Petition — Duncantell v. Texas

kL, AD

JUN 26 j978

MICHAEI RO } K IR CLERK |

~ ’ ‘?

UNITED STATES SUPREME COURT

OVIDE DUNCANTELL, JR., §

Petitioner §

§

Vv. § Number

§

THE STATE OF TEXAS, § 77> ] 83 ]

Respondent §

PETITION FOR WRIT OF CERTIORARI

TO THE COURT OF CRIMINAL APPEALS OF TEXAS

Submitted by:

Peter D. Williamson

821 Americana Building

Houston, Texas 77002

(713) 751-0222

Attorney for Petitioner

Of Counsel:

Jesse Funchess

Attorney at Law

6203 Del Rio

Houston, Texas 77021

(713) 747-2991

TABLE OF CONTENTS

(Subject Index)

Table of Cases.

Citation to Lower Court Opinion -

Time Limitations.

Statement of Jurisdiction -

Questions for Review-

1. Whether or not the scope of the

search of an automobile stopped

for a traffic offense, extends

into matchboxes located upon the

automobiles dashboard.

2. Whether the prosecutor's use of

peremptory strikes to remove all

black people from the jury panel

deprives a black defendant of his

right to due process of law and

equal protection of the laws.

Constitutional Provisions

Statement of the Case

Argument and Authorities.

Question l

Question 2

Conclusion.

Certificate of Service.

Opinion of the Court of Criminal

Appeals of Texas

Majority Opinion

Dissenting Opinion

Denial of Rehearing by Court of

Criminal Appeals of Texas -

TABLE OF CASES

Akins v. Texas

325 U.S. 398 (1945).

Carroll v. United States

267 U.S. 132 (1925).

Cassell v. Texas

339 U.S. 282 (1950).

Chambers v. Maroney

399 U.S. 42 (1970)

Chimel v. California

395 U.S. 752 (1969).

Davis v. Mississippi

394 U.S. 721 (1969).

Gustafson v. Florida

414 U.S. 260 (1973).

Hernandez v. State

347 U.S. 475 (1954).

Hill v. Texas

316 U.S. 400 (1942),

Pace v. Beto

469 F.2d 1389 (Sth Cir. 1972).

Ross v. Texas

341 U.S. 918 (1951).

Smith v. Texas

311 U.S. 128 (1940).

Terry v. Ohio

392 U.S. 1 (1968).

United States v. Robinson

414 U.S. 218 (1973).

ii

PAGE

IN THE UNITED STATES SUPREME COURT

OVIDE DUNCANTELL, JR., Jf

Petitioner I

v. { NUMBER

THE STATE OF TEXAS, LI

Respondent I

PETITION FOR WRIT OF CERTIORARI

TO THE HONORABLE SUPREME COURT OF THE UNITED

STATES:

Now comes the Petitioner, Ovide Duncantell, Jr.,

pursuant to Rule 23 of the Supreme Court Rules,

and submits this Petition for Writ of Certiorari,

asking the United States Supreme Court to review

a decision by the Court of Criminal Appeals of

Texas.

LOWER COURT OPINION

At the time of this Petition, the opinion of

the Court of Criminal Appeals of Texas has not

been published. A true copy thereof is attached

and appended hereto as provided in Rule 23 (i).

TIME LIMITATIONS

The opinion of the Court of Criminal Appeals of

Texas, of which the Petitioner complains was de-

livered on March 15, 1978. Thereafter, a Motion

for Leave to File a Motion for Rehearing was

filed with the Court of Criminal Appeals, which

Motion for Leave to File was denied on April 5,

1978.

# + oe 08 bee! M, a

JURISDICTION OF THIS COURT

Petitioner would show that this Court has juris-

diction to review the Judgment in question by

Writ of Ceriiorari, pursuant to 28 U.S.C. 1257(3).

QUESTIONS FOR REVIEW

There are two questions for review presented in

this cause:

First, whether or not the scope of the search

of an automobile stopped for a traffic offense,

extends into matchboxes located upon the auto-

mobile's dashboard.

Second, whether the prosecutor's use of per-

emptory strikes to remove all black people from

the jury panel deprives a black defendant of his

right to due process of law and equal protection

of the laws.

CONSTITUTIONAL PROVISIONS INVOLVED

The defendant relies on the Fourth Amendment to

the United States Constitution, forbidding unrea-

sonable searches and siezures.

The defendant relies upon the Fifth and Four-

teenth Amendments to the Constitution of the

United States, which guarantee him the right to a

fair trial and to due process and equal protection

of the law.

AMENDMENT IV: "The right of the people to

be secure in their persons, houses, papers,

and effects, against unreasonable searches

and seizures, shall not be violated, and no

Warrants shall issue, but upon probable

afin

cause, supported by Oath or affirmatio

particularly describing the place to ie’ an

searched, and the persons or things to be

seized."

AMENDMENT V: "No person shall...be de-

prived of life, liberty, or property

without due process of law;..."

AMENDMENT XIV: "Section 1...Nor shall any

State deprive any person of life, liberty,

or property, without due process of law;

nor deny to any person within its juris-

diction the equal protections of the laws."

STATEMENT OF THE CASE

The petitioner was a black man, well known in

this community for his protests against racial

discrimination. He was a candidate for city coun-

cil in the Houston municipal elections to be held

shortly after the date of his arrest.

Late at night, the car driven by the petitioner

was stopped for a traffic violation. A melee

ensued. The petitioner was removed from his car,

and was on the ground handcuffed. Only then did

an officer search the petitioner's car. Upon the

dashboard he found a matchbox containing marijuana.

The officer testified that he was not in danger,

but that he was looking for weapons or evidence.

The Trial Court overruled the motion to suppress

this evidence; and a divided Court of Criminal

Appeals sustained the validity of this search.

Petitioner then complains that during the

period of voir dire of the jury, the prosecutor

used his peremptory challenges to strike all quali-

ate

ee

fied black people from the jury panel. Counsel

for the petitioner complained immediately to the

Trial Judge. The Trial Judge curtly overruled

the objection, and did not permit the petitioner's

counsel to inquire of the prosecutor as to the

reasons for his having struck the black people

from the jury. Petitioner claims that this pro-

cedure violated his right to a fair trial an’ vio-

lated his right to due process and equal protection

of law, because he was not even permitted to in-

quire as to the reasons for the use of the per-

emptory challenges in this manner by the govern-

ment.

Insofar as the Fourth Amendment claim of the

petitioner is concerned, the petitioner filed a

motion to suppress the evidence in the Trial

Court. This motion was ruled upon at a separate

hearing outside the presence of the jury, during

the trial, and was overruled. The motion was

based upon the Fourth Amendment to the United

States Constitution. Ia the Appeal to the Court

of Criminal Appeals of Texas, the complaint of

the illegal search was again raised and discussed,

having been briefed by both sides and having been

ruled upon the Court of Criminal Appeals.

With reference to the matters involved in this

search, the attention of this Court is drawn to

the following portions of the statement of facts:

page 154, line 19 to page 214, line 4.

abe

With reference to the portion of the record in

the Court below concerning the peremptory chal-

lenges, at the time it became obvious that the

State had used its peremptory challenges to re-

move all black persons from the jury panel, appel-

lant's counsel complained loudly and vociferously.

Counsel attempted to place before the trial judge

inquiries of the prosecutor, as to the reasons for

his having removed all black persons from the jury

panel. Counsel referred to the due process and

fair trial provisions of the United States Consti-

tution. See statement of facts at page 73, line

1 through page 75, line 24.

ARGUMENT AND AUTHORITIES

Question for Review Number One (restated):

Whether or not the scope of the search of an auto-

mobile stopped for a traffic offense extends into

matchboxes located upon the automobile's dashboard.

The Court of Criminal Appeals of Texas erred in

upholding the warrantless search. The petitioner's

automobile was stopped for a traffic offense,

speeding. There was no probable cause for a search.

Carroll v. United States, 267 U.S. 132 (1925);

Chambers v. Maroney, 399 U.S. 42 (1970). There

were no fruits or instrumentalities of the speecing

offense, for which there was probable cause to

search.

Officér Miller of the Houston Police Department

testified that in the early morning hours of

o$=

November 12, 1971, he saw the petitioner's auto-

mobile pull onto Dowling Street in Houston,

driving without lights. A minute or so later,

the driver turned on his lights, and began speeding

--47 miles per hour in a 30 mile per hour zone.

Officer Miller, in a marked patrol car, attempted

to stop petitioner's vehicle by use of lights and

Siren. After several blocks, petitioner stopped

his vehicle.

According to the officers’ testimony, Officer

Miller and Officer Trumble (Miller's partner)

approached petitioner's vehicle on foot. The

officers testified that a struggle ensued and

petitioner was removed from his car by the two

policemen. Petitioner was placed on the ground

in a prone position, and handcuffed.

During the struggle, Officer Trumble had

placed an "officer assist" call-on the police

radio.

Officer M. L. Bell then arrived. The Petitioner

was on the ground, handcuffed, and "all the strug-

gling had just about ceased." (S.F. p. 155, 1. 25).

Bell then searched the Petitioner's automobile and

located a penny matchbox of marijuana on the left

front dashboard. (S.F. p. 156, 1. 8-14).

Bell testified that he searched the car, looking

"for weapons and the evidence to be used against the

defendant." (S.F. p. 156, 1. 18-21).

"Q: ...You were not looking for any weapons

abe

in order to protect your safety or the

safety of the other officers that were

out there; were you?

"A: No sir, I wasn't in fear of my life."

(S.F. p. 166, 1. 2-6).

At some point during Officer Miller's contact

with the petitioner, after the initial stop and

before the petitioner was taken to the hospital

after the arrest, he testified that he smelled

alcohol on the petitioner's breath. (S.F. p. 98,

l. 16-25). The petitioner was given a breath-

alyzer test, and blew 0.07 per cent.

A search without a warrant is reasonable in

scope, only if that scope is limited to the pur-

pose for which its initiation is justified. The

police officers testified that they smelled alco-

hol on the petitioner's breath. Subsequently,

they gave him a breathalyzer examination. Under

the law, that would have permitted them to search

for alcoholic beverages. But there is no alcohol

to be found in a penny matchbox.

The officers testified that this was not a

protective search for weapons. At the time of the

search, the appellant was outside the car, on the

ground, handcuffed. See Terry v. Ohio, 392 U.S.

1 (1968). The officers further testified that

they were not in fear for their lives at the time

the search was conducted. Even so, there would

not be a gun in a matchbox. Pace v. Beto, 469 F.

2d 1389 (Sth Cir., 1972). It is significant that

aje

<a EI eee

.

the search conducted by the officers, which led

to finding the contraband, was not a search of the

petitioner's person. Terry v. Ohio, supra;

United States v. Robinson, 414 U.S. 218, 224 (1973);

Gustafson v. Florida, 414 U.S. 260 (1973).

Nor was it a search of the area within his control.

The State has not justified the scope of this

search. The area searched was not under the

petitioner's control. It did not have the purpose

of preventing him from obtaining weapons or des-

troying evidence. In scope, it went beyond where

he could possibly reach. Chimel v. California,

395 U.S. 752 (1969).

For these reasons, the search violated the

Fourth Amendment to the United States Constitution,

and the evidence seized as a result thereof was

inadmissable at the trial. Davis v. Mississippi,

394 U.S. 721 (1969).

Question for Review Number Two (restated):

Whether the prosecutor's use of peremptory strikes

to remove all black people from the jury panel

deprives a black defendant of his right to due

process of law and equal protection of the laws.

Petitioner argues that he was deprived of his

right to a fair trial and his right to due process

of law, when the State used seven of its ten per-

emptory challenges to systematically eliminate all

black persons from the jury. Following the voir

dire, and after the various challenges for cause

-8-

and peremptory strikes had been made, the petitioner

complained to the Court of the systematic exclusion

of the blacks from the jury by the State. As

defense counsel stated,

"Let the record reflect that after the final

voir dire examination and the various chal-

lenges for cause had been made, that the

following jury composition of prospective

jurors and jury panel was composed of seven

blacks, the record further state that the

defendant nor his counsel struck any blacks,

that the State used seven of its ten per-

emptory challenges to eliminate all seven

black off of the jury. The basis upon

such facts that this is systematic exclu-

sion of blacks from the jury, and as such

is denying the defendant, Mr. Ovide

Duncantell, a jury of his peers through

the systematic exclusion of blacks by

use of the peremptory challenges, and as

such the defendant, Ovide Duncantell, is

being denied a fair and impartial trial

by the members of his peers. At this time

we challenge the jury and ask the Court

to discharge the jury based upon the action

of the district attorney.

"THE COURT: Defendant's motion is over-

ruled.

"MR. CALDWELL: Please note our exception.

"THE COURT: It is unsupported by any

evidence.

"MR. CALDWELL: May we put on some evidence,

Your Honor?

"THE COURT: What?

"MR. CALDWELL: May we put on some evidence?

"THE COURT: Overrule your objection. Bring

in the jury." (S.F. pp. 74-75).

The prosecuiing attorney dia not object nor

even contest the challenge that he had system-

aticallv eliminated all seven of the black persons

from the jury panel. The Court of Criminal

Appeals of Texas took the position that the parties

may use their peremptory strikes in any way they

wish, without any review whatso.ver. The peti-

tioner complains that this misuse of a system is

analagous to the elimination of black persons and

persons of Mexican-American descent from grand and

petit juries. Hernandez v. State, 347 U.S. 475

(1954); Smith v. Texas, 311 U.S. 128 (1940); Hill

v. Texas, 316 U.S. 400 (1942); Cassell v. Texas,

339 U.S. 282 (1950); Ross v. Texas, 341 U.S. 918

(1951).

It is not the petitioner's contention that he

has a right to be tried by any particular jury, or

that he has a right to be tried by a jury containing

black people. But he does have a right to be tried

by a jury from which members of his race, as a

race, have not been intentionally excluded or

limited. See Justice Murphy dissenting in Akins

v. Texas, 325 U.S. 398 (1945).

The petitioner contends that the Court erred in

not permitting him to go forward with his proof or

his offer of proof on this question. As in the

Hill case, supra, the petitivuer made out a prima

facie case of denial of equal protection, which

the State failed to meet.

-10-

CONCLUS ION

For these reasons, the Petition for Writ of

Certiorari should be granted.

Respectfully submitted,

Peter D. Williamson

Attorney for Petitioner

821 Americana Building

Houston, Texas 77002

(713) 751-0222

Of Counsel:

Jesse Funchess

Attorney at Law

6203 Del Rio

Houston, Texas 77021

(713) 747-2991

CERTIFICATE OF SERVICE

I hereby certify that a true copy of the fore-

going Petition for Writ of Certiorari has been

sent by United States mail, certified, return re-

ceip® requested, postage prepaid, addressed to:

Hon. Carol Vance

Harris County District Attorney

Harris County Courthouse

Houston, Texas 77002

this day of ,» 1978.

Peter D. Williamson

Member of the Bar

United States Supreme Court

aiie

OPINION OF THE COURT OF

CRIMINAL APPEALS OF TEXAS

OVIDE DUNCANTELL, JR.,

NO. 51,749, v. --- Appeal from Harris County

THE STATE OF TEXAS, Appellee

OPINION

This is an appeal from a conviction for pos-

session of marihuana. The jury assessed punish-

ment at seven years, probated.

At approximately three o'clock in the morning

of November 12, 1971, Houston Police Officers

Miller and Trumble observed appellant's automobile

Slowly enter Dowling Street. Appellant was

driving with his lights off although it was dark.

Subsequently, he turned the lights on accelerated

to an excessive rate of speed. He was eventually

clocked at 47 miles per hour in a thirty miles per

hour zone.

The officers were forced to pursue appellant

for several blocks before he stopped. As Trumble

approached appellant's automobile, appellant be-

came angry and abusive and demanded to know why

he was stopped. The automobile then "started to

proceed forward from a dead stop" whereupon the

officer removed the ignition key from appellant's

car. Appellant then struck Trumble on the head.

Both officers opened the car door and told

appellant that he was under arrest. When he re-

fused to get out of the car they pulled him out.

xy

A brief struggle ensued but the officers were able

to wrestle appellant to the ground and place hand-

cuffs on him. |

Several other officers then arrived to give

assistance in response to a call made by Trumble

during the struggle. Miller asked Officer Bell

to search the car. Bell testified that he was

looking for "weapons or evidence." He found

several matchboxes on the dashboard, one of which

contained a substance later identified as mari-

huana.

Appellant testified that he was driving only

about twenty-five miles an hour. When he stopped,

the officers started cursing and beating him with

flashlights. While he was under arrest he told

the officers that he was not drunk and that

Officer Bell was not coming from the direction of

appellant's car when Bell showed appellant what

he had found. On cross-examination he testified

that Bell must have planted the marihuana on him.

Appellant initially complains of systematic

exclusion of blacks from the jury. The thrust of

his argument is that the State used its peremptory

challenges to strike qualified blacks from the

jury panel. The same argument was confronted and

rejected in Ridley v. State, 475 S.W.2d 769, 772

(Tex.Cr.App. 1972), wherein we stated: |

"We hold that no systematic exclusion

has been shown. To hold otherwise would

in effect be abolishing our peremptory

oh So

challenge practice which has always been

a part of our system to help an accused

as well as the State obtain an impartial

and a fair trial."

See also Swain v. Alabama, 380 U.S. 202, 85 8. Ct.

824, 13 L.Ed. 2d 759 (1965).

Appellant next contends that the court erron-

eously admitted evidence of an extraneous offense.

He complains of testimony given by two State wit-

nesses that he was under the influence of alcohol

when he was arrested and that he was given a

breathalyzer test at the police station.

Albrecht v. State, 486 S.W.2d 97 (Tex.Cr.App.

1972), is contrary to appellant's position. In

that case we stated that evidence of extraneous

offenses may be admissible "[t]o show the context

in which the criminal act occurred--what has been

termed the 'res gestae'--under the reasoning that

events do not occur in a vacuum and that the jury

has a right to hear what occurred immediately

prior to and subsequent to the countesion of that

act so that they may realistically evaluate the

evidence (footnote omitted)..." 486 S.W.2d at 100.

See also Williams v. State, 535 S.W.2d 637 (Tex.

Cr.App. 1976).

Next, appellant urges that the court improperly

commented on the weight of the evidence. The

court commented while Officer Miller was being

cross-examined:

"Q. And you are as positive of that as

abien

you are of ali of the other testi-

mony that you have given up to this

point?

"A. Yes, sir.

"Q. And then if you find out that you

were not positive about that and

you were wrong about that, then your

testimony would be that you are wrong

about everything else that you have

stated?

"THE COURT: That is argumentative."

No objection was made. Thus, nothing is presented

for review. Adams v. State, 165 Tex.Cr.R. 523,

309 S.W.2d 245 (1958); Sikes v. State, 500 S.W.2d

650 (Tex.Cr.App. 1973).

Appellant contends that the court erred in per-

mitting the State to bolster the testimony of

Officer Miller.

Miller testified on direct examination that he

initially noticed appellant's vehicle because its

lights were off. Appellant attacked this testi-

mony On cross-examination by having the officer

read from his offense report. That report stated

that the officers noticed appellant's vehicle

because it pulled onto the street at an excessive

rate of speed. The State later introduced into

évidence Miller's relevant examining trial testi-

mony as follows:

"Q. Do you remember being asked the question:

"What called your attention to the de-

fendant?

“A. TWee,. Sis.

-15-

"Q. Would you read your answer?

"A. (Reading) "We were on routine patrol

in that neighborhood, and I approached

a station wagon backing onto Dowling

Street headed into a southerly dir-

ection. The car seemed to halt with-

out turning on its lights, and I did

not know if he would turn on his

lights or what, so I got in behind

the vehicle.'

"Q. Do you remember being asked this

question: ‘What else called your

attention to the vehicle?'

"A. Yes, sir, I do.

"Q. Would you read your answer?

"A. (Reading) ‘When we got behind hin,

he seemed to speed up at a high

rate of speed, and I was behind

him to obtain a speed clock.'"

The court overruled the objection to the ad-

mission of this testimony.

Appellant attempted to impeach the witness by

showing he made a prior inconsistent statement and

the State then attempted to rehabilitate him by

introduction of prior consistent testimony. In

Kepley v. State, 167 Tex.Cr.R. 233, 320 S.W.2d

143 (1959), this Court held that where an attempt

is made to impeach a witness by showing he made

statements inconsistent with his trial testimony,

he may be supported by showing that he made state-

ments consistent with his trial testimony after the

offense in question. See also 1 McCormick and Ray,

Evidence, Section 774 (2d Ed. 1956). No error is

shown.

atin

Appellant next urges that the search of his

automobile was unlawful and that as a result the

trial court erred in overruling the motion to

suppress evidence.

Appellant argues that neither the traffic of-

fenses nor the assault carried with them fruits or

instrumentalities for which there was probable

cause to search. Officer Miller testified that he

smelled alcohol on appellant's breath after the

arrest. Miller observed "slow reaction, slurred

speech, slow reaction and movement to the eyes."

When asked whether he had formed the opinion that

appellant was under the influence of intoxicating

liquors, the officer replied only that, in his

opinion, appellant was under "a form of intoxi-

cation."

It is common knowledge that usage of marihuana,

or of a combination of marihuana and alcohol, often

results in a form of intoxication. Such usage by

appellant on the night of his arrest would explain

his slow reactions and slurred speech as well as

intoxication by alcohol only would explain them.

Therefore, Miller's observation of appellant's

intoxicated condition, in conjunction with the evi-

dence of flight and resistance of the arrest, est-

ablished probable cause to search appellant's auto-

mobile for alcohol or narcotics and other contra-

band. The marihuana found in the matchbox on the

dashboard was thus secured as the result of a legal

ai%e

~~

search. Cf. Attwood v. State, 509 S.W.2d 342

(Tex.Cr.App. 1974); Cazares v. State, 488 S.W.2d

455 (Tex.Cr.App. 1972). As this Court stated in

Taylor v. State, 421 S.W.2d 403, 407 (Tex.Cr.App.

1967):

"Once a bona fide stop or arrest has been

made for a traffic offense, the police can

make an additional arrest for any other of-

fense unexpectedly discovered during the

course of the investigation. If, while

questioning a motorist regarding the opera-

tion of his vehicle, an officer sees evi-

dence of a criminal violation in open view,

or in some other manner acquires probable

cause on a more serious charge he may arrest

for that offense and indicent thereto con-

duct an additional search for physical

evidence. See Goodwin v. United States,

121 U.S. App. D.C., 347 F.2d 793; Busby v.

United States, 9 Cir., 296 F.2d 328;

Riggins v. United States, D.C., 255 F.Supp.

777; Umited States v. Barnett, D.C., 258

F.Supp. 455; United States v. Clark, D.C.,

247 F.Supp. 958. Under these circumstances,

neither the arrest nor the search is tied

to the traffic charge, but rather to the

violation later discovered. Brown v. United

States, 125 U.S. App. D.C. 43, 365 F. 2d 976;

United States v. One Cadillac Hardtop, D.C.,

224 F.Supp. 210. This is true even if no

specific statement of fact of the second

arrest is made. Brown v. United States,

supra." (First emphasis supplied.) See

also Borner v. State, 521 S.W.2d 852

(Tex.Cr.App. 1975).

In the instant case, probable cause to search

appellant's automobile developed after he had been

arrested for the traffic offenses and the assault.

Applying the principal enunciated in Taylor, we

-18-

hold that the trial court did not err in denying

the motion to suppress the seized evidence.

Appellant next complains of improper cross-

evidence regarding a post-arrest conversation he

had with Lieutenant DeFoor at the police station.

Appellant apparently told the lieutenant that he

had no complaints regarding his treatment by the

arresting officers.

On direct examination appellant testified that

he was brutally beaten by the arresting officers.

The State attempted to impeach him on cross-exam-

ination by showing that he gave a prior incon-

sistent statement to DeFoor. Such impeachment was

proper even though appellant had not been given his

Miranda warnings before he made the statement in

question. Harris v. New York, 401 U.S. 222, 91

S.Ct. 643, 2& L.Ed.2d 1 (1971); Small v. State,

466 S.W.2d 281 (Tex.Cr.App. 1971). The contention

is overruled.

Appellant again complains of improper impeach-

ment.

The record shows that Lieutenant DeFoor testi-

fied about his conversation with appellant at the

police station. According to the officer, appel-

lant told him that Houston Mayor Louie Welch had

conspired to have the marihuana planted on him.

Appellant's counsel objected to the admissibility

of DeFoor's testimony concerning that conversation

because appellant's Miranda rights were violated.

-19-

On appeal, appellant contends that DeFoor's testi-

mony constituted improper impeachment. The ground

of error presented on appeal must conform to the

objection raised at trial. Cain v. State, 549

S.W.2d 707 (Tex.Cr.App. 1977); Bouchillon v. State,

540 S.W.2d 319 (Tex.Cr.App. 1976). Moreover,

appellant made no objection whatsoever to the test-

imony of Police Inspector W. L. Williams, Police

Chief Herman Short, or of Mayor Louie Welch insofar

as they denied involvement in any conspiracy to

have appellant arrested. Nothing is presented for

review.

Appellant's next contention is that the court

admitted prejudicial testimony pertaining to a

collateral matter. The record reflects:

"Q. (By Mr. Bodiford) Mayor, concerning

this statement that the defendant

made in your presence before the

City Council of Houston, what was

the statement that he made?

"A. That for every black who was killed

in the streets of Houston, ten pigs

would die.

"Q. Do you know who he was referring to

when he spoke of pigs?

"A. Police officers.

"Q. That for every black that was killed,

ten pigs would be killed. Was that

his statement?

"A. That was his statement.

"Q. Did you answer him?

"A. Yes, I think we answered him.

-20-

"Q. Do you know what your answer was?

"A. We didn't give much credibility to

his threat.

"Q. Would it be advantageous to you at

all to have Ovide Duncantell arrested?

"A. Politically, it was about as bad a

thing that could have happened at

that particular time. There was

already -

"MR. CALDWELL: Your honor, I am

going to object to

this as being ir-

relevant and im-

material.

"THE COURT: Yes, I sustain the

objection.

"Q. (By Mr. Bodiford) You didn't have

any motive, then, for the arrest of

Ovide Duncantell?

"A. None whatsoever."

It was developed on cross-examination that

appellant had appeared before the Houston City

Council several years before to protest the shoot-

ing of a sixteen-year-old black male by a while

police officer. Welch testified that he thought

appellant's statement was "more mouth than any-

thing" and not a serious threat.

Appellant had previously testified that the

arresting officers had beaten him and, after the

State first developed the allegation, that the

police were involved in a conspiracy to convict

him for a crime he did not commit. The State, or

any adverse party, may prove declarations of a

=f}.

ea ee te BC Ney acti! AE ae

witness which tend to show bias, interest, pre-

judice, motive, or any other mental state affecting

credibility. 1 McCormick and Ray, Evidence, Sec-

tions 670 and 677 (2d Ed. 1956). See also Parsons

v. State, 102 Tex.Cr.R. 524, 278 S.W. 444, 446

(1926), wherein this Court stated:

"No principal of evidence is more firmly

settled than that which recognized that the

interest of a witness and the motive or

animus which operates upon his mind is a sub-

ject of material inquiry. The receipt of

such evidence is obviously to enable the

jury to determine the weight to be given

to the testimony and the credibility of the

witnesses."

The statement in the instant case disclosed

appellant's hostility toward the police and a

possible motive for alleging a police conspiracy

to have him "framed." We hold that the court did

not err in admitting the statement into evidence.

Appellant contends that the prosecutor impro-

perly referred to an extraneous offense during

jury argument. The record reflects:

"...The testimony before you is that at

the time the breathalyzer test was taken

the alcoholic content of the defendant's

blood was .7. Now, the defendant told you

that he had two drinks before he left on

his tour at eight o'clock that night, only

two drinks before eight o'clock that night.

Now, Mr. McDonald, the City chemist, told

you that the burn-off rate of alcohol is

-2 percent per hour. If he only had two

drinks before eight o'clock, with a burn

off rate of two percent per hour, there

wouldn't have been one indication at all--"

@220

For the reasons previously stated, the evidence

regarding appellant's intoxication at the time of

his arrest was properly before the jury. No error

in the argument is shown.

We further observe that the objection made at

trial was that there was no evidence as to the per-

centage of alcohol in appellant's drinks. Such

objection was not sufficient to bring the trial

court's attention to the error now complained of

on appeal. Cain v. State, supra; Bouchillon v.

State, supra.

Appellant again complains of improper jury ar-

gument. The record reflects:

"MR. BODIFORD: I ask that you recall his

statement to the City Council.

For every black killed, there

will be ten pigs die."

This was in evidence. No objection was made to

the argument now challenged. Thus, nothing is

presented for review. Rodriguez v. State, 530

S.W.2d 944 (Tex.Cr.App. 1975); Jackson v. State,

516 S.W.2d 167 (Tex.Cr.App. 1974).

Appellant's final contention is that the pro-

secutor's jury argument at the punishment phase of

the trial was improper. The record reveals that

appellant was referred to as a "troublemaker" and

as a "freeloader."

The State had established during the guilt phase

of the trial that appellant had assaulted the ar-

resting officers and that he had once threatened

-23-

/

the Houston Police Department with violence. The

prosecutor's reference to him as a "troublemaker"

was a reasonable deduction from the evidence. Cf.

Cain v. State, supra.

With regard to the argument that appellant was

a "freeloader", the State contends that such argu-

ment was a reasonable deduction from the evidence

because appellant was going to school at the time

and was apparently unemployed. We cannot agree

that this type of argument is justified under these

circumstances, but we find that the error was

harmless.

No reversible error is shown. The judgment is

affirmed.

Douglas, Judge

(Delivered March 15, 1978)

En Banc

Vollers, J., not participating

-24=

OVIDE DUNCANTELL, JR., Appellant

NO. 51,749 v. - = — Appeal from HARRIS County

THE STATE OF TEXAS, Appellee

DISSENTING OPINION

This case is before us pursuant to an out-of-

time ap; eal granted to appellant by per curiam

opinion in No. 49,828 G6n April 2, 1975.

At 3:30 a.m. on November 12, 1971, Houston

Police Officers Miller and Trumble noticed appel-

lant, then a candidate for the Houston City Council,

entering Dowling Street in his car with his head-

lights out. Appellant turned his lights on but

then increased his speed for forty-seven miles-

per-hour in a thirty mile-per-hour zone. After

pursuing appellant for more than ten blocks, the

officers finally stopped him and pulled up beside

his car. Appellant resisted removal from his auto-

mobile and, after a struggle, the officers subdued

and handcuffed him on the ground outside his car.

Miller testified that appellant appeared to be

"under a form of intoxication."

In response to a call for assistance, other

officers began arriving at the scene almost

immediately. Officer Bell, in response to Miller's

request, conducted a search of the interior of

appellant's car, finding a penny matchbox containing

marihuana on the driver's side of the dashboard.

Bell testified that this search commenced while

appellant was still lying handcuffed face down on

i

|

;

«

=~25=

the ground with Miller and Trumble kneeling beside

him. Miller testified that the search was con-

ducted while appellant sat handcuffed in the back

of his patrol car, with both officers standing

next to him.

Appellant contends, among other things, that the

search of his car was unlawful and that the State

improperly impeached his testimony.

I cannot agree that the warrantless search

which led to the discovery of the marihuana was

constitutional, and I would reverse on this ground.

I observe at the outset that this search cannot be

justified as an automobile search based on probable

cause and exigent circumstances. Carroll v. United

States, 267 U.S. 132 (1925); Chambers v. Maroney,

399 U.S. 42 (1970); Scott v. State, 531 S.W.2d

825 (Tex.Cr.App. 1976); Stoddard v. State, 475

S.W.2d 744 (Tex.Cr.App. 1974). Neither the traffic

offenses nor the assault carried with them fruits

or instrumentalities for which there was probable

cause to search. Thomas v. State, S.W.2d

(No. 50,941, delivered March 10, 1976 and now

pending on rehearing). The liquor which Officer

Miller smelled on appellant's breath and his

apparent intoxicated condition might have afforded

cause to search for liquor. Thompson v. State,

398 S.W.2d 942 (Tex.Cr.App. 1966); Adair v. State,

427 S.W.2d 67, 74 (Tex.Cr.App. 1967) (dissenting

opinion). But a search is reasonable only if its

~26=

scope is limited to the purpose which justified

its initiation. Maldonado v. State, 528 S.W.2d

234 (Tex.Cr.App. 1975); Haynes v. State, 475 S.W.

2d 739 (Tex.Cr.App. 1971). A search for the pur-

pose of discovering liquor should not extend into

a matchbox. Compare Pace v. Beto, 469 F.2d 1389

(5th Cir. 1972). Nor did probable cause to search

develop after appellant had been arrested and

subdued. Cf. Taylor v. State, 421 S.W.2d 403

(Tex.Cr.App. 1967); Attwood v. State, 509 S.W.2d

342 (Tex.Cr.App. 1974); Borner v. State, 521 S.W.

2d 852, 856 (Tex.Cr.App. 1975).

Therefore, the search can only be upheid as a

protective search for weapons or as a search inci-

dent to an arrest. It is well established that

officers are justified in conducting a limited

search for weapons after an investigatory detention,

Terry v. Ohio, 392 U.S. 1 (1968); Baity v. State,

455 S.W.2d 305 (Tex.Cr.App. 1970); or even after

an arrest for a routine traffic offense if the

officer has reason to believe that he is in danger

of bodily harm or that the suspect is armed or

dangerous. Lewis v. State, 502 S.W.2d 699 (Tex.Cr.

App. 1973); Wood v. State, 515 S.W.2d 300 (Tex.Cr.

App. 1974); Borner v. State, supra at 855; Wallace

v. State, 467 S.W.2d 608 (Tex.Cr.App. 1971). In

this case, the appellant had already been either

subdued and handcuffed on the ground or placed in

the back of the patrol car, with two officers

af}e

guarding him, before the car search by a third

officer began. Appellant was scarcely in a posi-

tion to harm anyone, even if he could have lunged

back into the car for a weapon. Cf. Imhoff v.

State, 494 S.W.2d 919 (Tex.Cr.App. 1973). The

officers testified at the trial that they were

not in fear of their lives at the time the search

was conducted. Beck v. State, 547 S.W.2d 266 (Tex.

Cr.App. 1976); Keah v. State, 508 S.W.2d 836 (Tex.

Cr.App. 1974); cf. Wood v. State, supra. Further-

more, it is hard to imagine a dangerous weapon

being concealed in a penny matchbox, although this

was the justification advanced for the search by

the officers. Pace v. Beto, supra. I conclude,

therefore, that the car search cannot be justified

as necessary for the protection of the arresting

officers.

The exception to the warrant requirement for

searches incident to arrest, however, is broader

than the protective Terry-type search. For one

thing, its objects can include destructible evi-

dence as well as weapons. Chimel v. California,

395 U.S. 752 (1969); Preston v. United States,

376 U.S. 364 (1964). The search of the person

permitted by United States v. Robinson, 414 U.S.

218 (1973), after a routine traffic arrest, was

much broader than that permitted by Terry v. Ohio,

supra, even extending into a crumpled cigarette

package. And the scope of the search incident to

-28-

arrest extends to areas under the arrestee's

immediate control. Chimel, supra; Preston, supra.

Clearly, the search could not extend to the locked

glove compartment or the trunk of the car, since

an arrestee could hardly reach these areas quickly

and obtain a weapon or destroy evidence. Fry v.

State, 493 S.W.2d 758, 761 (Tex.Cr.App. 1972);

Wilson v. State, 511 S.W.2d 531 (Tex.Cr.App. 1974)

(dissenting opinion, fn. 2).

There can be no question that appellant was

under arrest at the time of the search. In con-

trast to the situations in Beck, supra, Thomas,

supra, and Wilson, supra, he was not merely being

detained during the writing of a traffic citation.

The question becomes, then, was the scope of the

search reasonably related to its purpose? The

cases make it clear that the area searched must be

under the arrestee's immediate control, and be for

the purpose of preventing hiu from obtaining wea-

pons or destroying evidence. Appellant was either

face down on the ground with his hands handcuffed

behind him or he was sitting in the back of the

patrol car and the car being searched. There is

no way the appellant could have reached a weapon

or evidence in his car, since the car was no

longer under his immediate control. Beck, supra;

and see Chimel, supra. I would therefore hold

that og) eins was not incident to appellant's

1

arrest.—

-29-

Raat cesrertieti i. es —

From all of the foregoing, I conclude that the

search was unlawful and hence in violation of the

Fourth Amendment of the United States Constitution

as well at Art. I, Sec. 9 of the Texas Constitu-

tion. It follows that the trial court erred in

failing to suppress the seized evidence and that

the judgment should be reversed for this reason.

Roberts, Judge

(Delivered March 15, 1978)

En Banc

Phillips, J., joins in this dissent.

1/

— Neither can I agree that the search was legi-

timate as an "inventory search" or that the search

was harmless because a later inventory might have

been allowable. See South Dakota v. Opperman, 428

U.S. 364 (1976); Robertson v. State, 541 S.W.2d 608

(Tex.Cr.App. 1976). There is simply nothing in this

record to show that an inventory search was unuer-

taken or that such searches were a part of routine

police practice. See Opperman, supra at 366, 369,

375-276.

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