Henry Earl DUNN, Appellant, v. The STATE of Texas, Appellee.
No. 72264.
Court of Criminal Appeals of Texas, En Banc.
Sept. 17, 1997.
478-483
Jack Skeen, Jr., District Attorney, Tyler, Matthew Paul, State‘s Atty., Austin, for State.
OPINION
MEYERS, Judge.
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 аll of the warrants, including appellant‘s arrest warrant. He signed nineteen of the twenty pages, inadvertently omitting appellant‘s arrest warrant. 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 magistratе signed the arrest warrant, appellant waived his rights and agreed to videotape a statement for police. The admission of this statement 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
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 vеrdict because the State failed to establish the victim was Nicolas West, the person named in the 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 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The record reflects that Detective Dale Hukill was asked during his testimony if the victim had been identified, to which he responded the victim was “Nicolas West.” Testimony from the victim‘s roommate also identified Nicolas West as the victim. The evidence is sufficient to support a finding by a rational trier of fact that the victim was Nicolas West. Appellant‘s fourth point of error is overruled.
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
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 рresumption of innocence applies to the special issues “is violative of Appellant‘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 presеnts no argument. Rule 74(f) of the Texas Rules of Appellate Procedure requires a brief of the 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, 924 S.W.2d 693, 698 (Tex. Crim. App. 1996). Points of error six through eleven are overruled.
The judgment of the trial court is affirmed.
MANSFIELD, Judge, concurring.
In his first and second points of error, аppellant contends that because 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 аnd warrants together with the arrest warrant for 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 aрpellant, which was not signed. The police, 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.1 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 frоm the murder scene in the victim‘s truck. Appellant continued to use the victim‘s truck until the time of his arrest. The recorded video statement was given by appellant about three hours after the magistrate signed the warrant for appellant‘s arrest and about six hours after his actual arrest.
Appellant does not challenge the finding of the magistratе that probable cause to arrest 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 cleаrly shows the magistrate made the proper 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
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, 514 U.S. 1, 115 S.Ct. 1185, 131 L.Ed.2d 34 (1995), is dispositive. In Arizona v. Evans, the police, relying in good fаith on what they thought was a valid outstanding arrest warrant, placed Evans under arrest subsequent to a stop for a traffic law violation. Unknown to the officers at the time, the arrest warrant was no longer outstanding as it had expired. However, due to a clerical oversight, the arrest warrant had not been deleted from the computer system when the police stopped Evans. During the search incident to Evans’ arrest, the police found a bag of marijuana and he was charged with its possession.
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, 480 U.S. 340, 348, 107 S.Ct. 1160, 1166, 94 L.Ed.2d 364 (1987). In Krull, the Court held there was no sound reаson to apply the exclusionary rule as a means of deterring misconduct on the part of judicial officers who are responsible for issuing warrants. There is “no evidence suggesting that judges and magistrates are inclined to ignore or subvert the Fourth Amendment or that lawlessness among these actors requires the application of the extrеme sanction of exclusion.” Krull, 480 U.S. at 348 (citing Leon, supra, 468 U.S. at 915-17).
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 lеss the presence of bad faith or misconduct of the level requiring invocation 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 unlеss there are sufficient facts to show the taint of the illegal arrest has been attenuated from the later confession. We have consistently applied the four-prong test set forth by the Supreme Court in Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), to determine if sufficient attenuation has occurred between the illegal arrest and the confession so as to make the confеssion admissible:
- whether the Miranda2 warnings were given;
- the presence of intervening circumstances;
- the temporal proximity of the arrest and confession; and
- the purpose and flagrancy of the official misconduct.
Brown v. Illinois, 422 U.S. at 601-03; Dowthitt v. State, 931 S.W.2d 244, 261 (Tex. Crim. App. 1996); Bell v. State, 938 S.W.2d 35, 47 n. 23 (Tex. Crim. App. 1996); Self v. State, 709 S.W.2d 662, 666 (Tex. Crim. App. 1986).
The record indicates appellant received his Miranda warnings at least twice and he also received the additional