Renard Keith Morgan v. State

cr4-574.morgan TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-94-00574-CR NO. 03-94-00575-CR Renard Keith Morgan, Appellant v. The State of Texas, Appellee FROM THE DISTRICT COURT OF DALLAS COUNTY, 265TH JUDICIAL DISTRICT NOS. F94-53626-LR & F94-53625-MR, HONORABLE KEITH DEAN, JUDGE PRESIDING PER CURIAM After a bench trial, Renard Morgan was convicted of burglary of a building and unlawful possession of cocaine. (1) The court found an enhancement paragraph true in each case and sentenced him to ten years' confinement in each case. Morgan raises a point of error against each conviction. We will affirm the judgments of the trial court. BACKGROUND Joanne Tyner looked out her kitchen window and saw a man walking in the alley behind her house. She never saw his face, but noted his denim jacket with colorful patches. When the man climbed over her neighbor's fence, she called the police. As she watched, the man went into her neighbor's storage shed, took four silver tire rims, climbed out of the yard, and walked to the next house. The police came within eight minutes. They soon came back by the house with two men, one of whom was wearing the same jacket as the burglar. When the policeman stood behind the men one at a time, Tyner identified the man in the jacket as the burglar. Bennie Hayes owned the shed. She testified that the tire rims had been inside the shed. She also testified that the shed door had been closed. Verl Tramel, the arresting officer, testified that, upon his arrival, Tyner directed him to the location of the stolen property and described the burglar. As he left the yard where the stolen property was, he saw Morgan coming around another house with a man. When Tramel was within forty feet of the men, Morgan dropped a small camera case to the ground. Morgan and his jacket matched the description Tyner had given. Tramel detained both men. When he took them by Tyner's house, she twice identified Morgan as the burglar. Tramel picked up the camera case and arrested Morgan. At the police substation, Tramel looked inside the camera case and saw a piece of crack cocaine in a brown medicine bottle inside the case. His field test showed the presence of cocaine. Subsequent laboratory tests confirmed that the case contained 3.4 milligrams of cocaine. DISCUSSION By point of error one, Morgan contends that insufficient evidence supports the conviction for the burglary of a building. In determining the legal sufficiency of the evidence to support a criminal conviction, the question is whether, after viewing all the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991); Griffin v. State, 614 S.W.2d 155 (Tex. Crim. App. 1981). The indictment charged that Morgan unlawfully, knowingly, and intentionally entered a building without the effective consent of Hayes, the owner, and committed and attempted to commit theft. The court found him guilty of burglary. Morgan primarily challenges the identification evidence. Courts have upheld convictions when eyewitnesses' identification testimony is based on the clothing the criminal wore rather than particular facial features; such concerns go to the weight of the testimony. See Moore v. State, 700 S.W.2d 193, 198 (Tex. Crim. App. 1985); Garza v. State, 633 S.W.2d 508, 512-13 (Tex. Crim. App. 1982); Sanchez v. State, 705 S.W.2d 304, 305 (Tex. App.--San Antonio 1986, no pet.). Tyner identified Morgan within minutes of watching the theft. The brief interval between seeing the burglary and identifying the burglar adds weight to the identification. The Sanchez court found such evidence legally sufficient to support the identification. 705 S.W.2d at 305. The State also proved the remaining elements. Though Tyner did not see him remove the rims from the building, she saw him (empty-handed) enter the yard by climbing over the fence and emerge from the yard carrying the rims, which Hayes said had been inside the closed building. A reasonable factfinder could find all the essential elements beyond a reasonable doubt. The evidence is legally sufficient. We overrule point one. By point two, Morgan complains that the court erred by denying his motion to suppress the admission of the cocaine. He argues that, since the officer had no reason to arrest him, the seizure of the camera case was tainted and the court should not have admitted the evidence. The State contends that the property was admissible as abandoned evidence. See Hawkins v. State, 758 S.W.2d 255, 257 (Tex. Crim. App. 1988). Police can take possession of abandoned property without impinging on Fourth Amendment rights. See U.S. Const. amend. IV; Hawkins, 758 S.W.2d at 257. The abandonment must be intentional and voluntary. Id. at 257. It cannot be the product of police misconduct such as illegal arrest. Id. at 257-58. The evidence in this case shows the police properly took possession of the camera case. There is no evidence of police misconduct. The evidence shows that Morgan abandoned the camera case upon seeing the officer; there is no indication that the officer had spoken to Morgan, much less detained, restricted, or arrested him. The policeman's actions here were less intrusive than those found not to be a stop in Michigan v. Chesternut, 486 U.S. 567 (1988); see also California v. Hodari D., 499 U.S. 621, 627-28 (1991) (persons not "seized" until they yield to show of force); Johnson v. State, No. 1340-93 (Tex. Crim. App. June 28, 1995) (holding that Hodari D. analysis applies to Texas constitutional provision). In Chesternut, the court reaffirmed that a person is seized within the meaning of the Fourth Amendment only if, in view of all the circumstances, a reasonable person would have believed that he was not free to leave. 486 U.S. at 573. Chesternut began to run upon seeing a marked police car. The officers followed him in their car at a slow pace without speaking to him or turning on the siren. As they pulled their car up beside him, the officers saw him discard a number of packets which turned out to contain narcotic pills. The court held that, though the trailing police car may have intimidated him, Chesternut had not been seized. 486 U.S. at 574-75. Like Chesternut, Morgan intentionally and voluntarily abandoned the evidence upon seeing the police, uninfluenced by any police misconduct. The court did not err in failing to exclude the evidence on that basis. We overrule point two. CONCLUSION We affirm the judgments of the trial court. Before Justices Powers, Kidd and B. A. Smith Affirmed on Both Causes Filed: August 23, 1995 Do Not Publish 1. The statutes violated have since been amended. Burglary: Penal Code, 63d Leg., R.S. ch. 399, sec. 1, § 30.02, 1973 Tex. Gen. Laws 883, 926 (Tex. Penal Code Ann. § 30.02, since amended); possession: Controlled Substances Act, 71st Leg., R.S., ch. 678, sec. 1, § 481.115, 1989 Tex. Gen. Laws 2230, 2936-37 (Tex. Health & Safety Code § 481.115, since amended).