*1 here, by its the Court should be instructed Before the Court en bane. decision in Trammell v. DENIAL OF OPINION ON DISSENTING LEAVE FOR TO STATE’S MOTION stopped companion Trammell and a
FILE MOTION FOR REHEARING
by
police-
a street
they
as
walked down
WITHOUT OPINION
they
that
had mud and
man who noticed
clothes, and who knew
dried leaves on their
robbery the
suspects
in an armed
question
to the
panel opinion jumps
The
entering
seen
previous day had been
without warrant was
of whether an arrest
requested
identi-
wooded area.
officer
proper under Article
fication, and,
Trammell’s
upon discovering
underlying question
addressing
without
knowing
being
he was
identity, and
that
prior to the
of whether an arrest was made
warrant.
sought,
him without a
arrested
discovery
by the officers.
of the heroin
indi-
Nothing
in the
in Trammell
V.A.C.C.P.,
provides that:
danger
immediate
cates that there was
arrested when he has been
the Court
escaping,
of Trammell’s
taken
actually placed under restraint or
clearly
“was
autho-
found that the officer
person exe-
custody by
an officer or
appellant
rized to arrest without a warrant
arrest,
cuting
a warrant of
or
an offi-
under the terms of Arti-
companion
V.A.C.C.P.,
probable
war-
person arresting
upon
cer or
without a
cle
based
at 192.
cause alone.” 445 S.W.2d
(Emphasis supplied)
rant.”
justifiably inferred
Perhaps the Court
Little and Ladd testified that
Officers
Trammell,
fled the
who had earlier
Hardison,
they approached
Ladd “asked to
rpbbery, might, before a
armed
scene
an
hat,”
com-
let him see the
and Hardison
again. But
procured,
warrant could be
flee
question
of wheth-
plied. Leaving aside
in-
no less
the Court would be
hat-
subsequent inspection
Ladd’s
er
Hardison,
selling her-
ferring that
who been
Fourth
bywas
a consensual waiver of
band
band,
hat
capsules
supply
from a
in his
oin
rule of
rights
Amendment
before a warrant
might run out of stock
Bustamonte, 412
Schneckloth
procured
be
and executed.
(1973), would
in Article was seen Officer
Once heroin
Ladd, by Article the arrest was authorized
14.01, V.A.C.C.P. minimal intrusion If we characterize the DAVIS, Appellant, William Prince requiring a upon this as an arrest warrant, the use of a how can we pat-down weapons search for as authorized Ohio, Terry v. No. 62777. light of Article Appeals Surely Court does not mean 14.04? ripening understood as Feb. removes the probable cause to search 9, 1980. Rehearing Denied an otherwise right of the officer to make investigative stop? proper arguendo,
Finally, granting, application may
Article 14.04 have some *2 Houston, Dunn, appellant.
Thomas C. Holmes, Jr., M. Atty., Dist. Alvin John B. Sparks, Dist. and Kenneth W. Asst. Titus Huttash, Houston, Attys., Robert State’s Austin, Atty., for the State.
OPINION mur- Appellant convicted of was der, occurring during Punish- at death. assessed son, the deceased’s testi- Lang,
Michael closing up he father fied that Company on the the Red night of June when Davis entered testi- building Lang them. and robbed through front came fied that Davis wall, door, up against the everyone ordered immediately then shot the deceased. only thing he could Lang stated hands raising father his remember his up” he going to back “like he was cross-examination, tes- was shot. On police that he that he did tified told get made a if his father had move know gun. Davis’ only difference between what written con- introduced Davis’ State actually occurred and what he de- stated: stood
fession where Davis “[I] sired, contemplated, or risked nobody ‘Don’t move.’ doorway and said that: this, moving man was I was As “(1) I shot him one time.” Davis was com- toward me and different offense *3 mitted; committing at least five rob- also admitted beries and thirteen other burglaries. U [*] [*] [*] [11] guilt stage of the trial At the that Davis The evidence shows made to an offi- offered an oral statement Company to the Red went day the before the written confession cer robbery; pistol in order to commit with a the made to another officer. Outside was, thus, intentional conduct robbery the jury’s presence, the first officer testified 6.03(a), supra. The as defined in Section said, “I had to shoot the man. that Davis Lang would not have occurred death of gun away the from going State, He was to take Blansett v. for Davis’ conduct. See the statement was excluded on me.” The (Tex.Cr.App.1977). Under 322 556 S.W.2d any issue grounds that it was irrelevant on code, proof penal we held that of prior the guilt. prosecutor stated that gun of Davis’ shooting of one with a the intentional mitiga- might tend to show anything, “if it sufficient to conviction State, would certain- punishment, tion of but that 500 with malice. Potts v. murder by way Ortegon (Tex.Cr.App.1973); be available to the defendant v. ly 156 S.W.2d State, (Tex.Cr.App.1970). at the testimony through the defendant 646 459 S.W.2d . to commit a hearing . . the defendant intends punishment Where so, shooting the robbery actually does exclusion of this argues Davis the accidental, victim, it is though even of the error under evidence constitutes reversible State, killing. Smith still an unlawful disagree. V.A.C.C.P. We 234, (Tex.Cr. 846 154 Tex.Cr.R. 225 S.W.2d Wilder v. In Armour and App.1949). (Tex.Cr.App.1979),we held that 349 S.W.2d (Tex. State, 20 Dickson v. 463 S.W.2d In V.T.C.A., statute, Penal the murder Cr.App.1971),this wrote: Code, 19.03, applied to a defendant Section “ right of . . The robber has no who though was the co-defendant it against the owner self-defense during a committed the murder sought to be taken if the owner property State, Livingston v. 542 S.W.2d See killing in to recover would the offense. property prevent the or to V.T.C.A., Code, 6.03(a) pro- Penal Section 479, State, 118 Tex.Cr.R. McKee v. vides: 77; Tex.Cr.R. Smith with intentionally, or person acts 621; 34, Jones v. 78 S.W.2d intent, nature of his respect to the with 349; 441, 195 29 Tex. Tex.Cr.App. his conduct when or to a result of Homicide, Jur.2d, 46.” Sec. objective or desire it is his conscious Davis Therefore, why issue of the re- or cause the engage in the conduct of his to the issue shot is not relevant sult.” Lang’s death. guilt or innocence for Code, V.T.C.A., pro- Penal Section under admitted evidence should have been vides: provides which responsible if “(a) criminally person A an act is part when a have occurred the would not result party the whole one conduct, either operating but for his the inquired subject may be same with another concurrently alone or state other, Davis’ oral exclusion of the cause, Chap but harmless was error California, S.Ct. criminally man v. “(b) A is nevertheless v. Cali- Harrington (1967); causing result if responsible for con- fornia, severity “prior of his statement sider that because such L.Ed.2d phrase that does guilt. criminal conduct”—a did not affect his prior of his necessarily embrace “details” stage penalty at the It was admissible was that principle enunciated offenses—the trial, but was not offered. it by the exercised “quality of discretion” Next, trial court he contends that applied” in which is jury and “the manner prior four the details of erred my controlled.” are what “must be into evidence at the convictions view, we enhance neither Specifically, the after admit- today. the Court rendered judgments convic- ting four dissent. Accordingly, respectfully tions, called witnesses to stand several to the details of the events who testified *4 PHILLIPS, J., joins. bases the convictions. which formed the 37.071, V.A.C.C.P., expressly any evidence permits introduction
the court deems relevant at the Texas, In Jurek v. (1976), 49 L.Ed.2d Unit Supreme
ed States Court held
must have relevant information all deliberating fate of them when SWABADO, Appellant, Betty One of the factors listed defendant. as relevant in Robinson v. (Tex.Cr.App.1973), was the severity of a criminal con defendant’s 59,434. No. has
duct. Evidence of been held admissible in the absence of evidence Texas, Appeals of of a final conviction. Felder (Tex.Cr.App.1978). This Court March 1980. the details of a has also held admissible crime committed one month after crime Rehearing Denied case at bar. Green v. (Tex.Cr.App.1979). There error in the evidence. no judg-
There is no reversible error.
ment is affirmed.
CLINTON, Judge, dissenting. my opinion heading the Court is tendency to con-
constitutional trouble its 37.071, V.A.C.C.P., as carte
strue every receiving any bit of
blanche against an accused.
derogatory
This, believe, purpose turns the interpretative gloss as well as the
provision, given by Supreme
of intent Jurek v.
the United States Indeed, while this head. on its say opinion, in its Jurek
Court did