CODY ALAN MCADAMS v. THE STATE OF TEXAS--Appeal from 1st District Court of Jasper County

NUMBER 13-01-245-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI  B  EDINBURG

CODY ALAN McADAMS, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 1st District Court of Jasper County, Texas.

O P I N I O N

Before Justices Dorsey, Ya ez and Baird[1]

  Opinion by Justice Baird

Appellant was charged by indictment with the offense of burglary of a habitation. A jury convicted appellant of the charged offense and assessed punishment at twenty years confinement and a fine of $5,000.[2] Appellant raises three points of error. We affirm the judgment of the trial court.

I. Denial of Motion to Suppress Physical Evidence.

The first point of error contends the trial judge erred in denying appellant=s motion to suppress an overcoat taken from the home allegedly burglarized by appellant. This exhibit was recovered from appellant=s automobile following his arrest in Minnesota.

A. Factual Summary.

The complainant and his wife were in Florida from the end of December, 1996 until the middle of January, 1997. Upon returning to Jasper County, the complainant discovered his home had been burglarized, and several items were missing.[3] The complainant=s wife became suspicious of appellant, whose parents lived at the front of the complainant=s driveway. Through the use of binoculars, she spied appellant taking a black overcoat from his vehicle. This garment was distinctive because of its red satin lining. The complainant, without the use of a visual aid, also recognized the overcoat. The complainant then inventoried his closet and realized the overcoat in appellant=s possession had been taken during the burglary.

Officer Michael Rally subsequently arrested appellant in St. Cloud, Minnesota.[4] Following his arrest, appellant consented to the search of his vehicle. Upon a visual search, Rally observed the overcoat. However, the garment was not seized by Rally at that time. Appellant=s vehicle was released to Jennifer Stalnaker who later gave the overcoat to Rally. This garment was admitted into evidence as State=s exhibit 1.

B. Argument and Analysis.

Appellant argues the trial court erred in denying the motion to suppress the overcoat because the State failed to prove that appellant and Stalnaker voluntarily consented to the search of the vehicle. An appellate court reviews the trial judge's ruling whether to admit or exclude evidence under an abuse of discretion standard. Wilks v. State, 983 S.W.2d 863, 866 (Tex. App.BCorpus Christi 1998, no pet.). In conducting this review, we give almost total deference to a trial judge's determination of historical facts and application of law to fact questions that turn on credibility and demeanor, we then review de novo application of law to fact questions that do not turn upon credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). In other words, we give almost total deference to the trial judge in determining what the actual facts are, and then we review de novo whether those facts are sufficient to provide legal justification for obtaining the complained of evidence. Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001). Where the trial court does not make explicit findings of historical facts, we review the evidence in the light most favorable to the trial court's ruling. Walter v. State, 28 S.W.3d 538, 540 (Tex. Crim. App. 2000).

A voluntary consensual search is an exception to the warrant requirements of the Fourth Amendment to the United States Constitution and Article I, Section 9 of the Texas Constitution. Meeks v. State, 692 S.W.2d 504, 509 (Tex. Crim. App. 1985) (citing Schneckloth v. Bustamonte, 412 U.S. 218 (1973)); Kolb v. State, 532 S.W.2d 87, 89 (Tex. Crim. App. 1976). The State bears the burden of proving by clear and convincing evidence that the consent was freely and voluntarily given. State v. Ibarra, 953 S.W.2d 242, 245 (Tex. Crim. App. 1997). The issue of voluntariness is determined from the totality of the circumstances. Meeks, 692 S.W.2d at 510; Kolb, 532 S.W.2d at 90. While we defer to the trial court for fact findings, we review de novo whether consent was voluntary. Vargas v. State, 18 S.W.3d 247, 253 (Tex. App.BWaco 2000, pet. ref'd).

Prior to retrial, appellant raised the search by way of his Amotion to suppress physical evidence.@ No testimony was taken at the hearing on that motion. Instead, the parties were permitted to fully argue their respective positions. During trial, Officer Rally testified that he obtained permission from appellant to Alook through his vehicle,@ and saw the overcoat. Rally then testified about receiving the coat from Stalnaker:

Q. Now, later on did you receive State=s exhibit Number 1 from a young lady named Jennifer Stalnaker?

A. Yes, I did .

Q. Did she voluntarily give this to you?

A. Yes, she did.

. . .

Q. Did Ms. Stalnaker have control of [appellant=s] vehicle with his permission?

A. Yes, she did.

Q. Okay. And did she voluntarily give you this coat out of his vehicle?

A. Yes, she did.

The unrebutted testimony from Officer Rally was that both appellant and Stalnaker voluntarily consented to the visual search of the vehicle, and then surrendered the overcoat, respectively.

Appellant argues there is no showing that Rally advised Stalnaker that she did not have to surrender the overcoat. But that warning is not required by law. Roth v. State, 917 S.W.2d 292, 303 (Tex. App.BAustin 1995, no pet.). Moreover, an officer's testimony that consent was voluntarily given can be sufficient evidence to prove that it was. Martinez v. State, 17 S.W.3d 677, 683 (Tex. Crim. App. 2000); Allridge v. State, 850 S.W.2d 471, 492 93 (Tex. Crim. App. 1991); Alonzo v. State, 67 S.W.3d 346, 354 (Tex. App.BWaco 2001, pet. filed).

In addition to the authority cited above, we have reviewed the case relied upon by appellant, Sanchez v. State, 982 S.W.2d 929 (Tex. App.BAustin 1998, no pet.). We agree with the State that Sanchez is distinguishable from the instant case because Stalnaker was in possession of appellant=s vehicle. The law is clear that a third party may properly consent to a search when he or she has equal control over and authority to use the premises being searched. United States v. Matlock, 415 U.S. 164, 171 (1974); Becknell v. State, 720 S.W.2d 526, 528 (Tex. Crim. App. 1986). Consequently, the controlling issue is whether Stalnaker=s decision to surrender the overcoat was voluntary. For the reasons stated above, we resolve that issue adversely to appellant.

Accordingly, we hold the trial judge did not abuse his discretion in denying appellant=s motion to suppress the overcoat. The first point of error is overruled.

 II. Notice Required by Tex. Code Crim. Proc. Ann. art. 37.07  ' 3(g).

The second point of error contends the trial judge erred by permitting several witnesses to testify at the punishment phase because the State did not comply with the notice requirements of article 37.07, section 3(g) of the code of criminal procedure. Tex. Code Crim. Proc. Ann. art. 37.07 ' 3(g) (Vernon Supp.2002). That article provides:

On timely request of the defendant, notice of intent to introduce evidence under this article shall be given in the same manner required by Rule 404(b), Texas Rules of Criminal Evidence. If the attorney representing the state intends to introduce an extraneous crime or bad act that has not resulted in a final conviction in a court of record or a probated or suspended sentence, notice of that intent is reasonable only if the notice includes the date on which and the county in which the alleged crime or bad act occurred and the name of the alleged victim of the crime or bad act. The requirement under this subsection that the attorney representing the state give notice applies only if the defendant makes a timely request to the attorney representing the state for the notice.

Id. (emphasis supplied). Appellant invoked this section in a document entitled ARequest for Notice of Extraneous Offenses or Acts and Request for Court Order.@ The trial judge granted that request. Prior to any testimony being offered at the punishment phase of trial, defense counsel, referring to the italicized portion of the statute, stated he was not provided notice of the county or the name of the victim. The State responded that defense counsel had been provided via letter with a detailed chart cataloging the dates, the complaining witnesses, and the cities where the acts occurred, namely AKirbyville, and Buna and Jasper, all are in Jasper County.@ This chart also listed the property damage related to these offenses. The State also furnished defense counsel with a list of witnesses which included the victims of the extraneous acts. The trial judge overruled the objection and defense counsel admitted for purposes of the record the documents mentioned by the State.

As stated in Chimney v. State, 6 S.W.3d 681, 693 (Tex. App.BWaco 1999, no pet.): AThe purpose of article 37.07, section 3(g), is to avoid unfair surprise and trial by ambush. In other words, the purpose is to allow the defendant time to prepare for the State's introduction of the evidence of other bad acts at trial.@ Id. at 693. A trial court's rulings as to the admissibility of extraneous offense evidence are reviewed under an abuse of discretion standard. Mitchell v. State, 931 S.W.2d 950, 953 (Tex. Crim. App. 1996). Appellant does not claim surprise, nor provide any insight as to how he was surprised by the admission of the complained of punishment testimony. Brown v. State, 54 S.W.3d 930, 933 (Tex. App.BCorpus Christi 2001, pet ref=d) (discussing art. 37.07 sec. 3(g) in relation to victim impact evidence.). Indeed, it seems highly unlikely that appellant could have been surprised because these events were testified to at appellant=s first trial. See n.2, supra.

In light of the notice actually provided in the State=s letter and witness list, the fact that defense counsel had the reporter=s record from the first trial, and the lack of surprise, we hold the trial judge did not abuse his discretion in permitting the complained of witnesses to testify during the punishment phase of trial.[5] The second point of error is overruled.

III. Photographs of Damage to Religious Objects.

Also at the punishment phase, the State was permitted to admit, over appellant=s objection, several photographs of religious figures damaged by appellant and an accomplice. These photographs were admitted in connection with the extraneous offenses discussed in part II, supra. Appellant contends the trial court erred in admitting the exhibits because their probative value was substantially outweighed by the danger of unfair prejudice. Tex. R. Evid. 403.

As a general rule, a photograph is admissible if a verbal description of what is depicted in the photo is also admissible. Legate v. State, 52 S.W.3d 797, 806-07 (Tex. AppBSan Antonio 2001, pet. ref=d). Under this general rule, even autopsy photographs are admissible unless they depict mutilations of the victim due to the autopsy itself. Rojas v. State, 986 S.W.2d 241, 249 (Tex. Crim. App. 1998). We review a trial court's decision under rule 403 under an abuse of discretion standard. Salazar v. State, 38 S.W.3d 141, 151 (Tex. Crim. App. 2001).

In the instant case, at least two witnesses testified about the damage done in connection with the burglary of a Catholic church in Kirbyville. The complained of photographs were admitted and referred to when these witnesses described the damage sustained during the burglary. We have examined the photographs and hold that the trial court did not abuse his discretion in admitting these exhibits during the punishment phase of appellant=s trial. The third point of error is overruled.

The judgment of the trial court is affirmed.

CHARLES F. BAIRD

Justice

Do not publish.

Tex. R. App. P. 47.3.

Opinion delivered and filed this

the 20th day of June, 2002.

[1]Former Court of Criminal Appeals Judge Charles F. Baird assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov=t Code Ann. '74.003 (Vernon 1998).

[2]Appellant=s initial conviction for this offense was reversed. McAdams v. State, No. 09-98-303-CR (Tex. App.BBeaumont Apr. 21, 1999, pet. ref=d) (not designated for publication), 1999 WL 233525.

[3]The indictment alleged the burglary occurred on or about January 4, 1997.

[4] Appellate counsel states that ARally@is a misspelling; the witness=s actual name is Rowley. App. Br. pg. 12 n.1.

[5] In this point of error, appellant also complains of the admission into evidence of Aa racist letter from appellant to another inmate with an attached note to appellant from Lawrence Russell Brewer who was subsequently convicted in the >dragging death= of James Byrd, Jr., in Jasper County.@ App. br. pg. 20. Appellant contends this was evidence of a Abad act@covered by art. 37.03, sec. 3(g). However, appellant concedes that neither the letter nor appellant=s racial prejudice constitute a Abad act,@per se. We agree with the State that this evidence was more akin to character evidence, and appellant was not entitled to notice under article 37.07, section 3(g). Beasley v. State, 902 S.W.2d 452, 456 (Tex. Crim. App. 1995); Hardaway v. State, 939 S.W.2d 224, 226 (Tex. App.BAmarillo 1997, no pet.); Thornton v. State, 925 S.W.2d 7, 13 (Tex. App.BTyler 1994, pet. ref'd).