Edward Lewis, Jr. v. The State of Texas--Appeal from 167th District Court of Travis County

Lewis v. State IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-91-031-CR
EDWARD B. LEWIS, JR.,

APPELLANT

 
vs.
THE STATE OF TEXAS,

APPELLEE

 
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT,
NO. 101,655, HONORABLE TOM BLACKWELL, JUDGE

PER CURIAM

Appellant was convicted of robbery and sentenced to imprisonment for fifteen years and a $5000.00 fine. Tex. Penal Code Ann. 29.02 (1989). In twenty-one points of error, appellant contends that the trial court erred in overruling appellant's motion to suppress (points of error 1 and 11), admitting certain evidence (points of error 2-10 and 12-20), and not instructing the jury on the question of a pretextual arrest (point of error 21). We will affirm.

Appellant robbed the Guaranty Federal Bank in February 1990. Austin police officers identified appellant as a suspect because a witness noted appellant's license plate number on the getaway car. Using a six-year-old police lineup photograph of appellant, the robbery witnesses could not identify appellant as the robber. The officers next traced appellant's car to a transmission shop and learned appellant had taken a taxicab from the shop after leaving the car for repairs. At this time, the officers also learned that appellant had an outstanding arrest warrant for a misdemeanor theft by check. The taxi dispatcher's records led the officers to several motels on South Congress Avenue. One of the motel owners identified appellant as the man who was visiting an occupant of the motel. The officers arrested appellant on the theft-by-check charge, searched the motel room, and seized several items. The robbery witnesses were able to make a positive identification of appellant as the bank robber after viewing the new police lineup photographs from the theft-by-check arrest.

In points of error 2, 3, 4, 12, 13, and 14, appellant contends that the admission of exhibits 13, 14, and 16 was erroneous because the exhibits were the fruit of a pretextual arrest and an illegal entry. Appellant did not object to the admission of exhibits 13, 14, and 16 at trial and has waived error, if any. Tex. R. App. P. Ann. 52(a) (Pamph. 1991); Tex. R. Crim. Evid. 103(a) (Pamph. 1991). Points of error 2, 3, 4, 12, 13, and 14 are overruled.

In points of error 6, 7, 16, and 17, appellant contends that the admission of exhibits 40 and 41 was erroneous because the exhibits were the fruit of a pretextual arrest and an illegal entry. Photographs of exhibits 40 and 41 (a bank bag and a gauze patch) were previously admitted into evidence without objection as exhibits 13 and 14. The admission of the actual objects was cumulative in nature and harmless in light of the fact that the evidence was already before the jury. Points of error 6, 7, 16, and 17 are overruled.

In points of error 10 and 20, appellant contends that the admission of exhibit 45 was erroneous because the exhibit was the fruit of a pretextual arrest and an illegal entry. Our review of the record, however, indicates that exhibit 45 was not admitted. The district court sustained appellant's objection to the admission of exhibit 45 and appellant failed to obtain an adverse ruling. An adverse ruling on an objection is necessary to preserve error for review, assuming error exists in this instance. Ramirez v. State, 815 S.W.2d 636, 643 (Tex. Crim. App. 1991); Bailey v. State, 532 S.W.2d 316, 322 (Tex. Crim. App. 1976). Points of error 10 and 20 are overruled.

In points of error 1, 5, 8, and 9, appellant contends that the overruling of his motion to suppress, and the admission of exhibits 37, 42, and 44, were erroneous because the exhibits were the fruit of a pretextual arrest. These points are without merit. The court of criminal appeals has recently held that the pretext-arrest doctrine is defunct under the federal constitution. Oliphant v. State, No. 844-90 (Tex. Crim. App., Dec. 18, 1991) (overruling Black v. State, 739 S.W.2d 240 (Tex. Crim. App. 1987) insofar as Fourth Amendment is concerned). So long as the arrest is objectively reasonable, the intent of the arresting officers is irrelevant. Id. Appellant was lawfully arrested pursuant to the outstanding theft warrant. The fact that this arrest was made to facilitate the officers' investigation of the robbery did not render it unlawful under the federal constitution. Although appellant has mentioned article I, section 9 of the Texas Constitution, he has neither separated his state constitutional arguments into separate points of error nor provided any substantive analysis. The state constitutional argument, therefore, is waived. See McCambridge v. State, 712 S.W.2d 499, 502 n.1 (Tex. Crim. App. 1986). We overrule points of error 1, 5, 8, and 9.

In point of error 11, appellant contends that the overruling of his motion to suppress was erroneous because the exhibits were the fruit of an illegal entry. Additionally, in points of error 15, 18, and 19, appellant contends that the admission of exhibits 37, 42, and 44 was erroneous because the exhibits were the fruit of an illegal entry. Appellant argues that the seizure of the exhibits violated the state and federal constitutions because the police had no search warrant to enter the hotel room appellant occupied. (1) See Steagald v. United States, 451 U.S. 204 (1981); Hudson v. State, 662 S.W.2d 957 (Tex. Crim. App. 1984) (interpreting U.S. Const. art. IV). This argument is meritless. Steagald and Hudson address whether an arrest warrant--as opposed to a search warrant--is adequate to protect the Fourth Amendment interests of persons not named in the warrant, when their homes are searched without their consent and in the absence of exigent circumstances. Steagald, 451 U.S. at 212; Hudson, 662 S.W.2d at 959-60 & n.3. In this cause appellant was prosecuted, not the registered occupant of the hotel room. Appellant has no automatic standing to contest the validity of the search, and he has not directed this Court to a factual finding in the record that he had a legitimate expectation of privacy in the area searched. United States v. Salvucci, 448 U.S. 83, 91-92 (1980); Rawlings v. Kentucky, 448 U.S. 98, 105-6 (1980). Points of error 11, 15, 18, and 19 are overruled.

In point of error 21, appellant contends that the district court erred in not instructing the jury on the question of a pretextual arrest. Appellant did not request such an instruction, however. Article 36.19 of the Code of Criminal Procedure contains the standards for both fundamental error and ordinary reversible error. Tex. Code Crim. Proc. Ann. art. 36.19 (1981). If no proper objection to the charge was made at the trial and the defendant claims that the error was "fundamental," the judgment will be reversed only if the error is so egregious and created such harm that the defendant "has not had a fair and impartial trial," i.e., "egregious harm." In this situation the actual degree of harm must be assayed in light of the entire jury charge, the state of the evidence, including the contested issues and weight of the probative evidence, the argument of counsel, and any other relevant information revealed by the record of the trial as a whole. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). Because appellant's arrest was not unlawful under the federal constitution, no harm exists in this cause. See Oliphant v. State, No. 844-90. Point of error 21 is overruled.

The judgment of conviction is affirmed.

 

[Before Chief Justice Carroll, Justices Aboussie and B.A. Smith]

Affirmed

Filed: February 26, 1992

[Do Not Publish]

1. Appellant has grouped points of error 11 through 20 together, and only specifically raises the state and federal constitutional provisions in point of error 11. We will reach the merits of the Fourth Amendment argument in appellant's combined argument under these points, but appellant has waived his argument under article I, section 9 of the Texas Constitution because he has neither separated his state constitutional argument into separate points of error nor provided any substantive analysis. McCambridge, 712 S.W.2d at 502 n.1.