Kerry Young, Jr. v. The State of Texas--Appeal from 331st District Court of Travis County

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-90-147-CR
KERRY YOUNG, JR.,

APPELLANT

 
vs.
THE STATE OF TEXAS,

APPELLEE

 
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT
NO. 98,500, HONORABLE BOB PERKINS, JUDGE

PER CURIAM

A jury found appellant guilty of aggravated robbery. Tex. Pen. Code Ann. 29.03 (1989) [since amended]. The district court assessed punishment, enhanced by a previous felony conviction, at imprisonment for sixty years. Appellant voluntarily waived the assistance of counsel on appeal. Hubbard v. State, 739 S.W.2d 341 (Tex. Cr. App. 1987).

Shortly before midnight on July 10, 1989, appellant entered a grocery store on Berkman Drive in Austin and, armed with a pistol, robbed the manager. A witness to the robbery stopped a passing police car. After speaking to the store manager and witnesses, the officer made a radio dispatch advising of the robbery, describing the robber and the car in which he was travelling. A vehicle matching the description of the suspect car was immediately seen by other officers who were patrolling the neighborhood near the store. After a brief chase, the car was stopped in an apartment complex parking lot. The driver of the car, Lloyd Kyle, was arrested at the scene. Appellant fled, dropping the bag of money taken in the robbery. Appellant was arrested two days later. Appellant does not challenge the sufficiency of the evidence.

The car was searched after Kyle was arrested. A wallet containing an identification card issued to appellant was found in the front seat. A yellow shirt like that worn by the robber and another wallet were found in the back seat. Inside this wallet were photographs of appellant and papers bearing appellant's name. In the glove compartment were several envelopes addressed to appellant and a traffic citation issued to appellant. In his fourth point of error, appellant contends the district court erred in admitting these items in evidence.

The information received at the scene of the robbery and their own observations clearly gave the police probable cause to believe that the automobile contained fruits and other evidence of the crime. Thus, the warrantless stop and search of the automobile was lawful. Chambers v. Maroney, 471 U.S. 386 (1970); Delgado v. State, 718 S.W.2d 718, 723 (Tex. Cr. App. 1986). Contrary to appellant's argument, the police had probable cause to believe that the identification card, photographs, and envelopes were evidence identifying the suspect who fled.

Appellant also complains of the introduction of a pistol seized during another search of the automobile conducted at the impound lot on July 13, two days after the robbery. This pistol was identified at trial as being identical to the weapon wielded by appellant during the robbery. We find that this search was also lawful. The probable cause to search still obtained, and there is no requirement that a car be searched contemporaneously with its lawful seizure. United States v. Johns, 469 U.S. 478, 484 (1985); Texas v. White, 423 U.S. 67 (1975); Chambers v. Maroney, supra. The point of error is overruled.

In point of error one, appellant contends he was not served with a certified copy of the indictment. Tex. Code Cr. P. Ann. art. 25.01 (1989). In point of error two, appellant contends he was not allowed ten days to file written pleadings. Tex. Code Cr. P. Ann. art. 27.12 (1989).

The record reflects that appellant was on bail for this offense at the time the indictment was presented. Thus, it was not necessary to serve him with a copy. Tex. Code Cr. P. Ann. art. 25.03 (1989). Because appellant was not entitled to be served with a copy of the indictment, art. 27.12 does not apply. We also note that appellant's trial counsel was appointed four months before trial, and there is no contention that counsel was not afforded adequate time to prepare. Points of error one and two are overruled.

In point of error three, appellant urges that the indictment was defective because it failed to allege that the offense was committed at a place within the jurisdiction of the district court. Appellant did not object to the indictment on this ground. Tex. Code Cr. P. Ann. art. 1.14(b) (Supp. 1991). The contention is without merit in any event, as the indictment alleges that the offense was committed "in the County of Travis, and State of Texas." The point of error is overruled.

In point of error five, appellant complains that the affidavit supporting the issuance of the warrant for his arrest contained a false statement of fact. Assuming this to be true, and further assuming that appellant's arrest was unlawful as a result, reversible error is not presented because it does not appear that the arrest led to the seizure of any evidence introduced at trial. Keen v. State, 626 S.W.2d 309, 314 (Tex. Cr. App. 1981).

Finally, appellant argues that he did not receive effective assistance of counsel at trial. In support of this contention, appellant merely asserts that counsel did not interview him, investigate the facts, or interview witnesses. These assertions are not supported by the record. The sixth point of error is overruled.

 

The judgment of conviction is affirmed.

 

[Before Justices Powers, Aboussie and Kidd]

Affirmed

Filed: August 14, 1991

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