*1 Further, State did we note that the in-court attempt to bolster Crenshaw’s any pretrial identi by use of
identification further, And, Sing, still who
fication. have viewed record to
not shown posi lineup, show-up, made a or etc. in-court identification
tive the scene of on his observations at
based Clearly, any error if there was
the crime. courtroom
at all in Crenshaw’s
identification, was harmless
Smith v. State,
Cr.App.1970) Garcia v. (Tex.Cr.App. 1971). have examined
We pro error;
grounds all advanced brief, or merit
se and find them without support in this record. judgment is affirmed. COLE, Appellant, Lerl Appellee. STATE
No. 45013. Appeals
Court of Criminal of Texas.
June
Rehearing Sept. 25, Denied *2 Kinne, bery planning another Dal- and was commit Colvin, Jr., Emmett Norman las, Wade, Atty., Harry Henry As a result of this informa Dist. J.
Schulz, tion, officers, Dallas, accompanied two Jr., Atty., Asst. Dist. Vollers, Austin, Atty., officers and three D. other Dallas Jim *3 on deputies, sheriff’s went to the location the State. Street, arriving and
Fourth
between 7:30
to
front
8:00 a. m. The officers went
OPINION
house,
they
door of the
and announced that
police
inside an
officers. A woman
ROBERTS, Judge.
swered,
opened
a minute” and then
“Just
appeal
an
from a conviction
This is
saying,
door
on in.”
“Come
One
robbery
held before
Trial was
assault.
stated:
after
officers
“We’re
con-
punishment
a
which assessed
at
jury,
Leri Cole, is he here?” And the woman
twenty-five
and
finement for one hundred
was,
he
the of
answered that
and told
years.
they
ficers that
could “look around”
house. The officers then entered
brief, appellant
two
In his
sets forth
hand,
shotguns
proceed
house with
grounds
In his first
house,
through
ed
living
room the
that the trial court erred
he contends
hall,
through a
and into the bathroom,1
suppress
motion
evi-
his
to
overruling
where
found
Wilkerson
shotgun
shot-
dence and in
a
in
appellant reaching
testified that he saw
gun shell
for the reason that
into evidence
overnight
to an
case and that he “threw
shotgun
and shell were the fruits
my weapon,
down
him
.
.
.
on
with
illegal
an
and seizure.
search
it
and told him to hold
there.”
shotgun and shell were found
the case.
trial,
a
on
hearing
Prior
was held
At
suppress
motion to
evidence.
Appellant contends that the seizure
Wilkerson,
the hearing,
a Dallas
shotgun
and shell
because
officer,
a. m. on
testified
about 7:00
probable
cause
(1)
officers
lacked
1970,
16,
an in-
morning
of March
appellant
either
or to
to arrest
conduct
Depart-
former came to the
Police
Dallas
found
search of the house where he was
appellant
ment and told him that
had been
given
(2)
there was
valid consent
robbery
involved
which occurred
to search the house.
11,
(the instant
and that
case)
March
legal, then
seizure
If
the arrest
on Fourth
at a house
(appellant) was
in the
shotgun,
which was found
preparing
in Dallas and was
Street
reaching,
appellant
into
case
immediately,
appellant was
leave
and that
to a lawful
legal
incident
a search
robbery
going
participate in another
752,
California, 395 U.S.
arrest. Chimel v.
(apparently on the
The in-
same day).
89 S.Ct.
had
formant told
officer
first
question
which should
robbery
committed the
with
arrest
legality
is the
be determined
a Buick
had
issues
legal,
if
automobile.
decided.
need not be
regarding the search
he had not re-
testified that
officer
arrest
had neither
the informant
information from
ceived
however,
warrant;
warrant nor
informant did
past, and that the
determining
applicable to
the standards
informa-
his
how he had obtained
state
sup-
case
particular
of a
the facts
whether
the rob-
had committed
tion
in the
a noise
bathroom.
heard
The officers
port
probable
Likewise,
officers’
Wilkerson
assessment
challenged
at the time of the
informant did not relate the circumstances
stringent
arrest and search are at
least as
which he
came to know that
applied
reviewing
as the standards
11th,
when
robbery
had committed the
on March
the decision
magistrate. Whiteley
of a
preparing
and was
to commit another rob-
Warden,
Penitentiary,
Wyoming
bery
Again,
401 U.S.
the date of
unless
arrest.
306;
28 L.Ed.2d
Beck
underlying
upon
some of the
circumstances
Ohio,
223, 13 L.
which the
his
informant based
conclusions
142;
court,
Ed.2d
Brown v.
reviewing
are before the
the in-
(Tex.Crim.App.,
1972) Fry
alone,
tip, standing
formant’s
insuffi-
44,537
No.
(Tex.Crim.App.,
March
1972).
Aguilar
cient to constitute
cause.
Texas, supra;
supra.
Stoddard v.
case,
present
In the
the inform
information,
Hearsay
insufficient
tip
*4
satisfy
ant’s
fails to
either
the two
probable
Aguilar
constitute
cause under
Texas,
108,
“prongs” Aguilar
v.
378 U.S.
Texas,
v.
supra, may nevertheless become
1509,
(1964)
84
12
S.Ct.
L.Ed.2d 723
by
sufficient
if adequately corroborated
Spinelli
States,
410,
v. United
393 U.S.
89
independent
observation
the
584,
21
(1969).2
L.Ed.2d 637
(or affiant,
officer
in the case
a war
States,
rant). Spinelli
was
393
Officer Wilkerson’s
United
U.S.
v.
410,
584,
merely
(1969);
that the undisclosed informant was
89 S.Ct.
being open a of view. seizure contraband arises, however, error is whether the then State, were According the as prejudicial, and of such nature to was premises of the lawfully by the virtue compel of this reversal case. “look
woman’s consent to around” view, shotgun open its because the was illegally of The admission legal. seizure was contention may evidence be harmless seized upon misreading is a the based of record. 42, 90 S.Ct. Maroney, 399 U.S. Chambers v. testimony is There in the record that 26 Before L.Ed.2d 419 weapon con open the view. To the was be dimension can error of constitutional trary, testimony was the officer’s however, error, the be held to harmless reaching into over that was the reviewing to declare that court must be able shotgun found night case in which the was beyond a doubt. it harmless reasonable was shotgun at the time was arrested. California, 87 Chapman v. subsequent to the was found inside the case arrest. case, testi- In the instant three witnesses robbery committed concedes, fied that the was rightly The State males, long Negro of wore all whom so, three that to “look around” the consent that All witnesses testified coats. three premises. While not consent to search the circumstances, (Tex.Crim.App.1971). Exigent How how 3. no matter S.W.2d 77 evidentiary showing justify ever, compelling, is of such a will not g., lacking, determining valid con e. whether is value where given. sent Brown Crim.App.1972). to that she consented denied The woman entry per necessary that was aware and denied she the to show that a It not consenting How- officers. that the men were to a search warned son ever, reviewing trial refuse, action of the right the of or that he knew his of court, support so, most we must consider the evidence to do in order his freely finding the action. court’s favorable to that consent was DeVoyle given. knowingly a pencil-thin wore moustache that the error in shotgun at the All California, witnesses identi- three Harrington harmless. appellant, equivocation, fied
being one of the
three
robbers. One of the
(1969); Rodgers
testified that then left went she home and by only fingerprints. main one set He place to her from employment, and tains that set one the one referred there, approximately called home at conviction, convic robbery appel- time and talked with proved. properly tions were therefore not Appellant’s lant. mother-in-law This contention is without merit. was at the home at time rebuttal, robbery packet occurred. An examination of indicates copies State offered from a records consists certified of records *6 hospital custodian of no Department she had of the of Texas Corrections Cole, record of pertaining the child treatment on in- Leri one the date cluding the mother testified she did. and sentence in five judgment separate finger- convictions and one set of The also a photograph defense offered of prints. An expert witness testified that on day which taken after fingerprints packet contained in argument, his arrest. In defense counsel matched a had taken from set which he photograph stated that the indicated that day. finger- appellant on The the same larger had moustache than prints insuring of are used a means However, one described the witnesses. person one to whom trial the same of none the witnesses asked to exam- packet fingerprints refer refers. The ine the photograph compare and to packet This method of as whole. moustache shown with one which the proof upheld by this consistently has been robber wore.6 Court, g., e. Emerson v. (Tex.Crim.App.1972); light unequivocal testimony of the Jones Ap- (Tex.Crim.App.1971). the three witnesses that one pellant’s ground error second is over- robbers, and the rebuttal evidence ruled. defense, which weakened the alibi we feel anything, this If was taken. did defense elicit have seem would two of the had identi- State’s witnesses bolstering photograph identifi- fied a 16, effect on March photograph evidence. before cation pro
Appellant has also se filed brief in he raises two additional DAIRYLAND MUTUAL INSUR COUNTY grounds of His first additional ANCE COMPANY OF TEXAS and Guadalupe Vargas, Appellants, ground of error is as follows: “The court committed error reversible Husband, Leonore MARTINEZ and Fran D. per-
in purposefully suppressing evidence Martinez, Individually cisco Behalf taining to and vital to the estab- defense minor, Martinez, Appellees. of Ricardo lishing the facts of the arrest of No. 6224. appellant, done in violation of rights Fourteenth, under the Fourth Appeals Court Civil Ninth Amendments to the U. S. Consti- El Paso.
tution.” Aug. 2, 1972. Sept. Rehearing argument Denied In the supporting error, appellant contends prose- suppressed
cutors evidence at the seized arrest,
time of his which was a note used
in the robbery and which was vital to his
defense. The record is devoid of evi-
dence in support of this contention.
ground of error is overruled.
In his second ground of additional
error, appellant complains argument of an prosecutor. reflects that record objection
no was made argument. error, any, pre if is not review,
served for e. g., Verret v.
There reversible
judgment is affirmed.
MORRISON, J., concurs in the result.
ONION, Presiding Judge (dissenting). shell, being agree
I seizure,
the fruit of an search and that the agree
were inadmissible. I cannot beyond
constitutional error was harmless
reasonable doubt under test established California,
by Chapman also, See,
S.Ct. California,
Harrington L.Ed.2d respectfully I dissent.