Lead Opinion
OPINION
Appellant was convicted of capital murder, and the jury’s verdict at sentencing required the trial court to sentence appellant to death. Appeal from this sentence is direct and automatic to this Court. Appellant raises eleven points of error. We affirm.
In his first and second points of error appellant claims the trial court abused its discretion in failing to suppress the evidence obtained as a result of his illegal arrest. Appellant argues his arrest was illegal because the arrest warrant was not signed at
The police presented the issuing magistrate with several related affidavits and warrants totaling twenty pages. The magistrate determined probable cause existed for all of the warrants, including appellant’s arrest warrant. He signed nineteen of the twenty pages, inadvertently omitting appellant’s arrest wаrrant. There, he filled in the date and bond amount, but neglected to sign it. The mistake was not discovered until appellant was in custody. Upon realizing the error, arrangements were made to immediately obtain the magistrate’s signature. Car keys belonging to the victim and a receipt for a car stereo put into the victim’s car after his murder were seized in the search incident to appellant’s arrest. The admission of these items form the basis of appellant’s first point of error. Several hours after appellant’s arrest and after the magistrate signed the arrest warrant, appellant waived his rights and agreed to videotape a statement for police. The admission of this stаtement is the object of appellant’s second point of error.
Appellant correctly asserts that the warrant under which he was arrested was not in compliance with TEX. CODE CRIM. PROC. art. 15.02(3) because it was lacking the magistrate’s signature at the time of his arrest. TEX. CODE CRIM. PROC. art. 38.23(a) excludes, “evidence obtained by an officer or other person in violаtion of any provision of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America.” However, article 38.23(b) provides a good faith exception allowing evidence obtained in good faith reliance on a warrant to be admissible. Article 38.23(b) provides: “It is an exception to the provisiоns of Subsection (a) of this Article that the evidence was obtained by a law enforcement officer acting in objective good faith reliance upon a warrant issued by a neutral magistrate based upon probable cause.” The record establishes that appellant was arrested by officers acting in objective good fаith reliance upon a warrant based on probable cause and issued by a neutral magistrate. Appellant argues that article 38.23(b) is inapplicable because a warrant cannot issue without the signature of the magistrate as required by article 15.02(3). The record reflects that the magistrate found probable cause to issue the warrant, signed the accompanying warrants, and intended but inadvertently failed to sign appellant’s arrest warrant. This appears to be exactly the type of situation intended to be covered by article 38.23(b). Evidence obtained by a police officer acting in good faith reliance upon a warrant based upon a magistrate’s determination of probable cause should not be rendered inadmissible due to a defect found in the warrant subsequent to its execution. We hold that appellant’s arrest warrant had issued for purposes of the good faith exception of article 38.23(b). Accordingly, the trial court did not err in denying appellant’s motion to suppress. Appellant’s first and second points of error are overruled.
In his third point of error, appellant claims the trial court abused its discretion in denying his motion to suppress his videotaped confession. According to appellant, neither his confession nor the waiver of his rights was freely, knowingly, and voluntarily given. Therefore, appellant contends, the confession was gained in violation of his due process rights.
The trial court held a hearing to determine if appellant’s confession was given freely, knowingly, and voluntarily. The record from the hearing reflects that appellant was given Miranda warnings before the interview, and only after appellant affirmed that he understood the warnings did the interview commence. After viewing the videotaped confession and listening to the testimony of those present during the reading of the warnings, the trial court determined that appellant understood his rights and that the confession was admissible. Our own review of the record reflects that when appellant was initially informed of his rights, he indicated that he did not understand the right to counsel. The officer then carefully explained the terms to
In his fourth point of error appellant contends the trial court abused its discretion in denying his motion for directed verdict because the State failed to establish the victim was Nicolas West, the person named in thе indictment. Appellant is essentially questioning the sufficiency of the evidence to support this conviction. The sufficiency of the evidence is reviewed in the most favorable light to the verdict to determine whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Jackson v. Virginia
In his fifth point of error, appellant claims the trial court failed to advise the experts who examined appellant to determine his competency to stand trial, as required by TEX. CODE CRIM. PROC. art. 46.02(3)(c). Article 46.02(3)(c) requires the court to, “advise any expert appointed pursuant to this section of the facts and circumstances оf the offense with which the defendant is charged and the meaning of ineompetency to stand trial.” Appellant failed to preserve error, if any, for review. The record reflects that on the morning the trial began, appellant assured the court his expert had conducted all the tests and interviews necessary for his evaluation and nо complaint or objection was made that the court had not informed the expert of the facts and circumstances of the case. Appellant’s fifth point of error is overruled.
In points of error six through eleven, appellant sets forth various claims that the trial court abused its discretion by overruling his motions regarding the constitutionality of the Texas death penalty scheme. The two paragraph discussion following the listing of these six points of error appears to pertain only to point of error eleven, as to which appellant argues that failing to instruct the jury that the presumption of innocence applies to the special issues “is violative of Aрpellant’s Fifth and Fourteenth Amendments to the United States Constitution’s protections of due process of law as well as Appellant’s due process protections under the Texas Constitution.” Appellant otherwise cites no authority and presents no argument. Rule 74(f) of the Texas Rules of Appellate Procedure requires a brief of thе argument to include, “such discussion of the facts and the authorities relied upon as may be requisite to maintain the point at issue.” These points are multifarious, inadequately briefed and present nothing for review. See Martinez v. State,
The judgment of the trial court is affirmed.
Concurrence Opinion
concurring.
In his first and second points of error, appellant contends that becаuse the warrant for his arrest was not signed by the issuing magistrate prior to his arrest, the arrest was illegal. Therefore, he argues, the trial court erred in failing to suppress evidence gained as a result of the arrest.
The record below shows the police gave the magistrate numerous supporting affidavits and warrants together with the arrest warrant fоr appellant. Based on the affidavits, the magistrate found probable cause existed to issue the warrants, including the arrest warrant for appellant. He initialed each page of the supporting affidavits, dated and signed each of the warrants, except for the arrest warrant for appellant, which was not signed. The poliсe, believing in good faith the magistrate signed the arrest war
During their search of appellant incident to the arrest, the police found the victim’s car keys as well as a receipt for a stereo installed by the appellant in the victim’s car after the victim’s murder. Several hours later, appellant waived his rights and gave a recorded video statement to the police in which he confessed to robbing and shooting the victim, and then driving away from the murder scene in the victim’s truck.
Appellant does not challenge the finding of the magistrate that probable cause to arrеst him was present at the time of his arrest. The record demonstrates the magistrate reviewed and initialed the affidavits supporting his finding of probable cause. The magistrate signed the other warrants — relating to several other suspects who were alleged to have been involved along with appellant in the commission of this offense — but simply failed to sign the arrest warrant for appellant. Appellant does not aver the police acted in bad faith in any way or that they knew, at the time they arrested him, the arrest warrant lacked the signature of the magistrate.
Appellant is correct in his assertion that Texas Code of Criminal Procedure Article 15.02 requires an arrest warrant “be signed by the magistrate.” It is also true that article 38.23(a) provides for the exclusion of “evidence obtained by an officer or other person in violation of any provision of the Constitution or laws of the State of Texas or of the Constitution or laws of the United States of America.” However, article 38.23(b) provides: “It is an exception to the provisions of subsection (a) of this Article that the evidence was obtained by a law enforcement officer acting in objective good faith reliance upon a warrant issued by a neutral magistrate based on probable cause.” A review of the totality of the circumstances clearly shows the magistrate made the proрer finding of probable cause to issue the warrant for appellant’s arrest but inadvertently failed to sign the warrant itself — one of a package of several warrants — although his intent to do so is obvious. Given these circumstances, to hold the warrant did not issue for purposes of article 15.02 as well as for purposes of article 38.23(b) — the good faith exception — would be, in my opinion, an absurd result clearly in contravention of the intent of the Legislature. Boykin v. State,
Yet, even if one accepts appellant’s argument that no valid warrant had been issued at the time of his arrest because it lacked a magistrate’s signature, the United States Supreme Court’s recent holding in Arizona v. Evans,
The Supreme Court found that while Evans’ arrest had been made based on a warrant that, in effect, did not exist at the time of his arrest, the police, in good faith, believed they were acting pursuant to a valid arrest warrant based on probable cause. The Supreme Court held that the exclusionary rule does not require suppression of evidence seized in violation of the Fourth Amendment where the seizure was made pursuant to a warrant that was not valid because of clerical errors of court employees, but which police did not know was invalid.
In Arizona v. Evans the Court noted its holdings in Leon, supra, and Illinois v. Krull,
In the present case, the police, acting in good faith and pursuant to what they reasonably believed was a valid arrest warrant, arrested appellant. There is nothing in the record to support any allegation of bad faith or misconduct on the part of the police or the magistrate — much less the presence of bad faith or misconduct of the level requiring invоcation of the draconian step of application of the exclusionary rule, thereby suppressing the confession of appellant as fruit of an illegal arrest. Therefore the Fourth Amendment does not require that the evidence seized pursuant to the arrest of appellant — including his confession — be suppressed as the police acted in good faith on what they reasonably believed was a valid arrest warrant.
Finally, appellant’s confession is admissible even if, assuming arguendo, his arrest was illegal. This Court has held that if a confession results from an illegal arrest the confession will be suppressed unless there are sufficient facts to show the taint of the illegal arrest hаs been attenuated from the later confession. We have consistently applied the four-prong test set forth by the Supreme Court in Brown v. Illinois,
(1) whether the Miranda2 warnings were given;
(2) the presence of intervening circumstances;
(3) the temporal proximity of the arrest and confessiоn; and
(4) the purpose and flagrancy of the official misconduct.
Brown v. Illinois,
The record indicates appellant received his Miranda warnings at least twice and he also received the additional article 38.22 warnings immediately before he gave his videotaped statement. There were at least two intervening circumstances, including the confession by a codefendant implicating appellant in the murder and the actual signing of the arrest warrant by the magistrate. Third, several hours passed between the time of the arrest and the time appellant gave his statement, sufficient time to have given appellant an opportunity to reflect and to consider the consequences of confessing. Finally, there was no flagrant official misconduct; the police acted in good faith on what they thought was a valid arrest warrant based on probable cause and never intended to violate appellant’s rights. In my opinion, sufficient attenuation existed to remove any taint of the arrest (assuming it was illegal) and therefore the confession was admissible.
Notes
. The original stereo that had been installed by the victim was removed and pawned. The pawn shop receipt was found during the search incident to appellant’s arrest.
. Miranda v. Arizona,
. The keys and the receipt from the pawn shop were only briefly referred to during the trial. Their admission, even if erroneous, was harmless beyond a reasonable doubt. Tex.R.App.Proc. 81(b)(2); Harris v. State,