*1 731 jurisdictions Concurring p. also that without op., contain cocaine.7 make clear scienti flawed; reasoning deeply testing 727. is fic certain This if one we cannot be baggies separate can packages not infer that the untested con- contents of or containers baggies are Consequently, tain cocaine from that do contain identical. circumstantial cocaine, why may may upon prove to then one infer that evidence not be relied substance, baggies identity alleged untested of contain cocaine from the controlled they fact that were found a crack house? IV. Although the circumstantial evidence noted light foregoing, I would hold that by Judge highly probative Clinton is of alleged sep- when the controlled substance is pellant’s possess alleged intent con- arately packaged, must the State scientifical- see, substance, trolled Branch v. ly analyze pack- a number of the sufficient 324, (Tex.Cr.App.1979), S.W.2d 325-326 I do ages aggravated to establish the amount. concurrently not proves believe that evidence Without such a the State is relieved identity of the substances because such of proving its burden of each element of the qualitatively evidence is distinct. Consider offense. an example: possesses a defendant a knowing substance guilty it to be cocaine is comments, I respectfully With these dis- possession of of a controlled substance. sent. (Tex.Cr.
Martin v. contrast, App.1988). By a defendant who OVERSTREET, J., joins substance, possesses believing a it to be co- caine, soda, actually but baking which is is guilty possession of a controlled sub-
stance, even he behaves a manner con- actually possess
sistent with one who cocaine. situations, In both the defendant’s intent Eugene CORNEALIUS, Appellant, Clifton evident from circumstantial evidence.8 How- ever, liability criminal defendant’s is en-
tirely contingent identity on the of the sub- Texas, Appellee. The STATE of stance. No. 238-94. As we noted in Stewart v. Texas, Court Criminal the iden En Banc. tity of a generally controlled substance is through analysis. determined chemical See May 1995. e.g., Garcia v. and, Aguero
(Tex.Cr.App.1971); (1957).
Tex.Crim.
Similarly, Thorpe foreign and the cases from evidence, reliability apparent
7. only of circumstantial rath- that the sufficient means of meet- testing, prove identity ing er proof through than scientific the State’s chemi- burden of alleged an cally analyzing baggie. controlled substance is undermined the substances each Legislature’s recognition that it is not uncom- mon for a be offered substance to as a controlled Undoubtedly, who intends to sell substance, substance, appear be a controlled an he innocuous substance which either mistak- reality, but in innocuous an substance. To cocaine, enly knowingly believes to be misre- situation, Legislature address such a enacted cocaine, presents behaves same as a defen- 482.002(a), Safety § Code Tex.Health & Ann. intending actually dant to sell what he knows to prohibits delivery which of a “simulated con- See, 5, supra. be cocaine. The Health and n. trolled substance.” Safety Code includes as considerations wheth- Further, represented er bearing requirements an innocuous substance is as a mind the Cawthon, Reeves, packaging, supra controlled supra, from substance: the substance’s that in aggravated physical price drug identify appearance, the State the substance’s alleged Safety & controlled substance and the the substance. Tex.Health Code Ann. nature dilutant, § readily of the adulterant it is 482.003. and/or *2 Charlton, Supkis, L. Michael B.
James Houston, appellant. Jr., Holmes, Atty. & Har- B. Dist. J.
John Houston, Hudson, Atty., vey Dist. Rob- Asst. Austin, Huttash, Atty., for the ert State’s State. PETITION
OPINION ON APPELLANT’S FOR DISCRETIONARY REVIEW McCORMICK, Presiding Judge. charged in Appellant a multi-count aggravated and indictment the murder Carrillo, robbery the murder and of Manuel robbery of Francisca Rincón- aggravated Garza, aggravated robbery and the murder Vargas, of Abraham Moisés Ramos Gallegos. attempted capital murder Julio plea agreement, appellant Pursuant plea right jury to a and entered a waived his robbery in guilty aggravated alleged as two, robbery in aggravated alleged as count five, four, alleged in count count murder alleged in attempted capital murder as count seven. The trial court found to 45 guilty in case sentenced him each Divi years Institutional confinement Department of Criminal of the Texas sion appeal. was affirmed on Justice. conviction nealius Cor grant (Tex.App [14th] . —Houston discretionary re appellant’s ed Ap determine whether the Court view no peals determining that there was illegal arrest connection between subsequent statement. We will affirm. 27,1991, during the commission August
On robbery a house located aggravated of an Houston, Texas, per- Boyles three seriously and another sons were murdered During subsequent sufficiently investiga- wounded. taint of the arrest was unlawful tion, learned that three males had permit attenuated to the introduction of robbery participated in the pellant’s murders. at 174. confession. *3 On November Officer Allan Brown Appellant that the claims Court of arrested Kenneth Brown and obtained a Appeal’s opinion ignores this Court’s deci regarding statement from him his involve- State, sions in v. 776 191 Comer S.W.2d ment in the crimes. Kenneth Brown identi- State, (Tex.Cr.App.1989) Bell v. 724 fied one of partici- the individuals who had However, (Tex.Cr.App.1986). S.W.2d 780 pated “Tootie”, in the crimes but refused under both Bell and there can be no Comer identify to the individual other because it was “illegal connection between arrest” his police cousin. The later learned that appellant’s subsequent statement if the ar “Tootie” was Allen. Deandrea Comer, illegal. rest was not See day The next Deandrea Allen was arrested 193; Bell, at 724 at 787. S.W.2d by Officer Brown. Deandrea Allen then question In order to address wheth- gave a statement that his two cohorts Appeals er the in determining Court of “Peaches”, crime were was later deter- that appel- there was no connection between Brown, mined to be Kenneth and Kenneth’s illegal appellant’s lant’s cousin, arrest and subse- appellant. upon Based this infor- statement, quent must mation, we consider proceeded appel- Officer Brown to question appellant threshold of whether was grandmother’s lant’s house at approximately illegally Fourth seized under the Amendment p.m. 7:30 where he observed two men stand- I, and Article Section 9 the Texas Consti- ing on porch. police the front The officers tution.1 approached porch the front and asked the two men if happened either of them to be agree Ap with Appellant Clifton Cornealius. answered that peals police possessed probable that placed he was and was then under arrest. cause to appellant participat believe that had Appellant’s subsequent confession was the police ed in the murders and that did not subject suppress of a motion to which was appellant need an take arrest warrant to into denied the trial court. custody Cornealius, juvenile. since he was a The Court Appeals found that police However, we hold that
possessed probable cause to
ap-
believe that
Appeals
Court of
was erroneous in its
pellant
participated
had
in the murders and
finding
appellant’s
that
arrest was unlawful
police
that the
did not need an arrest war-
under the Fourth Amendment in that he was
rant to take
custody pursuant
into
grand
arrested
on
without a warrant
his
Code,
52.01(a)(1)-
Family
V.T.C.A
Section
porch.
mother’s front
Id.
(4)
Cornealius,
juvenile.
since he was a
870
S.W.2d at 171.
Nothing
The Court of
prevent
in our Constitutions
appellant’s
that
police
addressing questions
arrest
unlawful under
officer from
street;
the Fourth
nothing
Amendment
that he was ar-
citizens on the
it follows that
rested without a
grandmoth-
prevent
knocking
warrant on his
would
politely
him from
on
However,
porch.
any
er’s front
at 173.
Rodriguez
Id.
closed
door.
653
(Tex.Cr.App.1983).
went on to hold that the
This
ignore
question
1. The dissent would have us
United States and Texas Constitutions.” Howev
legality
appellant’s
er,
of the
arrest because “the
appellant’s
arguments
another of the
main
challenged.”
conclusion is not
The dissent also
that there was
misconduct and that it was
"|T]o
writes that
an issue that
reach
has not been
"flagrant," citing
Bell v.
S.W.2d 780
raised,
argued
patently
briefed or
unfair.”
1986)
(Tex.Cr.App.
and Comer v.
This assertion is not true.
(Tex.Cr.App.
Both sides chal
page
The State uses over a
out of three and
lenged
of the Court of
re
arguments
pages
one-half
of the
and authorities
arrest,
garding
legality
as well
as the
argue
section of its brief to
that the arrest was
presence
any police
flagrancy
misconduct.
illegal.
appellant argues
that the Court
briefed,
raised,
argued by
The issue was
Appeals “agreed
contention
sides.
appellant's
that
arrest was in violation of the
voluntarily
anyone,
en
in that the
Court has held
it law
Amendment
citizen,
exposed
forcement officer
common
has
to warrantless arrest
himself
right
approach
freely
police.
front door.
opening the door to the
(Tex.Cr.App.),
Bower v.
ap-
In the case before us the officers
denied,
rt.
492 U.S.
109 S.Ct.
ce
proached appellant’s grandmother’s house
(1989),
L.Ed.2d 611
on
overruled
on
front
and observed two males out
grounds,
other
Heitman
815 S.W.2d porch.
simply
The officers
asked if either
Bower,
(Tex.Cr.App.1991).
fur
Comealius,
one of them was Clifton
ther said:
responded.
voluntarily
point
At
pellant
*4
express
person
from
in
“Absent
orders
the
legally
under
was
arrested
Section
against
possession
any possible trespass,
Family
Appellant’s
of the
arrest
Code.
of
or
con-
private
public
there is no rule
this
the
under
fact situation violated neither
se,
illegal per
makes
a
duct which
it
or
the
United States nor
Texas Constitutions.
person’s right
invasion of the
condemned
Although
Appeals
in
the Court of
erred
anyone
privacy,
openly
peace-
of
for
and
finding appellant’s
illegal, they
arrest
to be
ably
up
steps
...
knock on
to walk
the
and
finding
did not err in
that
the trial court
any
the front
of
man’s
door
“castle”
sup-
properly
appellant’s motion to
denied
asking questions
the
intent of
the
honest
of
Accordingly,
press his written confession.
occupant
questioner
thereof-whether
the
judgment
Appeals
the
of the
of
Court
pollster,
salesman,
be a
a
or an
of
officer
affirmed.
the law.”
States,
(quoting
Davis v.
327 F.2d
United
OVERSTREET, J.,
concurs
the result.
(9th Cir.1964).)
301, 303
Appeals
The United States Court of
for
BAIRD, Judge, dissenting.
recently
has
the
the Ninth Circuit
addressed
majority opinion
procedural
The
raises two
open
of
at
issue
whether an arrest
the
First,
a
questions.
should this Court disturb
if
dwelling requires
threshold of a
a warrant
holding
appeals
of
court of
when that
the
voluntarily exposed himself
the arrestee has
holding
challenged by
has not been
either
Vaneaton,
arresting
v.
to the
officer. U.S.
Second,
party?
what action should we take
(9th Cir.1995).
police
F.3d
In that case
appeals
of the
fails
when
decision
court
officers
to a
without a
went
motel
warrant
relevant,
controlling,
perhaps
to consider
and
there,
order to ascertain
the defendant was
authority from this Court?
was,
and if
officers
he
arrest him. The
at
registered
found that the defendant was
I.
motel,
room, and
went to his
knocked on
point
resolving appellant’s
the door. The
looked
a win-
In
third
of er
out
dow,
ror,
officers,
appel
Appeals
then
concluded
saw the uniformed
Court
illegal.
opened
him if he
lant’s arrest was
the door. The
asked
Cornealius
(Tex.App.
was Jack
and the defendant re-
Vaneaton
— Houston
not
sponded
placed
was
This conclusion is
[14th Dist.]
that he was. He
then
majority
challenged
A
did not seek
under
of the
because
State
arrest.
Court
the arrest issue.1 The instant
the arrest did not violate the Fourth
our review of
White,
Judge
majority
challenged
The
the State
ed within the State’s brief.
1.
believes
has
Court,
holding
State
opinion
“[t]he
the Court of
because
authored the
stated:
pages
page
uses
a
out of three
one-half
over
brief,
In its
the State devotes considerable
arguments
of its
and authorities section
space
argument.... We do
reach
to an
not
illegal.”
argue
brief to
that the arrest
not
State, however,
argument
it
this
because
Ante,
majority's
n.
preserved
review before this
has
been
for
conclusion that the State's brief on
gal. III. place order to holding by We should not disturb the instant case in the posture review, appeals court of correct for our ultimate when that has not challenged by been should remand this case party. either to the Court of Unless we grant motion, Appeals for light review on our reconsideration in of Bell own Tex. 200(a), R.App.P. majority and Comer. our Because the fails to do review is limited to the so, respectfully I issues raised dissent. parties. In the instant majority disturbs uncontested holding of CLINTON, J., joins part order to I. of this *5 ground avoid review of the agreed MALONEY, J., joins this See, II, decide. To reach an issue infra. raised, that has not been argued or briefed by parties patently unfair.
II. holding appellant’s
After
illegal,
arrest was
confes
sufficiently
sion was
attenuated from the ille
Luna,
Jesus F. LUNA and Maria L.
gal
Cornealius,
arrest.
Individually, and as Next Friends of
However, in conducting
analy
its attenuation
Hugo
Luna, Minor, Appellants,
E.
A
sis, the Court failed to consider two cases
by appellant,
State,
cited
Comer v.
and Bell v. H A& INVESTMENTS and Hector Gu
State,
appeals from appellate process. aWhen appeals
court of
fails to consider relevant
petition
discretionary
for
petition
review. Since
discretionary
for
review about the lower
State "won” before the Court of
in the
disposition
procedural
court’s
default
is-
cross-petition
instant
would have been
sue,
case.")
issue is not
us in this
before
appropriate
necessary
preserve
added.);
State,
(Emphasis
Haughton v.
issue
review
this Court.
for
405, 1990) (To
(Tex.Cr.App.
pre-
n. 1
Keith,
863-864,
(Emphasis
782 S.W.2d at
n. 4
argument
serve
for review the State must file a
added.).
See also Batiste v.