Jimmie Lee Eldridge v. The State of Texas--Appeal from 86th District Court of Kaufman County

IN THE

TENTH COURT OF APPEALS

No. 10-95-175-CR

JIMMIE LEE ELDRIDGE,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 86th District Court

Kaufman County, Texas

Trial Court # 17,826

O P I N I O N

Appellant Eldridge appeals from his conviction for aggravated robbery, for which he was sentenced to 50 years in the Texas Department of Criminal Justice, Institutional Division.

On November 11, 1994, at about 5:00 p.m., an individual (later identified as Appellant), entered Bacon Lumber Company and asked the owner, Grandon Bacon, for some nails. When Mr. Bacon reached for the nails, Appellant hit him in the back of the head with a hammer, causing him to bleed (and later to spend three days in the hospital). Appellant demanded Mr. Bacon's wallet and the money in the cash drawer. Mr. Bacon retrieved a handgun, Appellant ran, and Mr. Bacon fired several shots at Appellant.

Sheriff Harris investigated and received information from an acquaintance of Appellant that Appellant had committed the crime and was staying at a motel in Dallas. Sheriff Harris had an outstanding warrant on Appellant for delivery of a controlled substance, and instructed a deputy to arrest him. Subsequently Appellant was arrested, a bullet was removed from his shoulder, and a written confession was obtained. The State's expert witness testified the bullet removed from Appellant was from the handgun which Mr. Bacon had fired at the individual in his store. Also at trial, Mr. Bacon identified Appellant as the individual who entered his store, hit him in the head, and robbed him.

The jury found Appellant guilty. At the punishment phase, four prior felony convictions were proved, i.e., two burglaries, a forgery, and a sexual assault. The jury fixed Appellant's punishment at 50 years in prison.

Appellant appeals on two points of error.

Point one: "The trial court erred in overruling Appellant's motion to suppress physical evidence in that the seizure was conducted without a warrant and without valid consent."

Specifically, Appellant complains of the trial court's admission into evidence of the bullet removed from Appellant's shoulder and the evidence that it was fired from complainant Bacon's handgun.

Appellant was arrested at a motel in Dallas by a deputy with a warrant to answer an indictment for delivery of cocaine. Appellant had a bullet wound in his shoulder and was taken to Presbyterian Hospital in Kaufman for treatment. The doctor wanted to remove the bullet but Appellant refused to consent to its removal. The doctor then treated the wound and discharged Appellant with a medical order for Erythrom ycin and Tylenol. Appellant was then taken to jail where officers applied for an evidentiary search warrant. Before such warrant was obtained, Appellant requested to be taken back to the doctor for removal of the bullet. He was then transported back to the hospital and the bullet was retrieved.

An exception to the warrant requirement is a search conducted by consent. Meeks v. State, 692 S.W.2d 504, 509 (Tex. Crim. App. 1985). The State must prove by clear and convincing evidence, based on a totality of the circumstances, that the consent was voluntarily given. Id. at 510.

Voluntary consent to search is valid whether oral or written. Moreno v. State, 821 S.W.2d 344, 350 (Tex. App. Waco 1991). Here the evidence is clear and convincing that Appellant requested removal of the bullet from his shoulder and that such request was freely and voluntarily made.

The trial court did not err in overruling Appellant's motion to suppress and in admitting the bullet taken from his shoulder into evidence. Point one is overruled.

Point two: "The trial court erred in overruling Appellant's motion to suppress Appellant's written statement in that Appellant's arrest was an improper-pretext arrest."

Appellant was arrested on a valid capias for the indictment charging him with delivery of a controlled substance. Deputy Parks read Appellant his rights when he was arrested on November 11, 1994. Judge Chambless also read him his rights on November 12. Appellant was again read his rights on November 14, after which Sheriff Harris took the statement from him.

The trial court did not err in overruling Appellant's motion to suppress his written statement. Point two is overruled.

The judgment is affirmed.

FRANK G. McDONALD

Chief Justice (Retired)

Before Justice Cummings and

Justice Vance

Affirmed

Opinion delivered and filed March 27, 1996

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