. Having acquired additional information which, in combination with other known information, constituted probable cause to arrest, and that information having been obtained in the presence of the appellant under circumstances which would lead the officers reasonably to believe that the appellant would take flight if given the opportunity to do so, the officers arrested the appellant and his accomplices without first procuring a warrant. In light of the time frame involved, the questionable adequacy of the information concerning appellant’s involvement in the robbery at On The Border, and the activity undertaken by the officer in the interim period, in my opinion, the officer took a reasonable and prudent course of action. I conclude, therefore, that the arrest of appellant, without a warrant, under the facts of this case, was lawful. See West v. State, 720 S.W.2d at 518.

The arrest having been held lawful, it follows that the officers were then authorized to search the interior of the vehicle incident to such arrest. Chambers v. Maroney, 399 U.S. 42, 47-52, 90 S.Ct. 1975, 1979-82, 26 L.Ed.2d 419 (1970). Having held the arrest lawful, under article 14.04,1 do not reach the other contentions advanced by the State.

As to appellant’s remaining points of error, I concur with Justice Baker as to their disposition. Consequently, I would affirm.

1 . Unless otherwise indicated emphasis is supplied by the writer.

2 . There is, of course, direct accomplice witness testimony that the property is stolen property.

3 . Article 18.16 provides

All persons have a right to prevent the consequences of theft by seizing any personal property which has been stolen and bringing it, with the supposed offender, if he can be taken, before a magistrate for examination, or delivering the same to a peace officer for that purpose. To justify such seizure, there must, however, be reasonable ground to suppose the property to be stolen, and the seizure must be openly made and the proceedings had without delay.