Beardsley v. State

upon alone misconduct,’ illegality, any, if rests consent was whether statute, may influ- requested by the this well rather than violation volunteered officers, detaining appeals’ the arrestee assessment whether ence the court of fully flagrancy of the fact that purposefulness was made aware prevent thus conduct, and, weigh- could decline to consent and police other factors all of the car or resi- an immediate search ing equally, ultimately tip the could bal- dence, police purpose whether State, supra, ance. See at 667-68. Self underlying illegality to obtain appeals is judgment of the court of the consent.” and the cause is remanded reversed LaFave, supra, hold at 193-94. We now consistent with this proceedings further that before it can be determined evi- opinion. from a warrantless con- dence derived but illegal following an arrest is

sensual search WHITE, J., concurs in the result. admissible, found, by it must first be clear evidence, convincing rendered, voluntarily also consent was

that due consideration of the additional

factors listed above militates favor in-

the conclusion that the taint otherwise illegality arrest

herent has burden, course,

dissipated. The is on the State. BEARDSLEY, Appellant, Robert III. appeals Because court declined to Texas, Appellee. The STATE of question appellant’s reach the whether ar- legal, rest was let alone whether the taint No. 1044-85. any illegality dissipated by the time Texas, Court of Criminal appellant consented to the search of his En Banc. house, we remand the cause to that court

for its reconsideration. That court Oct. that, assuming conclude even the arrest illegal, taint was attenuated under the circumstances, deciding and thus avoid

whether arrest was in fact unlawful.

However, may important be to its taint

analysis for the court to determine in what

way illegal, Ap- the arrest was if it was.

pellant proba- contends the officers lacked correct,

ble cause. If that is the arrest was appellant’s

a violation of constitutional

rights under both federal and state consti- grounds

tutions. Because there were no

for the officers to he was about to believe contends,

escape, appellant further his war- perpetrated

rantless arrest also vio- 14.04, supra. Though of Article this

lation illegality

latter would stem from a violation constitution, rather than in ei- statute analysis

ther a taint would be re- event

quired. Bell v.

(Tex.Cr.App.1986); Self (Tex.Cr.App.1986). But if

The court found the evidence insufficient to conviction and reversed. Beardsley (Tex. 1985). App. disagree. We — Dallas According to the evidence introduced at trial, Beardsley, with the aid of Delmus Kelley, rented a red 1984 Chevrolet from Holiday Payless Rent-A-Car in Dallas. helped Beardsley Kelley job obtain a in 14, 1984, Kelley Houston. On March went Holiday arrangements and made to for period for rental the 1984 Chevrolet Beardsley get one week so that could to Payless Holiday Houston. The owner of that when the car Rent-A-Car testified rented, plates it had Texas license inspection a Texas sticker. He also stated Holiday always issues its' customers keys original one set of General Motors for the vehicle. The car was not returned 21, 1984, peri- the end of the rental March od, kept an additional two weeks. but April the car was found in the Holi- On during day mysteriously lot. left It was night original keys lying GM on the front seat. There was no evidence indicate who returned the auto. April On was stolen off Holiday May lot. recovered on Concordia, 4,1984 in At the time Missouri. recovered, Beardsley compan- and a it was ion, Montgomery possession James were The evidence shows that Mont- of the car. driving they gomery was the car when stopped get gasoline. They Concordia card, attempted pay with a Mobil but as Roberts, Dallas, appellant. Bill dealer, the station was an Amoco the sta- Wade, Henry Atty. accept Dist. and Donald G. the card. tion owner refused to Davis, Rolf, Beardsley Bruce Asst. cash to Montgomery Isaacks & Lana lacked Huttash, Dallas, Attys., gas Dist. pay Robert for the and offered camera Austin, Atty., State’s for State. also refused. The payment, but it was sug- suspicious and

station owner became gested Montgomery try to sell the camera PETITION FOR ON STATE’S OPINION called station owner then elsewhere. The REVIEW DISCRETIONARY Montgomery left the station on police. camera, attempt leav- foot in an to sell McCORMICK, Judge. the auto at the ing Beardsley alone with by a Beardsley was convicted Robert police time the arrived. degree pursuant jury felony third theft scene noted arriving on the V.T.C.A., Code, The officer Section 31.03. Penal sticker Mississippi inspection punishment at five the car bore The court assessed check on tags. He ran a Mississippi appealed his con years’ imprisonment. He Mississippi tags found that the car’s Appeals. viction to the Dallas Court Beardsley testimony had told the officer sippi address tags. had no record nervous. Beardsley appeared was his own. indicates that requested the officer When According testimony of Sandra identification, none. he had said Long, Beardsley had called her from Dallas at the he had lost his wallet He stated mid-March, ask- saying sick and he was night rest area the before Concordia agreed. stay Long ing to with her. Long, his name was Donald David in Ful- Beardsley Long’s arrived at home Fulton, Mississippi as address giving an ton, on Mississippi March accom- The noticed several his residence. officer Montgomery the red panied by James and clothing in of the items of the back seat time, At that car was still the Chevrolet. cleaning bag car, including dry one in a (although from over- Holiday, rent under receipt “Bob bearing a the name with due) reported had not been as stolen. and questioned iden- as to the McCord.” When Montgomery left with the Chevrolet on McCord, explained Beardsley tity of Bob 25, 1984 and not return until March did jockey. name he disc that was the used as a Montgomery 1984. When returned May a The then ran check on the vehicle officer Chevrolet, driving he was the which the number and discovered identification April the Holiday taken off lot on been Dallas, Tex- auto listed stolen from was day, Beardsley same and Mont- On that standing nearby, Beardsley, who as. Long’s left in Ful- gomery both residence report radio The heard the on the vehicle. ton, supposedly job. to look for a shoulders officer testified by suffi The standard which we measure hearing drooped sagged upon and his face Jack ciency of evidence established said, “I report and know the car the didn’t Virginia, 443 son v. 99 S.Ct. U.S. I’m hitchhiker.” The was stolen. a (1979): L.Ed.2d 560 “The relevant 61 placed Beardsley arrest. officer then under whether, viewing the evi question is after Montgomery nearby short- discovered light dence in the most favorable houses, thereafter, ly hiding between two any could prosecution rational trier of fact placed under and was arrest. of the found the essential elements have inventory An search the car was beyond a reasonable doubt.” Gon crime envelope Inside the made. trunk was an State, (1985). The zales v. 689 containing original the car’s Texas license the appeal for such on standard review in the plates. Also trunk was a suitcase direct circumstantial same for both and plastic found a which was identification State, v. 465 evidence. Wilson 654 S.W.2d bearing Beardsley’s photo- card name and (opinion rehearing); (Tex.Cr.App.1983) on graph. The suitcase a driv- also contained State, (Tex.Cr. Denby v. 457 photo the and er’s license with of a woman Freeman (opinion rehearing); on App.1983) the name “Rita Goldston.” State, 654 S.W.2d 450 person the A search of of James Mont- rehearing); Carlsen (opinion on gasoline slip in gomery charge revealed a of Rita The credit card the name Goldston. are: property The elements theft of charge used to make that was discovered property; (1) appropriation of the unlawful two months in a wallet found almost later (2) deprive the intent to the owner with by a maintenance at the Concordia worker Code, V.T.C.A., Sec- property. Penal the slept rest area where stated (Vernon Supp.1985). Subsection tion 31.01 night. previous Also in the billfold was acquire (5)(B) “appropriate” as “to defines cleaning receipt corresponding to the one a property exercise over or otherwise control in the back seat stolen car and found property.” “Appropria- than real McCord, other bearing Holiday the name Bob a if is without card, is “unlawful” it a tion” Payless Rent-A-Car business consent, proper- or if the Longview effective owner’s Holiday guest Inn card appropriates addition, ty stolen and actor Beardsley’s name. In there was knowing another. property was stolen deposit slip bearing the name also a bank 31.03(b), Fulton, supra. Long Missis- and the Section Sandra same Moreover, Thus, correctly- jury accepted even if the as the Court of alibi, that Beardsley and believed did stated, must whether a rational we decide from actually Holiday take beyond trier of fact could have found lot, stand, may the conviction still based (1) ac- Beardsley: reasonable doubt that determining parties. the law of whether car; (2) quired or exercised control over the party to an an individual is offense and consent; the owner’s effective without responsibility, may bears criminal court (3) deprive to with intent owner before, during, look events after the charged property. jury was also Participation in commission of the offense. parties, the law of so it could have enterprise may an be inferred from the by finding beyond reached its verdict not be shown circumstances need com- Montgomery reasonable doubt that direct evidence. Circumstantial and that mitted each element offense that one is a be sufficient show “acting pro- Beardsley, intent Wygal party an offense. mote the of- or assist the commission of (Tex.Cr.App.1977); Ex Parte S.W.2d 465 fense, solicited], encourage[d], direct- ... Prior, (Tex.Cr.App.1976). ed, aid[ed], attempted] Mont- or to aid” of red Beardsley possession the was committing gomery in the offense. Y.T. prior the two occasions to Chevrolet on C.A., (Vernon Code, Penal 7.02 Section First, by Kelley ear rented theft. the was 1974). early in for a Beardsley’s for use March trial, At Beardsley’s defense was based period days, or after which of three four staying ill on the alibi that he and with was timely car The second the was returned. Long on of and Sandra the date the theft possession Kelley again occurred when thereafter until left to for work look 14. Beardsley rented for on March the car in con- Montgomery. with But the is week, alibi it was not The rental for one but was According flict with other April original evidence. A set of returned until Beardsley testimony Long, keys of was at her issued with the General Motors were Chevrolet, May when the car was recovered residence from March 23 to 2. Not but duplicate being operated a set it was only weight testimony Long’s was the of keys. keys copied the Someone impugned through numerous inconsisten- originally the car. At the were issued with testimony, guest cies in own card her a arrest, a Beardsley’s the car bore time Holiday Longview from Inn in indicates the Mississippi inspection and license sticker Beardsley registered the hotel was tag. plate bracket had The front license Further, Beardsley as as March 24. late Mississippi license been removed. The possession was in of a credit card with belonged to plate on red the Chevrolet gasoline purchased which for the car was Long. Beardsley’s girlfriend, Sandra day Montgom- May one before inconsistent with obviously These facts are ery supposedly from Texas with returned knew; the what that the was Beardsley’s the car. statement to stolen origi- property Holiday Rent-A-Car arresting “just the that he officer inspec- nally plates a Texas Texas his alibi. hitchhiker” is also in conflict with presence of tion sticker. The strongly looked The Court original luggage the in the trunk where alibi, rejected jury. by the which the suspi- plates increases Texas were found jury The trier and as is the ultimate of fact Beardsley’s knowl- cions to the extent of such, resolving conflicting duty has the At the edge the car. of the true nature of accepting testimony option or the arrest, the Beardsley was with time the rejecting ac- by offered car, days, his suit- for three and had been Simply may jury cused. have because in the clothing his trunk and case unconvincing is found the evidence not he lost he stated back seat. The wallet grounds pur- finding gas for insufficient evidence to which contained a credit card with Moreover, support verdict. Anderson auto. chases were made officer, Beardsley questioned by when every reason- circumstances do not exclude knowl- gave false names and denied two guilt theft, lying except that of the deliberately hypothesis when able edge of the accused, amounting only a proof he stated “I’m a hitchhiker.” in- strong suspicion probability mere is or mere panel opinion The notes that necessary, how- sufficient. But it crime is insuf presence at the scene ever, every point directly and fact party to prove person that a is a ficient to guilt of the accused. independently to the crime, giv false name is even where a force of all the incrimina- The cumulative complete that while en. But the rule is ting may circumstances be sufficient presence of an accused at the scene of an guilt. warrant a conclusion of Sullivan v. sufficient to offense is not alone 564 S.W.2d 698 conviction, tending to it is a circumstance (opinion rehearing). required It is not which, guilt, with other prove combined certainty cir- prove to a moral that the facts, may suffice to show that the accused presented actually cumstances exclude ev- State, 623 participant. Valdez ery hypothesis that the criminal act (Tex.Cr.App.1981)(opinion on person; it have been committed another above, rehearing). As demonstrated every hy- must exclude reasonable sup ample “other facts” to record contains pothesis by the evidence that would raised port the conviction. exculpate the accused. tend to panel opinions refers to two of this enough guilt conclusion of is war- where, asserts, the circumstances ranted the combined and cumulative compelling” than those were “more incriminating circumstanc- force of all the here, presented yet the evidence was insuf- State, 699 Brandley es. 691 S.W.2d support the accused ficient to conviction of State, (Tex.Cr.App.1985); Vaughn 607 However, of party as a to an offense. one (Tex.Cr.App.1980); Flores v. cases, State, 608 those Morrison v. S.W.2d State, (Tex.Cr.App.1977). 364 551 S.W.2d (Tex.Cr.App.1980),applied rule 233 the we in overruled McClain v. force of all find the cumulative We case, there- That incriminating circumstances sufficient the fore, assessing in has no value the eviden- case, of fact in this jury, for the as the trier tiary sufficiency of the case bar. did, conclude, accused they as that the panel Wygal other case cited the is guilty beyond a doubt. reasonable State, supra. clearly That case is distin- Appeals is The decision of the Court of guishable. Wygal, only In the defendant’s for con- and the case is remanded reversed alleged picking up acts were the thief at his remaining point appellant’s of sideration of request after the stolen car had been error. off, confirming dropped a false address given by the thief. The Court noted that J., TEAGUE, finds that because possession there was no evidence of of the Appeals correctly has decided Court of defendant, nor was the defend- not find that a rational trier would present in Fur- ant ever the stolen car. sufficient, theory and the the evidence ther, Wygal acts of the defendant all by the State was not the used completed. occurred after offense was put this theory, he votes to exclusive bar, In the case at the accused had sub- stamp” “improvidently granted Court’s car, contacts with the stolen as the stantial discretionary petition for to the State’s detailed demonstrates. above review. possession in Beardsley had been lengthy before the theft for auto twice P.J., ONION, participating. not periods Wygal of time. cannot be said to compelling DUNCAN, concurring more than the facts of the Judge, be instant dissenting. case. majority’s opposition to the My basic

A conviction based on circumstan why question: as a opinion if the is best stated tial evidence cannot be sustained judicial Discretionary proceedings, usual course of for Review ...” was this Petition 200(c)(6), Tex.R.App.Pro., as Rule to neces- granted place? first in the “power supervision.” sitate this Court’s of Discretionary Review its Petition for Id. DeGrate v. complying with State legal This Court has neither the authori- (with ty exceptions), re- a few well-known Reason for the fol- asserts as the Review sources, staff, budget, or in- hopefully the lowing: “The has decided Court clination to conduct itself as a direct review in con- important question an state law attempt thereby rectify court and all applicable flict decisions of the with the inequities players that befall the Appeals.” Peti- Court of Criminal State’s take Texas justice roles criminal Review, Discretionary p. tion 2. For for review those system. should We not just two true. reasons Appeals’ Court of decisions that erroneous- First, Appeals’ decision in the Court impact ly the criminal law this state. important unquestionably this case is Trying every cure correct and illness (State however, parties Appellant); By system limiting to fail. is doomed interpretation of the Appeals’ Court of our cases that affect not review to those relationship facts and their to the law system parties but the will result certainly this elevated one case cannot be quality opinions more in both better concerning “important to a an deci- decision continuity. importantly, Id. sion of state law....” J., CAMPBELL, joins opinion. this Second, although the State in mere con- Ap- clusory form states CLINTON, dissenting. Judge, peals’ “applicable de- decision conflicts judges panel When of three ...,” Id., con- of this Court these cisions any Appeals, or other court Dallas Court of not Since flicting decisions are identified. matter, unanimously appeals Discretionary does the Petition for Review finds circumstantial evidence insufficient supposed contradictory identify conviction, judgment my way they opinions is no can be con- there discretionary this position member of Appeals’ decision. trasted with the Court finding such is entitled review court is that contrasting propriety of the cases respectable to a measure deference. implicit in the reason for review seems too supportive that constitutional For there is fact, hold the State advances. I would V, Compare, e.g., rationale in Article § such a reason for review when Development Corp., Hall v. Villareal (by the State defend- advanced either or a (Tex.1975). ant) absolutely a discussion is then such policy There sound considera- are also necessary compliance for there to be discourse tions. a full Without 200(c)(1), Tex.R.App.Pro. R. In other subject, point out that review suffice to words, quotation of au- the mere the rule are different from functions of this Court thorizing should be insuffi- review deemed appeals. courts of appellate functions cient. primarily A court examines appeal direct majority’s agree I with the conclusion impact and its in trial court asserted error Appeals’ regard- decision the Court secondarily, accused; it under- rights ing sufficiency case of evidence this there none on when takes find the law Therefore, Peti- was since the erroneous. statutes, applying con- point, interpreting Discretionary granted tion for Review was developing the principles stitutional future, disposition. I In the concur in its Judge Shirley M. law, if need be. common however, only should Court we review first “corrective calls the Hufstedler Appeals’ regarding sufficiency, decisions “institutional second function” and the party appealing Hufstedler, the de- New Blocks evidence when functions.” Reshaping the Judicial sufficiently pleads proves Pyramids: Old termination 901, reasoning 910-911 System, Appeals in that the Court of its 44 S.Cal.L.Rev. (1971). accepted from the departed “so far appellate “Beardsley gave

“With each rise struc- two false names and ture, importance of the review for stated that he did not know car was ‘just correctness function diminishes and the stolen. He claimed that he ” importance hitchhiker.’ of the institutional function instance, by For increases. the time dis- supra, at 214-215. cretionary granted has been review did not further notice the matter. The States, Supreme Court of the United Court, opinion however, of this embellishes the corrective function has been almost by recounting testimony incident more totally eclipsed by the institutional func- Baker, viz: from Officer tion, apart from criminal cases in which “The officer testified that penalty imposed.” the death has been drooped sagged shoulders and his face Ibid. upon said, hearing report “I didn’t know the car just was stolen. I’m highest As court of resort in criminal a hitchhiker.” jurisdiction, cases in its state wide review- ing decisions of appeals, fourteen court of Majority opinion, at 683.1 From there its deliberately this Court has cast itself in a treatment intensifies. played Supreme role like that Court. Demonstrating page at 684 that his alibi Tex.R.App.Pro.Rule 200. Its stated con- evidence,” is “in conflict with other legal given cern is that reasons for deci- opinion weight Long’s demeans the testi- sions an signifi- intermediate court be of mony, appellant possessed finds a credit cance and free of Ibid. Only conflict. gasoline purchased card with which appeals when a court depart- “so has far May (by identified) someone not and con- accepted ed from the and usual course of cludes:

judicial proceedings, or so far sanctioned “Beardley’s arresting statement departure by court,” such a lower are we officer that he ‘just a hitchhiker’ is exceptional “power exercise supervi- also in conflict with his alibi.” Id., 200(c)(6). sion.” Rule Carrying out Id., Finally at 684. the incident is role, our own Jackson, with Justice in all viz: vehemently, iterated but substantial questions Judges federal “Moreover, questioned by when the offi- must remind themselves that “we are not cer, Beardsley gave two false names and infallible, final because we are we are knowledge theft, deliber- denied infallible because we are final.” ately lying when he stated ‘I’m ” Allen, Brown 344 U.S. 73 S.Ct. hitchhiker.’ (1953) 97 L.Ed. 469 (concurring Appellant may high not earn marks for opinion). credibility speaking officer, police to a In the opinion instant cause the testify, but he did not and to attribute to says at the outset: high degree that remark such a of incrimi- “The Appeals] Court of found the [Dallas say guilty nation is to he is because he is a insufficient to the con liar. coming Just as we are around to viction and reversed. Beardsley v. that understand value of evidence adduced State, 696 (Tex.App. S.W.2d 214 by the State is not enhanced disbeliev- — Dallas 1985). disagree.” accused, We Wright ing testimony of an State, S.W.2d 838 The factual statement and discussion that (Opinion 840), Rehearing, at so also that follow indicate to me at least that an essen- a statement accused is believed be disagreement tial basis for merely is false does not constitute affirmative evi- interpretation emphasis of certain prove dence to the State’s case. example facts. One is the appel- matter of upon lant’s hearing report remarks over gravamen The depriving of theft is in Officer Barker’s radio that the red Chevro- enjoyment true owner of value or of his let was listed as stolen. The Dallas by exercising control over it property, Appeals related: McClain without his consent. emphasis throughout 1. All is mine unless other- wise noted. 350, at 353 Appeals opinion Dallas Court parte Ex Archie B. PETERSON. application meaning concentrates No. 886-85. control,” term, “exercise and found appel- prove that evidence insufficient Court of Criminal Texas. the car after

lant exercised control over never focus- majority stolen. The here 21, Oct. Instead, particular at es on that element. his page it undertakes to demolish defense, as if defense some-

alibi a failed proof supplies

how of an essential element beyond that

of an offense must be shown

reasonable doubt. find- Unanswered

ing “exercise of below that evidence of

control” insufficient.2 evidentiary

Finally, on the suf- matter of appellant party

ficiency to show acted as someone, presumably

with James Mont-

gomery, “knowledge his the true nature car,” Majority opinion, at means Montgomery was exer- knew

cising control over a stolen automobile. prove promote

does not “intent to control, ap- exercising

or assist” his such solicited, directed, aid-

pellant encouraged, attempted Montgomery do-

ed or aid

ing appellant Nor does so. the fact the stolen

“had substantial contacts with

car,” id., party. make him a That may distinguish Wygal

fact (Tex.Cr.App.1977), just any “distinguished” case be some other other; distinguish merely to

fashion or neces- decision on its facts will not

another

sarily correctly evidentiary resolve hand.

problem at sum, findings giving deference Appeals, I

reasons Dallas Court opinion not satisfied of this Court

am they wrong and its deci-

demonstrates are

sion is incorrect. I

Accordingly, respectfully dissent.

MILLER, J., joins opinion. in this ing support the verdict. Positing jury rejected the alibi de insufficient evidence to (Tex. fense, majority says, “Simply 873] 868 [at because Anderson v. Cr.App.1985)." observation jury inscrutable have found the evidence That [offered explanation. unconvincing grounds out for is not for find cries some accused]

Case Details

Case Name: Beardsley v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Oct 21, 1987

Citation: 738 S.W.2d 681

Docket Number: 1044-85

Court Abbreviation: Tex. Crim. App.