Harry Louis Horak v. The State of Texas--Appeal from 85th District Court of Brazos County

AFFIRMED

JULY 12, 1990

NOS. 10-90-013-CR &

10-90-014-CR

Trial Court

#'s 18,699-85

18,708-85

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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HARRY LOUIS HORAK,

Appellant

v.

THE STATE OF TEXAS,

Appellee

* * * * * * * * * * * * *

From the 85th Judicial District Court

Brazos County, Texas

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O P I N I O N

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A jury convicted Appellant of burglary of a habitation and aggravated assault, and assessed his punishment at forty years in prison. See TEX. PENAL CODE ANN. 30.02(a)(1), 22.02 (Vernon 1989 and Vernon Supp. 1990). Appellant complains that the court erred when it allowed the introduction of certain exhibits into evidence over his objection. He also asserts that the evidence was insufficient to support the aggravated assault conviction. The judgment will be affirmed.

On March 21, 1989, at approximately 3:00 A.M., Appellant, who was armed with two loaded rifles, a knife, and assorted ropes, including two jump-rope cords without handles, entered the dormitory room of Trisha Sexton and Sandra Alcala on the Texas A&M campus. He fired approximately eight rounds before the two women disarmed him and confined him in a closet. Subsequently, Texas A&M police officers obtained Appellant's consent to search his dormitory room. However, no search warrant was ever obtained. During their search, the officers discovered and seized handwritten notes, jump-rope handles, rifle cartridges, receipts from the purchase of two rifles, and instruction manuals for the rifles.

At trial, Appellant argued that he consented only to a limited search for guns or their receipts. Thus, he claimed that seizing the items from his dormitory room violated his constitutional right to be free from unreasonable searches and seizures. See U.S. CONST. amend. IV. His first point is that the court erred when it admitted the items into evidence.

At a hearing outside the presence of the jury, officers testified that Appellant gave them permission to search his dormitory room. Appellant admitted that he consented to a limited search of his room for guns or receipts, and even told the officers where to find the receipts. At a suppression hearing, the court is the judge of the credibility of the witnesses and the weight to be given their testimony. Walker v. State, 588 S.W.2d 920, 924 (Tex. Crim. App. [Panel Op.] 1979). Based on the evidence at the hearing, the court did not abuse its discretion when it determined that the officers had full consent to search Appellant's room. See Lopez v. State, 663 S.W.2d 587, 591 (Tex. App.--Houston [1st Dist.] 1983, pet. ref'd).

Warrantless searches as per se unreasonable under the Fourth Amendment. Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 514, 19 L. Ed. 2d 576 (1967). One exception to this rule is that evidence in "plain view" which an officer inadvertently discovers may be seized without a warrant. Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 2038, 29 L. Ed. 2d 564 (1971). However, plain view alone never justifies a warrantless seizure of evidence. Id. 91 S. Ct. at 2039. The criteria for a plain-view seizure include: (1) the officer had a legitimate reason to be where he was; (2) the discovery of the item in plain view was inadvertent; and (3) the officer had probable cause to believe that the item in plain view was evidence. Snider v. State, 681 S.W.2d 60, 63 (Tex. Crim. App. 1984).

Assuming that Appellant consented to a limited search for guns or receipts from their purchase, the officers were lawfully in the dormitory room when they discovered the other items. The rifle cartridges, manuals, and jump-rope handles were located on or near Appellant's desk. Clearly, the officers had probable cause to believe that these items were evidence of Appellant's crime. When the officers collected the cartridges, they found one resting atop a pile of handwritten papers, the top of which read:

BITCH

There was once a girl named Trish,

she was really quite a nice fish

BUT, she refused to try,

AND NOW WE BOTH WILL DIE!

The officers seized the entire stack of papers because, based on the content of the top paper, they had probable cause to believe that the papers were evidence of Appellant's crime. Point one is overruled.

Appellant's second point is that the evidence was insufficient to establish all elements of the aggravated assault charge He argues that he cannot be guilty of the aggravated offense because he caused no serious bodily harm. See TEX. PENAL CODE ANN. 22.02(a)(1) (Vernon Supp. 1990). However, an assault is aggravated if the assailant uses a deadly weapon. Id. at 22.02(a)(4). Appellant's loaded rifles were deadly weapons as a matter of law. See TEX. PENAL CODE ANN. 1.07(11)(A) (Vernon 1974). Point two is overruled and the judgment is affirmed.

BOB L. THOMAS

DO NOT PUBLISHChief Justice