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).