# Petition — Duncantell v. Texas

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1978
- **Citation:** 439 U.S. 1032

## Text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1213%3A1. Public record. Not legal advice.