Kelley v. State

¶1dissenting.

¶2After making the following correct holding, “it was error for the officer to testify *38regarding the needle marks,” the majority-opinion thereafter makes the following incorrect holding: “We find that the trial court’s action in instructing the jury to disregard the testimony cured the error concerning needle marks on appellant’s arm.”

¶3Ordinarily, I would not take issue with the latter holding. However, almost 12 years ago, in a case from Travis County, this Court in Powell v. State, 478 S.W.2d 95 (Tex.Cr.App.1972), reversed the defendant’s conviction because the prosecuting attorney injected into the case over objection inadmissible evidence in the form of an extraneous offense. That testimony originated “at the Austin Police Department” and concerned a police officer looking at the defendant’s arms and observing needle marks thereon. This Court held, prior to reversing the defendant’s conviction: “The chain of inferences is too long and contains too many gaps to allow the introduction of evidence of needle marks alone to show possible motive for theft. The prejudicial effect of such evidence far outweighs any probative value it might have. To admit such testimony without showing some affirmative link between the theft [of two lawnmowers which the defendant was on trial for stealing] and narcotics would show only that the accused is ‘a criminal generally.’ This, the general rule heretofore quoted prohibits.” (98).

¶4What occurred in this cause is, if not identical to what occurred in Powell v. State, at least a mirror image. The holding in Powellwas recently reaffirmed by this Court in Jordan v. State, 646 S.W.2d 946 (Tex.Cr.App.1983). I believe that most prosecutors, as well as most defense attorneys and trial judges, are either fully aware or should be fully aware of what this Court held in Powell v. State, supra.

¶5Although I acknowledge that in Powell v. State, supra, the objection was overruled, whereas here it was sustained, nevertheless, where a rule of law which prohibits the asking of such a question as was asked here is either known or should have been known to the questioner, and has been on the books as long as the one applicable to this cause has been on the books, I am unable to put much stock in whether the objection was sustained or overruled, or whether the trial court instructed the jury to disregard the question and answer. The question for the reviewing court in that instance is whether asking such a question and obtaining an answer is sufficient, standing alone, to constitute reversible error.

¶6Ordinarily, the mere asking of a question by a prosecuting attorney is not reason to reverse a conviction. However, an exception exists: “If the question, as so framed, of and within itself, implies the defendant’s guilt of the misconduct inquired about and amounts, therefore, to proof of a fact, by necessary implication damaging and hurtful to the defendant, that the State was not authorized to prove,” the mere asking of the question may amount to reversible error.” Mounts v. State, 148 Tex.Cr.R. 149, 185 S.W.2d 731, 734 (1945).

¶7The prosecuting attorney in this instance either knew or should have known not to have asked the question and Officer Jensen either knew or should have known not to have answered the question. See Richardson v. State, 379 S.W.2d 913 (Tex.Cr.App.1964). Of course, the trial judge, when the question was asked, should have intervened and sua sponte struck the question from the record.

¶8In light of Powell v. State, supra, the error that resulted because of the asking and answering the question was incurable error, and appellant’s conviction should be reversed because of the error.

¶9I observe another reversible error to have been committed in this cause. The majority has correctly stated in the first part of its opinion the general rule that evidence or testimony that implicates an extraneous offense is inadmissible. However, it fails to apply the rule to the admission into evidence of the sawed-off shotgun that was seized from the trunk of appellant’s vehicle. For the reasons stated by Judge Campbell in Wallace v. State, (Tex.Cr.App.1984) (Pending on Rehearing), as *39well as the reasons stated in Gill v. State, 625 S.W.2d 307 (Tex.Cr.App.1981), the sawed-off shotgun was inadmissible evidence at appellant’s trial.

¶10For both of the above reasons, appellant’s conviction should be reversed and not affirmed. To the majority affirming appellant’s conviction, I respectfully dissent.

¶11dissenting.

¶12Under the guise of limiting Gill v. State, 625 S.W.2d 307 (Tex.Cr.App.1980), to its (rather unique) facts the majority today, in two cases,1 as a practical matter overrules Gill. Because the reasons given in justification may not ring quite true to the careful reader, a closer analysis is necessary to see if this is in fact a decision motivated by stare decisis or if it is but a harbinger of things to come — a decision motivated by personal philosophy.

“Stare decisis _ To abide by, or adhere to, decided cases.

“... Doctrine that, when court has once laid down a principle of law as applicable to a certain state of facts, it will adhere to that principle, and apply it to all future cases, where facts are substantially the same; regardless of whether the parties and property are the same.”2

¶13In sanctioning the inventory search in the case at bar the majority relies entirely on one factual difference between this case and Gill: the fact that the police did not have possession of the keys to the locked trunk of Gill’s car but did have possession of the keys to appellant’s locked automobile trunk in this case. So the question for closer analysis is whether this fact is significant in Gillor other inventory search cases.

¶14A proper discussion of the inventory search doctrine must begin with the case that gave it national scope, South Dakota v. Overman, 428 U.S. 364, 49 L.Ed.2d 1000, 96 S.Ct. 3092 (1976). Chief Justice Burger began the plurality opinion’s analysis by quoting the late Justice Black’s final pronouncement on the Fourth Amendment:

“ ‘[T]he Fourth Amendment ... prohibits only unreasonable searches and seizures. The relevant test is ... the reasonableness of the seizure under all the circumstances. The test of reasonableness cannot be fixed by per se rules; each case must be decided on its own facts.’ Coolidge v. New Hampshire, 403 U.S. [443] at 509-510 [91 S.Ct. 2022 at 2059-2060, 29 L.Ed.2d 564, (1971) (emphasis in opinion)].” Id.,428 U.S. at 372.

¶15The opinion continued on with a discussion of the reasonableness of warrantless entry into automobiles (that were legitimately in police possession) and, germane to the case before the Court, how a “protective” search of such an automobile would be reasonable as long as it was conducted pursuant to standard police procedures so that the intrusion would be limited in scope to the extent necessary to carry o.ut the “caretaking” function. Id.,428 U.S. at 375, 96 S.Ct. at 3100. After noting the reasonableness of inventorying an unlocked glove compartment, {Id., 428 U.S. at 376, n. 10, 96 S.Ct. at 3100, n. 10) the Chief Justice pronounced that such “inventory” searches as this were not unreasonable under the Fourth Amendment.

¶16Joining this four judge plurality was Justice Powell who wrote that although he joined their opinion he had some additional views, among them:

“Although the expectation of privacy in an automobile is significantly less than the traditional expectation of privacy associated with the home, [citations omitted], the unrestrained search of an automobile and its contents would constitute a serious intrusion upon the privacy of the individual in many circumstances.” Id.,428 U.S. at 380, 96 S.Ct. at 3102.

¶17Noting that the search was limited to an inventory conducted strictly in accord with regulations of the police department, and noting in footnote that the trunk was not *40searched because it was locked, Justice Powell then went on to embrace routine inventory searches.

¶18It can readily be seen then that the Supreme Court specifically did not sanction the inventory search of a locked automobile trunk in Opperman. Nor have they since. The Supreme Court has basically left the doctrine alone, resisting expansion in this area though clearly not hesitant to expand the power of police to conduct warrantless searches of cars and containers when they have probable cause to believe contraband is contained therein, United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982); or to conduct warrantless searches of automobile passenger and glove compartments and any containers therein incident to a lawful arrest, New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981). In fact, in Michigan v. Thomas, 458 U.S. 259, 102 S.Ct. 3079, 73 L.Ed.2d 750 (1982), the Court even pointed out that the automobile glove compartment that was validly inventoried was unlocked.

¶19Thus it is clear that the Supreme Court to this day has decreed that: (1) there are limits to the scope of inventory searches of automobiles and (2) the “limits” are reached when the caretaking function is carried out. One simply finds no support from the Court for the proposition that a locked automobile trunk falls within these limits, whether or not the police have the keys.

¶20Now let’s examine Gill, supra, in a very elementary fashion. We first notice that there is a panel opinion authored by Judge Roberts which is of value to explain his vote to concur in the result on rehearing en banc. Then there is a five judge majority opinion on rehearing authored by Judge Teague and joined by Presiding Judge Onion and Judges Odom, Tom Davis and Clinton and in which Judges Dally, W.C. Davis and McCormick concurred in the result, as did Judge Roberts.

¶21After a discussion of the Opperman inventory search doctrine and a short soliloquy differentiating those searches from searches based on probable cause, the majority on rehearing pronounced the Texas and United States constitutional limits on automobile inventory searches.

“In short, the expression ‘inventory search,’ is not a talisman in whose presence the Fourth Amendment or Art. I, Sec. 9, of the Texas Constitution fades away and disappears, [citation omitted]

“... In [the] context [of an inventory search], a seizure of items found in an unlocked trunk of an automobile is permissible ....

“... Absent a showing of probable cause and exigent circumstances, a war-rantless search of a locked automobile trunk is per se illegal.” (emphasis supplied) Gill, supra at 318-319.

¶22Now at this juncture the Gillmajority gives an additional legal theory, unnecessary to the ultimate holding, that rests, as did the decision of the Gillpanel opinion, on expectation of privacy in a locked trunk,

“Additionally, the State overlooks the differences between one’s expectation of privacy in a locked trunk of an automobile and the interior of an automobile

“The second reason [expectation of privacy above] is also sufficient to outweigh the purposes of an inventory search of a locked trunk. If the locked trunk cannot be entered without the use of substantial force, it is unlikely that the police would be charged with losing or appropriating items of personal property found therein, and the possibility of theft or vandalism by other persons of the locked trunk’s contents is sufficiently minimized that the prophylactic purposes of the inventory search are not sufficient to outweigh the owner’s expectation of privacy in the locked trunk.” (emphasis supplied) Id. at 319.

¶23Thus the Majority in Gillheld that the search of a locked trunk is not supportable for two separate and separable reasons.3

¶24*41In the case at bar, the majority leaps on the second (and if you will — superfluous) reason given to support Gill’s holding.4 They point out that since the police had custody of appellant’s keys and, being concerned about a speculative potential future accusation of theft of property from the trunk, had to search the trunk to protect themselves against this possible claim because possession of the keys deprived them of the defense that since there was no way of entering the trunk except by force and there is no evidence of force, the accusation was groundless. In any event the main and independent reason supporting Gill’s holding, that the inventory search doctrine per se does not encompass a locked trunk, is conveniently ignored.

¶25In Gillthe majority characterized the State’s argument as nothing more than “advocating that a routine lawful arrest of a suspect in an automobile authorizes a search of every nook and cranny of that automobile.” Gill, supra at 320. Today the majority embraces that very argument and cloaks it in the imprimatur of law. Why? The reader need only truthfully answer the question: Are we that worried the police are going to have to pay lots of money because of false claims of property being stolen from locked automobile trunks in their care, or are we really just helping the police out here in their war against crime (regardless of the concepts of individual liberty involved)?5

¶26For my part I cannot condone the majority’s holding and certainly cannot reconcile it with Gill.6

¶27Contrary to what was specifically pronounced in Gill, the expression “inventory search” now is a talisman in whose presence a reasonable expectation of privacy, the Fourth Amendment and Art. I, Sec. 9, of the Texas Constitution all fade away and disappear.

“Law — our highest ideal and our basest nature. Don’t look too closely at the law. Do, and you’ll find the rationalized interpretations, the legal casuistry, the precedents of convenience.”7

¶28I dissent.