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Tutson v. State

Court of Appeals of Texas, Fourteenth District

September 21, 2017


         On Appeal from the 351st District Court Harris County, Texas Trial Court Cause No. 1355673

          Panel consists of Chief Justice Frost and Justices Jamison and Busby.


          Kem Thompson Frost, Chief Justice.

         Challenging 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.

         Factual and Procedural Background

         The 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 the complainant.

         Appellant 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 foot.

         Officer 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.

         Meanwhile, 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.

         Both 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 car.

         Appellant was indicted for aggravated robbery. The indictment contained two enhancement paragraphs alleging two prior felonies.

         Appellant 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.

         Appellant 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.

         At the 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.

         The 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 ...

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