Appeal from the 351st District Court Harris County, Texas
Trial Court Cause No. 1355673
consists of Chief Justice Frost and Justices Jamison and
Thompson Frost, Chief Justice.
his conviction for aggravated robbery, appellant William Earl
Tutson asserts that the trial court erred in denying his
motion to suppress evidence and in refusing to charge the
jury on the lesser-included offense of robbery. We affirm.
and Procedural Background
complainant, who was the assistant manager of an automobile
parts store, was returning from her lunch break when
appellant told her to stop. The complainant turned around and
saw that appellant had a gun. She stopped. Appellant pointed
the gun at the complainant's chest and neck area and told
her that he planned to take her purse and a bank bag filled
with bills. Appellant told the complainant that he would
shoot her if she tried to stop him. The complainant complied
with appellant's directions and appellant took her purse
and the bank bag. As the events unfolded, customers and
coworkers inside the store began to take notice. One
customer, an automobile mechanic, ran outside to try to help
hopped into a car and left the scene driving north towards
the freeway. One of the complainant's coworkers called
911 and described the car leaving the scene as a dark-colored
Pontiac. Officer Marshall was in the vicinity and heard the
dispatch, including the description of the car leaving the
scene. Within minutes he saw a dark-colored Pontiac. As he
began following the car, he noticed the car continually
picking up speed in an apparent attempt to evade him. When he
activated his lights to initiate a traffic stop, the car
continued accelerating until it was traveling 80 miles per
hour. As the pursuit was underway, Officer Marshall saw large
sums of money fly out the passenger side of the car along
with other items. The car began fishtailing as the driver
lost control of it. Eventually the car spun to a stop, facing
Officer Marshall's car. Both occupants of the car fled on
Marshall radioed a description of the passenger - later
identified as appellant - to other police officers in the
area, and told them the direction appellant appeared to be
heading. Then Officer Marshall chased and caught the driver.
Officer Black, having heard Officer Marshall's
description of the fleeing suspect and also being in the
vicinity, began looking around. A woman made eye contact with
the officer and made a discreet pointing motion. When Officer
Black looked in the direction the woman was pointing, he saw
appellant, standing still, staring at him with wide eyes.
Officer Black took appellant into custody.
Officer Marshall and Officer Black returned to the scene with
the suspects they had apprehended. Officer Marshall confirmed
that appellant was the individual he had seen fleeing the
was indicted for aggravated robbery. The indictment contained
two enhancement paragraphs alleging two prior felonies.
filed a motion to suppress Officer Marshall's
identification of him. Following a hearing on the motion to
suppress, appellant filed a supplemental motion to suppress
in which appellant re-urged his objection to Officer
Marshall's identification and argued that the trial court
should suppress any evidence collected as a result of the
traffic stop because Officer Marshall did not have reasonable
suspicion to initiate the traffic stop. The trial court
denied the supplemental motion to suppress.
pleaded "not guilty" to the charges, but pleaded
"true" to the enhancement paragraphs. At trial, the
complainant testified about the robbery and stated that
appellant had a black handgun. The mechanic who had witnessed
the events at first testified that he saw what "looked
like a gun" and then clarified that he had seen a silver
handgun. During cross-examination, defense counsel confronted
the witness with the earlier statement that he had seen
something that "looked like a gun." The mechanic
denied making the statement and said that he had seen a gun.
jury-charge conference, appellant asked for a jury
instruction on the lesser-included offense of robbery.
According to appellant, the mechanic's testimony, and
evidence that police officers never found a gun, could each
be interpreted as evidence that appellant did not have a gun
when he robbed the complainant. The trial court refused to
give the lesser-included-offense instruction.
jury found appellant guilty as charged. The trial court
sentenced appellant to thirty years' confinement. On
appeal, appellant challenges the trial court's denial of
the suppression ruling and ...