Christopher v. State

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

BENAVIDES, Judge.

A jury convicted appellant of three separate offenses of burglary of a habitation and assessed punishment at 50 years imprisonment in each. The Court of Appeals affirmed one of the convictions, and reversed and ordered acquittals in the remaining two convictions. Christopher v. State, 779 S.W.2d 459 (Tex.App.—Dallas 1989).1 We granted appellant’s petition for *527discretionary review on his first and third grounds to decide in the case affirmed whether the evidence was sufficient and whether evidence of an aggravated robbery was admissible.

I.

At approximately 9:30 a.m. on April 22, 1988, police received a report of three suspicious men driving a white Toyota in a residential neighborhood. The caller described the car and gave its license number. A license check indicated that the car was taken in an aggravated robbery earlier that day. When officers found the car about 10:00 a.m. that day, they ordered appellant, who was driving, to stop. There were two other men in the car and several items of property. One passenger held “a T.V. set” in his lap, while the other held “a microwave oven.” Also, a typewriter, another television set and a jewelry case were found in the car. The three men were immediately arrested. Appellant gave a false name when asked to identify himself and none of the men explained their possession of the property.

After the arrests, police took the property to headquarters, where the property was turned over to Investigator Bird. They later learned that two houses and an apartment had been burglarized the day of appellant’s arrest. The houses were next door to each other, and the apartment was two minutes away. Appellant was charged with burglary of all three habitations.

One victim, James E. Martin, testified that when he returned home from work about 6:15 p.m. on Friday, April 22, 1988, he found that someone had broken into his house and taken a television, remote control to his ceiling fan, a typewriter, and an old trumpet. On the following Monday, he received a call from Detective Bird that police had recovered his property, which he identified and picked up the next day.

II.

On appeal, appellant argued that the evidence was insufficient to support the convictions. The Court of Appeals held that since the State had relied on recent unexplained possession of stolen property, it had to prove that the property found in appellant’s possession was the identical property taken from the burglarized places, citing Vasquez v. State, 694 S.W.2d 56, 60 (Tex.App.

The State filed a petition for discretionary review claiming that the evidence was sufficient in at least one case based on testimony from Martin. In its Rule 101 opinion, the Court of Appeals agreed with the State, held that the testimony was sufficient to show that some of the property found in appellant’s possession belonged to Martin, and affirmed the conviction after ruling on appellant’s other two points of error.

In the present petition, appellant reiterates his claim that the evidence was insufficient. He argues that the property Martin identified could have come from any source and the evidence did not show chain of custody between the arresting officer, Detective Bird and Martin. According to appellant, the evidence fails to show that at least one specific article shown to and identified by Martin was the same as that taken from appellant when he was arrested, citing Nichols, Owens v. State, 576 S.W.2d *528859 (Tex.Cr.App.1979), and Cantu v. State, 655 S.W.2d 278 (Tex.App.—Corpus Christi 1983, no pet.).

We find the evidence sufficient. Appellate review of evidentiary sufficiency is limited to determining whether, in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Viewed in the light most favorable to the State, the facts show that police knew that Martin’s home was burglarized the day of appellant’s arrest, appellant was arrested at approximately 10:00 a.m. the day of the burglaries, appellant was found in possession of stolen property,2 the police turned over the property found in appellant’s possession to Detective Bird, Bird notified Martin that his property had been recovered, and Martin identified and picked up his property after Bird’s call. This evidence was sufficient to show that appellant possessed Martin’s property.

This holding does not conflict with Nichols. In Nichols there was no evidence showing what the arresting officer did with the property found in the appellant’s possession after arrest or proof that the property identified at the police department was the same property found in the defendant’s possession. In the instant cause, the arresting officer testified that he turned the property found in appellant’s possession over to Bird. Given Martin’s testimony regarding identification and acquisition, there was evidence that the property found in appellant’s possession was taken from Martin.

Also, there is no conflict with Owens. In Owens, the facts showed that several rifles were taken in a burglary, someone had walked from the burglarized office to a motel, and the defendant had handed another person “some rifles” on the night of the burglary. There was no proof, however, that the rifles handled by the defendant were the same as the rifles taken from the office. In the instant cause, Martin testified that he identified and retrieved the property taken from him in the burglary-

Last, no conflict with Cantu is shown. In Cantu, the victim reported a burglary of his residence in which several shotguns were taken. Later that evening, an officer stopped the defendant for a minor traffic violation. Upon the officer’s request, the defendant opened the trunk of the car. The officer saw several shotguns, which the defendant stated belonged to his cousin. The officer issued a warning citation and released the defendant. The defendant was arrested several days later. The State did not prove, however, that police ever recovered the shotguns seen in the defendant’s trunk. None were introduced into evidence or positively identified as stolen. In the instant cause, Martin identified the property taken from him in the burglary.

In sum, the evidence in the instant cause is sufficient to show that appellant possessed property taken from Marin and the Court of Appeals correctly held so in its Rule 101 opinion.3 Appellant’s first ground for review is overruled.

*529III.

In his third ground for review, appellant claims that the trial court abused its discretion in admitting evidence that the car appellant was driving when arrested had been stolen earlier in the day in an aggravated robbery. As previously mentioned, the police had received a phone call from a suspicious citizen about three men in a white Toyota driving in his neighborhood. He described the car and reported its license number. A license check revealed that the car had been taken in an aggravated robbery four or five hours earlier that day. Officer Allen later saw the car, with the reported plates, being driven by appellant, and stopped it. At appellant’s trial for burglary, the court admitted evidence that the car had been stolen because it gave the officers probable cause to make the stop.

The Court of Appeals correctly observed that the State is entitled to put on evidence of what occurred immediately before and after the commission of an offense, if that evidence is relevant to something at issue in the case, and is not inherently prejudicial. Couret v. State, 792 S.W.2d 106 (Tex.Cr.App.1990); Maddox v. State, 682 S.W.2d 563 (Tex.Cr.App.1985); Gaston v. State, 574 S.W.2d 120 (Tex.Cr.App.1978). While evidence establishing the car as stolen was relevant to the determination of probable cause to stop appellant, that issue was not contested before the jury. Therefore, no evidence supporting (or contesting) probable cause was admissible at trial on grounds of relevancy to any issue of probable cause. Gaston, supra, at 121. Inasmuch as the Court of Appeals upheld the trial court’s decision in this regard, it erred.

The State also contends in its brief that the evidence was admissible to set the stage for proof of appellant’s arrest, showing under Maddox, supra, the context in which the offense occurred. But this circumstance is of little significance. The fact that the car was stolen simply was not part of the “context of the offense” in the way that evidence was in Maddox, supra. See quotation below from Couret, supra.

This Court’s opinion in Maddox, holding admissible a rifle “directly connected with, and contemporaneous to, and inseparable from the arrest [for delivery of methamphetamine],” was somewhat broad, and some readers have tried to stretch its meaning to the breaking point, but we recently clarified the meaning of Maddox in a per curiam opinion in Couret, supra, as follows:

In Maddox, ... an undercover officer bought methamphetamine from the defendant who was sitting in his truck and who handed the contraband to a cohort to give to the officer. The defendant was immediately arrested and a rifle was seized from the floorboard of the pickup truck in which he had been seated. This Court held that the rifle was admissible because it “was shown to have been directly connected with, and contemporaneous to, and inseparable from the arrest of the appellant.” This language, taken by itself, flies in the face of Hemande£4] and the general relevancy requirement for extraneous matters. However, although the majority in Maddox does not so state, the arguable implication from the facts and from the concurring opinion is that the rifle was admissible to show the context of the offense because during the drug transaction the defendant possessed a weapon.... Where possession of a weapon is involved when an offense is committed, such fact is usually relevant as a circumstance of the offense because arguably the weapon is intended by the defendant to be used, exhibited, or simply possessed for protection or threat during the offense. To interpret the statement in Maddox literally would mean that anything recovered during an arrest would be admissible, regardless of its lack of connection to the charged offense. ... This is certainly not permissible under the law governing *530admission of extraneous matters, [cite omitted] When an arrest is made during or immediately after the commission of an offense, the “context of the offense” rationale usually permits admission of matters pertaining to the arrest, including a defendant’s acts and possessions, because such matters set the stage for the events of the offense and aid the jury’s comprehension of the whole criminal transaction, [cite omitted] But, those extraneous matters must still meet the extraneous offense test, which includes that they be relevant to the offense. See generally, Tx.R.Crim.Evid. art. IV.

... Extraneous matters which occurred during [Couret’s] arrest which were relevant to place the offense in a proper setting and to show the jury the whole transaction would certainly be admissible to show the context of the offense. But possession of a hypodermic needle does not meet this test. ... Despite the broad language in Maddox the mere fact that possession of the hypodermic needle was contemporaneous with the arrest does not permit admission.[5]

Couret, supra, at 108. We think that the foregoing discussion, and the holding itself in Couret (hypodermic needle found in defendant’s possession at time of his arrest during commission of burglary was not admissible because not relevant to the context of the arrest or any other issue in the case) control the disposition of this ground of error and require a reversal in this case. See also Hernandez v. State, supra; Powell v. State, 478 S.W.2d 95 (Tex.Cr.App.1972) (officer’s testimony concerning the appearance of fresh needle tracks on defendant’s arm at the time of arrest for theft was inadmissible); Cunningham v. State, 500 S.W.2d 820 (Tex.Cr.App.1973) (it was error to admit shotgun which was recovered along with pistols from defendant where robber used pistols in commission of robbery, but shotgun had no connection to robbery). Moreover, the evidence was admitted by the trial court solely to show probable cause and not as evidence to set the stage for appellant’s arrest. As previously discussed, the evidence was not admissible for such purpose.

The judgment of the court of appeals is reversed, and the cause is remanded to that court for a harm analysis.

BAIRD and OVERSTREET, JJ, dissent. MALONEY, J., not participating.

. Justice Whittington delivered the original opinion on May 22, 1989, and reversed and ordered acquittals in all three cases because there was insufficient evidence to show the property found in appellant’s possession was the identical property taken in the three burglaries. *527After the State filed a petition for discretionary review, Justice Whittington delivered another opinion pursuant to Tex.R.App.Pro. 101 and held that the evidence was sufficient in one of the cases. Justice LaGarde concurred in the affirmance of the one case and dissented to reversal and acquittal in the remaining two cases. Justice Howell dissented arguing that the Court of Appeals did not have jurisdiction to issue the Rule 101 opinion because the State failed to file a motion for rehearing under Tex. R.App.Pro. 100(a). He also dissented to the holding that the evidence was sufficient in the affirmed case. The State’s motion for rehearing was overruled and Justice Howell dissented on September 14, 1989, reiterating his claim that the Court of Appeals lacked jurisdiction.

. Appellant conceded on direct examination that he was found in possession of stolen property, but stated that he had nothing to do with the entering or the taking. The only issue raised on appeal with regard to evidentiary sufficiency was whether the State sufficiently proved that the property found in appellant’s possession belonged to Martin.

. In his brief, appellant also cites Moore v. State, 640 S.W.2d 300 (Tex.Cr.App.1982), Key v. State, 492 S.W.2d 514 (Tex.Cr.App.1973), Miller v. State, 466 S.W.2d 578 (Tex.Cr.App.1971), and Reyes v. State, 468 S.W.2d 64 (Tex.Cr.App.1971). In Moore, there was no evidence that the money found on the defendant was the same money taken in the robbery. Also, no one identified the defendant as the robber, and there was no evidence to connect him as a party to the offense. In Key, the only evidence tending to connect the defendant with the burglary was testimony that he was passed out and asleep when another passenger entered the service station and took money from the cigarette machine. In Miller, the evidence did not show how the stolen car was returned to the owner or from where. The witnesses were not asked whether they could identify the car. In Reyes, the only proof was the possession of property claimed to be recently stolen. All of these cases are factually distinguishable from the instant case.

. Hernandez v. State, 484 S.W.2d 754 (Tex.Cr.App.1972) (because defendant was charged and convicted of unlawful possession of a narcotic drug, the recovery of a stolen television during the search and arrest of the defendant at the time of the commission of the offense was inadmissible since it did not relate to proving that the defendant possessed heroin.)

. Emphasis in the original.