*1 S.W.2d 183 (Tex.Cr.App.1977); Smith v.
State, A
general objection to the admission of extra
neous offenses is insufficient to preserve e.g., McWherter See,
such error for review.
Carr v. (Tex.Cr.App. Williams v.
1980); supra; Smith v.
State, supra. judgment should be af
firmed.
I dissent.
Walter Mike Joe aka COLEMAN
Garon, Appellant, Texas, Appellee.
The STATE of
No. 61979. Texas,
Court of Appeals Criminal
En Banc.
Dec.
was given then warnings. Miranda On the way police to the station started to cry and asked if found they body. Yeager asked remain quiet and wait to talk about police it at the station. The rest of the way he sobbed and said, “I didn’t want to do it” or “he made me do it.” Once at police station the appellant related a story about how “Rich- Davis, Fred Bryan, Baskett, Robert T. ard” had Yeager killed the deceased. asked Dallas, appellant. for the appellant if he could show the police Travis Bryan, III, B. Dist. Jim Atty., where the victim weapon and the murder James, Asst. Bryan, Dist. Atty., Robert were yes located. The said (cid:127)Huttash, Walker, State’s Atty., and Alfred he and other officers went to a location Asst. Austin, State’s Atty., for the State. along the Navasota River. The
was found but the was not found until later. stated it was the gun. They returned police station and OPINION along way ex- started to DALLY, Judge. plain happened. Yeager if asked him This is appeal from a conviction for he would like to make a written statement. of offense murder. The punishment is Once at the station the was imprisonment fifty years. for again read his warning. gave He then The appellant asserts: his written admitting he that shot de- confession was improperly admitted in evi- ceased. He read over the statement and dence; (2) exculpatory sup- evidence was signed taking it. The of the statement pressed; (3) the erroneously court refused began at 4:23 a.m. and concluded at 6:55 kill; jury instruct the intent to a.m. (4) the erroneously refused instruct The trial the affidavit court concluded the jury that the State was bound excul- was of the arrest support patory statements of it intro- warrant was insufficient and therefore duced unless disproved; (5) the exculpatory arrest was unlawful. The court ruled that statements were not disproved; (6) the certain ap- items seized at the time of the improper jury argument. pellant’s con- arrest were inadmissible but grounds error the voluntary cluded the confession was complains that his written confession was admissible. involuntary and was obtained as the result In the case at bar the was of an unlawful arrest and detention. At given warning repeatedly Miranda trial the court held that the arrest warrant he acknowledged that he understood his was appellant’s invalid but that confession rights. promises No evidence of threats or was and was admissible. voluntary presented. There evidence to ample appellant argues holding that under the support the trial court’s conclusion that the Illinois, Brown v. S.Ct. appellant’s voluntary confession was 45 L.Ed.2d the confession finding. we will not disturb its Green should not have been admitted in evidence. In hearing presence outside the of the However, having determined Yeager College Officer Station given does not voluntarily Department approxi- Police that at testified end our As the inquiry. Supreme Court mately 1:00 a.m. Illinois, supra: stated in Brown v. went to the placed residence and “Thus, in this appellant under arrest. even if the statements was handed the voluntary warrant which he read. He case were found to be under Amendment,
the Fifth
appellant pursuant
the Fourth
and he arrested the
Amendment issue remains.
In order for what he believed to be a valid arrest war-
chain,
the causal
the illegal
ar-
Additionally,
rant.
initial
rest and the
subsequent
statements made
remarks and other statements were not ini-
thereto, to
Wong
requires
be broken
Sun
but
through interrogation
spon-
tiated
merely
the statement meet the
appellant. Finally,
taneous remarks
*3
Fifth Amendment standard of voluntari-
as we stated earlier the
confes-
appellant’s
ness but that it be
act
‘sufficiently an
voluntarily given.
sion was
We conclude
purge
free
to
the primary
will
taint.’
the confession was not obtained as a
471 at
83
U.S.
S.Ct. 407 at
[371
result
his
detention.
unlawful
L.Ed.2d
Wong
thus
Sun
mandates
441].
appellant argues
police
The
that a
officer
consideration of a statement’s admissibili-
purposefully
failed to
coun-
ty
light
of the distinct policies and
sel
to
previous
information as who was the
interests of the Fourth Amendment.”
weapon. By
doing,
owner of the murder
so
determining
whether or not a confes-
appellant argues,
defense was mis-
sion was the result of an unlawful arrest
However,
led and harmed.
we note that
and detention the court identified the fol-
Kornegay
objec-
Charles
testified without
lowing factors which should be considered:
tion that he sold the
the pistol
(1) whether Miranda warnings
giv-
Indeed,
days
killing.
before the
it ap-
en;
pears
completed
that the
had
his
(2)
temporal
proximity of the arrest
examination of the witness before
confession;
and the
any objection. Nothing
offered
is present-
presence
of intervening circum-
ed for review.
stances; and particularly
Nonetheless, we
ap
have reviewed
purpose
and flagrancy of the offi-
pellant’s contention and conclude that no
cial misconduct.
Appellant’s
error occurred.
counsel met
Illinois,
Brown v.
supra; Dunaway v. New
Yeager prior
with Officer
to trial to exam
York,
200, 99
442 U.S.
S.Ct.
60 L.Ed.2d
ine the
physical evidence of
case.
-
Alabama,
Taylor v.
U.S.
questioned Yeager
Counsel
as to the owner
-,
(1982).
S.Ct.
that Walter Joe Coleman set out to and The judgment is affirmed. did, murder Larry Baugh for money, and still find guilty, him not be- DAVIS, J., W.C. not participating cause you neither nor I know exactly CLINTON, Judge, concurring part/dis- happened what at the river.” senting part. Thereafter, the prosecutor argued: majority’s treatment of “And they bring out you things those sixth of error1 reject seems to about look at the discrepancies little contention because “the officer ... here, the evidence look at the little dis- cause to arrest crepancy in the Well, evidence there. pursuant ... to what he believed to be I pointed out you, there people are two valid arrest warrant.” I agree While that were down there.” the existence of cause and the The appellant objected but was overruled. procurement good faith of an arrest war- continued: highly probative purpose rant are of “the “As Mr. Davis himself [Defense Counsel] misconduct,” flagrancy of the official you, there were people down the issue does not turn on this consideration there and we’ll never know hap- alone; indeed, rejected appli- the Court has pened because one of them —and I want “good cation of a faith exception” in cases this; you to remember we’ll talk about it such as this. See Green v. later right on—there’s one of them now.” (Tex.Cr.App.1981) (Opinion Dis- objection Defense counsel’s again over senting to Denial of Motion for State’s ruled. The in his brief admits the Rehearing Leave to File Motion for With- *6 last prosecutor, remark of the “there’s one But, Opinion).2 out Written the majority of them right now” could have been a refer placed virtually emphasis all on this ence to the picture of the deceased. The factor, along warnings given appel- argument by defense counsel was lant, considering that, under the without more forceful than prosecutor’s calling the opinion, facts recited in the there were no jury’s attention to the fail “intervening circumstances” testify. ure to The appellant, having first confession, “temporal arrest and or the brought the matter of appellant’s failure to was proximity” of the arrest and confession attention, testify jury’s to the cannot com and half only three a hours. plain of the prosecutor’s argument. Mea major- 357, agree dor v. I am also unable to of (Tex.Cr.App.1930); ity’s disposition ground Parker v. third 262, Tex.Cr.R. alleges S.W. 812 v. of error which error in trial Gaskin 942, admitting 1. in “The erred 380 U.S. 85 S.Ct. confession L.Ed.2d 818 Furthermore, (1965), years product before the because it was the of some ten before. in illegal Green, arrest, supra, design an arrest and detention.” both in and execution, and, patently investigatory in- was deed, noted, procurement however, of a case warrant that 2. It should be Lub- that appeared merely County Green, supra, to have been a matter of form bock case of the record utterly arrest, which all involved knew was of no substance. was devoid of cause to manifestly In order to conclude the officers had insufficient affidavit Green, magistrate to the cause to arrest the dissent was had been drafted by attorney, yet constrained to look outside the record devel- was identical Lubbock to a case; moreover, County oped by Supreme affidavit the dissent never condemned Texas, alleged probable of the United disclosed cause was. Court States in Barnes v. (Tex.Cr.App.1982), failure to on court’s submit an instruction Williams, According supra, intent to it is kill. clear majority, an law con- instruction “on the Arti acknowledge that former we should accident” because cerning adequate 11393 were repealed cles 45 and question “is inclusive of the be present Penal Code 1974 when of intent.” effective, law and clarify came the correct could in this area.4 Such clarification a few Only ago unanimously months we determined, case; in this I believe should be made justify overruling appellant’s would amply is no “[tjhere law and of accident defense of error. third penal The func code.... tion of the former accident is defense of
performed now of requirement P.J., ONION, and TEAG- ROBERTS Code, 6.01(a), Penal V.T.C.A. Section UE, JJ., join. that, ‘A person only if commits an offense * * voluntarily engages conduct.’ accident, In the former law the term of
‘intentional’ meant ‘volun something like Therefore,
tary.’ meaning of correct term former ‘accident’
actor did not voluntarily engage in con [Emphasis
duct.” supplied] Williams SALAZAR, Appellant, Joe Martinez (Tex.Cr.App. 1982). Texas, Appellee. The STATE Appellant’s contention cannot be con- engaged strued involve a denial he Nos. 66022. voluntary Instead, genesis conduct. Texas, Appeals Criminal Court of this is the and-the cases cited contention En Banc. “presumption” of the kill which intent purportedly arises from a deadly the use of Jan. 1983. per se. of Flanagan view v. State 60,580,
App., No. delivered December
1982), handed down Foster today, provided: Article the courts which attaches to facts certain procedural consequences. pre- other “The intention to On the commit an offense hand, presumption nothing sumed whenever is such of fact is more means used ordinarily may would result in the commission of than an inference which be drawn *7 the forbidden act.” circumstances without provided: Article any [Emphasis supplied] aid of rule of law.” injury “When an is caused violence to Thus correct rules of law are two: person, injure presumed, the intent to ordinarily may fact a factfinder infer the person inflicting it rests kill of intent from the use of injury to show the inten- accident or innocent deadly; per se which is injury may tion. intended either bodi- review, appellate standard of constraint, ly pain, a sense of shame or other factfinding accept court will inferential disagreeable emotion of the mind.” when, except special because of circumstanc- According Ray, Evidence, R. Texas Law of no have es of rational factfinder could (3d 1980): beyond ed. § in- believed a reasonable doubt that proved. “Courts textbook often divide tent to kill had been Jackson writers presumptions Presump- Virginia, into two classes: 99 S.Ct. presumptions tions law and fact. Such L.Ed.2d 560 Griffin v. is, best, confusing. a classification at difference between the two is the difference “presump- Neither of these rules of law are things presumptions are true Foster, Flanagan, supra; E.g., tions.” but see things presumptions which are all. supra. presumption A true is a rule of laid down law