Dodson v. State

STATE’S MOTION FOR REHEARING

W.C. DAVIS, Judge.

On original submission, a panel of this Court reversed an order revoking appellant’s probation on the basis that the trial court erred in overruling appellant’s motion to suppress evidence. The panel held that the stop of appellant’s automobile, which ultimately led to his arrest for the offenses of burglary of a building and theft, constituted an unlawful “pretext stop.” Upon reconsideration we now affirm.

Briefly stated, the pertinent facts are as follows: at approximately 2:30 a.m., July 16, 1979, Houston police officers Manes and Flakes observed a car with a “large article of furniture” in the trunk. Officer Manes also noticed that the car had a paper dealer’s license tag that “was so faded and weather-beaten it was unreadable.” The officers followed the car until it reached a safe stretch of road and stopped it. When asked to produce a driver’s license, appellant was unable to do so. Flakes started to issue a citation for no driver’s license and no vehicle registration. After receiving conflicting information, the officers took appellant into custody for the traffic tickets and for giving a false name.

The article of furniture in appellant’s trunk was then found to be an organ, later identified as having been stolen from a nearby church.

In his first ground of error, appellant argued that the officers had no probable cause to arrest, search or investigate either himself or his vehicle, and that officer Manes “resorted to an illegal pretext arrest in order to investigate his suspicions regarding the ‘large article of furniture’ sticking out of the trunk of [ajppellant’s vehicle.” As the basis for this contention appellant directs the Court to the following testimony of Manes upon cross-examination:

“[BY DEFENSE COUNSEL]:
“Q. When did you first notice something sticking out of the trunk?
“A. As the vehicle turned south on Homestead.
“Q. Could you tell what it was right off?
*183‘A. It was furniture of some kind was my first impression, a large article of furniture.
“Q. Did you and your partner ever discuss the possibility or probability that whatever was in the trunk might be stolen before you pulled the car over?
“A. I don’t exactly remember. We discussed that it was an odd time of morning for moving, and the way this article was tied into the trunk of the vehicle. I don’t remember our exact conversation because it had been a few moments.
“Q. So you had a suspicion it might be stolen before you pulled him over?
“A. I thought something was wrong, yes sir.
“Q. Did you have any specific facts that would have led you to believe that that organ was stolen or whatever that piece of furniture was in the trunk, whether you knew it was an organ or not, did you have any facts on which to base your beliefs it might be stolen?
“A. At which time are you talking about?
“Q. Before you pulled the car over.
“A. I had no specific report of a stolen organ, no sir.
“Q. Did you have any other facts that led you to believe it might be a stolen organ?
“A. Prior to pulling him over?
“Q. Yes, sir.
“A. No, sir.
“Q. Let me ask you this. Were you or your partner looking for a way to legally stop the defendant to see if the organ might be stolen?
“A. I’m not quite sure how to answer that. All I know is the vehicle when it turned south, we noticed the license plates that were not valid and we stopped the vehicle.
“Q. Were you and your partner looking for a way to stop it so you could stop it and investigate whether it was stolen, in other words, a legal reason to stop it?
“A. Any time I stop a vehicle, personally I try to have a legal reason for stopping it for my own self legally, so if you would go on that basis, yes sir, any vehicle I stop I try to have a legal reason for probable cause.
“Q. Would you say your primary purpose for stopping it was to investigate the origin of that organ?
“A. Again I really don’t know what words to choose. Will you repeat that question, please?
“Q. What I’m getting at is I want to know the primary purpose in your own mind of stopping the defendant. Was it to investigate where that organ came from?
“A. No. I wouldn’t say that was the primary concern. The question to me is vague and broad. I was just conducting my duty as I saw it in my own way.
“Q. You said you were suspicious about this organ, is that correct?
“A. Yes sir, I said I was suspicious something was wrong.
“Q. And you wanted to investigate those suspicions, is that correct?
“A. Yes, if you want to put it that way. “Q. So you wanted to find a legal reason to stop him?
“A. Yes sir. I stopped the vehicle using what I considered at the time a legal stop and arrest.
“Q. A legal way of — but the purpose you were using was a legal way to investigate about the organ, is that correct? I’m just asking you to be honest with us.
“A. Yes, I’m being honest. I stopped that vehicle that night conducting my duty.
“Q. To answer my question, you were using that pretext to stop the vehicle and find out where the organ came from?
“A. Yes sir.”

Appellant, and the panel on original submission, find that this testimony conclusively shows that the search in question was unlawful as incident to a pretext arrest.

*184In Hampton v. State, 511 S.W.2d 1 (Tex. Cr.App.1974), this Court dealt with a search pursuant to a “ ‘suspicious’ activity” call and a subsequent traffic violation of “ ‘(failure to maintain a single lane’ in the multi-laned street.” Although no charges were filed against the appellant for this violation, and no mention of this violation was even made until the suppression hearing, this Court upheld the overruling of the motion to suppress, stating:

“We concede that Elliott’s testimony would have been more persuasive had he mentioned the traffic violation at an earlier point in his testimony or had taken some steps to make it a matter of contemporaneous written record. But there was some evidence from Officer Elliott which supported the State’s version that the vehicle was stopped because of a traffic violation, and appellant offered nothing to refute this testimony.
“The initial factual determination of the question presented — Did Elliott stop the car because of a traffic violation? or, Did he do so upon his earlier unsupported suspicion? — was for the trial court. He was present and observed the witness’ demeanor and the manner in which he testified. We are unwilling to conclude, upon this record, that the trial court abused its discretion in impliedly finding that Elliott told the truth.” 511 S.W.2d at 4.

The holding in Hampton stands for the proposition that a traffic stop based at least in part on the valid observation of a traffic offense will not be found unconstitutional simply because the officer had additional suspicions, which by themselves would not justify the stop. Also see Armi-tage v. State, 637 S.W.2d 936 (Tex.Cr.App.1982); Dillard v. State, 550 S.W.2d 45 (Tex. Cr.App.1977). Compare Faulkner v. State, 549 S.W.2d 1 (Tex.Cr.App.1977); McDougald v. State, 547 S.W.2d 40 (Tex.Cr.App.1977); Leighton v. State, 544 S.W.2d 394 (Tex.Cr.App.1976).1

In the case at bar, while Officer Manes testified that he and his partner were suspicious of the organ in appellant’s trunk, he further testified that he stopped the vehicle on the basis of a valid traffic offense.2

*185As in Hampton, supra, there was ample testimony to show that the vehicle was stopped because of a traffic violation, and appellant offered nothing to refute this testimony. The initial factual determination was for the trial court. We find that the record before us supports the trial court’s finding that the officers stopped appellant’s vehicle in a lawful manner and not upon a “mere pretext”.

In his second ground of error, appellant alleges that the trial court erred in revoking his probation based on insufficient proof that he committed the burglary. He maintains that the “unexplained recent possession” rule was inapplicable in that: (1) Kelvin Mitchell, the passenger in appellant’s vehicle, did explain appellant’s possession of the organ, (2) no positive identification of the organ was ever made, and (3) there was no evidence to show that the church was not open to the public at the time the organ was stolen. We cannot agree.

The “unexplained recent possession” rule is stated as follows:

“A burglarious entry ... having been established, the unexplained possession by the accused of property recently stolen from the premises is generally considered to be sufficient to support a conviction of burglary.” Nelson v. State, 599 S.W.2d 809 (Tex.Cr.App.1980); Jones v. State, 458 S.W.2d 89 (Tex.Cr.App.1970).

The evidence in the present case showed that religious services were held in the church the evening prior to appellant’s arrest. The reverend had left the church at approximately 10:00 p.m., at which time the building had been locked with the organ inside. After appellant was taken into custody an investigation of the church revealed a broken window, forcible entry at the church’s back door, and no organ inside. We find this evidence independently establishes proof of a burglary, and when combined with appellant’s unexplained possession of the organ we find the proof to be sufficient to support the trial court’s finding that appellant committed the offense of burglary.

Finally, appellant alleges that the court erred in revoking his probation because the State failed to prove all the elements of the offense of theft.

While the Motion to Revoke Probation alleged both the offense of burglary and the offense of theft, the Order Revoking Probation and Sentence recited only the offense of burglary. Despite the fact that the court declined to use it as a basis for the revocation, appellant now invites us to review the sufficiency of the proof of theft. We decline the invitation.3

The State’s Motion for Rehearing is granted and the judgment is now affirmed.

ODOM, CLINTON, TEAGUE and MILLER, JJ., dissent.

. The panel’s original opinion relies on Hooper v. State, 533 S.W.2d 762 (Tex.Cr.App. 1975) and Hall v. State, 488 S.W.2d 788 (Tex.Cr.App. 1973) in support of its holding. These decisions are distinguishable from the case at bar. In both Hooper and Hall, the judgments were reversed on the basis of a pretext arrest due to the State’s failure to prove that a traffic offense actually took place. In Hooper, it was shown that the city attorney dismissed the charges on the traffic offense of defective brake lights, and a mechanic testified that the brake lights were not defective when he examined them the next day. In Hall, there was no showing that the appellant’s failure to use his turn signal even constituted a traffic violation. In contrast, the officer in the instant case stopped appellant’s vehicle, at least in part, on the basis of an actual traffic violation. Manes testified that he observed that appellant’s vehicle had an outdated dealer’s license tag, he intended to write appellant a citation for that offense, and this violation was partially the reason appellant was subsequently placed in custody. The illegality of the license tag was never rebutted by appellant.

. On original submission, the panel held that the stop was based on a “mere pretext” due to insufficient proof that there was a violation of Articles 6686(a)(3), 6675a-3(f), 6675b-7, and 6701d, Sec. 111(c), V.A.C.S. Specifically, Articles 6686(a)(3), and 6675a-3(f), provide for Buyer’s Temporary Cardboard Tags, while Art. 6675b-7, requires all number plates to be kept clean “so that they may be plainly seen at all times during daylight,” and Art. 670 Id, Sec. 111(c), requires a tail lamp near the rear registration plate which renders “it clearly legible from a distance of fifty (50) feet to the rear.” The panel opined that: (1) because the stop took place at 2:30 a.m., no violation of Art. 6675tn-7 could have occurred, and (2) because there was no evidence as to the distance from which the officers observed the vehicle, no violation ,of Art. 6701d, Sec. 111(c) had been shown. While in a proper case the violation of either or both of these statutes would give an officer the right to stop a vehicle, in the present case these statutes are wholly irrelevant; no issue was ever raised, nor was any evidence adduced as to the applicability of either statutory provision. The officers’ observation of a license tag that “was so faded and weather-beaten it was unreadable, you couldn’t read what it was about,” was sufficient in and of itself to constitute probable cause to believe that the tag was outdated and therefore invalid.

. We further note that even had the court recited the theft offense in the order revoking appellant’s probation, a finding of sufficiency as to the burglary allegation would make any review of the theft allegation fruitless. Ross v. State, 523 S.W.2d 402 (Tex.Cr.App.1975).