Bobbie Gene Turner v. The State of Texas--Appeal from 85th District Court of Brazos County

IN THE

TENTH COURT OF APPEALS

No. 10-92-127-CR

BOBBIE GENE TURNER,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 85th District Court

Brazos County, Texas

Trial Court # 20,441-85

O P I N I O N

A jury found Bobbie Gene Turner guilty of burglary of a habitation and assessed punishment at ninety-nine years. He appeals on eight points.

" The evidence is insufficient to establish that he was the perpetrator.

" The evidence is insufficient to show that he attempted to steal or did steal a Nintendo control board.

" The court erred in excusing juror Leatherwood for cause.

" The court erred in denying his motion to suppress the admission of the gloves found in his car.

" The court erred in allowing officer Pope to express an opinion on the comparison of a boot heel impression found at the scene and Turner's boot heel.

" The evidence is insufficient to establish the first enhancement paragraph.

" The evidence is insufficient to establish the second enhancement paragraph.

" The court erred in admitting, over Turner's objection, exhibit 21, a copy of a resentencing nunc pro tunc judgment that names Turner as the defendant.

On April 19, 1991, about noon, Georgia Dozier discovered that her home had been burglarized. She called her husband, Jan, and the police to report the burglary. When Jan arrived home he discovered that the back door was open and his house had been ransacked. Upon his initial search of the home, he found that several items had been taken, including three handguns, three rifles, a shotgun, some loose change and a video game control board.

Jan searched his yard and found boot tracks. He followed the tracks to a fence on the edge of his property. He found the guns and a pillow case taken from his son's room lying inside the fence line. In the pillow case he found a pair of white cotton work gloves that had black rubber dots on the fingers. The gloves did not belong to Jan.

The police staked-out the area where the stolen property was discovered on the theory that the burglar would return after dark to retrieve the property. At 8:30 p.m. a white Chrysler, driven by Turner, stopped on the highway. The car's engine and headlights were turned off. Turner then leaned forward towards the glove box where the trunk release was located.

Turner got out of his car and walked to the rear and urinated. He then walked to the fence directly toward the area where the stolen property was found. He grabbed the fence wire and looked to his right and left. He was then arrested. He told the police that he had pulled off the road to have a bowel movement.

Detective Pope, the lead investigator in the case, secured Turner's car. Pope found that the latch to the trunk had been released. After Turner consented to a search of the car, Pope found thirty white cotton gloves in the trunk similar to those found in the pillow case.

Plaster casts were made of the boot tracks found in the Doziers' yard. The casts were compared to Turner's boots. Pope testified that the boots and the plaster casts showed the same wear pattern. Although the plaster-cast impressions were somewhat smaller than the actual boot heel, Pope attributed the discrepancy to the expansion and contraction of the soil after the heel track was made. He also testified that, in his opinion, the tracks were made by Turner's boots.

In his first point, Turner contends that the evidence was insufficient to show that he was the perpetrator of the offense. The standard for reviewing sufficiency of the evidence is whether a rational trier of fact could have found all the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 316, 99 S. Ct. 2781, 2787, 61 L. Ed. 2d 560 (1979); Geesa v. State, 820 S.W.2d 154, 157 (Tex. Crim. App. 1991).

Here, the combined and cumulative force of all the evidence focuses only on Turner as the burglar. He parked his car, after dark, only yards away from where the property was found. He apparently activated the trunk release before getting out of his car. He walked a straight line from his car to within feet of where the property was hidden, looking to his left and right before crossing the fence. Inside his car's trunk were thirty white cotton work gloves that matched the gloves found inside the pillow case taken from the Dozier home. He was wearing boots whose wear patterns matched the tracks made in the Doziers' back yard by the burglar. Also, Turner told the officers that he stopped to go to the bathroom but never restated that desire.

Any rational trier of fact could have found beyond a reasonable doubt that Turner entered the Dozier home wearing a pair of white cotton gloves obtained from those located in the trunk of his car. The jury had an opportunity to compare the gloves found in the pillow case with those found in the trunk. A rational juror could have found that Turner carried the stolen property to the fence line and secreted it there so that he could retrieve it after dark. Moreover, any rational juror could have found that Turner opened his trunk in preparation for retrieving the property to reduce his exposure time. Finally, any rational juror could have found Turner's explanation for being at the fence untenable because at no time during the investigation did he again indicate a need to relieve himself. Thus, a rational trier of fact could have found Turner guilty of the burglary beyond a reasonable doubt. See Jackson, 99 S. Ct. at 2787. The evidence is sufficient to support his conviction. We overrule the first point.

Turner's second point is that the evidence was insufficient to prove that he attempted to steal or did steal a "Nintendo control board" as required by the charge to the jury. The actual game board taken from the Doziers' home was a Sega control board. However, several times during the trial Jan referred to the control board as a "Nintendo control board." Such conflicts in evidence will not call for a reversal of the conviction if there is enough credible testimony to support the conviction. Losada v. State, 721 S.W.2d 305, 309 (Tex. Crim. App. 1986). Contradictions in evidence are to be resolved by the jury and that jury may believe some of the witnesses and not others and may believe parts of a witness' testimony and not other parts. Id.

There is enough credible testimony to determine that a game control board was taken from the Dozier home. We must then ascertain whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Geesa, 820 S.W.2d at 157. A reasonable jury could have concluded, beyond a reasonable doubt, that Jan was using the word "Nintendo" as a generic term for a game control board just as a person might use "Xerox" to mean a copy or "Kleenex" to mean a tissue. We overrule the second point.

In his third point, Turner argues that the court erred in excusing juror Leatherwood for cause. Turner contends that Leatherwood was convicted of theft and successfully completed his probationary period, and was therefore qualified to serve on the jury. A potential juror convicted of theft is eligible for jury service if he has been released from all penalties and disabilities associated with the conviction. Payton v. State, 572 S.W.2d 677, 679 (Tex. Crim. App. 1978).

In the present case, the record shows, by a preponderance of the evidence, that Leatherwood was convicted of theft and placed on probation. See Hernandez v. State, 757 S.W.2d 744, 753 (Tex. Crim. App. 1988) (finding that the burden of the party seeking exclusion for cause of a prospective juror is by a preponderance of the evidence). However, the record does not establish that he successfully completed his probationary term and that his conviction was set aside and the case dismissed. Consequently, Turner has failed to establish that Leatherwood's exclusion for cause was improper. Point three is overruled.

In his fourth point, Turner argues that the court erred in denying his motion to suppress the admission of the gloves found in the trunk of his car. He asserts that his arrest was illegal, and, therefore, the gloves found inside his car should have been inadmissible at trial as fruits of an illegal arrest.

Investigative stops must be justified by some specific and articulable facts, in light of a police officer's experience and personal knowledge, taken together with rational inferences from those facts, which would reasonably warrant intrusion upon a person's freedom. Hawkins v. State, 758 S.W.2d 255, 259 (Tex. Crim. App. 1988). Here, Turner walked a straight line from his car to the fence where the stolen property was located. He grabbed the fence wire and stuck his head through the wire and looked to his right and left. He was in the area after dark. Moreover, he gave the officers consent to search his car. Officer Pope found that Turner's trunk had already been opened, and when he searched it he found thirty gloves identical to the pair found in the stolen pillow case. Pope also observed that Turner had on boots with heels similar to the heels that left tracks in the Doziers' yard. After a radio check, the officers discovered that Turner had outstanding Department of Public Safety warrants for his arrest. These facts are specific and articulable and reasonably warranted an intrusion on Turner's freedom. Thus, the stop of Turner was justified under the Hawkins rule.

A detention for investigatory purposes must be temporary and last no longer than necessary to effect the progress of the stop. Ussery v. State, 651 S.W.2d 767, 770 (Tex. Crim. App. 1983). Here, Turner was detained only long enough to determine that he was wanted under outstanding warrants and for the officers to develop probable cause that Turner committed the burglary. Thus, the arrest was proper.

The search of Turner's car was consensual. That a person is under arrest at the time he consents to a search does not preclude a free and voluntary consent. Juarez v. State, 758 S.W.2d 772, 775 (Tex. Crim. App. 1988). The record does not reflect that Turner's consent was involuntary. See Schneckloth v. Bustamonte, 412 U.S. 218, 2271, 93 S. Ct. 2041, 2048, 36 L. Ed. 2d 854 (1973). Therefore, the search was proper. Because the arrest and the subsequent search were proper, the court correctly refused to suppress the gloves found in Turner's trunk. We overrule the fourth point.

Turner's fifth point of error is that the court erred in allowing Officer Pope to express an opinion on the comparison of the boot-heel impression and Turner's boot heel. Rule 701 of the Texas Rules of Criminal Evidence states:

If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.

Tex. R. Crim. Evid. 701. Thus, a lay witness may give his opinion as long as it is rationally based on his perception and is helpful to the determination of a fact in issue. Id.; Young v. State, 803 S.W.2d 335, 337 (Tex. App. Waco 1990), rev'd on other grounds, 830 S.W.2d 122 (Tex. Crim. App. 1992). Here, Pope's opinion was rationally based on his first-hand comparison of Turner's boot-heel and the boot heel tracks in the Doziers' yard. Furthermore, his opinion was helpful to the jury to determine a fact issue in the case. Thus, Pope's opinion that the boot heel and the track matched was properly admitted. We overrule the fifth point.

In his sixth and seventh points, Turner argues that the evidence is insufficient to sustain the first and second enhancement paragraphs. He acknowledges that there may have been more to the various exhibits entered on punishment, but they are absent from the record. The burden is on the party seeking review to see that a sufficient record is presented to show error requiring reversal. Tex. R. App. P. 50(d); State v. Pierce, 816 S.W.2d 824, 831 (Tex. App. Austin 1991, no writ). Because Turner is the party seeking review he had the responsibility to produce an adequate record, including the exhibits, to demonstrate that the case requires reversal. Furthermore, Turner failed to support his claims with arguments, authorities, or references to the record as required by the Rules of Appellate Procedure. See Tex. R. App. 74(f); Baucom v. Crews, 819 S.W.2d 628, 631 (Tex. App. Waco 1991, no writ). Generally, a presumption exists on appeal that all rulings of the trial court are correct and any omission in the record supports the court's judgment. Pierce, 816 S.W.2d at 831. Thus, we must presume that there is sufficient evidence to support the enhancement paragraphs. We overrule points six and seven.

Turner's eighth point is that the court erred in admitting State's exhibit 21 over his objection. As in points six and seven, because Turner did not present this court with a sufficient record, we cannot determine whether the evidence was properly admitted. See id. Therefore, we overrule his eighth point.

We affirm the judgment.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed January 6, 1993

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