Christopher v. State

consequence analysis jeopardy in a since Bretz, supra, abrogated our Texas Crist McElwee, supra,

rule. at 458-459. reasons,

For those of this correct, original

cause submission is

is the determination now that the State’s Rehearing

Motion for is without merit. CHRISTOPHER,

Gregory Appellant, Texas, Appellee.

The STATE of

No. 1307-89. Texas, Criminal

En Banc.

June Dallas, Rucker, appellant.

R.D. Vance, A. Atty., Dist. and Kathleen John Walsh, Breading Ann and Colleen Doo- Lee Dallas, lin, Hut- Attys., Asst. Dist. Robert Austin, tash, for the State. Atty., State’s PETITION APPELLANT’S OPINION ON REVIEW FOR DISCRETIONARY BENAVIDES, Judge. sepa appellant of three

juryA convicted habitation rate offenses of years im at 50 punishment and assessed The Court prisonment each. convictions, re affirmed one acquittals in the ordered versed and Christopher maining two convictions. (Tex.App. — Dallas petition for 1989).1 granted appellant’s We to show original Whittington there was insufficient delivered the 1. Justice May and reversed and burglaries. acquittals three cases because identical in all property, his which he discretionary police on first and third had recovered his up day. picked identified and the next grounds to decide in the case affirmed the evidence sufficient and whether robbery

whether evidence of an II. was admissible. argued appeal, appellant that the evi On support to the con dence was insufficient I. held that victions. 22, had relied on recent unex approximately At 9:30 a.m. on since the State property, police report plained possession of three sus- Toyota prove had that picious men a white a appellant’s possession the identical neighborhood. residential The caller de- burglarized places, taken from the scribed the car and its license num- citing Vasquez ber. A license check indicated that the ( aggravated robbery earlier was taken an T the car that When officers found day, they 10:00 a.m. that e about appellant, driving, stop. There who was x A

were two other men the car and several . p property. passenger One held “a items of p lap, “a T.V. set” his while the other held Also, typewriter, an- . microwave oven.” jewelry set other television and a case were petition filed for discretion- The State

found in the car. The three men were claiming ary review that the evidence immediately Appellant gave arrested. on in at least one case based sufficient identify himself false name when asked to Martin. In its Rule 101 from explained posses- of the men their and none opinion, Appeals agreed the Court property. sion of the testimony was suf- held that the arrests, proper- that some of the After the took the ficient to show ty headquarters, where the Martin, They the conviction after Investigator

turned over to Bird. and affirmed points of apart- ruling other two later learned two houses and ap- burglarized day ment had been error.

pellant’s next arrest. The houses were reit- present petition, appellant In the other, apartment and the door to each was in- his claim that the evidence erates away. Appellant minutes two argues that the sufficient. He burglary of all three habitations. come from identified could have Martin victim, Martin, did not show chain and the evidence

One James E. testified source officer, arresting he returned home from between work 22, 1988, According to Bird and Martin. p.m. Friday, April Detective about 6:15 that at fails to show into his he found that someone had broken television, shown to and iden- specific article house and taken a remote con- least one that taken fan, was the same as ceiling typewriter, and an tified Martin trol to arrested, cit- following Monday, when was trumpet. On the old Nichols, ing from Detective Bird that Owens received a call the State petition discretionary because issue the Rule the State filed a for After review, Whittington rehearing under Tex. Justice delivered a motion for failed to file Tex.R.App.Pro. opinion pursuant 101 and 100(a). R.App.Pro. He also dissented in one of evidence was sufficient held that the holding sufficient in the evidence was Justice LaGarde concurred the cases. rehearing The State’s motion affirmed case. of the one case and dissented affirmance Howell dissented and Justice was overruled remaining acquittal two reversal and 14, 1989, reiterating claim that September arguing dissented Justice Howell cases. jurisdiction. Appeals lacked the Court of jurisdiction did not have taken from Cantu Martin. (Tex.App. Corpus Christi — pet.). no Also, there is conflict with Owens. Owens, the facts showed that several rifles findWe the evidence sufficient. taken in a someone had Appellate evidentiary sufficiency of burglarized walked from the office to a whether, determining is limited to in the motel, the defendant had handed an- light prosecution, most favorable person night “some rifles” on the other of rational of could found the trier fact have burglary. proof, There the how- beyond essential elements of the crime ever, that the rifles handled the defen- Virginia, reasonable doubt. v. Jackson same dant were the as the rifles taken 443 U.S. 99 S.Ct. 61 L.Ed.2d 560 cause, office. In the instant Mar- from the (1979). light in Viewed the most favorable he identified and retrieved tin testified that State, police the facts show that burgla- property the taken from him in the burglarized that Martin’s home knew ry- arrest, appellant day appellant’s the Last, no is shown. conflict Cantu approximately arrested at 10:00 a.m. the Cantu, reported burglary In the victim day burglaries, appellant was found shotguns in which several his residence possession property,2 police in of stolen the evening, an officer were taken. Later property appel in turned over the found stopped the defendant for a minor traffic possession to Detective Bird Upon request, the officer’s the violation. property notified Martin that his had been trunk the car. opened defendant the recovered, picked and Martin identified and shotguns, The officer saw several up property after Bird’s call. This evi belonged the defendant stated to his cous- appellant dence was sufficient to show that warning The issued a citation in. officer possessed property. Martin’s defendant and released the defendant. The days The later. State was arrested several holding This not conflict with Nich- does however, police prove, ever did not In was no evidence ols. Nichols there shotguns seen in the defen- recovered the showing arresting officer did with what the into trunk. None were introduced dant’s pos- found in the identified as stolen. positively evidence or proof prop- that the session after arrest or cause, In Martin identified the instant department erty identified at the burglary. him in the property taken from in the defendant’s the same found cause, In the ar- possession. the instant sum, in the instant cause In resting officer testified that turned appellant pos- to show that is sufficient possession found in Marin and the property taken from sessed testimony correctly in its to Bird. Given Martin’s held so over Appellant’s first acquisition, opinion.3 regarding identification and Rule 101 ground for review is overruled. there was evidence that robber, and there was no as the Appellant direct examination the defendant 2. conceded on possession prop- party in as a to the of- that he was found erty, to connect him evidence nothing tending he had to do with only but stated that Key, In fense. only entering taking. or the issue burglary was connect the defendant with evidentiary appeal regard suf- raised on asleep passed out and that he was sufficiently ficiency the State was whether sta- passenger the service entered proved cigarette money ma- from the tion and took to Martin. Miller, how evidence did not show chine. In was returned to the owner stolen car brief, appellant also cites Moore In his were not asked The witnesses from where. Key 640 S.W.2d 300 Reyes, identify In the car. whether could (Tex.Cr.App.1973), Miller v. only proof (Tex.Cr.App.1971), and recently these cases stolen. All of claimed to be (Tex.Cr.App.1971). Reyes factually distinguishable from the instant Moore, money are evidence that there was no money was the same case. found on Also, identified robbery. no one “context of the offense” part of the III. Maddox, supra. way that evidence was review, ground In his third Couret, supra. quotation below its discre- claims that the trial court abused Maddox, ap- holding admitting opinion evidence that the car tion This Court’s with, “directly rifle connected pellant driving when arrested had been admissible a to, inseparable contemporaneous day in an stolen earlier delivery of metham- mentioned, from the arrest previously po- robbery. As [for broad, and phetamine],” was somewhat phone suspi- lice had received a call from tried to stretch its some readers have men in a cious citizen about three white breaking point, re- meaning to the but we neighborhood. Toyota meaning of Maddox in a cently clarified the reported its license described the car and Couret, supra, per curiam A license check revealed that number. follows: rob- car had been taken an Maddox, officer an undercover

bery hours earlier that ... four or five bought methamphetamine from the de the Allen later saw the Officer sitting in his truck and fendant who was reported plates, being by driven the to a cohort who handed contraband for stopped and it. At trial The defendant give to the officer. admitted that the court rifle immediately arrested and a had been stolen the because pickup seized from the floorboard of the probable stop. cause make the officers This truck in he had been seated. which correctly the rifle was admissible Court held that put on observed that the State is entitled to di it “was shown have been because immediately evidence of what occurred be with, contemporane and rectly connected fore and after the commission of an of to, inseparable from the arrest ous fense, if that evidence is to some relevant language, appellant.” This case, thing issue in the and is not inher at Hemande£4] itself, in the face of flies ently prejudicial. Couret v. relevancy requirement general (Tex.Cr.App.1990); S.W.2d 106 Maddox However, al extraneous matters. for (Tex.Cr.App.1985); 682 S.W.2d 563 not though majority in Maddox does (Tex.Cr. Gaston v. state, arguable implication from so App.1978). establishing the While evidence concurring opin and from the the facts car as stolen was relevant to the determi admissible to the rifle was ion is probable stop appellant, nation of cause to the offense because the context of show issue was not contested before the defen during drug transaction Therefore, supporting jury. no evidence weapon.... Where possessed dant (or probable contesting) cause was admissi weapon is possession of a involved grounds relevancy trial on of ble at committed, is such fact is an offense Gaston, supra, at probable issue of cause. a circumstance of usually relevant as 121. Inasmuch as the Court of weapon is arguably the offense because upheld the trial court’s decision this used, by the defendant be intended gard, it erred. exhibited, protec for simply possessed or during contends in its brief that To The State also the offense. tion or threat set liter interpret was admissible to statement Maddox arrest, anything recovered proof show- mean that stage ally for would admissible, Maddox, supra, during context an arrest would be ing under of connection regardless But this cir- of its lack offense occurred. which the certainly ... This is significance. charged The offense. is of little cumstance governing under the law permissible not not simply stolen fact that the car was at the of the defendant and arrest the search Hernandez inad (because commission time App.1972) defendant was offense proving that not relate to since it did a narcotic missible of unlawful convicted drug, heroin.) possessed during recovery of a stolen television matters, probable cause and not as evidence to set admission of extraneous [cite during stage When an arrest is made previ for arrest. As omitted] immediately discussed, after the commission of ously the evidence was not ad offense, the “context of the offense” purpose. missible for such usually permits rationale admission of judgment appeals of the court of is arrest, pertaining matters includ reversed, and the cause is remanded to that ing possessions, defendant’s acts analysis. court for a harm stage because such matters set the the events of the offense and aid the OVERSTREET, JJ, BAIRD and dissent. jury’s comprehension of the whole crimi MALONEY, J., participating. not transaction, But, nal [cite omitted] meet those extraneous matters must still CLINTON, Judge, dissenting. test, in the extraneous offense which jury sepa A of three convicted cludes relevant to the of rate offenses of of a habitation generally, fense. Tx.R.Crim.Evid. punishment years’ and assessed at 50 im art. IV. prisonment Ap for each. The Court of matters oc ... Extraneous peals originally reversed and ordered ac curred arrest which [Couret’s] cases, anoth quittals in all three but issued place offense in a were relevant to opinion pursuant Tex.R.App.Pro. er to proper setting jury and to show affirming one of the convictions after the certainly ad whole transaction would discretionary petitions filed State the context of the of missible to show original opinion. Christopher view of the hypodermic possession fense. But (Tex.App. 779 S.W.2d — Dallas needle does not meet this test. ... De 1989). appellant’s petition for granted We in spite language the broad Maddox the discretionary of the second possession hypoder mere fact that grounds decide in the one and to contemporaneous mic needle with was the evidence was case affirmed whether admission.[5] permit the arrest does not ag of an sufficient and whether evidence Couret, supra, at 108. We think that the I gravated robbery admissible. would discussion, foregoing holding itself and the acquittal. reverse and order an (hypodermic needle found in de Couret 22, 1988, police About 9:30 a.m. his arrest possession fendant’s at time of suspicious men report of three not commission of A check of the Toyota. a white the con because not relevant to admissible by the caller plate given license number text of the arrest or other issue in an car had been taken indicated that the case) ground of this control the to robbery four-and-a-half five require error a reversal in this case. and officers found hours earlier. When State, supra; also Hernandez v. Pow appellant, who they 10 a.m. about (Tex.Cr.App. ell v. initially com driving, stop. After to (officer’s 1972) testimony concerning the go into re attempted “to plying, appellant on defen appearance of fresh needle tracks * approached, but verse” as the officers the time of arrest for theft dant’s arm at other men and There were two car stalled. inadmissible); Cunningham v. in the car. One property several items (it (Tex.Cr.App.1973) was lap, set” in his passenger held “a T.V. shotgun recov error to admit which was oven.” held “a microwave while the other pistols from defendant along ered typewriter, also “a There were pistols in commission of where robber used set,” type box” “jewelry a case T.V. robbery, shotgun had no connection but occupants immedi The car’s Moreover, the car. the evidence was ad robbery). lie face gunpoint, made to ately at solely to show arrested by the trial court mitted * testimony pertain phrases Quoted to verbatim original. Emphasis describing only and constitute property or action. relevant handcuffed, ground, given Nichols v. down on the App.1972). The held that since there warnings. Appellant

Miranda taken identify himself. was no evidence false name when asked to appellant’s pos- found None of the men was asked about session, in all the evidence was insufficient nor did volunteer opinion a of it. three cases. In the Rule 101 any explanation of their majority held that property” the men and “the of the Court Police took division, patrol was sufficient to show the Southeast where Investigator some of the property was turned over Martin, because the

Bird. by appellant depos- property possessed Martin, complainant, testified Bird, picked up ited with and Martin when he returned home from work about property from Bird. Justice stolen One 22, 1988, Friday, April p.m. 6:15 dissented, finding that Martin’s retrieval of into his discovered someone had broken property from Bird did not that it show T.V., 13-inch color house and “a appel- taken from was the same fan, ceiling porta- remote control [his] Bird, and it deposited lant and typewriter, trumpet old ble electric and an impermissible pile upon inference infer- trumpet that was in a case.” On the fol- case. ence this circumstantial evidence lowing Monday message at received Mar Appellant argues work that “a Detective Bird had called” from a and the had “recovered stuff.” tin identified could have come [his] arranged pick up day, and than the officer arrested it the next source other who agreed “go identify that he did and the evidence did not show down Martin, pick up.” Detective chain between arresting According and the officer. testified, Appellant admitting he had appellant fails to show that penitentiary twice before for been specific one article shown to and at least burglary, currently parole. and was on by one of the same identified Martin was acquaintance said he had met a casual at a appellant articles taken from when was 22, a.m. car wash about 8 drank arrested, State, citing v. 576 S.W.2d Owens him, some and then beer with borrowed Nichols, supra, and 859 guy’s all car. At the time he took the car (Tex. State, 655 S.W.2d 278 Cantu v. it, of the was but he did not ask pet.). App. Corpus no Christi — from, where it came and did not know it may picked up stolen. He later It is established that the State two well person pos- shortly rely the inference that a passengers being stopped. before recent- deny has been Appellant did not that he “was session which burglary criminally re- property,” ly denied stolen in a but burglary. in- See Harris v. knowledge any sponsible stolen or for the State, (Tex.Cr.App.1983). knowledge of the volvement or However, connecting only proof burglaries for he was on trial. where which burglary posses- with the is his the accused Appellant argued appeal that the evi property, the evidence is insuf- sion of that support con dence was insufficient to positive is no identification ficient if there in his victions because the from the house at the of the taken possession was not shown to be the same burglary. 468 Reyes time of the burglaries. property taken (Tex.Cr.App.1971). To hold oth- 64 S.W.2d original Appeals agreed on sub upon in- allow conviction erwise would required mission that State was inference, too is ference from an appel prove that proof beyond a rea- constitute tenuous to the identical lant’s doubt. sonable burgled places, citing from the Vas that a (Tex. evidence showed In Nichols quez v. S.W.2d player jar and a ref’d), eight-track tape pet. Rayco App. Corpus Christi — arrest, and never indicated when he from a.m. Magic were taken Deep hand lotion intact. This leaves last seen his house and that she later had complainant’s University possibility that the house from the the reasonable retrieved similar items identifying burgled appellant was arrested. department, after of Texas arrested player as hers. Nichols was tape of his Appellant’s actions at the time police officer near by University of Texas testimony at trial arrest and his incredible carrying an burglary, the scene of guilty strongly suggest he was of some Deep tape player jar eight-track 3ver, offense. How evidence showed lotion, no testi- Magic hand but there was arrest he was at the time of his concerning or mony robbery, and in an unrelated vehicle taken possession. in Nichols’ of the items found burglaries being tried for two other he was and lotion player The failure to show burglary. There in addition to the Martin in Nichols’ the same as those taken were fore, showing appellant’s this evidence to render the evidence possession was held not indicate his guilty state of mind does probation revoca- support insufficient particular offense for which guilt of the tion. tried He is still entitled was tried. that sixteen the facts showed Owens he is the offense with which shotguns gun from a eighteen rifles crime or for some collateral and not for in a were taken generally. Maynard collection being a criminal to a scene footprints (Tex.Cr.App.1985). led from the defendant room of a motel where Couret night of the rifles on the

seen with some App.1990) re- Eight rifles were burglary. insufficient to I hold this evidence would complainant, there was but turned support the inference rifles recovered proof of how the no in the Martin property taken possession of returned, rifles handled or that the sup- insufficient burglary, and therefore or similar to were the same criminally he was port inference that burglary. The evi- the rifles taken Because the burglary. responsible for that uphold appel- held insufficient dence was not, dissent. respectfully I Court does burglary conviction. description of In this cause there was appel- those found items stolen or general designa- except a “typewriter.” set” and

tion “T.V. any of the testimony that

There was Bird the same deposited with items INC., Baugh, SYSTEMS, Gary Todd J & J by Martin. those retrieved Baugh, Lynn Perrin Bruce David testimony as interpreted Martin’s Baugh, Stephen and Fran- Baugh, Scott property from showing he retrieved White, Appellants, Baugh Edmonia ces Bird, merely that he had stated Bird that his message from INC., TEXAS, Appellee. OF TOWERS recovered, did not had been proper- him the actually given say who had No. 11-89-168-CV. from Bird message next ty the Texas, Appeals of days after came three Eastland. given to had been easily property could Martin’s 28, 1991. March some other been recovered have 2,May Rehearing Denied period. source he dis- stated that Additionally, Martin at 6:15 his house

covered the appellant’s 10 hours after

p.m., several

Case Details

Case Name: Christopher v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Jun 17, 1992

Citation: 833 S.W.2d 526

Docket Number: 1307-89

Court Abbreviation: Tex. Crim. App.