                                                                                 -----------~------




Affirmed and Opinion filed March 26, 1992




                                             In The ·
                               ·· · C!tnurt nf App l'ttl.s
                      llf'iftlr ili.strirt nf Cltl'xtt.s at ilalla.s
                                       No. 05-90-01580-CR


                           EDMOND STEVEN LOWE, Appellant

                                              v.
                             THE STATE OF TEXAS, Appellee


                     On Appeal from the 203rd Judicial District Court
                                  Dallas County, Texas
                          Trial Court Cause No. F90-34490-QP


                                        OPINION

                        Before Justices Lagarde, Ovard, and Burnett
                                 Opinion By Justice Burnett

              Our prior opinion and judgment of March 11, 1992, is withdrawn and this

opinion is substituted in its stead.

       Edmond Steven Lowe appeals his conviction for the murder of his supervisor William

Schlunege~ ..after Schluneger fired him from his job. The jury assessed
                                                                  .
                                                                        punishment at sixty-

five years' confinement and a $10,000 fine. In four points of error, Lowe contends that: ( 1)
. the trial court • erred in overruling his motion to suppress because the search of his

 automobile was illegal; (2) the evidence was insufficient to support his conviction for murder

 instead of voluntary manslaughter; (3) the trial. court erred in allowing into evidence his.
                                                          .




 written statement; and ( 4) the prosecutor made impermissible jury argument. We overrule

 LOwe's points of error. We affirm the trial court's judgment.

                                            FACTS

        William Schluneger, maintenance supervisor at the Dal-Chrome Bumper Company,

 decided to terminate Lowe early one Monday moining. He discussed this decision with Bob

 Marcotte, the plant manager. M~rcotte advisedSchluneger to pull Lowe's time card so that

 Lowe would come to his office. Lowe arrived at work, and when he did not find his time

 card, he went to see Schluneger.   Schl~neger t~ld   him that he was fired, and to pick up his

 personal tools and turn in his uniforms. Lowe said he had to go home and get his car

 because he had ridden his motorcycle to work that day and could not carry his tools on it.

        Lowe asked for a letter detailing the reasons for his termination. Schluneger went

 to talk with Marcotte about the letter. Schluneger told Marcotte that Lowe disagreed with
                             •
 the reasons for his termination and wanted something in writing with the Dal-Chrome name

 on it. Marcotte said that was no problem and generated a form off of his computer. While

 Schluneger was in Marcotte's office completing the letter, Lowe came in.            He called

 Schluneger a liar and said "this is some more of that good old boy shit."

        Befme he left the plant, Lowe tried to speak with Kirk Wilson, Oat-Chrome's general



                                               -2-
 . manager. Wilson was conducting a sales meeting at the             time~   and told Lowe. that he could

     speak with. him after the meeting~ Lowe left the plant, and returned. with his uniforms. ·
          '

                                                                                                             .,   :."··


·- Lowe- then went to Wilson's:::office .. -Wilson went to talk with Schluneger,                   When he

__   returned~"     he· told Lowe- that he had··to· stand behind Schluneger's ·decision. Lowe- told
                                                             .   .       .                  .
     Wilson that··-"they're· playing those good.old boy games"- and said he would turn in his
     .          .               '         .

     uniforms. He testified that Lowe seemed calm. _

               Marcotte· saw Schluneger and:Lowe in the parking lot unloadillg the uniforms ..-He

     testified tha:t. they were not- arguing. Lowe and Schluneger went to Schluneger's office.

     Lowe was standing in the doorway when Marcotte passed by. As Marcotte started .into the

     office, Lowe raised his pistol and fired in the direction of Schluneger's desk. From his

     viewpoint in the doorway, Marcotte co~ldnot seeSchluneger. Marcotte testified that Lowe

     then pointed the gun at him and asked· him "do you want some of this, too, Mother

     Fucker?"        Marcotte ducked and ran with Lowe chasing him.              Wilburt Davis, another

     maintenance employee-, testified that Marcotte tripped, and Lowe pointed the gun at him.

     Davis yelled at Lowe not to do it. Lowe then ran out of the             plan~   and left in his car.

               Marcotte ran· to Wilson's office and told him that Lowe was taking shots at

     Schluneger. Wilson went back to Schluneger's office and found him laying behind the desk

     bleeding from the head. He grabbed some uniforms and put them under Schluneger's head.

     The paramedics attempted CPR without success. Dr. Robert Davis, the forensic pathologist

         who conducted the autopsy, testified that Schluneger died as a result of a single bullet



                                                     -3-
wound to the head.

       Officer Gilmore and his partner were patrolling Lowe's neighborhood when they

received a dispatch about a murder. suspect. It gave Lowe's name, address, age, and

described him as. a black male. It also described the car and gave a partial license plate·

number.. Officer Gilmore saw the car parked at a commerci~l garage near Lowe's house.

As he approached the· car, a white man was trying to open the driver's door. Officer

Gilmore asked the man if he knew where the .owner was, but got no response. Officer

·Gilmore and his partner began to search·the premises. They found Lowe inside the garage

and placed him under arrest. Officer Gilmore called for a tow truck and went to inspect the

car. He lifted the armrest beside the driver's seat and saw the pistol underneath. At that

time, he heard from his partner or over his radio that the Physical Evidence Section (PES)
                                     .0




was on its way over. Officer Gilmore laid the armrest back down and left the car. Officer

Gilmore told PES about the pistol. PES searched the car and removed the pistol. The

officers impounded ·and inventoried the car after the PES completed its search of the car.

       The court allowed Lowe's written statement into evidence.· The statement reflects

that Lowe believed he was fired on Monday because of a chemical spill on the previous

Friday. He and another employee worked on joining pipes together for a filter system on

Thursday. The other man actually glued the joints together because the space was too small

for Lowe to work in: When the system was turned on, the joints gave way causing the spill.

Wilburt Dayis also testified that he and Lowe had been repairing a trailer on Friday



                                            -4-
------~----~--··-·---~--·------·-·--~-. ---···   ··--·-- --- ----~ ~-.-:·:·.::.----·------·-----·-:·-·:.::- - ~--- -   ~-- -
                                                                                                                               -·       ----   ----~   . - : : - - - . -_ _ _ 0 ...... ..;   •   ----------
                                                                                                                                                                   '




             afternoon, but were unable to complete the job. · Schlimeger told Lowe that he had to stay

             late on .Friday because Lowe.had been tori . slow. Lowe statedthat it was not .fair because

           . Schluneger gave·,. th_em. ,_the choice::, of staying Jate:.·or
                                                                   .
                                                                            ·coming
                                                                                 .
                                                                                    in on Saturday, but then

             Schluneger decided to.finish· the repairs hiniselt ·The letter·. reflects that Schluneger

          .. terminated ·Lowe because he was .too slow at his. work and did not have the ability to
              .                            .                                                      .    ..                           .

             comprehend instructions requiring too much:follow-up on the tasks assigned to him .

                                                                            . AUTOMOBILE SEARCH.
                                      .                                              -.                                                        .
                         In his first point of error, Lowe.contends that the trial court erred by overruling his

             motion to. suppress the evidence obtained from the search of his car. The PES removed his

            · pistoL and a spent cartridge from the car. He argues that the police had no reason to

             c'onduct an inventory search, but searched the.:car~only to obtain incriminating evidence.
                                                                                            4               '·            .




             The State asserts that the police conducted a proper.inventory search, or thatthe evidence

              showed exigent circumstances that justified a warrantless search of the car. The State also

              argues that, even if the trial court committed error by overruling the motion to· suppress, it

              was harmless error under Texas Rule of Appellate Procedure 81(b )(2).

                         In his motion before the trial court, Lowe argued that the search violated his rights

              under the Fourth, Fifth, and Fourteenth Amendments of the United States Constitution and

              article 1, section ·9 of the Texas Constitution. Lowe does not complain on appeal of any

              violation under either constitution. In his brief, Lowe cited only Benavides v. State, 600

                  S.W.2d 809. (Tex. Crim. App. 1980). The Court in Benavides only addressed the search of



                                                                                                                 -5-
the defendant's automobile under the Fourth Amendment of the United States Constitution.

See Benavides, 600 S.W.2d at 810. Because he only brings us authority relying on the Fourth

Amendment, we do not address any possible violation of his state constitutional rights under

Article I, section 9. See Heitman v. State, 81S S.W.2d 681, 690 n.23 (Tex. Crim. App~ ·

1991}.

         In order for a warrantless arrest or search to be justified, the State must show the

existence of probable cause at ·the time . of the arrest or search and existence of

circumstances which made procuring a warrant impracticable. Melear v. Spears, 862 F.2d

1177, 1182 n.4 (5th    ~ir.   1989). Under the United States Constitution, probable cause is a

flexible, common-sense standard that merely requires that the facts available to the offic~r

.would "warrant a man of reasonable caution" to conclude that the placecontains contraband

or evidence of a crime: Texas v. Brown, 460 U.S. 730, 743 (1983).

         Officer Gilmore received a dispatch describing Lowe as a black man suspected of

murder and accurately describing his car and a partial license plate number. They arrested

Lowe within close proximity of the car. The officers had probable cause to believe that

Lowe had driven the car to its present location and that instrumentalities of the murder

could be in the car.

         The State had to show exigent circumstances justifying the warrantless search of the

car. The Supreme Court has upheld warrantless searches of automobiles because of their

inherent mobility and the reduced expectation of privacy associated with vehicles as



                                                 -6-
                                        .·               .    .            ..   "



 compared to a home or.office.    SouthD~lwta.v. ~Opperman'{428 U.S. 364,367 (1976).    The. ·

State argues that Officer Gilmore had reason to believe that the car might be moved
                                                                                                 ·:   ,·


 because-;·he saw. an.unknown white male trying to enter the· car~·..·However, this is not a

 situation where the car. was on~thehighwayor the. owner was alerted and capable of moving

 the .car. See Coolidge v. New Hampshire, 403 U.S. 443, 460 (1971): By this time, the .
                                                                       .




 officers had Lowe under arresL ·.They could haveJock~d the car and one officer could have

- guarded it while the other called in for· the· warrant.

     .   This is also.not a situation where the police removed Lowe from·the car and had no

 other alternative.except to impound and inventory the car.. See Benavides, 600 S.W.2d at
                                  .             .                  .   .   .

 810. The car was off the street and on private property.· The garage owner was on the

 premises. The police questioned the garage owner about Lowe's whereabouts, but never
                                             .. ~·   .




 about the car. See Benavides, 600 S.W.2d at 810.

         Finally, the State argues thatthe Supreme Court upholds warrantless searches if done

 for protection of the public safety. Cady v. Dombrowski, 413 U.S. 433 448 (1970). In Cady,

 the police had the defendant's disabled car towed from a public highway to a private garage.

 Cady, 413 U.S. at 444. Since the defendant was a police officer who was required to carry

 his revolver and the car was towed to an unguarded private lot which was vulnerable to

 vandals ' the Court held that the warrantless search was not unreasonable
                                                                       .
                                                                           under the Fourth

 Amendment. Cady, 413 U.S. at 448. The Court noted that, at the time of the search, the

 defendant has been arrested for public intoxication. The officer was unaware at the time



                                                             -7-
of the search that a murder or any crime had been committed in which the defendant would

be a suspect. Cady, 413 U.S. at 447.

     _ In this case, unlike Cady, two officers were working together with definite knowledge

that they had arrested a murder suspect. More officers arrived from PES specifically to deal      I'

                                                                                                 .,I

With any physical evidence. With that many officers and the suspect under arrest, public·

safety was not a concern in this situation. Even though the officers had probable cause, the

warrantless search was unreasonable. The trial court. erred by denying Lowe's motion to

suppress.
                                                    ..
         Since the trial court erroneously overruled the motion to suppress, we must examine

whether the error was harmless. Under Texas Rule of Appellate Procedure 81(b )(2), we

must determine whether the error contributed to Lowe's conviction or punishment. Harris

v. State, 790 S.W.2d 568, 587 (Tex. Crim. App. 1989); U.S. v. Bamngton, 806 F.2d 529, 533.

(5th Cir. 1986). Numerous witnesses testified to the morning's events. The pistol and spent

. cartridge in Lowe's car only supports the fact that Lowe had a gun to shoot Schluneger with.

The only issue at trial, however, was not whether Lowe shot Schluneger, but Lowe's state

of mind at the time. The introduction of the pistol and spent cartridge did not contribute

to Lowe's murder conviction, or assessment of punishment. We overrule his first point of

error.




                                              -8-
                                    ·- --- . ··-   '   ···-· ..   --       -.   ----~-   -- ----   -- --




                                                   .SUFFICIENCY. OF THE EVIDENCE
                           .                       . .                                                     .                 \       .              .


                     In his second point of error; IAlwe contends that the evidence is insufficient to prove
. .     .       .·   . . . .·                                .         .           .      ·.       .                .·       .   .


      that he committed murder instead of voluntary manslaughter> The trial court instructed the
                                      I                           •                                            .
                                                                                                                                         :··.;..-
      jury on both murder           and·vohmtary-manslaughter.:~~-:·::


                     When •revieWing the sufficiency of the' evidence, we view the evidence in the light
            .                   .                        .                                             .                 .                              .

      most favorable to the verdict to determine if any rational trier of fact could have found the ·

      essential elements of the crime beyond a reasonable doubt. Turner v. State, 805 S. W .2d 423,

      427 (Tex. Crim. App.), cert. denied, 112 S. Ct. 202 (1991). This standard supports the jury's

      responsibility, as the trier of fact, to resolve· conflicts ·In the testimony, to weigh the

      evidence, and to draw reasonable inferences from basic facts to ultimate facts. See Robinson

      v. State, 764 S.W2d 367, 372-73 (Tex~ App.;.;.Dallas-1989, pet. ref d)._ Thejury, as the trier

      of fact, remains the exclusive judge of the credibility of the witnesses and the weight to be

      given their testimony. The jury may accept or reject any or all of the evidence for either

      side. Bowden v. Stcite, 628 S.W.2d 782, 784 (Tex. Crim. App. 1982); see TEx. CoDE CRIM.

      PRoc. fum. arts. 36.13, 38.04 (Vernon 1979).

                     Lowe committed voluntary manslaughter instead of murder if he caused Schluneger's

      death under the immediate influence of sudden passion arising from adequate cause. TEx.

      PENAL CoDE ANN.§ 19.04(a) (Vernon 1989). The Texas Penal Code defines sudden passion

      as "passion directly caused by and arising out of provocation by the individual killed or

      another acting with the person killed which passion desires at the time of the offense and



                                                                                                                   -9-
is not solely the result of former provocation." TEx. PENAL CooE ANN.§ 19.04(c) (Vernon

1989). If the defendant raises the issue of sudden passion, but the jury finds him guilty of

murder, we must make two· determinations in our sufficiency analysis: ( l) whether .the

evidence was s~fficientto establish the offense of murder; and (2) whether the evidence was

sufficient to disprove the issue of sudden passion. Johnson v. State, No. 824-89, slip. op. at

7 (Tex. Crim. App. July 3, 1991). The State can prove the absence of sudden passi_on by

presenting evidence that at the moment Lowe intentionally or kriowingly killed Schluneger,

he was capable of, and did in fact, act with cool reflection, in spite of provocative

circumstances. Johnson, No. 824-89, slip op. at 7; see Gold v. State, 136 S.W.2d 685, 690

(Tex. Crim. App. 1987).

         There was little inconsistency between the witnesses' version of the shooting. The
                                       ;•



defendant's case and counsels' argument concentrated on Lowe's. state of mind when he shot

Schluneger. Lowe argues that his actions arose from extreme anger over being unjustly

fired. Marcotte and'Wilson testified that Lowe referred to "good old boy games" and used

the same phrase in his written statement. He argues that this perceived racial and job

discrimination escalated into a sudden explosion. The defense psychological expert, Dr.

Grigson testified that Lowe had formed no intent to kill, but was suddenly overcome by

anger.

         The evidence also shows that Lowe was capable of cool reflection even though angry

about his fir:ing. After Schluneger terminated him, he asked to have the reasons in writing.



                                             -10-
                                       ..
_. He left the plant, and . then _returned with a pistol· approximately an hour later: . Upon

    returning, he went to talk with Wilson aboufthe•finng. Wilson saw him just minutes before

    the shooting-and saidhe appeared calm~.-_ Lowe had enough presence of mind to also bring

    his uniforms back.. because. Marcotte saw Lowe and Schluneger unloading them just before -

    the. shooting. His written statement.indicated that he and Schluneger. were arguing at the

    time of the shooting. -· He told Bill "what you are doing is not right" and then shot him one
.                                '   . .    ,.   '.          .           .   .·        -·           .

    time: He also said he c~uld ha~e shot Marcotte if he wanted to but he decided to ·go ahead

    and leave .

          . The evidence shows that Lowe attempted to resolve. the matter and that he shot

    Schluneger, when management would not reverse the decision. The -evidence is sufficient

    to_ show that Lowe acted with cool reflection in spite .of provocative circumstanc~s. We

    overrule Lowe's second point of error..

                            DEFENDANT'S WRITTEN STATEMENT

           In his third point of error, Lowe contends thatthe trial court erred in admitting the

    written statement he gave to the police after his arrest .. He argues that the s_tatement was

    not voluntary because the police coerced him into signing it.

           Once the accused has raised the issue of volurttariness of a confession, the State has

    the burden of proving that the accused gave the statement voluntarily. Griffin v. State, 765

    S.W.2d 422, 430 (Tex. Crim. App. 1989). When the defendant testified that he made a

    confession .. as a result of coercive acts and the testimony is uncontradicted, then the



                                                      -11-
confession is inadmissible as a matter of law. However, when that testimony is disputed,
                                                                                                 '   ..
the issue is one of fact to be determined by. the trier of fact. Griffin, 765 S. W.2d at 430.

Determination of the voluntariness of a confession must be based upon the totality of the

circumstances surrounding its acquisition. McCoy v. State, 713 S. W.2d 940, 955 (Tex. Crim.

App. 1986) cert. denied, .477 U.S. 909. In a hearing, the trial judge is the sole judge of the

credibility of the witnesses and the weight of their testimony. Gentry v. State, 770 S.W.2d

780, 790 (Tex. Crim. App. 1988) cert. denied, 490 U.S. 1102; Harville v. State, 591 S.W.2d


          ..
864, 867 (Tex. Crim. App. 1980). Our review is limited to whether the trial court abused
                     -

its discretion in finding that the statement was voluntary and allowing it into evidence.

McCoy, 713 S.W.2d at 955.

    · · Officer Ortega, who wrote doW!! the confession, and Lowe gave conflicting testimony

during the suppression hearing. Ortega testified that he read Lowe his Miranda rights on

two occasions, read the rights printed at the top of the voluntary statement form, and asked

Lowe if he understood. Ortega then wrote out the statement as Lowe gave it. Mter he

finished writing, Ortega testified that he got a witness and read the statement back to Lowe.

Lowe made four changes to the statement which Lowe, Ortega, and the witness initialled.

Lowe then signed the statement at the bottom        o~   each page. Lowe testified that Ortega

tricked him into signing the statement by telling him that it would be used against him

whether he signed it or not.     Lowe further testified that another officer read him his

Miranda rights.



                                             -12-
·-       .
     ·------~- ----~------~~----~------"-----         -   ... .,......   ..-

                                                                                 ·., ...




                        The triaL court found that the_ statement was voluntary -and admitted it into evidence ..

               The evidence is sufficient to support the trial court's finding; .The trial court
                    '                                                                        .
                                                                                                 did not abuse       .
                                                                                                                         ':..-


                                                                                               .   .
             · _ its discretion by allowing the·.statementinto evidence., We .overrule Lowe's third· point of

               error.-._,.,

                                         . __   ;:_                                                             ..
                                                                         IMPROPER JURYARGUMENT             ~;




                    . .· ·.In his fourth point of error'- ~we ·contends that the prosecutor made an improper
                                                           .                               .           .



               jury argument when -counsel referred . to the railge . of punishment for irlvoluntary

                manslaughter during the guilt:-innocent phase of the trial. He argues that, even though the

               · trial court gave the juryan instruction tO. disregard, we must reverse his conviction -because

               the argument was so damaging.

                         The general areas ofproperju~ argument are (1) .summation of the evidence, (2)

             __ reasonable deduction from the evidence, (3) answer to the .argumept of the opposing

                counsel, and ( 4) plea for law enforcement. Walker v. State, 664 S.W.2d 338, 340 (Tex.

                Crim. App. 1984). ·Generally, the defendant must make a timely, proper, and specific

                objection to the improper jury argument to preserve the complaint for appellate review.

               Miller v. State, 741 S.W. 2d 382, 391 (Tex. Crim. App. 1987); cert. denied, lOBS. Ct. 2835

                (1988); TEx. R. APP. P. 52 (a). If the court overrules the objection and the argument was

                improper, then we must determine whether the error was harmless. Orona v. State, 791

                S.W.2d 125, 130 (Tex. Crim. App. 1990). If the court sustains the objection, then defense

                counsel must request that the trial court instruct the jury to disregard the improper



                                                                                   -13-
argument. We presume that the jury follows the court's instruction unless the argument was

so inflammatory. that its prejudicial effect could not         rea~onably   be removed by the

instruction. Kinnamon v. State, 791 S.W.2d 84, 89 (Tex. Crim. App. 1990) (per curiam).·

       The error arose from the only- issue in the case, that is, whether the defendant

committed murder or voluntary manslaughter. Both parties presented evidence on Lowe's

mental state when he . shot Schluneger. During
                                     .
                                                     ~losing   argument, the prosecutor began

talking about_ the defense theory that Lowe    committ~d   voluntary manslaughter instead of

murder. He then stated that voluntary manslaughter is "only punishable up to twenty years

in prison." The defense counsel objected and the court sustained the objection. The court

then instructed the jury to disregard anything· dealing with punishment and to simply reach

a verdict on the court's instructions. The trial court then denied Lowe's motion for mistrial.

The prosecutor dropped the issue and never referred to it again.

       We conclude that the prosecutor's single indiscretion into an impermissible argument·

was not so inflammatory that the court's instruction did not cure anyharm. Cf. McClure v.

State, 544 S.W.2d 390, 393 (Tex. Crim. App. 1983) (incurable error when prosecutor made

repeated references to difference in punishments after trial court sustained initial objection).

We overrule Lowe's fourth point of error.




                                              -14-
          .   ,.
-~   .




                                                                                                ·_      ,._.        \.




                             We affirm the trial court's judgment.:

                                                                              . .    -~ ' .




                   -..·. "   ~--
                                                                                    ...       . ·.r_,r......... :



                                          - ·-   .' t   ~   ••

                                                                 . ~- -·~ .



          Do Not Publish -• ·
          Tex. R. App. P. 90
         .901580F.U05

                                   ../:




                                                                                                      -15-
                                        Oinurt nf 1\ppl'ttls ·
                             1Ji'iftly IJistrirt nf Cltl'xus ut IJullus
                                                       I      .


                                             JUDGMENT
'·

     EDMOND STEVEN LOWE, Appellant                         Appeal from the 203rd Judicial District
                                                           Court of Dallas County, Texas. (Tr.Ct.No.
     No. 05-90-01580-CR                   v ..             F90-34490-QP).
                                                           Opinion delivered by Justice Burnett,
     THE STATE OF TEXAS, Appellee                          Justices Lagarde and Ovard, participating.


              The judgment of March 11, 1992, is withdrawn and this judgment is substituted in its
     stead.

          Based on the Court's opinion of this date, the judgment of the trial court is
     AFFIRMED.



     Judgment entered March 26, 1992.
