*1 argument appellants’ The thrust of suppress was directed is used the state to be observation burden, seems that the officers’ statutory to meet that then the passed opposite the their vehicle as it may pursued issue raised the motion be justify turn was not sufficient to direction despite plea. subsequent guilty the following them truck around and ing their purpose Because one of Art. where approaching their vehicle and then supra, encourage guilty pleas is to where a It of marihuana. is they smelled the odor (or motion) pretrial search seizure other and the officers’ ac appellants’ contention is the matter the defendant was in moving the vehicle tion of towards pursue, wishes to we hold that the rule appel “investigative and violated fact quoted above from Brown v. does not State disagree. We rights.” lants’ constitutional apply appeal to’ from misdemeanor the officers not indicate The record does guilty plea challenges ruling stop even to arrest or intended pretrial Accordingly, such a motion. we George approached until after officer lants appellants may challenge hold that the ad by a traffic stopped while it was the vehicle ruling suppress verse on their motions to was not appellants’ The vehicle light though they subsequently even entered part on the stopped by any overt action guilty pleas charges to the misdemeanor stopped Only after police officers. against them. able to light was the оfficer at the traffic noticed the single ground The of error in each of and he approach the vehicle offi point, appeals these did not of marihuana. At is odor appellants he directed cer testified probable cause nor was it reasonable and of the street pull over to the side under the facts and circumstances to search subsequent The arrest out of the car. appellants’ testimony at vehicle. The Arti was reasonable. search the officer hearing suppress re- on the motion provides: 14.01(b), Ann.C.C.P. Vernon’s cle J. M. vealed that M. S. Sederwall offend- may arrest an peace “A officer City of George, employed by both Gar- any offense warrant er without a officers, police land as testified that while or within presence in his committed duty moving were off a stove in one of view.” truck, they spotted the pick-up the officer’s State, Tex.Cr.App., 493 See, appellants travelling opposite direction Thomas v. 957; State, Tex.Cr.App., 546 Duff v. smoking аppeared be a mari- S.W.2d what 283; Sanchez S.W.2d cigarette. specifically huana The officer 813. cigarette testified that was handrolled being pinched the mid- both ends are affirmed. judgments finger thumb dle was held the index that he Medley, the driver. He testified Isam, Medley pass cigarette
saw officer,
passenger. opinion In the ciga- appeared
this to be the marihuana oppor-
rette. at the first He made a U-turn tunity following the vehicle. began EARNHART, Appellant, Ray John Subsequently, appellants’ vehicle stopped light, at which time officer at a red Texas, Appellee. The STATE George, riding passenger, got who was No. 57245. approached appel- out of his vehicle and that, at lants’ vehicle. He testified Texas, Appeals Court of Criminal vehicle, approached time he he smelled Panel No. 3. the odor of marihuana. At that time 20, 1979. June Medley pull directed over to the side of appellants They placed the road. under disclosed
arrest and a search of the vehicle baggies
several of marihuana. *2 Joiner, Sherman, appellant.
Joe M. Huttash, Austin, for Atty., Robert State’s the State. DALLY, by Teague,
Before that when W. C. and CLIN- was corroborated DAVIS TON, JJ. arrived came out
house to meet them аnd said: OPINION The son a bitch drove “Come in here. pickup there with that in here in that DALLY, Judge. *3 it, bleeding hog, like a stuck camper on appeal This is an from a conviction for my died.” and he’s laid down in bed and punishment murder. The was at assessed Appellant he not know the stated that did imprisonment twenty years. for deceased; told the offi- appellant’s brother Appellant challenges sufficiency of cers that he knew the deceased. conviction; support the evidence to pickup for Adаms checked the deceased’s complains of the admission in evidence of blood, Teague none. evidence of but found statements made appellant; com- engine; Appellant it was cold. checked the plains prosecutor’s argument driven in Teague that the deceased had jury; and contends that the trial court erro- previously, which would two hours neously communicated an additional in- Teague testified that p. been 7:30 m. jurors struction to the after their delibera- day at driven the house earlier that had tion began. pick- p. 4:00 m. and had seen the deceased’s Appellant brother, and his James Edwin Richards, who was a up parked out front. Earnhart, murdering were convicted of Peace, well as a Justice of the mortician as Spurgeon Elkins at home in at testified that when he saw the deceased Grayson County, on November 1974. m., dead for p. 9:00 the deceased had been together, two men were tried but filed four to five hours. separate appeals; the conviction of James Teague the Earnhart broth- testified that Edwin recently Earnhart was reversed in they told him suspects ers became Earnhart Tex.Cr.App., at the house. that no one else had been (1979). A detailed statement of the that on other occa- Teague also testified facts opin- offense is in included brothers at sions he had seen both ion, and the reader is referred to that house, actually but he believed account as a supplement to the facts set out referred to lived at thе house. here. “my the house as house.” p. 30, 1974, At 9:00 m. on November When the officers entered the house Grayson County Deputy Sheriff Hal Curtis a bed in the lying found the deceased telephone received a call from the Whites- bed, living room. There was blood on Department boro Police concerning a call easy in large puddle under an chair of blood had received. As a of the con- result room, in various other living and blood versation Curtis called the Earnhart resi- in the parts and in other rooms dence, of the room speaking; and asked who was that one of Teague house. testified speaker responded, “John Earnhart.” Cur- swollen, and eyes deceased’s was blue speaker tis then asked the if he had a his head. top was a in the there hole problem residence, at speaker and the was in According Adams the house answered, “Hell, yes, I There do. has been cans turmoil,” were beer “quite a and there a man my killed in house.” Both littering the floor. gin and a bottle p. At 9:30 County Deputy m. Grayson drunk; Teague tes- appeared to be brothers Teague Sheriffs Don Troy Adams ar- crazy, appellant was “drunk tified that rived at the Earnhart simulta- residence wild,” coopera- Jim was whereas his brother neously police Whites- officers from tive. Collinsville, highway patrol boro and two officers, and taken personnel. and ambulance were arrested A Jus- Both brothers was Peace, Richards, who jail. leaving, appellant, tice of the M. H. had ar- Before undershirt, testified, went to a back shortly rived wеaring before. Adams get County According DeMayo, bedroom a shirt. Dr. Vincent a Dallas to Ad- examiner, de- appellant picked ams medical testified green shirt as if a .22 gunshot wound from on, said, ceased received put then it. got “It’s blood on region right in the frontal weapon caliber want a clean one.” When Adams scalp, the wound was cause of his shirt, asked appel- if that was his bullet, A .22 caliber the deceased’s death. lant replied that it was. comparison to be of use too mutilated day thoroughly The next investi- the deceased’s purposes, was removed from gated They the scene of the crime. found DeMayo stated that muzzle head. bedroom, a .22 rifle stained with in a weapon with the de- contact room, spent cartridges six .22 living discharged, and head when it was ceased’s and three lead bullets. One the bullets weapon was held at “a shallow room, lying living on the floor of the angle, pointing downward and backwards.” *4 wall, and the other were two in a imbedded According DeMayo the wound would apparently having through after been fired paralyzed be have caused the deceased to living one of the room doors. side, “highly improba- the left it and was Jones, County Allen a Dallas firearms being ble” that he could have moved after examiner, that of testified two the bullets left was wounded. The deceased’s knee were too mutilated to determine the scraped, DeMayo whether testified that they had been by dragging fired from the rifle in scrape found could have been caused thе house. “major The other bullet had the knee a hard surface. The alcohol across .289, minor class characteristics” blood in common with content in the deceased’s was rifle, point the but sufficiently approached it lacked stated DeMayo detailed which the striations to conclusively determine it of alcoholic unconsciousness. that had been fired from the weapon. gun The found, living Blood was in addition the was in operating condition. Jones testified room, Gray- in the hall and the bathroom. that two of the cartridges had been dis- Shelby County Deputy son Chief Sheriff charged by weapon, the but he could Bowling splash- of testified the basis the tell whether the other cartridges four had. it “fingers” by hit es or formed the blood as floor, in began the that the trail of blood Williams, Sarah an employee of the Dal- chair, the easy led out of the from there County las Criminal Investigation Labora- bathroom, room, living the hall to the down tory, testified compared that she blood sam- living room and back to the bed in ples brothers, taken from the Earnhart where the deceased was found. deceased, and the scene of the offense. Ac- cording to Williams the brothers’ blood evi Appellant contends samples were in type, identical and the de- support the convic dence adduced does not type ceased’s blood was different from the Summarizing, in tion. the deceased died brothers. types Both were found in gunshot wound appellant’s house from a sample blood taken from barrel cali weapon. A .22 caused a .22 caliber Appellant rifle. had cut his left thumb was shown ber rifle found house badly while shutting off a chain saw discharged been at least twice at day occurred; before the according offense suspi Appellant made house. to Teague the bleeding thumb was still immediately exculpatory statement cious appellant holding was it Ad- when upon peace the arrival of officers. ams arrived at Appellant’s scene. statement was evidence showed ribs, brother had hurt his but was false, not bleed- was and the statement inconsistent ing. A sample puddle appel taken from the previously made with statement easy blood beneath the telephone. chair matched lant to another officer over type, sample deceased’s blood as acknowledged did a blood The latter statement green from appellant in appellant’s shirt which tried killed someone had been pick up. of a ownership house. evidenced right. All We “THE COURT: with blood of the shirt which was stained type objection.” victim’s blood. No one same will overrule the de besides the Earnhart brothers and elicited, objection, that without later It was time of the ceased were at the house at the whether the asked when Adams strong weighs offense. This evidence more “Yes, his, it was replied, shirt was against his ly against appellant than it does his.” State, supra. We brother. See Earnhart to the effect Appellant’s statement evidence, light find that viewed in it, wanted and he had blood on the shirt State, is sufficient to most favorable to the statement, not one, voluntary another support jury’s finding guilt. Com Adams, (Tex. pare Easley any inquiry response S.W.2d 742 Cr.App.1978); Indo v. vol interrogation. product of Such not the State, 447 (Tex.Cr.App.1973); Baker v. Art. See untary statements are admissible. (Tex.Cr.App.1969). S.W.2d 172 V.A.C.C.P.; State, 479 38.22(5), Larocca v. Walker (Tex.Cr.App.1972); Appellant contends that it was error (Tex.Cr.App.1971). to admit statements made appellant picked testimony that Adams’ his brother after had been arrested on, put on a of their and then put and before had been informed the shirt appel rights. Specifically, constitutional This evi shirt, was also admissible. clean complains lant Adams’ shirt green clearly showed that dence appellant picked up green shirt he The admission appellant’s. *5 said, it, want to got “That’s blood on I don’t was question response to Adams’ lant’s get . a clean wear that . .I’d like to doubt. beyond a reasonable harmless error shirt,” re- and the affirmative (Tex.Cr. State, 207 v. 573 S.W.2d See Wood sponse if it was his when Adams asked him State, v. 531 S.W.2d Apр.1978); Hunnicutt testimony; Appellant objected this shirt. to v. Bridger (Tex.Cr.App.1976); 618 objection, the trial and court sustained his (Tex.Cr.App.1974). More 801 disregard the jury instructed the to testimo- ob His over, the error. appellant waived ny. Appellant a mistrial. request did not testimony was original jection to Adams’ jury hearing presence A of the outside mistrial; sustained, request a he did not held, that at the was and it was established toas subsequent Adams’ had not appellant time of the statement objec without response was elicited lant’s rights in accordance been advised of his tion. 436, Arizona, 86 with Miranda v. 384 U.S. 1602, (1966). 694 S.Ct. 16 L.Ed.2d admission to the point does not Appellant appellant Subsequently, testified before made any Adams statements other jury as follows: brother, Art. his in violation or “Q. ar- This placed after he was under the record. And none in supra, and we find
rest, you what did then do? error is overruled. ground of accompanied “A. him into the back the admis complains of Appellant room, or the southwest bedroom conversa telephone of the get a sion in evidence the house. He wanted to Deputy Sheriff appellant shirt. tion between the admission objected to Appellant “Q. you What did observe him do? Curtis. grounds on the at trial conversation from a box in picked up “A. He a shirt appellant identify not could bedroom. that Curtis the southeast refer speaker’s except by the speaker, “Q. this shirt? What did he do with In Earnhart.” as “John ence to himself it on. picked put “A. He the shirt to con telephone aof admitting the contents Then, said, it. got blood on he ‘It’s is versаtion, speaker identity of I want a one.’ clean message re if sufficiently established object “MR. JOINER: I still knowledge has speaker veals that that statement.
449 only facts that speaker likely Appellant would be contends that the statement con- Davis, 467, know. testify. Gleason v. 155 Tex. stituted comment on his failure (1956). objection general, Appellant’s ap- S.W.2d 228 Here was concerning pellant notify Curtis facts the trial court of the the death of the did not grounds objection. Appellant deceased that or his brother would for his did Also, grounds objection know. for identity clarify is if not established a call is made gave court its instruction to business office over a line after trial jury, maintained it for further relief. No purposes press business or speaker represents preserved. is he is the one error called, contrary. and there is proof no prosecu Appellant contends that the Davis, v. supra; Spolane See Gleason v. made a went the record and tor outside Coy, (Tex.Civ.App.1941). S.W.2d 672 appellant’s right tо remain si comment Curtis testified that he called number “. . aiding lent when he . stated Tank, listed as Septic Highway Earnhart person one overtly is no different from 377, north of Pottsboro. See also Woods saying, story them T will tell the and don’t ” State, 478 (Tex.Cr.App.1972); S.W.2d 541 objected you say Appellant at word.’ Churchill 26, 167 Tex.Cr.R. grounds on the trial statement S.W.2d 541 (Tex.Cr.App.1958); Burnett objection was outside the record. The sus (Tex. Tex.Cr.R. tained, request did not Cr.App.1955). disregard Ap or a instruction to mistrial. pellant’s contention is overruled. statement made to Cur- heаrsay, tis was but was admissible as an complains of another remark Moreover, admission. objec- there was no following prosecutor immediately tion at trial that the conversation hear- However, appellant the last remark. did say. No is error shown. object remark, no error is preserved. During jury argument prosecu deliberating jury began After tor made following comment: *6 they asking sent to court wheth a note gentlemen, “Ladies and you I told possible give er it was to each defendant day you first came this into court- court re different sentence. The trial room only that I required prove sponded following state with written that these defendants Spurgeon killed Le- ment: dale shooting Elkins gun. with a him “MEMBERS OF THE JURY: you I don’t why. have to tell If I knew reading “I as your communication why, I would you, tell but I wasn’t there. follows: There people By were three there. “ possible give John ‘Is it each defendant Ray words, Earnhart’s own no one else sentence?’ was there but different his brother Jim Earn- hart and this dead man. thereto, you “In instructed answer arе you sepa- provided have been
“MR. object JOINER: We to that. You charges rate as to each defendant. proper That is not a argument, not governed by will be the law contained proper object statement. We to his separate verdict as therein return a and making a statement like that. to each defendant. “THE COURT: All right. Ladies your “You retire ver- will to consider gentlemen, and I will overrule the ob- dict.” jection with this instruction. The de- given ductions which Counsel are the answer de- contends that make ductions from they charge jury, evidence re- constituted an additional You, course, it. member will re- court failed to answer and trial member the present- proper evidence as it was The answer question in the manner. they ed. they say charges What simply jury is not evidence.” to the referred 450 of brother
already had before them. A to the tailed statement case referral original James Earnhart. charge is not considered an addi State, tional instruction. Allaben 418 that all con- From the it seеms (Tex.Cr.App.1967); Pigg S.W.2d 517 leading up to the Earnhart broth- versation 162 Tex.Cr.R. arrest oc- being told were under ers (Tex.Cr.App.1956). The trial court sub body in the same room where curred mitted the written answer to the State and examined. was found deceased objections sending before it the officers appeared Whenever jury. Appellant’s expressly jail counsel going were to take the brothers reading open waived given of the answer in a Miranda either one had been before requirements expressed to Adams warning,1 appellant court. The of Art. V.A. shirt; go regarding desire to to a back room C.C.P. communications with the and as accompanied Adams him jury were satisfied. Hardeman v. See box” picked up of a “clothes a shirt out (Tex.Cr.App.1977); S.W.2d got blood say, “That’s Adams heard him (Tex.Cr.App. Smith Adams it, wear that.2” I don’t want to 1974). No error is shown. asked, yours?” then “Is judgment is affirmed. and, want- saying he replied, “Yes” further shirt, one. a clean he obtained ed CLINTON, Judge, dissenting. question ask- responding to a Adams was This circumstantial case was evidence blood and ing where else he had observed tainted with its trait of weakness from the im- given, appellant response when his Deputy Teague moment Sheriffs Don testimony” this mediately objected “to all Troy independently Adams and for differ- has arrest and stating, “The man was under ent reasons surmised that the Earnhart would any warnings, and we received culpable. brothers were any of this consider jury like the not to Teague said that the Earnharts became court sustained testimony.” The trial suspects “they me that no оne con- jury not to objection, instructed there;” part, else had been for his Adams what Mr. “relative to sider the last answer suspects ap- said became when it appel- upon request Earnhart said” and peared, pickup from the lack of in his just to answer lant instructed Adams truck and all the blood inside the house that con- a bench questions. The obtained State got Elkins had not hurt been before excused which the trial court ference after Acting respective suspi- the house. on their develоp the jury and asked State deputies body cions the observed the testimo- After some “time factor” further. realizing deceased—neither the de- prosecu- during which the ny dialogue, *7 engaged ceased had been the broth- it turned erroneously, as represented, shot— tor ers in conversation and made a limited in- out, properly previously had Teague that spection of the immediate area of the room that insisted appellant, the State warned where body the was found. It was the spontaneous, appellant were statements of following day, along careful search the an oral and not gestae res of the arrest examination, premises detailed of the which confession; ad- trial court whereupon the produced the and related forensic evidence at this” journed “take a look court to the testimony and ex- searching of the he would overrule announced thereafter develop clearly pert appellant objection witnessеs. The facts and circumstanc- but let “nev- appellant opin- question es thus the the time in derived are summarized in that at rights.” his been warned of supplemented by ion in this case the de- er had warnings given the had but that he 1. Adams admitted that warn them house he did not have; “already thought Teague may whereupon them in the car.” but the he had prosecutor expressed Teague a desire to call to warning appellant show a before was moved opinion, the According expert to 2. room; from the in “sоutheast” his compatible deceased. with blood of shirt was Teague say” “couldn’t that either was warned
451
error,
In
ground
his second
trail
occupancy
of
his
the
in which a
of
house
alia,
complains, inter
of
spots suggest
admission of his
of Elkins
of blood
movement
statements in the back or southwest bed-
living
a
the
room
the
from chair in
room, pointing
legislative
concern re-
living
in
bathroom and back to a bed
38.22,
flected
Articles 15.17 and
V.A.C.
factors, along with evidence of
room —these
Lopez
State,
citing
C.P. аnd
v.
384 S.W.2d
shirt,
on the
appear
blood of deceased
soiled
345 (Tex.Cr.App.1964). Conceding the
prosecutor
of
highlights
what the
be
point, still
problem
one
confronting appel-
jury
I
sure
“is a difficult case and
am
lant and this Court
is that
in his final
your
will be
that
decision
difficult.”
question to Adams on recross examination
circumstances,
I am
con
In these
not
as to his questioning
Earnhart, ap-
James
appel
that
of
that
impact
vinced
evidence
pellant got
reply
a
to the effect that Adams
shirt
ownership
bloody
lant admitted
of
did
ask
James anything, followed
average jurors
would
the minds of
non-responsive reiteration that
“did
Adams
slight
beyond
be so
as
be harmless
Ray
shirt;”
ask John
if that was his
where-
reasonable
or that the verdict would
doubt
upon
objection
State asked
—without
—the
evi
have been
same
the tainted
had
Adams what was
reply
contrary,
To the
dence not been admitted.
last question
quoted
and Adams
possibility
there is more than
reasonable
saying, “Yes,
as
it was his.” Under the
complained
that the evidence
of contributed
circumstances
objections
of earlier
conviction;
State,
v.
545
Myre
cf.
hearing
ruling
of the trial court outside
820,
(Tex.Cr.App.1977); Cun
827
S.W.2d
presence
jury,
6(d)(3),
Art.
§
State,
820,
(Tex.
ningham v.
500
824
S.W.2d
V.A.C.C.P.,
renewing
obviates
objection
State,
Cr.App.1973).
also Gonzales
See
presence
in
jury,
Price v.
460
(Tex.Cr.App.1979). The
S.W.2d 420 (Tex.Cr.App.1970).
majority
appel
have it
because
would
Admitting the
ownership
statement of
picked
and, upon
up
green
lant
shirt
the shirt was error of constitutional dimen
condition,
aside,
observing
it
acts
its
cast
sion,
Smith v.
(Tex.
“clearly
shirt” was
green
showed
Cr.App.1974). But
question
remains
majority perceives today
his.
what
whether error in admitting the statement
deputy
standing
sheriff
next
beyond
was harmless
a reasonable doubt
night
asking
plainly
did not. Adams
within the latitude
reviewing
afforded a
question,
yours?”
belies
“Is
California,
court
Harrington v.
395 U.S.
hindsight
majority.
perception of the
250,
1726,
89 S.Ct.
(1969)
L.Ed.2d
that,
agree
given
with Deputy Adams
Chapman California,
18,
386 U.S.
87 S.Ct.
its
house and
described condition
(1967)
the fatal was that it was .22
caliber, be, proved the murder
weapon; seemingly necessarily but not reports peace
inconsistent toas deceased;
arrival and cause of condition of