Armstrong v. State

¶1dissenting.

¶2A full recitation of what occurred will be set out. After the ease was tried, appellant and his counsel were apparently satisfied that the officers had a right to stop the automobile because the appellate brief filed with the trial court did not raise this as a ground of error. This matter was not raised in the record or in any way when it reached the Court. Article 40.09, V.A.C. C.P., controls what matters shall be included in the record. Section 2 of the Article provides:

“Each party may file with the clerk a written designation specifying matter for inclusion in the record. The failure of the clerk to include designated matter will not be ground for complaint on appeal if the designation specifying such matter be not filed with the clerk within *33sixty days after notice of appeal is giv-

¶3Appellant did not designate any of the matter that is used for reversal to be included in the record and filed no complaint to the record within sixty days after notice of appeal was given.

¶4Section 5 of Article 40.09 provides that the court reporter shall report any portion of the proceeding requested by either party or directed by the court. This record is to be paid for by the appellant or if he is indigent it is to be paid for by the general funds of the county where the offense was alleged to have been committed.

¶5No bill of exception was filed under Section 6(a) of Article 40.09. Section 7 provides that the court shall approve the record within fifteen days after notice of completion of the record if there is no written objection to it. In the present case there was no objection to the record.

¶6Section 15 of Article 40.09 does not give this Court authority to order a trial court to prepare a record not designated by either party. It only gives this Court the authority to send for any original paper or exhibit for its inspection.

¶7The trial judge was not given an opportunity to pass upon this ground of error.

¶8In the commentary under Article 40.09, the Honorable W. A. Morrison, formerly of this Court, wrote:

“. . . [I]f a trial judge were given an opportunity to study the record of the trial over which he had presided, read briefs and hear argument on the points raised, in many cases he would recognize the fact that reversible error was in the case and that he would promptly grant a new trial and set the case down at once for retrial, thus avoiding the inherent delay occasioned by an appeal and protecting his appellate record of which so many able trial judges are justifiably proud.”

¶9The advice given by Judge Onion in his commentary to the Article should be observed. It is as follows:

“The time limits for designating material in the record, filing the record, etc., are all set out in the article and should be carefully read.”

¶10Judge Onion also wrote in his commentary as follows:

“This procedure allows the trial court full opportunity to examine the completed record, hear arguments and study briefs and grant a new trial to the same extent as would the appellate court. The defendant after seeing the completed record may present errors on which he intends to rely on appeal to the trial court.

“While the time between conviction and appeal will be undoubtedly lengthened in some cases, the number of cases appealed should be reduced and many unnecessary reversals eliminated.”

¶11In Conerly v. State, 412 S.W.2d 909 (Tex.Cr.App.1967), a motion for extension of time to file a statement of facts and his affidavit of inability to pay for the same filed after the record on appeal had been approved by the court without objection and filed with the clerk came too late.

¶12In Utsman v. State, 485 S.W.2d 573 (Tex.Cr.App.1972), the refusal of the court to grant an extension of time to file a statement of facts was not abuse of discretion where the motion for extension was filed on the last day to file statement of facts and had not been ordered at any time.

¶13Not only was the statement of facts on motion to suppress not properly before the Court, it should never have been prepared. A member of the staff was directed, without authority of the Court, to have the trial court see that a statement of facts on the motion to suppress was filed in this Court. After the majority of the Court was advised that the additional record was here on the unauthorized request, it still considered it. Not only has the majority of the Court sanctioned the unauthorized action, it has erroneously decided the case upon the facts. It should be remembered that only unreasonable searches are forbidden.

¶14On original submission and on motion for rehearing the majority rules that the initial *34stop of the car that appellant was driving was illegal. The search was made with the consent of Armstrong after the officer had cause to stop the car.

¶15There was no objection that the original arrest and detention were illegal. In Cherry v. State, 488 S.W.2d 744 (Tex.Cr.App. 1972), cert. denied, 411 U.S. 909, 93 S.Ct. 1538, 36 L.Ed.2d 199, this Court held that a ground of error and argument in its support that the “trial court erred in overruling appellant’s motion to suppress the fruits of the search of the motel room in which the events in question occurred” were not specific enough to comply with Article 40.09, Section 9, V.A.C.C.P., governing an appeal brief. It was not considered. More notice was given the trial judge in that ease than was given in the present case where no motion to suppress was mentioned in the brief.

¶16The objection was insufficient in the present case and the record is not properly before us. But with the help of the majority acting in lieu of counsel designating a part of the record after the time has been expired,1 it will be assumed for the sake of argument that the question of the search is properly before us.

¶17Approximately a week to ten days before the burglary, Lieutenant L. T. Murphy of the Fort Worth Police Department and other officers received information that Willie Arthur Sneed and a car were wanted in connection with several burglaries. A warrant had been issued for Sneed. Officer Murphy had been given the last numerals of the license plate of the car.

¶18At about 2:30 p. m. on January 5, 1975, Officer Murphy stopped the car on the east side of Fort Worth. Appellant, the driver, after giving consent to a search, opened the trunk with his key. It contained a portable color television set, an electronic calculator, two tape players, a trumpet and other items. Appellant stated that these items belonged to him. Murphy then arrested appellant and took the items from the trunk to the city hall. Sneed, a passenger in the car, was arrested on the outstanding warrant.

¶19At approximately 7:00 p. m. the same day, Prince Charles Ray returned to his home on the east side of Fort Worth and found that his house had been broken into and discovered that the items which had been found in the trunk of appellant’s car were missing.

¶20The State contends that the stop of appellant’s vehicle was for proper investigatory purposes. The Fourth Amendment does not require a policeman who lacks the quantum of information necessary for probable cause to simply shrug his shoulder and allow a crime to occur or a criminal to escape. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). Circumstances which are insufficient to establish probable cause for arrest may justify temporary detention for purposes of investigation since an investigation involves a lesser intrusion upon the personal security of an individual than does an arrest. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Baity v. State, 455 S.W.2d 305 (Tex.Cr.App.1970), cert. denied, 400 U.S. 918, 91 S.Ct. 180, 27 L.Ed.2d 158. Such purposes may include determination of the identity of a suspicious individual or momentary preservation of the status quo in order to obtain more information. Adams v. Williams, supra; Wood v. State, 515 S.W.2d 300 (Tex.Cr.App.1974). We reaffirmed this principle in the recent decision of Abion v. State, 537 S.W.2d 267 (Tex.Cr.App.1976).

¶21An occupant of an automobile is just as subject to a brief detention as is a pedestrian. Adams v. Williams, supra; Wood v. State, supra. See Hazel v. State, 534 S.W.2d 698 (Tex.Cr.App.1976). Of course, the officer must have specific and articula-ble facts which, in light of his experience and general knowledge, reasonably warrant such a stop. Terry v. Ohio, supra; United *35States v. Brignoni-Ponee, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); Baity v. State, supra.

¶22In the instant case Officer Murphy had sufficient information to warrant an investigative stop of appellant’s vehicle. He was aware of the outstanding warrant on Sneed. Knowing that Sneed might be driving a light blue 1966 Plymouth, he observed that appellant’s vehicle was a “black over blue” 1966 Plymouth. He further observed that the car recently had been painted with a spray can “like you buy in the store.” The officer also knew the last three numerals of the license plate of the wanted automobile.

¶23Officer Murphy had seven years’ experience. In light of his experience and general knowledge, he articulated specific facts which, taken together with the rational inferences from those facts, reasonably indicated appellant’s vehicle had been involved in criminal activity. He determined that the investigative stop was necessary in order to obtain further information. The stop was justified.

¶24In view of the legality of the initial stop, the items seized from the trunk of the vehicle were properly admitted into evidence. Upon learning of Sneed’s identity, the officer was authorized to arrest him on the outstanding warrant. Appellant denied knowing Sneed. Under these circumstances, Murphy’s request for permission to look in the trunk was reasonable. Appellant voluntarily consented to the search. See Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).

¶25The original opinion in this cause relied on Colston v. State, 511 S.W.2d 10 (Tex.Cr.App.1974). Colstonis not in point. There, two Waco officers arrested Colston for the possession of a dangerous drug. They acted solely on the strength of a teletype dispatch sent by a federal narcotics agent. The source of the federal agent’s information was never revealed, and if an informer was involved, there was no showing as to the reliability of such informer. We held that the officer who issued the dispatch had no probable cause for the arrest and an otherwise illegal arrest cannot be insulated from challenge by the decision of the arresting officer to rely on a fellow officer’s determination of probable cause.

¶26In the case at bar, Officer Murphy did not rely solely on the information he received from the Records Bureau and other officers. Rather, he went to the Bureau and looked up Sneed’s record. The record contained information concerning the outstanding warrant on Sneed and the description of the vehicle involved in the burglaries. This information was sufficient to justify the investigative stop of the vehicle.

¶27The majority holds that there was an illegal detention of Armstrong even though the officer had a description of the car that had been used in the burglaries and knew that there was an outstanding warrant for Sneed. He also had information that Sneed was involved in the burglaries. The crude paint job on the car after the officer first saw it added to the information which gave the officer the right to detain the car. The majority did not give the trial judge a chance to pass upon the question. The investigation by the officer was reasonable. He had a right to arrest Sneed and then had consent to search the car.

¶28The opinion on motion for rehearing states that the officer did not have reliable information. Does an officer have to question the circumstances under which a warrant was obtained before making a stop or arrest? The opinion also states that the warrant was not in the record. How does that affect the right of the officer at the time he made the arrest?

¶29Practically every week we hear that this Court is the busiest appellate court in the nation. With all that happened in this case a defendant would be foolish not to appeal every case, because a majority might get him a free record on something he did not desire and then reverse the case.

¶30The reversal should be set aside and the judgment of the conviction should be affirmed.