*1 applicability analysis I was the of the facts and same conclusion that do—that week, prosecution; for this how Article 14.04. week ever, is for the defendant. observations, foregoing upon Based regarding
McCORMICK, dissenting adhering to our conclusion Judge, ap- on opinion pellant’s petition discretionary Article 14.04 as detailed our review. submission, judgment original distinguishing difficulty I have Because the case is appeals vacated and Almendarez from instant case hra remanded to that court be reviewed (Tex.Cr.App.1970), and be- opinion. this manner not inconsistent with acting I believe officers were their constitutional limitations and within authority, respectfully
statutory I dissent.
WHITE, J., joins dissent.
OPINION ON STATE’S MOTIONS
FOR REHEARING ADKINS, Sammy Appellant, Joe DUNCAN, Judge. original submission this Court re On Texas, Appellee. STATE appeals’ the court of viewed concluded the court of erred when No. 512-87. it decided that Texas, Criminal appellant authorized under Article were En Banc. 14.04, DeJar Relying upon V.A.C.C.P. (Tex.Cr.App. nette v. Nov. 1988. 1987), “[tjhere simply we concluded that finding nothing support these facts to proof satisfactory support existed to to es belief that about
cape procure so that the officers could We continue adhere warrant.”
conclusion. rehearing,
In its motions argues matters that re-
the State several
quire case. The another review of this appellant’s
State submits that even by Article
arrest was not authorized provisions are other there several Chapter the Code Criminal
under statutory constitute
Procedure that would Ac- arrest.
cordingly, the facts of the State claims that light be reviewed
this case should statutes, particularly Articles
these other was not
14.01 and 14.03. Such review
performed by the court of Nor, appellant’s conviction.
affirmed the engage
did such a review because we appellant's petition for
issue on which the granted was ex- appeals’ court of
pressly limited *2 Odessa, Edwards,
Jimmy appellant. Pollan, Stockton, Phil Atty., Dist. Fort Becker, Goldstein, Douglas Ray M. B. Wil- King, Austin, Huttash, liam M. Robert Austin, Atty., State’s for the State. OPINION ON APPELLANT’S PETITION
FOR DISCRETIONARY REVIEW DAVIS, Judge. W.C. jury
A convicted of the offense possession with tetrahy- intent to deliver drocannibinal, over but less than 400 grams, punishment and assessed at 15 years’ Depart confinement the Texas ment of Corrections. See Tex.Rev.Civ.Stat. 4476-15, Ann. Art. Section 4.031. The Eighth for the Judicial conviction, holding District reversed the reversibly the trial failing erred in suppress evidence seized under an invalid warrant. Adkins v. (Tex.App. 1984). Paso We vacated — El judgment and remanded the case for a exigent
determination whether circum support stances existed to the warrantless appellant. arrest of Adkins v. (Adkins
S.W.2d 363 (Tex.Crim.App.1986) I). remand, On court found exigent there were no circumstances which justified seizure, up warrantless but pursuant held to Art. 14.- V.A.C.C.P.1 Adkins v. 726 S.W. Paso, 1987). (Tex.App. 2d 250 We — El granted appellant’s petition for discre tionary review to determine whether the limiting court erred in not remand, question to the on and whether upholding that court erred in the arrest auspices under the of Art.
We will affirm. succinctly facts of the case are stat- prior opinion
ed in our and shall not be length. purposes reiterated here at For is sufficient to note the provision provides pertinent part any 1. That a warrant presence offense committed in his "may a arrest an offender without or within his view.” I, Adkins supra, In we held that following Upton facts. record reflects the Renfro re- found County Deputy procuring Sheriff Charles actual of a warrant later informant tip preclude ceived a from confidential the use to be invalid does not day man that each certain particu week justify circumstances thin, tall, long approximately feet I, six In 365. search. Adkins lar mustache, hair, driving beard blond beginning of the deed, merely would meet a man nick- blue automobile inquiry. When *3 in named “Pollock” at Nutt’s Bar McCam- deficient, be “the search should found to be to Pollock’s ey. The two men would drive war proceeding without a treated as one house, time, go for inside a short should be rant and the facts of the case to car the return the blue where described the search to determine whether reviewed package Pollock a of man would hand exception.” upheld can under a warrant be drugs. Subsequently, we remanded Id. 365-66. at the initial Approximately one week after any such this cause to determine again tip, the informant contacted Renfro support war- to the circumstances existed impending of trans- and told the officer an and stop appellant and of rantless seizure appellant action and Pollock. between trial, along noting admitted at evidence secure vehicle While Renfro went particular case way the “facts of Bailey Deputy Allen was (will) proscribe the actions either excuse or sur- sent to Pollock’s residence conduct Id. instruc of the officers involved.” Our expected on the transaction. veillance limit specifically on remand did not tions by the informant. event unfolded as related Appeals’s any partic review to of Court and parked The two men Pollock’s house Chapter 14 of the Code ular section thereafter, Shortly they left inside. went Procedure. Criminal car. A few the house and entered the later, the man later identified as minutes Moreover, case remanded is when package from appellant paper a brown took court, jurisdiction appellate to a lower his it to the back seat of car and handed constitu originally granted the court Pollock, left who then the vehicle went fully re statutory mandate is tional and Appellant returned to inside residence. and re by the of abatement stored order came, picked up the bar from whence he rehearing stated on As this Court mand. again drove off. At another individual State, 749 S.W.2d of Garrett v. in the case executed. Offi- this time the warrant was (Garrett III): (Tex.Cr.App.1988) 784 view, plain in weapons seized loaded cers an “order of Court to issue [F]or cash, hashish is marihuana and the remand” to restrict the court focus of the instant offense. jurisdic- of its own renewed exercise review, ground ap his first In tion, authority seem to would power and Appeals pellant contends impossible and unwarranted be an in light upholding conviction erred grant of abridgement of constitutional remand instructions to that this Court’s Y, appeals by Article courts of same to arguing Essentially, appellant court. Texas, implement- Constitution § Appeals lacked the au that the Court 44.25, 4.03, V.A. 44.24 and by Articles ed thority go beyond those instructions. C.C.P. agree, both cannot because We At 787. interpretation unduly places restrictive these reasons we conclude For opinion, prior our on the instructions within its Court of Court, because, remand from this upon reviewing stop and the warrantless reviewing function of an of the exercise light of appellant in search of is limited appellate court intermediate 14.01, Ap- found in exception Art. its own or a valid restrictive discretion over- ground review is pellant’s first S.W.2d 468 656 statute. Carter ruled. (Tex.Crim.App.1983).
785
“good
suspicion, hunch or
faith
ground for
cer’s mere
In his second and final
Ap
more,
appellant contends the Court
is insufficient to
perception,”
without
concluding
crime was
peals erred
arrest.
probable cause
constitute
presence.
the officer’s
committed within
State, 558 S.W.2d463
(Tex.Crim.
Fatemi v.
he
He also takes issue with the fact that
S.W.2d
Ceniceros
App.1977);
given
opportunity
to brief or
Moreover, “the
(Tex.Crim.App.1977).
argue
proper
out of the ordi
perceived
must be
events
Initially,
appel
arrest.
we note
subject with a
nary, suspicious and tie a
ground for review is multifarious
lant’s
Lunde, supra, at 667. Cf.
criminal act.”
for review. Morin v.
presents nothing
(Tex.Crim.
Glass v.
(Tex.Cr.App.1983),
S.W.2d
State, Armstrong
App.1984)
Moreover, given
therein.
and cases cited
(Tex.Crim.App.1976)
ob
[the
court’s inher
our discussion
conduct
cannot be
served individual’s
alone
jurisdiction
originally
powers
ent
activity
as consistent with innocent
as with
remand, ante,
vested or later restored
However,
proscribed, criminal conduct].
*4
sup
any authority
and the lack of
cited
previously
Art. 14.01 arrests have
been
argument,
port of the latter
we decline to
conduct,
sanctioned
an individual’s
complaint.
appellant’s
address
latter
Due
itself,
overtly
criminal
is cou
while
case, however,
posture
we
knowledge
pled
prior
an officer’s
so
with
will turn our attention to the
innocuous conduct re
the otherwise
whether a crime was committed within the
flects that an offense is occurring.
presence
justify
of a
officer
as to
so
State,
Lunde, supra;
Miller v.
458
See
the warrantless seizure and search
(Tex.Crim.App.1970). To deter
S.W.2d 680
cause.
exists,
probable
mine whether
cause
us,
purposes
For
the case before
“totality
look to the
of the
Court must
may
arrest an individual with
State,
Whaley v.
686
circumstances.”
(a)
probable
out a warrant
there is
(Tex.Cr.App.1985).
950
S.W.2d
individual,
respect
cause with
to that
(b)
bar,
excep
Turning
arrest falls within one of the
to the facts of the case at
specified
tions
in Art.
See
combining
we hold that the circumstances
States,
Henry
98,
v. United
361
80
U.S.
personal
of the officer
observations
168,
Lunde v.
(1959);
4
134
S.Ct.
L.Ed.2d
conducting
prior
surveillance with the
State,
(Tex.Crim.App.1987);
665
S.W.2d
knowledge
officers allowed a war-
State,
Delgado v.
corner’s reversed warrant. thinking, rejected appeals and sentence. court of had such tion cannot, faces, straight find the “We appeals The court of also found that be- the offi- warrant invalid and find that showing exigent there of was no circum- cers were confronted with prevented circumstances that would have depriving opportunity them of an stances securing officers from a valid 608). (675 at to secure a warrant.” upon exigent cir- reliance seen, this Court majority As of rep- by the non-elected cumstances State’s straight easily can do this with faces. misplaced, so said the resentatives appeals. of court in on re By it stated its what mand, 726 S.W.2d see Adkins say, Almost the State’s non- needless 1987), (Tex.App. the court of appeals not representatives pleased were —8th elected terribly me makes it clear to that it was had appeals the court of said and with what done. displeased what this had at Court regarding is- done the search seizure nevertheless, appeals, did its The court of sue, apparently not because doing unfortunately, duty, duty, its but appeals actually court of had stated and of remand. exceeded this Court’s order held, they they but because concluded that See reprosecute appellant: not “The could re-try Appellant not will be able to State following appeals court of states key police ... due to death of a in its are then opinion on remand: “We nothing do death had with this
[whose posed the Court of Crimi- cause]”, argued repre- so the non-elected not the facts of nal of whether or petition in their sentatives the State case, this the officers were able which discretionary See State’s Petition review. warrant, present ‘exi- secure and execute Review, page Discretionary 6. gent defined the United circumstances’ petition Supreme The State’s Court a situation in States granted the in this cause so that practicable first time to secure a which ‘it is (251). (Citations omitted.)” could review the decision of the this Court warrant.’ appeals validity Thereafter, court of that concerned appeals court of discussed of appellant’s of the search and seizure opin- for reasons stated its rejected, vehicle, after of this which ion, cited, cases each of the rea- erroneously reversed well Court opinion, appar- also cited had well court soned and decision written sort ently give appeals the court some appeals, see Adkins issue, guidance resolving whether (Tex.Cr.App.1986), and remanded exigent circumstances existed. for that court cause to court distinguishing facts easily After solely and “to determine whether facts by this Court from the the cases cited (366). exigent circumstances.’’ there were cause, stated (My emphasis.) “Having following: made these obser- *7 reversing and seizure deci- In the search find, vations, per se rule we now not as appeals, the this Court’s sion of court of case, given on facts of this that but opinion appears ignored to have majority exigent circum- record not disclose does appeals fact that the court decided a war- securing stances that made search and seizure issue both State words, the rant In other impracticable.” grounds. Federal and law appeals eyes to the court of “closed” search and the for the affidavit opinion of this majority The first Court warrant, to see if search and then looked if to have an affidavit for appears held might have deficient, there were sufficient facts found to be search warrant is obtaining another invalid, warranted the rendering search warrant thus this the court of point, search At obtaining warrant. eyes to the one should close his out order appeals carried this Court’s had consider of the search warrant quit remand, probably should have a of though there never was the matter writing. Being extremely appellant’s petition discretionary conscientious for re- however, appeals, view. unfortunately court
went forward. course, appellant complained in his Of for “ground petition first for review” in his appeals thereafter, appar- The court ap- discretionary review that the court ently ignoring the facts contained of re- peals exceeded this Court’s order using for the affidavit search mand, complained and then about the governing law this State warrantless appeals’ finding that a crime had been arrests, Chapter see 14 of the Code presence, a nec- committed the officers’ Procedure, engage Criminal decided essary requirement before V.A. specious reasoning some strained and C.C.P., applied can be invoked and to a uphold the search in this cause. warrantless arrest or search case. The court of found that Officers appellant’s complaint, As to first the ma- Bailey “probable Renfro and had cause” to cause, jority opinion citing in this a direct appellant appellant because had com- case, Morin v. appeal penalty death presence mitted in the officers either a (Tex.Cr.App.1983), rules felony against offense or an offense “ground appellant’s is mul- review public peace, thus justifying a warrantless nothing presents tifarious and for review.” appeals, arrest. The court of (Page maj. opinion.) My 785 of research expressly never stated felony or mis- yet to date has this reveal where Court demeanor criminal appellant offense had applied the “rule doctrine of multi- actually pres- committed in the officers’ petition discretionary fariousness” to a ence, ignores and if one the facts set out in review case. This is be- understandable affidavit, the search warrant any cause this Court could have made that de- supplementation affidavit, facts to the grant ap- termination before it decided to clearly no criminal offense was shown to pellant’s petition discretionary review. have been pres- committed the officers’ I do not find where has ever ence. The court of stated the fol- changed wording ground of his “second lowing: Bailey’s “We have concluded that day peti- for review” since the he filed his kept officer who the scene under sur- [the course, tion for review. Of cohort, Renfro, veillance while his Officer nothing there is before this to re- get went to a search they warrant so that view, appellant’s petition because for dis- could search pur- motor vehicle cretionary guilty of multifarious- authority] suant to lawful corroborative ev- ness, matter, that ends doesn’t it? But idence and the total information available (in opinion, the interest of (although to Renfro not all included in the justice?), posture next states: “Due to the warrant) provided affidavit [for the] case, however, of this we will turn our probable cause at the time of seizure. attention of whether a Thus, the stop warrantless and arrest of crime was committed within the Appellant justified without justify of a officer so as to the war- exigent strained resort to the circumstanc- rantless seizure and search in this cause.” money, es doctrine. The seizure of the (Page maj. opinion.) 785 of drugs weapons passenger from the out, previously pointed As the court of compartment per- was therefore within the appeals made the determination scope missible of a search incident to the make, finding Court asked it to that “the (253). initial seizure.” record does disclose circum Thereafter, majority Court, ap- securing stances that made the of a war *8 parently accept because it (726 252). could not impracticable.” rant S.W.2d at reasoning appeals, per- of the court of or remand, By this Court’s order of haps because it was fearful that clearly other in correct what he asserts. See appeals might courts of adopt apply Garrett S.W.2d reasoning cases, J., the same granted Cr.App.1986) (Teague, dissenting opin to other ion). However, obviously liking ignore provisions of what the defendant to appeals did, V.A.C.C.P., of court thereafter even directly petition though that court exceeded this Court’s appeals grant a court to him to file of leave remand, majority ap order of appeal, and errone- an out-of-time it is not proves appeals what the court of did on grant for him out-of- ous that court to an “[U]pon following: by stating remand appeal, notwithstanding provisions time Court, remand this exercise 11.07, supra. from of of Art. reviewing an interme function of Garrett, This su- should overrule Court appellate only by is limited diate court pra, and that when this Court remands hold its own a valid discretion or restrictive appeals, a cause for that court to a court of statute. Carter v. carry specific may not duty, out a (Tex.Cr.App.1983).” (Page maj. 784 of exceed specific terms of the order (My opinion.) emphasis.) Court, unfor- majority remand. The Carter, supra, is no tunately, accept my fails to invitation. Besides, for the underscored. the author Therefore, necessary it is consider and stating majority opinion, in he what issue, sans discuss the search and seizure states, give only Judge failed to not affidavit, i.e., out in the facts set Carter, supra, Clinton, author of appeals by find- whether the court of erred statement, opinion, credit for the he has ing not ex- that circumstances did quote Judge also failed to all of Clin- Interestingly, ist. that has al- stated, i.e., decision part ton he leaves out the first jurisdiction ready “Once quote, namely: been made this Court. appellate representatives is invoked ...” also State’s non-elected (Carter, 469). (Emphasis review, supplied.) petition discretionary filed a for Carter, supra, Thus, the rule announced arguing appeals erred that “The court of applicable appeal to direct cases and by finding exigent circumstances that [out- petition for discretionary not cases. side of for the search war- the affidavit petition This did not exist.” was re- rant] majority opinion, The author of the how- 2, 1987, fused on this Court December ever, quote does later this cite and from granted this day on the same that Court Garrett v. opinion of majority Court’s discretionary for State, supra, appellant’s petition re- submission, original on view. the bench and bar owed some majority erroneously of this court Isn’t notwithstanding explanation held that when this Court about this? remands a to court of cause for a Appellant, petition in his for discretion- specific purpose, that court is free to dis- review, ary correctly points follow- out the regard order, this remand Court’s with- ing: any trial record is “The devoid original opinion opinions draw Bailey’s being crime committed Officer error, rehearing, points entertain new (Page presence.” petition do and whatever it could have done when review.) cause was to it first submitted on direct opinion, in This Court’s sustain- i.e., if
appeal, cause is remanded to 14.01(b), ing the on the basis of Art. arrest Court, court of court is peace may “A arrest an of- ignore this Court’s order remand free fender a warrant an offense without justice it thinks and do whatever demands his in his or within committed cause, and to done in the achieve should be view”, acknowledges by Legisla- first scratch, may result start from may peace tive edict a officer Texas though any never this Court had issued make a arrest of an individual warrantless in the Also see this order case. Court’s to arrest probable unless majority opinion King he has cause 687 S.W. exception Chapter to a warrantless (Tex.Cr.App.1985), major- in which 2d Thus, exist. arrest is shown to ity of this Court held that even when this Texas, though might have a appeal officer in he dismisses a direct cause for jurisdiction, an individu- permissible it is ton want
791 Terry al, implicated that of that cause may not arrest individual without facts some, illegal unless he that that the contraband was stop” also shows and Thus, in autho- exception Chapter during “Terry stop”. found 14 that discovered Lunde, rizes a warrantless arrest exists. far supra, it is a given the facts being authority support an cry from out, pointed re- previously As this Court finding supra, in this cause. representa- fused the State’s non-elected cross-petition re- tives’ “see majority opinion us to advises view, they in “The which asserted that (Tex. State, Delgado also v. 718 S.W.2d by finding erred that exi- State, Whaley S.W. Cr.App.1986); v. [686 gent circumstances did not exist.” (Tex.Cr.App.1985)]", in addition to 2d 950 I Miller, supra, and supra, Bridges, stated, Notwithstanding just what it done, find author “However, have and them not to be majority opinion advises us that 14.01,supra, find support an Art. itative previously Art. 14.01 arrests been have conduct, ing in this cause. sanctioned when individual’s itself, overtly is cou while not criminal expressed Judge the reasons Clin- For pled knowledge an officer’s so prior dissenting opinion ton’s that he filed re that the otherwise conduct innocuous supra, Delgado clearly another Delgado, is occurring. flects that an offense is then governs in our law that warrant- aberration See Lunde [v. less arrests. Cr.App.1987)]; Miller If to fed- Whaley, pursuant was decided (Tex.Cr.App.1970).” maj. (Page 785 of law, may correctly have decid- eral it been opinion.) Does this I can mean that what ed, because, to make arrest a warrantless see, really I can not see? law, necessary under federal all is is that Miller, supra, cases, Slaugh and like see arrest, probable for the to establish cause (Tex.Cr.App. ter S.W.2d 92 exception no arrest and a warrantless 1958), Bridges and That, however, need is not true be shown. (Tex.Cr.App.1958),represent the infamous statutory Texas under our law. cases”, in “dropsy during which after or governed by The issue cause executing when a law, law, not federal the issue State warrant, appeared search the defendant might thus is not whether the State have the scene and then “dropped” to the “probable to make an established cause ground or tried to swallow what later arrest”; the issue is as a matter whether narcotics, turned out to be law, ignoring of state the facts set out object, officer retrieved the the defend for the the affidavit appeal ant claimed on there that presented to show not State sufficient facts merely unlawful seizure the defendant only “probable cause” for appeal that claimed on the officer did not existed but also showed that suffi- him, “probable cause” not have to arrest satisfy existed cient facts that would arguing establishing addition to exception. Chapter The facts of this arrest, cause to neces it was also latter, clearly do not establish the sary that the officer one of the establish although might former. If support exceptions Chapter to make a warrant- latter, it is the facts do not establish the less arrest. unnecessary to former. discuss the Lunde, however, is very substantial opinion’s Judge for the hold- I find that has so Because Clinton ing, especially given only succinctly clearly the fact set forth the State judges I joined major- subject, quote three on the must most law ity opinion, dissenting opinion filed in Del- judges with five of the Court that he concurring in I no reached. if for than the gado, result other reason words, following hopefully, might who From the accom- was one those concurred. presented, they accomplish on plish today facts that were did not it was obvious then, me, 24, 1986, ago: years September me still obvious to that the almost two
792 v. this, see Eisenhauer example an majority concludes that a warrant- 14.01(b), State, (Tex.Cr.App.1988).
less Art. arrest authorized 754 159 S.W.2d V.A.C.C.P., justified by ‘probable may be dissenting opinion In the that he filed terms, However, by cause.’ Article State, 724, Jackson 718 S.W.2d 728 14.01(b), to arrest ‘an allows officer Cr.App.1986),Judge McCormick stated the requires offender’ and that the offense today following: majority puts on its “The be ‘committed presence in his or within legislative caps precedent and overrules (emphasis supplied) (emphasis his view.’ specific legislative contravention original.) dissenting opinion Also intent.” see the language clearly ‘That implies that all Long Judge filed in McCormick necessary proved the elements be 302, (Tex.Cr.App. 742 331 S.W.2d sustain conviction of accused must a 1987), following: in which he stated the police authority exist to the au give a not to act as obligation “This Court has thority arrest him without a warrant.’ opin super-legislature, substituting our Boyd, Heath 569, 141 Tex. 175 S.W.2d govern that of branch of ion for the second 214, (1943). peace no officer has ‘[A] ment.” authority to make an arrest without except is com instance, Judge warrant when the offense Clinton In this both presence mitted in his within his ante, stated, Judge see and what McCor- King v. view_,’ 132 Tex.Cr.R. ante, stated, applicable truly are mick see 200, (1937). Compare to this cause. 11, Steverson v. Tex.Cr.R. reasons, I foregoing respectfully For the with Janu (1928), 454-455 “su- aggressive to the assertive dissent ary v. Tex.Cr.R. re-writing of this State per-legislature” (Asterisk deleted.) (1930)* S.W.2d 1097 14.01(b), “A supra, to now read Therefore, to make valid warrantless may arrest an individual without 14.01(b), peace arrest under Article of- conduct, is not if he observes ficer more than cause. needs itself, provided overtly criminal actually The offender must commit an articulate hunch that peace officer has an offense in his or view. committing or individual is about majority opinion, just Is the a crime.” commit example happens another of what Sargent, aggressive you by Ben do chance read this majority and assertive opinions? not, you If I agree Legis- does not Court’s what the believe enacted, should, lature of this State and thus because I believe that legislation give rewrites the involved like opinions you to suit this one can new personal preference their points? For drawing view ideas on cartoons.