*1 122
1985)); see also Smirl v. Globe Laborato
Inc.,
41, 44,
676,
144
ries
Tex.
Benjamin
aka
Herbert BOYLE
(1945)(appellant
given oppor
678
should be
Whipple, Appellant,
Mr.
tunity
disposition
to have
on the merits
v.
rules).
such
unless
causes violence
Here,
the court of appeals
finding
made no
Texas,
Appellee.
The STATE of
permitting supplementation
would
69743.
No.
unreasonably delayed
appeal.
have
Moreover,
supplement post-
while leave to
Texas,
Appeals of
Court of Criminal
denied,
submission
often
seldom is a
En Banc.
party
timely
who otherwise
files a record
4,
Oct.
1989.
pre-submission
supplement.
denied
leave
Corp.,
v.
Fin.
See Williams Mack
505
27,
Rehearing
1990.
Granted June
316,
(Tex.Civ.App. Tyler
S.W.2d
319-20
—
15,
Rehearing May
1991.
On
1974,
n.r.e.) (party
post-
writ ref d
denied
leave).
submission
But see General
&
9,
Life
Certiorari Denied March
Handy,
Accident Ins. Co.
S.W.2d
See
necessitate unwarranted
The court appeals was correct in that,
holding complete absent a record on
appeal, presume deposi it must the omitted supported judgment.
tions the trial court’s Wackenhut, DeSantis v.
See — (Tex.1990), denied, cert. U.S.
—,
(1991).
For the court of appeals to affirm trial judgment
court’s on the of omitted basis having pre-submission
items after denied
supplementation of items those without
having determined that such would unrea
sonably delay appeal, disposition Tex.R.App.P.
however, spirit offends
55(b). Advisory Opinions of also Sub See Interpretation
committee on of the Texas of Practice Procedure in Civil
Rules
Cases, (1945). 8 Tex.B.J. Tex.R.App.P.
Accordingly, hearing argument, without oral a ma- grants applica- of this court
jority Crown’s error, judg-
tion for writ reverses appeals,
ment of the court of and remands proceed- for further
this case to court
ings opinion. consistent with this *3 (court Milagros testified appoint- Both John Wertz McKinney, Jr. William R. vehicle, left the deceased their that after ed) Amarillo, appellant. approached an individ- they as she watched Hill, Wesley Atty., G. Danny E. Dist. appellant, and even- ual, later identified A. Far- Clayton, Waggoner, R. James Jon red trac- tually cherry Peterbilt entered Meredith, Sadler, ren, D. Bruce Michael requested The deceased had tor-trailer. McKay, Asst. Dist. Randall and Keith Sims tag license record the the Wertzes Huttash, Amarillo, State’s Attys., Robert number, they to accom- were unable Austin, for Atty., the State. However, they plish able to this. were give complete description of the later truck, the com- included the name of *4 owning on the pany the vehicle inscribed OPINION Line, Truck “JEWETT SCOTT cab doors: Inc., Mangum, Oklahoma.” DUNCAN, Judge. proved to be inval- This information later Boyle appellant, Benjamin The Herbert uable, in- once the Wertzes were because Whipple, appeals his conviction a/k/a Mr. they were formed of Gail Smith’s death capital pursuant of murder obtained apprise investigating officers of able Y.T.C.A., Code, 19.03(a)(2). The Penal § The investi- their homicide observations. penalty imposed by the trial death was gators then to trace the tractor- were able jury affirmatively answered court after appellant, and after contact- trailer to the special issues under Article submitted Truck in Okla- ing Scott Lines the Jewett Appellant brings 37.071(b), Y.A.C.C.P. homa, destination the ultimate determined twenty-nine points of error before this Texas, Diboll, he appellant as was where judgment of convic- Court. We reverse the Temple pick up a load at Industries. tion. investigat- Amarillo juncture, At this Appellant complains a initially sub- body ing knew that a naked officers portion of which was in- stantial found, tape, with common duct been bound against troduced him the course brushy in a area fourteen miles and hidden capital ex- murder trial should have been supplied city. From the details outside the it by cluded the trial court as obtained deceased, they by family were exploitation illegal of his arrest.1 that Smith was last seen board- also aware ing cherry red Peterbilt tractor-truck 15, 1985, body On naked October Worth, by appellant outside Fort driven deceased, Smith, Lenore was dis- Gail By time this Highway Texas 287. on driver, passing truck Donald covered a 17, it was October information coalesced brushy in a area Ray McKay, concealed 1985. approximately one half mile north of the 287, Bridge Highway on suppress Canadian River motion to record miles north of Amarillo Potter fourteen it that as of October hearing makes clear proba- had been County, 17, 1985, police Texas. The deceased sufficient lacked sister-in-law, step-brother investigatory and an taken her to conduct ble cause Wertz, Milagros procure of an October search or to the issuance John p.m. appellant. Never- 4:00 to a rest arrest for the approximately 1985 at warrant Worth, theless, utilizing authority 20.11 ap- as Articles stop Fort Texas. outside V.A.C.C.P.,2 Yerger 24.15, Sgt. Walter obtain a parent plan was that Smith would Department acquired the Amarillo Police going to Amarillo so of ride a trucker grand jury material wit- her mother. issuance that she could visit points trial Since the four compliance heard in the court. with footnote nine McCam interrelated, (Tex.Cr.App. they bridge will be be so addressed are 1986), points appellant four of error raises together. discussed separate upon distinct and constitutional based urged sup statutory theories which are and port 2. See fn. infra. suppress filed of the three motions Diboll, 17, 1985, Sgt. Yerger ness attachment on October conducted interview signed by judge, district for the appellant lasted which between lant. thirty forty minutes. Prior to the com- interrogation, mencement of this custodial knowledge appellant With the would appellant had form indi- executed a Texas, arriving Diboll, teletype cated that he had been administered dispatched Department to the Diboll Police of Miranda panoply warnings. full After appellant with instructions to arrest interview, Sgt. Yerger accompanied ap- secure truck until the arrival arraignment pellant to an before a local entourage consisting Diboll of the Amarillo justice peace on the material witness Sgt. Yerger, Corporal Joe Allen Appellant attachment at 8:33 a.m. Holmes Police Modeina all of the Amarillo immediately jail to the returned Diboll Department; Farren Potter James again Office, by Sgt. where he was Mirandized County Attorney’s District and Tex- Yerger. interim, During Ranger Ronnie exe- Griffin. cuted to search form for early evening In the hours of October Yerger. truck at the behest of was arrested grand jury attachment while he was attend- a.m., By 8:45 Detective Holmes and Cor- *5 ing to his truck Diboll convenience at a poral Allen commenced what was to be a In Amarillo store. accordance with the thorough complete investigatory and arrested, instructions, the in- appellant was sleeper search of the cab and area of the and for the Amarillo offi- carcerated held tractor, Peterbilt their and concluded held cers. The truck was secured and at p.m. evening of search at 6:00 the the 18th. the location the arrest occurred. where Sgt. Yerger The record reflects that re- a p.m. teletype ceived 7:45 that an arrest ap- at The Amarillo team left Amarillo p.m. at 5:24 for 1985, warrant had been issued proximately p.m. 9:00 on October appellant capital and in for the offense of murder arrived at 7:00 a.m. on Octo- Diboll Immediately upon ber 1985. arrival in in Amarillo.3 having Apparently company 3. arrest was as the name of Jewett [sic] when the warrant is- October, Tracking Amarillo Company. sued in on the 18th of noth- She de- Scott further ing recovered truck used as a from the was scribed it as a Peterbilt brand semi-tractor affidavit, obtaining for The track, basis the warrant. cherry sleeper a cab. red color with by Sgt. Yerger, executed read as follows: Margie gave foregoing description Smith the 15, 1985, Ray on Donald That October Depart- of the truck to the Fort Worth Police McKay reported to truck driver [sic] [sic] being sister’s ment after informed that her County that he had Potter spotted Sheriffs Office by body been discovered enforce- had law approximately body 5:00 naked ment in Amarillo. Based on the de- officers p.m. approximately north located mile of ½ track, Margie scription gave that Smith Bridge Highway 287 the Canadian River company Affiant learned that this was located approximately miles north of Amaril- and lo, Magnum, Oklahoma. An officer of that responding County, Potter Officers Texas. company by Steve the name of Scott indicated body, the location the later identi- located only officers the law enforcement that by family Gail Smith mem- fied as Lenore Tracking Company track Jewett Scott tracing the Affiant whereabouts of ber. the Worth on the 14th October Fort area of Smith, before, day learned that Gail on the Boyle. Benjamin was Herbert one driven Worth, Texas, left on October Gail Smith Fort Steve Scott advised the Affiant that 14, 1985, p.m. approximately 4:00 to 4:30 assigned Benjamin question truck in Smith before Gail left Affiant learned that Boyle Benjamin Herbert Herbert that city taken outside the Fort Worth she was Boyle employee an of Jewett Scott Track- sister, Smith, Margie so limits Gail Smith's ing Company. Steve Scott also described Margie could hitch a ride. that Gail Smith having burgandy a red interi- track as cloth approach Gail a truck driver saw Smith Smith sleeping or in cab of the semi-tractor approximately 7 miles outside of Fort Worth truck, is the that Scott track Jewett However, before Gail Smith on Route Company type Tracking of owns with that sister, she advised her Mar- entered truck sleeper interior. has learned from Smith, Affiant tag gie to record number Holmes, an I.D. Technician for Modeina Margie did at that time Smith truck. Special Crimes the Amarillo Police Unit bf tag of number the truck did [sic] write Department investigates that that homicides get good and described it to Curt look at it body Department, Smith was covered the Worth Police naked Gail Brenner of Fort appellant’s point first Responding to the transported to Amarillo Appellant was gave denying error, tersely ultimately a statement asserts that the State guilt his on the 19th of as well as “pre- October Diboll was not a appellant’s arrest obtaining police his hair and consent subpoena and it obtained a text” because samples.4 blood pursuant appellant for attachment 20.11, 20.10, Article Article V.A.C.C.P ground first of error he regard, the State sub- In this argues essentially his Y.A.C.C.P. arrest com- “In case at bar the State to the material witness attachment mits: illegal in enforcement officers requirements law of the Code plied with the probable cause to either arrest him record, lacked how- The Criminal Procedure.” truck, any search his and that contrary ever, compels a conclusion. the warrantless search the truck was hearing suppress During motion to through exploitation his il- obtained into evidence a introduced legal arrest violation the Fourth Potter sworn affidavit of an assistant Fourteenth Amendments to the Federal attorney. County district affidavit I, Constitution and Art. Sec. 9 the Texas a material “is claims He asserts that his arrest on Constitution. Jury inves- State in a Grand witness attachment was mere- material witness tigation....” by claiming It continues ly gain permission a “pretext arrest” to his necessary require that “it is bail of they to search the truck which could not [appellant] appear- said to assure ... following the proper have done channels court, provided in Ann. ance in Vernon’s constitutional man- consistent with C.C.P. Art. [emphasis dates. added].”5 2^.15 Main, Canute, My type red Oklahoma. home fibers. Affiant also learned South *6 Benjamin Boyle phone is I work for from Steve Scott that Herbert number 405/472/3842. Colorado, go City, Trucking Company. leav- On Mon- was to to Canon after Jewett-Scott Amarillo, 14, 1985, sitting my ing go through day, I Fort Tex- was in Worth and October personal experience from on near the Hammon Road Exit as. Affiant knows truck US-287 girl my studying roadmap up a that a a came to truck and ask me Texas when yeah, City going to Canon I was to Amarillo. I told her I common and convenient route if go through going I Du- to towards Amarillo. told [sic] from Amarillo would to mas, Texas, give Sgt. Yerger body I her a ride. located on Route 287. The her would photograph a and told me the was discovered between Amarillo and Dumas showed me Benjamin Boyle photograph Gayle Smith. The Herbert was of [sic] on route girl likely girl photograph is than Affiant in the the same I would more have taken. truck, Margie riding girl picked up. my in Smith While has also learned that described sleeper Boyle being purse Benjamin in the boot and it Herbert a white set her thin, tall, lighter, pack a brown to red- fell out. I later found male who with hair, length, make-up my cigarettes, in truck. and a brush dish brown medium to short thing wearing type put all items in a catch-all on the a western dress shirt. Affiant I these Jolly Benja- Gayle let out at the also Scott dashboard. I [sic] has learned from Steve fact, Texas, Falls, Boyle, Stop this same Truck south of Wichita min Herbert description. matches night. Monday so I never has from Dr. about 7:00 or on Affiant learned Erdmann, girl. again. I Ralph pathologist, that her never had sex with a forensic saw death of Gail Smith occurred sometime V.A.C.C.P., 24.15, respective- 5. Articles 20.11 1:00 and 5:00 a.m. on October between ly state: 1985, approximately 8 to 12 hours after Gail Out-of-County 20.11. Witnesses Art. seen in Forth [sic] Lenore Smith last alive attorney repre- 1. The foreman Sec. Worth, Texas. upon applica- senting may, State written affidavit We obeserve the arrest warrant stating to district court the name and tion the testi- obvious inconsistencies from contains the witness and that his testimo- residence of suppress mony to and the at both the motion material, subpoe- ny to be cause a is believed merits, purposes trial for any coun- an to be na or attachment issued are irrelevant. this discussion witness, ty returnable to in the State such session, 4. The written statement taken on October grand jury then in the next the grand jury por- p.m., excluding the formal county 1985 at 10:05 for the from whence tions, issued, may attorney reads as follows: as such foreman or same subpoena may require wit- Boyle. My Benjamin I am desire. The name is Herbert doc- My appear produce records and years date of birth is I ness old. 7/22/43. Hobart, I at 401 Oklahoma. live uments. was born ness, grand jury and have him before the prayer concludes for the affidavit with place specified the time and in the writ.” attachment. An attachment issuance not upon the sworn state- Id. attachment this case does was issued based specify appear in the ments in the affidavit. Bond was set when the witness was to $50,000. grand jury. Article attachment before See also: 24.11, V.A.C.C.P.6 24.15, is Reading supra, which Article to autho- expressly upon by relied the State exception Other than the authorized attachment, pro- 24.15, supra, rize the the defects elementary it is Article First, Article apparent. readily cess are an attachment for a is witness not autho- 24.15, “any witness supra, is restricted obey prop- rized until the witness fails to county....” Id. It in the who resides erly subpoena. prerequi- This is a served not a appellant was undisputed that attachment of a resident site for the wit- County. resident of Potter 24.12, It ness. Article V.A.C.C.P. is also a prerequisite for the attachment of an out- Second, for a resi- an attachment before 24.22, Article of-county witness. 24.15, Article can issue under dent witness error, In an unrelated claim of Y.A.C.C.P. attorney must file a supra, the State’s (Tex.Cr. Willis good application stating “that he has sworn Davis, Judge writing for a App.1982), W.C. and does that such reason to believe believe Court, “Where a sub- panel of this stated: to move out of the coun- witness about being appear fails to after poenaed witness ty.” apparent It is that such a sworn Id. called, an attachment for that witness claim must be made before an attachment sought.” Id. at 503. should be why one equally apparent can issue and Thus, in this case. in addi- was not made 24.22, supra, if Article a non Under 24.15, being supra, inapplica- tion Article obey subpoe refuses to resident witness ble, understandably complied it was exceed can be levied. na a fine not to $500 either. addition, why cause an order to show 24.15, may final also Third, the fine should not become supra, Article does not au- Further, may court cause issuing magistrate to set a bond issue. thorize the “[t]he an attachment at the same time appearance. It be issued to insure a witnesses Id. Consistent with imposition of a fine if the for said witness....” authorizes the *7 v. obey subpoe- the Court’s comment Willis fails or refuses to the witness out-of-county for an supra, an attachment na. unless properly cannot be issued witness 20.11, V.A.C.C.P., does authorize Article ordered appear has failed to the witness subpoena a or an attach- the issuance of subpoena. in the out-of-county pro- ment for an witness bar, rather in- case at the State vides that “an attachment shall command they requested credibly argues that when any county the sheriff or constable of the appellant he was attachment for the the witness resides to serve wit- where tion of the State’s poena An attachment Art. 24.15 returned in the any constable of the before the resides to serve the pursuant Grand specified in the writ. At Sec. 2. A of this code. any [******] district Jury for time before the to this article shall be served grand jury at the time and any To Secure Attendance subpoena court, shall command the sheriff or manner witness attorney, county witness, or attachment prescribed first who resides clerk, where the witness shall issue day and have upon any applica- Chapter in the Before a sub- issued place term him jury It is uncontroverted jury. Any be before said district thereof to that he has believe that such who shall attachment, a fine not nal cases. made, attachment county. in session collected such county, If fail or refuse to testify as a witness before the witness exceeding for such witness to be and attorney files a sworn shall be good as fines and at the time such at this time. then said witness is about to move out reason to believe and does so punished by the court that there was no five hundred court on the first summoned, costs in other crimi- clerk shall issue an obey a application subpoena or application dollars, attached, appear grand grand day or to is noted, the investi- previously search.7 As really suspect. position It their a not ap- to determine gating officers were able per- apparently the last since he was that destination, teletyped pellant’s ultimate grand son to see the deceased alive It him. to arrest Diboll authorities testimony. The falla- want his jury would Spe- the Amarillo also noted that should argument subpoena no cy in this that send merely Unit did not one cial Crime Consequent- requested was ever issued. appellant; interrogate the two officers not ly, assuming appellant was a investiga- force or complete rather a task nothing appel- for the suspect, there was an dispatched included tive was that team Therefore, disobey. no attachment lant to technician, rep- Ranger, and a I.D. a Texas could have issued. County District of the Potter resentative dis As of this noted at outset only they pre- were Attorney’s Office. Not cussion, patently makes it clear the record to Ama- transport appellant back pared to “comply that the State did not a rillo, equipped they were to conduct Pro requirements of the Code of Criminal investigation. ap- complete After on-scene cedure,” appellant when it had the arrested consented, pellant on-the-spot search attachment. on an unauthorized sleeper por- cab was conducted above, over nine tions of the truck which took In addition to the we observe hearing completed. complete and were pretrial suppress motion to hours placed Additionally, not was Sgt. Yerger conceded when attachment, no under arrest initially there lant was arrested was $50,000.00. judge the district set bond at probable which would have allowed cause circumstances, these Clearly, under law enforcement officers the Amarillo time arrest he become investigatory conduct an search of investigation criminal con- Moreover, the focus ad- Sgt. Yerger at trial truck. cerning capital murder of Gail Lenore that he wanted “visit” with mitted Smith. [appellant] appar- appellant because he alive,
ently the last individual
see Smith
believe, however, that
We do not
although
say appellant
he could not
was a
“pretext
in the tradition
a
arrest”
say
suspect. To
a
sense,
arresting
suspect
for
al
viz:
suspect when the material witness attach-
offense with the intent to extract
trivial
credulity,
ment was issued strains
since
search,
the fruits
confession or conduct
contrary.
clearly indicates to the
record
for a
of which could result
a conviction
offense,
no
Also,
Special
proba
more
for which
Crime
serious
October
See Black
Department
existed
an arrest.
Unit of the Amarillo Police
ble cause
(Tex.Cr.App.1
County
representative of the Potter
sent a
987).8
procedure
Mangum,
We do hold that
Department
Okla-
Sheriffs
*8
ar
evening
placing
appellant
under
by
p.m.
and
that
ob- utilized
the
homa
8:30
Scott,
grand jury material wit
of
rest
to a
tained from Jewett
the owner
subterfuge,
line,
pretext,
consent to
ness attachment was a
truck
a written
search
intentionally em
deceptive artifice
appellant
operating.
truck which
was
principles and ten
prior
ployed
eleven
to the
to circumvent
This was some
hours
Amend
and Fourteenth
ets of the Fourth
appellant
time that
executed a consent to
1987),
1179,
(CA5
Notwithstanding
Fifth Circuit
F.2d
1184
owner
the Jewett
Lines, Inc.,
it,
subjective
stating
rejected
executed a consent to
intent and
Truck
Scott
search,
appellant’s
not contest the
arresting
the State does
officers are irrelevant
of the
motives
standing
assail the search of
Peterbilt
they
they
are
long
do no more than what
so
as
question,
we do so sua
nor will
tractor
legally permitted
objectively
authorized
State
that this alone
sponte. Nor does the
claim
initial arrest.
do in
circumstances
legal
search.
sufficient
constitute
was
effectively
Causey
lez,
overruled Amador Gonza-
1968)
(CA5
progeny.
and its
F.2d 308
391
un-
"pretext
doctrine
note
arrest"
8. We
State, supra,
place some reliance
does
Black v.
is still a viable rule which
current Texas law
der
cases.
such
evidence,
suppression of
result in the
could
Causey,
recently
834
in United States v.
most
“as a direct
sary that all evidence obtained
ments to the United States Constitution
I,
illegal detention and arrest
result” of the
and Art. Sec. 9 of the Texas Constitution.
exclusionary rule of
under the
appellant’s
Consequently, we conclude that
I,
9,
Art.
Sec.
17, 1985,
the Fourth Amendment and
arrest on October
as a result of
v. United
attachment,
suppressed. Wong Sun
grand jury
the issuance
485,
States,
407 at
131 themselves, factors to con warnings, pra. prominent If be by Miranda taint of an are: held to attentuate the sidered were arrest, regardless unconstitutional 1) warnings; giving of Miranda the Fourth purposeful how wanton and 2) arrest temporal proximity of the violation, the of the Amendment effect confession; and the exclusionary substantially would be rule 3) intervening presence of circum- Mississippi, diluted. Davis v. 394 See stances; and 721, 726-727, 676,
U.S.
22 L.Ed.2d
89
4)
flagrancy of the offi-
purpose
(1969).
S.Ct. 1394
Arrests
[1397-1398]
misconduct.
cial
proba-
made without warrant
without
Brick,
supra,
recognized
cause,
As we
questioning
“investiga-
ble
Illinois, supra,
tion,”
v.
“held that
Brown
encouraged by
be
would
the knowl-
warnings
not
giving the
would
edge
Miranda
that evidence derived therefrom
per se remove the taint of a confession
at trial
could well be made admissible
which,
given,
though voluntarily
expedient
giving
followed
simple
Miranda
warnings. Any
Fourth
on the heels of an unconstitutional arrest.”
incentive to avoid
State, supra, at
The Su-
would be eviscer- Brick v.
679.
Amendment violations
effect,
making
preme
did not
the situation
warnings,
ated
Court
address
“cure-all,”
guaran-
“voluntarily” given
and the constitutional
where a
against
searches and sei-
of an
tee
unlawful
search was taken
the environment
illegal
reduced to “a
zures could be said to be
and unconstitutional detention.
Ohio,
Mapp
Adopting
approach suggested in a line
form of words.” See
v.
367
an
US
[643]
6 L.Ed.2d
1081,
81 S.Ct. of cases from the Fifth
Circuit,
this Court
679-680,
1687],
[1961],
Brick, supra,
1684
84 ALR2d 933
held that the
[at
Brown,
panoply
full
of factors relevant
[footnotes omitted]
including
independent analysis
an
reasoning
equally applica
Such
consent,
appro-
an
voluntariness
illegal
ble
a situation which involves
priate
deciding
to utilize in
the is-
method
extraction of a
detention followed
illegal
the taint of an
sue as
whether
“voluntary” consent to search. Attenua
sufficiently purged
had been
incarceration
necessary
of the initial taint is
in order
tion
of its initial contamination to validate
addition,
permit admissibility.
In
consent to search so as to make the discov-
showing
and thus
burden
attenuation
ered
admissible.9 Brick then ar-
admissibility
prosecution.
rests with the
relevant to con-
ticulated additional factors
(Tex.Cr.
State, 738
See Brick v.
reviewing
sider in
tainted evidence:
Brown,
App.1987). In
rather than enunci
(cid:127)has
heretofore
While this Court
not
brightline
for the ex
proverbial
ate
rule
guidelines for measur-
provided specific
taken after Fourth
clusion
confessions
ing
of a tainted consent to
attentuation
violations,
Supreme
Amendment
Court
search,
suggests
LaFave
a number of
factors, although
four
set out
exhaus
which are even
factors
be considered
tive,
should be considered in deter
more
than those enumerated
detailed
mining whether the causal connection be
Illinois, supra, for tainted con-
Brown v.
illegal
detention and the state
tween
fessions:
that the
ments is broken so
statements can
determining
whether the con-
product
of a free will under
‘...
be considered
Brown,
Sun,
was,
put it in
supra.
su
sent
as the Court
Wong
See Bell v.
Wilson,
Supreme
actually
unclear as to what
v.
F.2d
396-
See United States
(CA5 1978);
Berry,
determining
v.
670 F.2d
United States
used in
whether the
factors were
1982);
(CA5
Cherry,
United States v.
604-05
purged of the taint from
consent to search was
(CA5 1985).
1210-12
We also
However,
759 F.2d
there can
the unconstitutional arrest.
analysis
Brick was correct in its
observe that
disprove
question
no
that it did
of the admis
Royer,
Supreme
that the
Court in Florida
*10
as a result of a
sion into evidence obtained
1319, 1326,
491, 501, 103 S.Ct.
75 L.Ed.2d
U.S.
notwithstanding
that it
tainted consent
search
(1983),
approved the stan
229
seems to have
voluntarily given.
was
Brick,
opinion
supra,
in
in
its
dards
by exploitation
illegal procedural safeguard
protect
Fifth
“obtained
of an
one’s
arrest,”
rights against
compulsory
account must be taken of the Amendment
proximity of the consent to the
self-incrimination inherent to custodial sur-
[1]
arrest,
that before it can be
consensual search
evidence derived from a warrantless but
LaFave, supra, at
purpose underlying
to obtain the consent.’
residence,
vent an immediate search of the car or
made
could
was
whether the consent was volunteered
officers,
rather than
search,
lar
about
object
“flagrant police
decline
police
fully
[2]
[3]
[5]
whether the seizure
[6]
whether
aware of the fact that he
requested by
whether the arrestee was
observation
to consent and thus
following
they sought consent to
193-94. We now
whether
determined
misconduct,”
illegal
illegality
an
illegal
detaining
brought
particu-
seizure
police
hold
pre-
was
ar-
[4]
Diboll
ant
ty
arrest. The
is a factor
6:00
case
ings
under the State or Federal
that he could decline to consent to the
record indicates that
appellant
consensual search.
pellant
roundings.
search of his
Next,
p.m.
to the attachment at
are neither
weigh
City
was made
on October
that he could refuse the
which we
in
examine the
Jail and
More
appellant
vehicle.
favor of the State.
compelled constitutionally
consensual search to his
pertinent
fully
17, 1985,
Although
Sgt. Yerger
consider,
eventually gave his
In this
aware of
temporal proximi-
Constitutions, it
arrested
is whether
approximately
placed in the
such warn-
and in this
regard
proposed
did warn
the fact
pursu-
ap-
following morning
consent to search the
admissible,
found,
rest is
it must first be
only thing
evidence,
7:15 a.m. The
which occurred
convincing
clear and
not
during
period
simple passage
this
voluntarily
the consent was
rendered,
time,
significant
but also that due
no
inter-
consideration
thus there was
of the additional factors listed above mili- vening
allow
circumstance which would
tates
favor of the conclusion that the
indulge in an inference that
this Court to
illegality
taint otherwise inherent
illegal
purged.
the taint of the
arrest was
dissipated. The
of the arrest has
bur-
instance,
For
the State has not demonstrat-
den,
course,
is on the Stated10!
during
lapse appellant
ed that
this time
State,
attorney
to consult
an
supra
Brick v.
at 680.
was able
with
judicial
that some
officer informed him that
militating
We will now consider the
search,
refuse to consent to the
he could
pre-
tailored
factors which this Court has
allowing
thoughts
organize
thus
him to
cisely
involving
a consensual
situations
contemplate
rights.
his constitutional
following
search
deten-
unconstitutional
fact,
State, supra,
In
Bell v.
Initially,
tion.
we note that the
recognized
pas-
in footnote four that the
warnings
given
was indeed
Miranda
—once
sage
pauci-
of time alone demonstrates the
prior
to and after his initial interview
ty of this element as a determinative
Yerger.
magistrate’s warnings were
Simply put,
proximity
“factor.”
factor
a.m.; however,
given
approximately
8:33
significant
sufficiently
in this case is not
to search had been executed
break the causal connection between
immediately
appellant almost
after
illegal
lant’s
arrest and the consensual
In
investigative team arrived.
Amarillo
Alabama,
event,
Taylor
search.
v.
457 U.S.
warnings would seem
any
Miranda
(1982).
search situa-
73 L.Ed.2d
of little value
a consensual
fact,
tion,
held for
warnings are intended as a
over twelve
since the
State,
(Tex.
purged
Dickey
so as to allow the introduction of the
v.
purposes
the initial
there
sufficient inter
were
the arrest was to obtain the consensual
illegal
vening events between the
arrest
search. The record makes such a conclu-
search to break the
and the consensual
quite
Yerger brought with
sion
obvious.
so that the consent to
causal connection
which, prior
form
him a
search
purged
primary
indeed
its
search was
mag-
taking
before
local
taint.
istrate,
sign.
requested
he
however,
inquiry.
This,
does not end our
Special
ar-
Amarillo
Crimes Unit had
that,
further contends
notwith-
The State
at 7:00 a.m. and
7:15 a.m.
rived Diboll
arrest,
taint of the initial
standing the
signature
affixed his
appellant had
denying appel-
correct in
precau-
As
trial court was
search.
written consent to
suppress
on the basis of
stratagem
lant’s motion
tionary
Deputy
an Amarillo
discovery
the admission
and/or
dispatched Mangum,
Okla-
inevitable
Sheriff was
*12
of the
original
items seized from the truck was
detention. Even if he had not
detained,
harmless error. We will consider each
been
police
con-
authorities were al
ready
tention individually.
possession
in
prints
known
that
comparison
could be used for
and identi
poisonous
Under
of the
the “fruit
tree”
prints
fication.
Appellant’s
The
were
Wong
doctrine set out in
Sun v. United
sticky
found on the
side of
tape
States,
Supreme
supra,
Court stated
which bound
victim. The
known
tainted,
if a search is
the evidence
prints
Appellant’s
Colorado criminal
derived
would
therefrom
inadmissible
file
testimony
combined with the
of Mr.
trial
exceptions
unless one of the
and Mrs.
the crime
Wertz and
scene evi
exclusionary
applicable
per
rule is
so as to
dence
case,
very strong
would have created a
mit the introduction of the tainted evidence.
[citation omitted][11]
exceptions
adopted
One of the
to that rule
by
Supreme
years
Court
recent
is the
The
argument
thrust of the State’s
is
discovery
by
inevitable
doctrine invoked
prints
since the Colorado
could have
Williams,
431, 104
Court Nix v.
467 U.S.
been compared
prints on
to the
the duct
(1984).
S.Ct.
But evidence. argument essentially the evidence in This is question inevitably sequitur. non simply, would have been dis- Put the motivation covered police discovery exception without behind the inevitable reference misconduct, error question or there is no nexus the evidence in would have sthat provide sufficient to a taint and the evi- by police been discovered via an inde- admissible, [emphasis dence is pendent legal through source channels and added] without a primary connection to the taint. See Dickey at 2511. also Supreme Williams, The in Nix v. State, 716 499 (Tex.Cr.App.1986). supra, that: made it clear The Court reasoned that since the basic prosecution ... can by establish rationale If exclusionary behind the rule is to preponderance the evidence that the police deter by insuring misconduct ultimately information inevitably prosecution put posi- is not in a better by would have been discovered lawful tion than it would have been if no illegality means—here the volunteers’ search— occurred, policies such would not be then the deterrence rationale has so little if satisfactorily served can State dem- basis that should evidence be re- question onstrate that the evidence ulti- Anything reject logic, ceived. would less mately inevitably would have been dis- experience, and common sense. [Foot- independent by entirely covered and lawful omitted; *13 Colorado, 17A, County, No. a found on the from El Paso Exhibit fiber cards deceased; after- of the State’s Exhibit No. nothing appellate more than an back 18A, reject conten- a of the thought. therefore fiber found on the back We deceased; 21A, a fi- tion. State’s No. Exhibit tape off the duct which bound ber taken necessary It the error be is also deceased; the feet of the State’s Exhibit under of Rule examined the dictates 22A, No. a fiber retrieved the duct 81(b)(2) Appellate of the Texas Rules deceased; tape that bound the State’s Procedure, which states: 22, debris found on the duct Exhibit No. appellate record Criminal Cases. If the tape the deceased. which bound a criminal case reveals error 4) is dark No. 5A State’s Exhibit below, proceedings appellate court recovered Caucasian head hair brown review, judgment shall under reverse sleeper portion from the of the tractor appellate unless the court determines be- microscopically determined to have and yond a doubt that the error reasonable forcibly removed and matched been to the conviction or made no contribution hair of the deceased. head punishment. to the 5) is a hair No. 93A State’s Exhibit Having proceed- perceived error these napkin under paper found on a towel and ings, apply we now the aforementioned seat of the vehicle and subse- driver’s standard and seek determination as quently forcibly re- determined to be say beyond whether this a rea- Court can pubic microscopi- hair moved dark brown did not sonable doubt that the error con- matching pubic hairs of the cally punish- tribute conviction or deceased. simply We this dis- ment. will commence 6) No. 73A a hair State’s Exhibit by listing evidentiary cussion various items portion of the cab found on the floor mat illegally sleeper seized from the cab tractor and found to match portions they of the tractor how con- head hair of deceased. capital to the murder nected this 75A, 7) Smith: No. are sun Gail State’s Exhibit glasses portion in the cab of the found 1) 13 is a taken State’s Exhibit No. fiber on them a dark tractor which also had portion from the cab of the tractor and forcibly hair brown head which been was, testimony, according expert iden- the head hair of removed and matched tape tical a fiber found on the duct the deceased. that bound the deceased. 8)
2)
paper
Exhibit No. 52A are
tow-
State’s
15A is a
tak-
State’s Exhibit No.
fiber
portion
els
the floor of the cab
found on
portion
en from the
of the tractor
cab
containing
head hairs
tractor
matching
on the de-
a fiber found
the hair of the deceased.
which matched
ceased’s back.
9)
3)
is a hair
found
State’s Exhibit No. 76A
Exhibit No. was also
State’s
16A,
portion
which
found in the
tractor
to match
Exhibit No.
cab
State’s
they
agree
when
tion would have been discovered
lawful
12. We
with the Fifth Circuit
misconduct, (2)
Cherry,
police
Before
would be warranted
of
then
will
victing
capital
the defendant BENJAMIN HER-
guilty
defendant
of
murder.
BOYLE,
Known
BERT
Also
“Mr.
guilty on
jury
a verdict of
returned
case,
Whipple,”
capital
of
in
murder
this
submitted, although only a
theories
both
beyond
find
you must
reasonable
guilty
of
was entered.15
single verdict
only
doubt not
that on the occasion in
determination,
evi-
making
all of the
this
question
engaged
defendant
dence,
improper,
proper
both
and
will
felony
aggravated
offense of
sexual
State, 721 S.W.2d
considered. Dunn v.
kidnapping
of
assault or
Gail Lenore
also:
(Tex.Cr.App.1986).
See
Smith,
charge,
as defined
this
but also
Nelson, Lockhart
U.S.
during
aggra-
commission
(1988).
14.
the formal
indictment
of
in said
presentment
this
read:
and anterior to
indictment,
HERBERT
that BENJAMIN
BENJAMIN HERBERT BOYLE also
...
knowingly and
BOYLE did then and there
...,
Whipple
Mr.
did then and there
known as
knowingly
individual,
intentionally
of an
cause the death
intentionally
cause
death
Smith,
styled
com-
Gail
hereafter
Smith,
Lenore
individual,
Gail Lenore
hereafter
complainant
plainant, by strangling
with
strangling
complainant, by
styled
the com-
cloth,
Benjamin
cloth,
piece
Herbert
said
and the
plainant
piece
and the said
Boyle
course
there in the
Boyle
was then and
Benjamin
and there
Herbert
was then
of-
committing
attempting
commit the
attempting
committing
in the course
complainant[.]
kidnapping
Aggravated
fense of
Sexual As-
commit the offense
complainant,
sault of the
AFORESAID,
appellant
defect in
claimed a
has not
JURORS
AND THE GRAND
aforesaid,
present
was submitted
manner which the case
upon
do further
their oaths
jury.
that on or about
15th
in and to said Court
(a)
person
A
commits an offense if he
trier of fact that at
point
some
the victim
intentionally
knowingly
or
abducts anoth- was
appellant,
abducted. The
without the
person.
er
Smith,
consent of Gail
restrained her
interfering substantially
liberty by
with her
V.T.C.A.,
“Abduct” is
defined
Penal
confining
at least
her.
It would be reason-
20.01(2),
Code
as the restraint
per-
of a
§
able to draw this
point
inference at the
son with the
prevent
intent to
his liberation
when
victim was bound
appel-
since the
“(A)
by,
secreting or holding
place
him in a
lant was subsequently connected to this
where he
likely
found;
(B)
is not
to be
binding through
fingerprints.
using or threatening to
deadly
use
force.”
20.01(1)
Section
Circumstantially,
defines “restrain”
as re-
did the State
stricting
person’s
“a
link
appellant
crime,
movements without
but was
consent, so
able
as to
substantially
inferentially
interfere
establish that some-
liberty,
with his
by moving
time after
him from one
the victim
entered the
place
tractor,
by confining
another or
lant’s
her,
him.” If
abducted
accomplished
“restraint” is
and in
through
the course of that abduction she was
“force,
intimidation,
strangled.
deception”
it
We therefore conclude that a
without
Keeping
jury
victim’s consent.
rational
could have found that
mind,
these
viewing
proved beyond
definitions
State
a reasonable doubt
light
evidence in the
most
that the
capital
favorable to the
committed
mur-
prosecution,
we will now
der
19.03(a)(2).
determine wheth-
to §
any
er
rational
trier of fact could have
Since we have found that the evidence
*16
found that the
proved beyond
State
a rea- was
support
sufficient to
a conviction of
sonable doubt all the essential elements of murder in the course
kidnapping,
of a
we
the crime.
Virginia,
Jackson v.
443 U.S. will not
the sufficiency
review
of the evi
307,
(1979).
Fierro,
supra at
and cases cited
which in
a
kidnapping
itself is
viction
therein.
nature. This at least
crime of a violent
appellant’s
the fact that
con-
substantiates
many
jury
permitted
to consider
not an
in this case was
aberration.
duct
pose
factors whether
defendant will
presented
State
continuing
society.
threat of violence to
being
poor reputation for
suffered a
include,
Those factors
are not limited
(members
abiding
peaceable law
citizen
to:
family
his immediate
reached this conclu-
capital
1.
the circumstances
of-
sion). Considering all
the evidence that
fense, including the defendant’s state
special
jury
before it relevant to
of mind and
he or she
whether
two,
conclude that
issue
there existed
working
parties;
alone or with other
jury
which a
could affirm-
basis on
rational
2.
the calculated nature of the defen-
atively
beyond a reasonable doubt
answer
acts;
dant’s
continuing
that the
constitutes a
forethought
3.
and deliberateness
society. Accordingly,
of violence to
threat
execution;
exhibited
the crime’s
points of
are
these
error
overruled.
prior
4.
the existence of
criminal
will last consider
We
record,
prior
severity
and the
nineteen, twenty,
points of error
and twen
crimes;
essentially
it
ty-one, where
contention
age
personal
the defendant’s
*17
prove
insufficient to
that the evidence was
circumstances at the
the of-
time of
jurisdiction
in the 320th District
venue
fense;
County,
dis
Court of Potter
Texas. We
acting
whether the
6.
defendant was
First,
agree.
particular
fact
district
under duress or the domination of an-
in
does not have
is
court
this State
venue
other at the time of
commission of
to whether that
has
irrelevant as
court
offense;
As
this
jurisdiction.
was stated
evidence;
psychiatric
Watson,
(Tex.
parte
in Ex
Id.,
Regarding
at 61.
jurisdiction
the criminal
courts,
power
district
i.e. the
of those
mind,
in
With those observations
cases,
to hear criminal
Art.
8
courts
§
we note that the circumstances of this case
provides only
of the Texas Constitution
support
jury’s
alone could
affirmative
original jurisdic-
“shall have
those courts
special issue number two. Cf.
answer to
grade
cases of the
tion
criminal
(Tex.Cr.
State,
v.
If
the search a
person
receives an injury in one
legal one. The State further asserts that
county and
dies
another
reason of
its failure to contest
appellant’s
stand-
such injury, the
may
prose-
offender
ing in the trial
preclude
court does not
it
cuted in the county where
injury
raising
this issue for the first time on
received
occurred,
or where the death
appeal.
direct
Appellant
contends
in the county where
body
the dead
is
position
State’s
properly
before this
found.
Court.
The State
only prove by
need
original submission,
footnote
on
preponderance of
body
evidence that the
majority
stated,
opinion
p.
129:
Gail Smith
County.
was found in Potter
Notwithstanding that the owner of the
brief,
The State did
Appellant,
this.
in his
Jewett
Lines, Inc.,
Scott Truck
executed
argues
if
venue was a constituent ele
search,
a consent to
the State does not
ment of
negate
the offense which could
contest the
standing
guilt
to assail
if
prosecution
prove
failed to
it.
the search of the Peterbilt
tractor
Clearly,
proposition
this
is incorrect. While
question, nor will
sponte.
we do so sua
established,
it must be
venue is not a “cri-
Nor does the State claim that this alone
minative fact” and thus not an essential
was sufficient
legal
to constitute a
element of
the offense.
Fairfield
search.
(Tex.Cr.App.1981);
Ed
(Tex.Cr.
wards v.
employment relationship or necessary between sufficient because common trucking company appellant. authority Accord- derives from the use of “mutual Scott, ing to Jewett property by persons having each driver who works generally given him regulations joint for a manual of access or control for purposes most company follow card credit with ...” Such mutual use Id. leads purchase fuel on the road. party while that the third “the conclusion has Daily charges records of the right inspection credit card for permit property] [of corporate fuel are made at right office. in have his own that the others Moreover, Stephen Scott testified risk that assumed the one of their number paid a percentage gross was revenue might permit the common to be area generated by driving him Cupp, while the truck searched.” Id. See also Frazier v. 731, the company. Stephen 1420, stated also 394 89 22 684 U.S. S.Ct. L.Ed.2d (1969) (defendant were occasionally park drivers allowed to assumed the risk rigs home, at company bag their cousin would allow someone to search consent. shared which he with cousin and allowed use). cousin to Matlock,
In United States v.
415 U.S.
164,
988,
(1973),
94
principles
S.Ct.
143
at
The Court
inspection
appellant.”
his
or
707 S.W.2d
617.
by
employer
from
either
police acting
employer's
by
by
with his
degree of control exhibited
found this
(emphasis added).
Id.
The facts
consent.”
a
sufficient to establish
supervisor
was
employment indicated he used
of Carter’s
party consent.
Id.
valid third
solely
at
owner’s sufferance.
the van
Thus,
“possessed common
Escann
authori
Matlock, 415
U.S.
basis
On
relationship
or sufficient
to” the
ty over
Carter,
801,3
164,
988,
569 F.2d
94 S.Ct.
van,
justified.
the search was
Id. at
and
611,
per
Sharp,
we are
707 S.W.2d
171,
803,
Matlock, 415
94
quoting
U.S.
party
suaded to conclude that
the third
at 993.
S.Ct.
given
consent to search the
truck
Peterbilt
to the rule
This Court likewise adheres
justified
Jewett Scott was valid and
give
persons
that third
can
valid consent to
clearly
The record
search.
indicates
they
control
search when
exercise
over
Scott,
employee of
who
appellant was an
authority
premises being
use
have
to
question.
the owner of the truck
was
State,
Lowery
searched.
v.
(2) Privilege cluding diary; points and in not to the victim’s be called as wit- against twenty-three twenty-four, appel- spouse. error ness complains testimo- lant exclusion of (a) privilege. General rule of witnesses, McCarty ny Roy two from privilege spouse of has a not the accused Gary respectively, regarding prior Casida state. to be called as a witness for the Appellant acts the deceased. sexual spouse rule not prohibit This does under claims the is admissible evidence state, voluntarily for the testifying from Tex.R.Crim.Evid., Rule because it is ... objection by even over the accused issue and be- relevant to the of consent 504, the promulgation of Rule With the probative outweighs “the cause its value Art. of former disqualification absolute danger prejudice due its admis- unfair replaced with a 38.11 was removed Rules of Evi- sibility Texas as a privilege to be called witness 412(b)(3), dence, necessary Rule as it was State, 803 S.W.2d the State. Johnson v. explain scientific or medi- rebut privilege may (Tex.Cr.App.1990). This cal offered the State.” spouse, only by defendant’s be asserted indictment, charged ap- power prevent has no State and the defendant murder, capital testifying pellant for the with two counts of spouse her Thus, aggravated murder in the course of spouse may to-wit: State. Id. at assault, in the course of spouse’s sexual and murder testify even over defendant perti- former is kidnapping, of which the objection. *23 trial, witnesses, During mony McCarty and nent to this discussion.5 two performed autopsy McCarty doctor who on the testified he had met the Casida.6 give previous deceased testified he could not an party victim at a lake summer opinion had as to whether the deceased (1985). knowing only two After the victim sexually been assaulted because he did not hours, McCarty to four and victim any take smears from her mouth. Addi- According oral sex a friend’s Corvette. serologist tionally, an FBI testified he con- McCarty, initiated this sexual the victim identify ducted tests to blood and semen encounter, lasted a few minutes vagina thigh, and from the deceased’s and presence park unexpected due to the of a serologist The also neither was identified. ranger. by the After cross-examination conducted tests on swabs taken from the State, objection, the but without formal mouth, victim’s and he identified semen on admissibility judge trial denied of McCar- However, serologist not them. could ty’s testimony. then testified to Casida testify appellant, the semen came from nor substantially facts. He had also same qualified testify was he whether where, the lake after met the victim at semen was there as a result of consensual knowing day”, they her for about “half a sex or a assault. sexual spent night together lodge. at a Casi- sister, appellant called the victim’s da stated that he had had three sexual Smith, Margaret testify Rose at trial. victim, including encounters each with jury’s presence through of the and Casida, Out According oral sex. these en- exception, ques- defense counsel bill of August counters occurred from of 1985 to regarding tioned Smith entries in her sis- approximately two to three weeks before diary ter’s which discussed several male the victim’s death. Admission of this testi- companions. specific entry stated she One mony judge. the trial was also denied during August had sex times several error, points In these three B.”, September “Perry of 1985 who with urges diary testimony from the boyfriend a former of the victim. De- were admissible to two defense witnesses fense counsel asked six other Smith about semen found in the victim’s show the diary, no men mentioned but with mouth resulted from a consensual sexual Fi- other reference to sexual encounters. encounter and the victim between nally, defense counsel asked Smith if her and to rebut the medical evidence from sister, victim, engaged voluntar- “ever serologist. The autopsy doctor and the (sic) any ily consentually or oral sex with Texas applicable statute is Rule any or with other indi- these individuals provides: Rules of Evidence which Criminal viduals”, she did to which Smith answered testimony Rule 412. Evidence of Previous Sexual not That concluded the know. exception. first bill of Conduct (a) or prosecution In a for sexual assault objected
The State to the admission assault, aggravated attempt or ground the defense sexual this evidence on the aggravated assault or “absolutely no relevance.” The commit sexual had shown assault, opinion testimony reputation or evi- pointed out the lack of sexual State proximity any past dence of the sexual behavior of regarding temporal death, not admis- alleged victim of such crime is encounters and the victim’s sexual testimony that the victim sible. and the lack engaged in oral sex. The trial had in fact (b) prosecution In a for sexual assault objection. the State’s
judge sustained
assault,
attempt
aggravated sexual
aggravated
hearing commit sexual assault or
presence Out of the
assault,
specific in-
evidence of
presented the testi-
sexual
jury, the defense also
elicited,
testimony
jury
guilt/in-
and the bill was
judge
6. The
instructed the
5. The trial
made,
theories,
pre-
judge’s
jury
chambers to
thus
in the trial
both
and the
returned
nocence on
media,
counts,
thereby pro-
availability
guilty
as we noted
vent its
a verdict of
on both
tecting
slip op.
p
victim.
original
submission. See
(b)
alleged
past
paragraph
of an
sexual
under
of this
stances
victim’s
admissible
admissible,
not
court
is also
unless:
rule. The
shall determine what
behavior
accord-
evidence is admissible
shall
(1) such evidence is admitted in accord-
ingly
questioning.
limit
defen-
(c)
(d)
paragraphs
ance
go
dant
outside these limits nor
shall
rule;
any
refer to
evidence ruled inadmissible
(A)
(2)
necessary
it is evidence
that is
*24
prior approval
in
of the
camera without
explain
or
scientific or medical
to rebut
jury.
court
the
presence
without the
of
state;
by
(B) of
offered
the
evidence
(d) The
shall
the
of the
court
seal
record
past sexual
the accused
behavior with
hearing required
paragraph
camera
by
upon
is offered
the
the
and
accused
(c)
delivery
of
this rule for
the
to
alleged
of
issue
whether the
victim
appeal.
late court in the event of an
consented to the sexual behavior which
(e)
right
This rule
not limit the
of
does
(C)
charged;
the
of the
is
basis
offense
produce
prom-
the accused to
of
evidence
that relates to the motive or bias of the
iscuous sexual
child 14
conduct of a
victim; (D)
alleged
under
admissible
old or older
years
as a defense to sexual
[Impeachment by
Rule 609
Evidence of
assault,
assault,
aggravated sexual
inde-
(E)
Crime];
of
Conviction
or
cency
attempt
with child or an
to com-
required
constitutionally
to be admit-
any
foregoing
the
If
mit
of
crimes.
such
ted; and
admitted,
evidence is
the court shall in-
(3)
probative
outweighs
its
value
the
the
of
jury
purpose
struct the
as to
the
danger of unfair prejudice.
and as to its
use.
evidence
limited
(c)If
the
proposes
defendant
to intro-
(b), (c),
(d)
Only
and
are relevant to
sections
any documentary
duce
evidence or to ask
proffered by
evidence
defense in
the
the
any question,
by
either
direct examina-
determining
scope
this cause.7 In
of
witness,
any
tion or cross-examination of
admissibility
past
of evidence of
sexual con-
concerning specific
of
al-
instances
rule,
helpful
duct under this
it is
to review
leged
behavior,
past
victim’s
sexual
addressing
predecessor
statutes
defendant must inform the court out of
same.
hearing
jury
of
prior
to introduc-
ing any
asking any
such
or
evidence
such
Section 21.13 of the Penal
was the
Code
question.
notice,
After this
“rape
provision
the court
first
this
codified
shield”
State,
hearing,
slightly
shall conduct an
camera
re-
and it was later modified
and
22.065,
court reporter,
corded
to deter-
recodified
of the Penal
as Section
5311,
1983,
proposed
Leg., pp.
mine whether the
evidence is Code.8 Acts
68th
idence,
Appellant
judge
reputation
7.
does not claim the trial
failed
the victim’s
evidence of
or
(c)
conduct,
comply
provisions
examination
of subsections
sexual
direct
either
witness,
Thus,
(d).
any
purposes
points
and
error,
de-
for
of these
or
cross-examination
(b)(1)
out of the
will
inform the court
jury prior
assume subsection
has been
fendant must
hearing
asking any
proceed
such
complied with
of the
and
to address the ad-
notice,
court
question.
shall
missibility
After this
of this evidence
to subsec-
hearing,
recorded
(b)(2).
in camera
conduct an
tion
whether
reporter,
determine
the court
22.065,
Code
§
Penal
Evidence
Previous
under
proposed
admissible
Sub-
evidence is
Conduct, provided:
Sexual
(a)
court shall
this section. The
section
(a)
specific
Evidence of
instances of the vic-
is admissible and
determine what
conduct, opinion
tim’s sexual
evidence of the
questioning.
accordingly limit the
shall
conduct,
reputation
victim’s sexual
evi-
go
limits
outside these
nor
defendant shall
may
of the
dence
victim's sexual conduct
any evidence ruled inadmissible in
refer to
aggra-
admitted under
sexual assault and
prior approval
[the
of the court
camera without
only
this
vated sexual assault
code
presence
jury.
sections]
without
that,
if,
judge
(c)
to the extent
finds
shall seal
record
The court
(b)
hearing required
that the evidence is material to fact at issue
in Subsection
camera
inflammatory
preju-
delivery
appellate
its
in the case and that
to the
court
section
outweigh
probative
appeal.
its
dicial nature does not
of an
in the event
(d)
right of
not limit the
value.
This section does
(b)
credibility
proposes
any ques-
impeach
to ask
accused to
If the defendant
state
instances,
felony
concerning
opinion
by showing prior
nor
specific
ev-
convictions
tion
148
(victim’s
1,
prosti
common
4,
reputation
Sept.
eff.
1983. See
ch.
§
Texas
issue);
Bout
Practice,
Guide
tute not
also 33 Texas
material
Criminal,
Evidence: Civil
Rules
(Tex.Cr.App.
well v.
largely
412.1,
p. 210. The statute
1985) (victim’s
sexual conduct
§
extraneous
Rose,
parte
Ex
procedural device. See
offenses under
to nonconsensual
irrelevant
(Clinton,
(Tex.Cr.App.1984)
21.13); Allen,
(prior sex
planned
group sex
engaged
parties
in sex
tim
*25
conduct,
previous
upon
plainant’s
sexual
case).
aggravated rape
in
inadmissible
in
the trial court had to conduct an
which
412 came
promulgation
of Rule
With
hearing to decide whether the evi-
camera
terms as to the
more elaborate substantive
admissible,
i.e. it was relevant
dence
past sexual
admissibility
complainant’s
a
probative
preju-
its
value exceeded its
of
412(c)
(b)(2),
substantially
is
Rule
dicial nature. Rule
Pursuant
to section
behavior.
22.065(b) and
the same as
embraces
admissibility
expressly provides
412
for the
§
procedural provisions.
these
alleged
of an
victim’s
specific
of
instances
certain
past
sexual behavior
two-step
in
This Court utilized a
test
course,
pro-
purposes. Of
enumerated
admissibility
previous
determining the
must out-
value of that evidence
bative
under
21.13
sexual conduct evidence
§§
State,
complete the
weigh
prejudicial effect to
its
and 22.065. See Allen v.
700 S.W.2d
Thus, disregarding
and Pinson v.
924,
(Tex.Cr.App.1985),
admissibility.9
929
test for
91,
(Tex.Cr.App.
(b)(1),
93-94
requisites
of section
procedural
Allen). First,
1989) (citing
judge
the trial
past
admissibility of
sexu-
find that the
light
in
proffered
evidence
examines
subject
is still
to
al behavior evidence
trial,
in the
and then
specific
fact at issue
test,
(1)
must
viz:
two-part
the evidence
proffered
if
of the
determines
some or all
cir-
the five enumerated
fall within one of
If
that fact.
is material
evidence
412(b)(2);
(2) its
in Rule
cumstances
is mate
judge determines the evidence
trial
outweighs
danger
value
probative
proba
rial,
secondly decides whether its
he
prejudice.
unfair
prejudicial
its
nature.
tive value exceeds
two-part
comparison of this
test with
A
Allen,
Holloway v.
929;
700 S.W.2d at
Penal
employed pursuant
to former
(Tex.Cr.App.
751 S.W.2d
indicates that this
21.13 and 22.065
Code §§
1988).
reluctant to
Texas courts have been
Court,
specifical-
promulgating Rule
prior
history evidence to be
find
sexual
(b), statutorily defined when evi-
ly section
Pinson,
e.g.
412(b)(2)(B). Secondly, this appellant offers evidence J., CLINTON, dissents. it was not his semen found to show BAIRD, Judge, concurring. mouth, since victim’s the medical evidence point, agree majority I that the State’s on and thus he with the was inconclusive this rehearing granted and her should be sexually not have assaulted as motion could appellant’s body. affirmed. Her body conviction should be naked nude was found majority’s I analy- further concur with the in an area secreted several miles outside Amarillo, disposition all of the in a “hog-tied” sis issues bound fashion and exception of one presented, gagged. issue. She had been beaten about separately I I write because believe that face with head and some sort of blunt instrument; the Court the law of strangled. Ap- misconstrues third she had been disposition I in the party fingerprints consent. concur on pellant’s were located cause, however, I tape of this because believe side of the was adhesive duct resulting head, no wrapped that there was harm around deceased’s face and illegally pieces admission of obtained evi- on hands and also which bound her dence. her her feet. connected hands to bound compelling This unrelated evidence is also I when it was not a member of Court Id., to the improprieties. State’s opinion original submission. issued the (overwhelming S.W.2d at 588 evidence can page opinion held that See That be a factor to be in a harmless considered appellant’s truck search of Peterbilt was analysis). error illegal and reversed the conviction because beyond could determine not While “tainted” admitted at voluminous, the error made no I reasonable doubt that trial is its admis- believe that Tex. average contribution to the conviction. See sion rational would affect an 81(b)(2). reviewing short, R.App.Pro. Rule After I juror. believe record, one,” I am the error convinced that trial and that “essentially fair illegal attendant search harm- the tainted evidence not of such a it magnitude “disrupted juror’s less. the evidence.” Ibid. orderly evaluation Therefore, I beyond I. would a rea- conclude *27 doubt that the erroneous admission sonable opinion on original The submission set no made contribution to the conviction. twenty-six pieces forth of evidence admit Id.; 81(b)(2). Tex.R.App.Pro. Accord- Rule ted trial which from the at were derived ingly, appellant’s I affirm would conviction. search, illegal 135-136, the and concluded admission of such contributed to II. Id., I disagree. the conviction. I at 137. However, majority
believe that the fell into error when I believe the errs Court analysis party it assessed the the tainted evi of third consent. Under volume of its dence, case, looking effect of of this the instead to the the facts the owner of trial, Scott, truck, give the tainted at Jewett not effective evidence adduced could Matlock, Harris v. v. required by party consent. In U.S. third 164, 568, (Tex. (analysis 988, 242 Cr.App.1989) 588 for de 415 94 39 L.Ed.2d U.S. S.Ct. harmless). termining (1974), Supreme the whether was the Court articulated error validity party consent test for third conclusively Appellant’s guilt estab- police the obtained consent to search where through Ap- lished “non-tainted” evidence. occupied a bedroom from woman who pellant’s initial to this crime was connection room as the cohabitant. defendant’s through provid- established the information upheld validity The Court of the war- They Milagros ed John and Wertz. saw theory party rantless search on the of third truck, deceased board party “possessed where the consent third ultimately they provided information which authority common over or other sufficient to locate allowed authorities relationship to the effects premises testimony his truck. no Their Id. 415 U.S. sought inspected.” to be at “tainted” misuse of the way the State’s 172, at 993. appellant. to seize Jury Grand attachment undisputed Supreme it is on the Additionally, The Court concentrated authority” fingerprints pieces party “common held. lant’s were found the third is, course, authority not to be tape the deceased’s duct which bound “Common
151
night
apartment
had
spent
at the
implied
property
from the mere
interest
Matlock,
party
belongings
moved most of her
property.”
previously
third
has
7,
apartment.
415
at
n.
94
993 n. 7.
It
U.S.
171
S.Ct. at
out of
is unclear wheth
Property
defendant
interest
insufficient
establish
er the
even knew that the wom
justification
party
key
for third
consent as
apartment.
still had a
an
610,
States,
held, however,
U.S.
Chapman v. United
365
Court
while
woman
(1961) (lessor’s
81
828
S.Ct.
5 L.Ed.2d
authority
did not have
common
con
lessee),
good against
generally
give
consent,
not
might
consent
police
trol
483, 84
California, 376 U.S.
reasonably
and Stoner v.
have
believed that she did.
—
(hotel
(1964)
856
S.Ct.
11 L.Ed.2d
at —,
Rodriguez,
110
at
U.S.
S.Ct.
normally effective
clerk’s consent not
Accordingly,
Supreme
re
Court
so held.
against registered occupant), had
cause
of Appeals.1
manded the
to the de-
unnecessary
Property interest
The majority opinion suggests that the
authority
termination
such
could
because
reasoning
707
Sharp
prop-
be inferred from “mutual use
Carter,
(Tex.Cr.App.1986),
611
and U.S. v.
persons generally having joint
erty by
ac-
(4th Cir.1977),
F.2d
569
801
should control
purposes
or control
most
...”
cess
disposition of the
at
How-
case
bar.
Matlock,
cording percentage basis of Appel- generated.
revenue that the truck routes, assigned consisting of several
lant’s miles, days complete.
hundred took equipped appellant drove was
truck which Line “sleeper,” a Scott Truck
with a “security” place as a
employee described driver, and as the “driver’s home
for the ap- Apparently, when away from home.” ALLRIDGE, parte Ex Ronald Keith out on the road but between pellant was Applicant. con- assignments, he was still exclusive No. 71003. sleeper could use the trol of the truck and sleep.2 place to for a Texas, Appeals of Court of Criminal *29 is neither property A “mere interest” En Banc. the determina- necessary to sufficient nor Matlock, 415 authority,” of “common tion 26, 1991. June n. 7. at 993 171 n. U.S. at 9, 1991. Rehearing Denied Oct. ownership of the truck is Jewett Scott’s he could the issue of whether dispositive of As party consent.
give third effect State, 810 recently Moberg
reiterated guest in a (Tex.Cr.App.1991),a expectation does not lose
hotel or motel premises until the privacy the rented has terminated. occupancy period
rental or Duke, Monday, began October on route Okla- His new Appellant a load delivered 2. Diboll, up Tex- Antonio, picked a load route ended when Texas. His homa to San City, delivery Colorado. in Canon Friday, as for October San Antonio notes emphasis added] event, means. such an would be admissible. its It was therefore incumbent that the brief, claims: State establish preponderance discovery Even if the trial court had erred in evidence that of the items denying Appellant’s suppress motion to seized from the vehicle would have inevita evidence, bly through error would have been been discovered lawful means acquired harmless. Evidence law enforcement officers. The independent suppress source is not il record hearing, tainted at the motion to legal trial, conduct used to obtain other as well evi as the record at is totally Appellant dence. ... The devoid of one a scintilla evidence which suspects exception several the time of his would establish this to the exclu- trial, phase punishment fingerprint impressions 11. At the with the inked Detec- Faulkenberry stemming previous tive William of the Colorado lant appellant from a conviction of Springs County, Department appar- Police testified and in El Paso Colorado. Al- ently possession though in his he had what was ostensi- this exhibit was tendered it does not bly appear tendered as State's Exhibit No. that State’s No. Exhibit 500 was fact apparently attempt was a criminal record file of the introduced. The did not State present suppress. of three white such the motion which consisted cards evidence at rectal found in the crotch and sionary mention of De- a fiber rule.12 State’s deceased; Faulkenberry fingerprint area of the further: State’s tective and the