*1 FRY, Appellant, v. James Francis Texas, Appellee.
The STATE of McCorkle, Dallas, appellant. Tom for S. Jimmy MARTINEZ, Appellant, Rincon Wade, Henry Atty., M. Dist. Karen Chil- Wayne ton Huff and Will Wil- Beverly, C. Texas, Appellee. The STATE son, Jr., Dallas, Robert Attys., Asst. Dist. Huttash, Austin, Atty., for State’s 61122, Nos. 61123. State. Texas, Court of Criminal Appeals
Panel No. 1. ROBERTS, CLINTON and Before McCORMICK, JJ. 9, June 1982. Rehearing
On Oct. OPINION
ROBERTS, Judge. These are from convictions appeals These aggravated robbery. appellants together were tried and each was assessed years. for seven punishment confinement challenge do not the suffi- appellants ciency ground of the evidence. In their sole certain evidence they of error contend that product admitted at their trial was the agree. an search and seizure. We illegal four among persons aggravated rob- committing accused of Herdman, bery complainant, Robert 25,1978, on March in Dallas. Herdman was during morning reported missing early fiancee, his hours of March Carol reported seeing Herdman Hutyra. Hutyra leave with co-defendant Wil- apartment his left, Hutyra liam Paddock. As noted plates; the car had California license she wrote the license number. About down apartment 5:00 a. m. the car returned to the Fry complex Appellant Herdman. got and co-defendant out of the Paddock They attempted burglarize car. then Hutyra apartment. Herdman’s When Hutyra reported screamed left. incident to a officer who left a writ- report replacement ten for his watch. afternoon, Later that Officer Swafford up report. picked up followed He Hu- took her back to tyra apartment at her apartment if he had re- Herdman’s see They arrived there about 2:00 yet. turned *2 464 just
p. m. and discovered that Herdman had
of
After an
the search
their
residence.
very badly
hearing,
arrived. Herdman
trial court overruled
had
extensive
following
beaten.
the motion. At trial
items
a
were admitted into evidence:
sawed-off
Herdman then told
Swafford that
Officer
bat,
rifle,
shotgun,
shotgun,
a
a
a baseball
a
at about 3:00 a. m.
taken
he had
Paddock
club,
belt,
bayonet,
a
a
wooden
chain
house,
Upon arriving
home.
at the
which
can,
knife,
spray
butcher
an aerosol
three
apartment,
was about three blocks from his
knife,
a shot-
spent
toothpaste,
tubes of
Herdman was
the house by
ordered into
addition,
shell,
hair
gun
specimens.
appellant
holding
Martinez who was
a shot-
photographs
parts
thirteen
various
of
gun. During the next ten or eleven hours
house,
the time of
which
at
were taken
repeatedly
Herdman was robbed and
beaten
Three
were admitted into evidence.
inside
by four men
the house. At about
photographs of the
which were taken
house
m.,
p.
agreed
2:00
the men
to release
finally
were also
three months
the arrest
after
Herdman,
appellant
Martinez drove
admitted into evidence.
apartment.
him
to his
back
testimony
suppression hearing
at
m.,
3:00 p.
About
Officer Arnold arrived
ever at-
established that no
officers
police
apartment.
at the
again
Herdman
related
in order to
tempted
to contact a
events to
day’s
Arnold. He told Arnold
Arnold
obtain an arrest warrant. Officer
that the men had
leaving
discussed
for Cali-
Saturday he
it was
testified
because
day.
fornia that
He
him that at
also told
would
be
did not think such an
the time he was
four
released three of the
successful.
asleep
men
passed
out.
doubt,
any
it is
previously
If there was
Arnold left
apartment
Herdman’s
Amend-
the Fourth
now clear that under
3:30 m.
p.
nearby police
and drove to a
Constitution, a
ment to the United States
He
Against
substation.
called the Crimes
his own
person
warrantless arrest
of
Persons Section
requested
downtown and
exigent
absent
per
home is
se unreasonable
manpower
additional
him in arrest-
to assist
York,
v. New
445
Payton
circumstances.
ing the four men
described
Herdman.
573,
1371,
100
ed the Fourth Amendment
to the United
....”)
cle 14.04
States Constitution.
offi-
argues
arresting
that the
The State
Texas,
peace
authority
In
a
officer’s
to
believed that the
reasonably
appellants
cers
make a warrantless arrest is controlled ex-
escape,
to
so that there was
were about
by statute.
clusively
Lewis v.
an arrest warrant.
It
procure
time to
S.W.2d 280 (Tex.Cr.App.1980); Honeycutt
a
place
the arrest took
points out
then had to the magistrate the warrant. When he was on physically obtain timony establishes to obtain why was asked he did not few hours after arrest. at least a duty replied: a warrant in this about the questioned Arnold was Officer warrants, I have secured many “Because jail: presence great and it takes a deal of time in even down the defendants “Q took you When locating Judge afternoon. Saturday took station, you said to the get It can take hours to one. arraignment? them “I sit there and did not have hours to out directly them take “A No. didn’t wait for those to leave. I felt people no. arraigned, dangerous people and that the com- them “Q you photographed But after munity would best be served if I arrested *4 finally processed, you they time, than to seek try them at that rather arraignment? them to took a warrant. it “Knowing the situation how hard Yes, sir. “A afternoon, Judge is to get Saturday them? arraigned “Q And who do, thing considering that the best was “A Tom Boardman. totality of the circumstances.” Boardman? Tom “Q And what is Arnold later asked about the times Judge is a weekend “A Tom Boardman gotten when he had a warrant: able to there, I am the best down “Q you the times right. All Before determine, attorney. practicing long gotten have how did can issue he that “Q you Are aware average? it take on an warrants? average an really give you “A I couldn’t Yeah, he can. guess “A I Sometimes, figure. you can’t find place can’t even anybody, you so talk with Mr. you “Q right. Did All on it. period you that —before Boardman before arraignment? them in just can find took “Q you And sometimes that? get them and a warrant —like the time him at Yes, “A sir. I talked right. “A That’s in. I took them So, “Q thirty minutes it could run from to leave about “Q Was Mr. Boardman hour, finding anybody?
to an
day?
duty
“A
right.”
That’s
come
Yes,
fixing to
“A
He was
sir.
I recall.
County,
down to the
Arnold testified that on other occa-
Since
able to obtain a warrant
time,
sions he had been
So,
for some
“Q
he had
there
weekend,
on a
and since
conceded
time?
or at least before
doing
have
the time involved
so could
long he had been
know how
“A I don’t
hour, depending
been as little as half
something
he said
there.
I know
magistrate,
of a
we are
availability
I
County.
to the
going down
about
unwilling to hold that the
has met its
State
down.
he came
know when
don’t
burden of
that there was no time
warrant
secured a
“Q
you
Have
ever
proof that
a warrant. Absent
Boardman?
from Mr.
attempts were made to locate a
No,
“A
sir.
warrant, Arnold’s bare as-
and obtain a
ar-
people you
“Q
usually
be un-
Do
take
sumption
attempts
you
that such
would
arraigned
Saturdays
little
weight.
successful carries
rest on
finish
you
after
City,
at the
addition,
their
after
with them?
transported
city jail.
to the
lants
No,
don’t.
Herdman,
usually
“A
sir.
I
were then identified
They
Second,
regard-
knowledge
testimony
in the case
“Q
do
have
you
But
to be ar-
usually
are
taken
offi-
the reasonableness of the
ing
raigned?
were about
cers’ belief that
ambiguous
at best. Since
arraigned, yes.
They
usually
“A
are
proving
that a
has the burden
State
City
or a
“Q
by Magistrate
And that’s
falls within one of the
warrantless arrest
Judge down there?
re-
ambiguity must be
statutory exceptions,
“A
Yes,
against
solved
State.
“Q
approximately
you
Do
remember
them
you
it was that
took
what time
fol-
testified as
complaining
witness
arraigned?
in to be
lows:
“A
[*]
have to
Oh,
eight
[*]
guess.
or nine o’clock. I would
[*]
I don’t
[*]
know.
[*]
[*]
“Q
officers]
were the
...
As
about
best
words
you
what
you
can
[the
told
recall,
appellants]
[the
what
“Q Now,
to do after
had let
ago
going
I believe
said a while
Judge Boardman
on duty
you off?
Hall
City
you got
sometime when
just
every
said
one of them
“A
there,
right?
back down
is that
the house and
to move out of
going
up
jail
“A
He was
when I went
leave,
were talk-
and some of them
up
prisoners.
with the
ing
back to California.
“Q Now, is there not
least
always —at
“Q
time frame
they give you any
Did
*5
weekends,
on
mostly
daylight
that?
were
to do
they
when
evening
Judge
duty
hours —a
day.
“A That
City
Hall?
know,
“A
you
I don’t
to tell
the truth.
day?
“Q That same
I would assume that
they are down
Yes,
“A
sir.
arraigning prisoners,
there for
but I
told
that?
“Q
you
Each of them
really don’t know.
Yes,
They
they
“A
sir.
all said
I
don’t
take
normally
personally
moving
day.
out
arraigned.
prisoners
“Q Well,
fact, officer,
you
isn’t it a
while
“Q
any
packing
of them
Were
there is a Municipal Judge, at least
in there?
were
one, on duty,
Judges,
or Peace
or
No,
passed
“A
sir. Three of them were
part-time Judges like Mr. Boardman
floor,
asleep
or
on the
out on the
duty
long
all weekend
at the City
whatever,
floor,
and Martinez was
or
Hall?
awake.
still
“A
may
That
be true.
I don’t know.
three
“Q Did
tell the officers that
you
“Q Are you
Judge
aware of
Cleo Steele
the floor
passed
were
out on
of them
County
here in the
Courthouse?
brought you back?
one of them
Yes,
“A
sir.
so,
sir.
I don’t know.”
yes,
“A I believe
“Q And
Judge?”
he’s a Peace
testimony,
to this
According
Yes,
added)
“A
sir.” (Emphasis
intended
leave for
they
said
lants
too,
This
undercuts the validi
testimony,
There was no testimo-
day.
California
ty of Officer
assumption
Arnold’s
that a
they
which indicated that
ny in the record
magistrate would have been difficult to lo
so imme-
they planned
said that
to do
ever
cate.
Absent a
that attempts to
releasing
complaining
wit-
diately after
unsuccessful,
locate a
were
Ar
Furthermore,
wit-
complaining
ness.
assumption
nold’s
in this
simply
case
cannot
assailants
ness
three of the four
knew
proof.
sustain the
burden of
State’s
See
departure
immediate
incapable
Hogan
(Tex.Cr.
appellant Martinez took the complaining “Q ... point Was ever a of time witness apartment. back to his The record when that house was not under sur- does not clearly show whether the com- veillance, guard, security? or plaining witness communicated this knowl- Yes, sir, “A there was. edge officers, to the police again, but since “Q That was you while were at the sub- the State has the burden of proving that station making phone call? the officers reasonably believed that appellants were about to any ambi- Yes, “A sir. guities must be against resolved the State. “Q That twenty-five thirty was the or addition, Officer Arnold’s own testimo- minutes— ny casts upon doubt the reasonableness of No, “A sir. It was more or like five six such a belief: minutes, or seven minutes. “Q You didn’t think appellants] [the So, “Q at least five or six minutes would leave without getting in the you time learned the address or car? house, location of the where was “A Without getting in the car or get- never more than five or six minutes ting on a motorcycle. I didn’t think of time when the house wasn’t under foot, would walk on long as guard; control or is that they had transportation available, so right? I didn’t think walking would be out the back door something. Yes, or “A
* * * * * * “Q by you And would that have been “Q Now, you officers, had been told and some other or some oth- that — Herdman —that there, four individuals er officers when weren’t
in that house had told him they were or what? going back to California as soon as “A From the learned location they could move out of the house? address, of the automobile and the “A They talking among about it there was only five six minute *6 themselves. span minutes —whatever— —seven “Q Now, during the twenty-five to thir- that it was not under observation.” ty minutes that you observed the According testimony, to this Ar- Officer house, you knew the car was there? appellants’ nold had the house under contin- Yes, “A sir. uous observation from the time left the “Q You had seen it as to house, complaining which witness’s other the Northwest Substation? m., showed testimony p. was about 3:30 “A Uh-huh. until he and the back-up officers made the m., arrests about 4:15 with the exception “Q It was still there in posi- the same of the five to seven minute period tion while he when you came back by? Furthermore, made the call. telephone the Yes, “A sir. appellants’ expected of departure, means “Q You assumed they were in the car, their was also under observation. At house? any attempt no time did Arnold see “A I they assumed were in the house. escape, or even any preparations escape. ****** simply post He waited at his observation “Q ... From your viewpoint, your back-up until the officers arrived and then point, observation was any there at- simply made the This is not a case arrest. tempt to move out of the house or quick police, where action the so that escape by people the inside of it? there was no time to No, “A necessary prevent appellants’ was the [******] imminent escape.
469 State, 898 v. 451 as In Thornton S.W.2d opinion The dissent characterizes our Rose, is no as there the that the requiring State to show opinion the Court’s that the their It indication in lants were midst of that not have they hold did only should not be so read. We that officers’ assertion disput- warrant was the not met of time to a search proving has its burden obtain State Furthermore, that there is no indication arresting reasonably officer ed. the be- challenged upon was that the was the arrest lieved offenders’ immi- officers that that no one told the nent. basis escape. The were about to the defendants The dissent cites a number of cases which State, Flanagan 465 of v. same true it this require uphold believes us to war- (Tex.Cr.App.1971). For these 755 S.W.2d reading rantless arrest. Our of those cases regard cases not these reasons we do persuades they distinguishable us that are cause. authority for this facts, on the or are controlling authori- (Tex. State, 125 ty they 582 simply appear Maloy because do not In v. S.W.2d ap place presented by Cr.App.1979), have addressed the issues this the arrest took appeal. 3:00 to 3:30 a. m. As the proximately stated, testimony “the opinion Court’s State, appears The dissent Rose v. to cite no undisputed that 470 198 (Tex.Cr.App.1971), S.W.2d for the hour.” at 127. There available at that Id. proposition can meet State its bur- opinion is also indication den of that magistrate was una- the de complaining witness’ statement that by showing vailable and leave “bug fendant out” assumed that fact. We not so read do Rose. disputed. city soon states, opinion in case “The offi- (Tex. State, cers 363 testified that did not have Loving v. S.W.2d procure a warrant the arrest a few talking Cr.App.1977), place after Jeffries took However, im complaining shortly hours the crime. more before after [the witness] driving arrest.” Id. at 199. opin- portantly, Nowhere in the defendants were ion is there indication of what car at time the arrest occurred. See evidence however, also, (Tex.Cr. presented; Myre State nowhere is S.W.2d 820 Washington there an indication that the defendant App.1977); chal- lenged testimony (Tex.Cr.App.1975); of officers. Green v. above, this 901 (Tex.Cr.App.1971). as indicated there was tes- timony severely which undercut In each those cases defendants bare after the commission assumption unavailability shortly made arrested driving in their officer. crime while were, therefore, already mobile They cars. *7 Furthermore, complaining in the Rose not the case and That is able to arresting witness told the officer that here. was about or had possi- defendant to leave it, 14.04, V.A.C.C.P., Art. bly already left. When the witness As we view and person given requirements: (1) officer arrived contains at the address four witness, complaining gives were told who the information Here, credible, (2) the offense left. already that the defendant had officer must be (3) the felony, officer offender must be arresting may have been told must (4) and there must be no incap- escape, that three of the four assailants were this able time to a warrant. departure. procure of immediate arrest- re- is that the first two ing question also that he there testified assumed However, we house, quirements at their have been met. appellants that the were still meet its has failed to and the house was under con- hold that the State that almost require- two proof Rose is last stant surveillance. think distin- burden of We guishable on the facts. ments.
470
The evidence shows that the other Because items and photographs home, were in their own under surveillance evidence, improperly admitted into minutes, for at forty-five least their these causes are reversed and remanded. expected escape means of was also under surveillance, that no attempt escape or CLINTON, Judge, concurring. shown, even preparation escape arresting Relatively recently approved the Court may have been told that three of four assailants were following statement in Hardison v. passed asleep or out when the complaining State, 355, 597 357 (Tex.Cr.App. S.W.2d addition, witness was released. the evi- 1980): dence shows that one of the arresting offi- showing “A that the offender is about cers had secured warrants in the past escape indispensable under Article night, weekends and at that although it 14.04, State, supra. supra v. Honeycutt long period sometimes took a of time to do State, Butler v. S.W.2d See [499 662]. so, at other times it took no more than half 244, 151 Tex.Cr.R. S.W.2d hour, that he was aware that there were (1948).”1 judges numerous in County Dallas who could issue in Finding Honeycutt that he that accused was was not sure judge whether a duty home, bed, was on all weekend arrested while in her in militat- Hall, City at that no was ever against ed that she was about to made to magistrate. contact a this On rec- escape, “[especially per- Court deemed ord, we simply cannot hold that the State 101, Rippy tinent” 122 Tex.Cr.R. has met its proving burden of (1931), Honeycutt, supra, offenders were about so that Writing fifty for the Court more than was no time to a warrant. years ago, Judge origi- Hawkins coined the The facts of this case fail to justify in phrase nal we restated Hardison v. appellants’ arrest in their home without a He supra. explained: warrant. reason, For this the items seized part That of the statute which says “... at the time of their photo- and the ‘the escape’ offender is about to graphs time, taken near that should That such indispensable. condition did not have been admitted into evidence. Y.A. present not exist in the case seems to be C.C.P., Art. 38.23. in fact. dispute without At the time the We turn now to the admissibility of the house, appellant’s officer went to three photographs taken of the house three partially lant was undressed and in bed.” months after photo- the arrest. These at 627.2 Rippy supra, graphs were apparently ap- taken after the “Im- Honeycutt, As noted Court pellants house, had moved out of the and at long held minent has essential a time when the house available for to a warrantless arrest under Article lease. We hold that under these circum- supra, [citing ... precursor its stances, any taint from the illegal cases].” arrest exceptions One obvious reason is that allow- sufficiently purged. State’s Exhibits ing given Nos. 48 and 49 warrantless arrests are “strict admitted properly into construction,” id., And, evidence. con- at 665. emphasis satisfactory proof. 1. All is mine If unless otherwise indi- lieved himself to have gone cated. he had such case *8 gotten in a car and and the accused had Judge highway 2. Hawkins wrote State’s motion for traversed the few miles over the rehearing. protest by Judge Oklahoma, An earlier Latti- state of the border of our sister grant appellant more to the motion of likely dif- the officer would have had serious rehearing reversing judgment and of con- criticism, ficulty escaping just if not more in remanding viction and the cause indicates that Id., consequences.” 53 S.W.2d at serious addressing problem, we are not a new viz: 625. “... What was the officer to do? Here was guilt plainly a man of whose the officer be- going back they said was nection, of them closing Article Some clause of on the And Martinez —when imposed of a limitation indicative to California. authorization, that he legislative generally has he said day, me home took may, overlooked: “... such as he as soon just to leave going was arrest pursue and got back. literal- Though the has not accused.” Court got soon as he back? “Q. Just as so as to ly language the underscored applied and got back as soon as he “A. Just actually be alleged require that the accused leaving. his stuff he was up, packed insisted fleeing, long for a now it has offi- police “Q. you Did tell Okay. each present the facts in individual case to leave they planning were cer that situation objectively pursuit in which for California? at not liable to follow once if arrest Yes, sir.” “A. made.3 cross-examination, he testified: agree I there is Since the evidence On a clear arrest- persons So, 3:00 a. m. the hours of “Q. between about to these addi- ed were with o’clock, Martinez 2:00 when join Judge I opinion tional comments off, four de- you they dropped —the judgment Roberts and the of the Court. at one collectively, had fendants reflects that 3:00 a. m. and released making accordance with Article arresting officers acted approximately 2:00 m. that afternoon. He then related his A review of the McCORMICK, Judge, dissenting. the arrests in the victim evidence shows p. question. ordeal to 14.04, Y.A.C.C.P., prudently was abducted his the police. captors that the record in “A. “Q. t< [*] [*] time or another lice) Yes, were do after ... As best [*] during about sir. going the words they what back to California? day had let you during you they can told them you told recall, what off? morning, you going to they (po- police with The interview was concluded of them just every “A. said one p. between 3:15 3:30 m. The move house and going to out of the immediately thereafter had one officer leave, talk- and some of them were place the house under until surveillance going about back to California. ing could backup officers arrive. The arrests they give any time frame “Q. you Did were carried out at m. 4:15 or 4:20 to do that? of when testified: victim day. “A. That “Q. persons any Did seated in the “Q. day? same That ever any courtroom make statements Yes, “A. sir. you leaving jurisdiction them “Q. you Each of told that? county? this Yes, They they was “A. sir. all said Yes, “A. moving day.” out that “Q. And who that? did.
“A. All of them testimony An examination the officer’s “Q. And Okay. following: when was this? reveals during night It was that I was “A. time, “Q. believe you At that did the house. held at an arrest you had time to did “Q. they say? And what be- for the persons warrant just and robbed They all said that lieved had assaulted “A. leaving. Robert Herdman? record, recently King apparent spread Just tion’ it must was, fact, this to es- concluded that ‘about Court the offender “manifestly, (P. 497.) cape’.” from the situa- ‘concrete factual *9 No,
“A. sir. your viewpoint observing From of that house, what was there situa- about the “Q. Why was that? tion, your point observation, of, “A. Because in they had talked front you say that causes to that there was complainant, leaving for Cali- enough not time to secure a warrant? I immediately; pre- fornia and I “A. Because have many secured war- sumed were to leave. preparing rants, great and it takes a deal of time “Q. you Did also have information that locating Judge Saturday in even a persons in that house arm- get afternoon. It can take hours to ed? one. Yes, “A. sir.” I did have hours to sit there out As as backup arrived, soon the ar- wait people and for those to leave. I cross-examination, rests made. On dangerous felt and people officer testified: the community would best be So, time, if I arrested “Q. would served them at that Sergeant that be B. F. than try rather to seek a warrant. you Fowler that talked to? Knowing the situation and how hard it Yes, “A. get Judge Saturday is to a after- “Q. you Did discuss with him availa- noon, thing do, that was the best to bility City Magistrate of a on that tele- considering the circum- totality of the phone conversation? stances.” him, “A. I said to ‘I don’t think that we 14.04, V.A.C.C.P., provides: Article got have time to a try Judge to find it is shown get warrant, by satisfactory “Where And he you?’ do officer, said, peace repre- to a ‘No, proof upon the I don’t.’ “Q. Was that the “Q. “... “A. Just about. “A. We talked about sfc And he I have exactly right. there’s not going ble, and possibly have to do.’ ous aget enough about those words that sation? He concurred that [*] Magistrate? go do what I do. Was arrested. I told him that I didn’t have time to [*] people it was Saturday warrant, said, time to got there we recall, just here. ‘That sounds fine. You’re anything that I had some about the get a had to do what we had had to do. will send extent of house, to be a Just do what there was not briefly afternoon, else, who needed to availability I Judge you your gave you— if the man and said you danger- conver- availa- just can this. Even sulted in ceeding probable time is of here, There has before an made. vailability carries little attempt be made magistrate would not be readily available tion arrest fender officer sentation ny driving armed readily has been majority says an Further, even if a cause, may, is about to officer’s assumption Article the essence. The never been to the offender is preparing of a magistrate was sufficient. experienced police if the delay of a credible available, weight. procure warrant, accused.” committed, having it arrest magistrate, escape, contact a However, might the time to be had been warrant, requirement supra, person, reviewed, (Emphasis the mere suspects. and that statute so that setting well arrest of the nona- pursue only thirty magistrate such have re- assump- reflects there Rose v. that an out the the of- added) can be a felo- that a When taken pro- “Q. Now, minutes, Okay. may such have forty-five delay what majority ignore
about— seems to been critical.
473
Certainly
to escape.
The
a
about
magis-
this factor.
assumed
the offender is
officer
not
available. But
the
readily
trate would
be
in this instance when
that was done
available, the officer
even if one had been
of
that afternoon that all
officer was told
delay
could not have
the
in mak-
afforded
leave
said
would
the offenders had
reason
ing the arrest when he had
to be-
leaving
day
had indicated his
that
and one
leaving
at any
lieve the offenders would
Tarpley v.
was
This Court in
imminent.
moment.
State,
565
525
S.W.2d
upholding
arrest on the basis
a warrantless
majority
the
says
assumption
The
that
stated,
14.04,
appel
of Article
to
“Contrary
magistrate
a
was unavailable is
that
shown
contention,
fact
and Hud
lant’s
the
that he
the appellants
to be incorrect because
later
son were
the act of
at the
escaping
not in
However,
magistrate warnings.
received
is
565
time
the arrest
immaterial.”
m.,
between
this was
8:00 and 9:00
not at
here,
In that
the
S.W.2d at 530.
as
time of
arrest.
to
told facts that
led them
were
Next, the
claims that the
majority
record
to
believe
the defendants were about
that
reflects that
the victim testified
that
showing
was no
that
escape though there
told the officers that when he was released
escape.
the defendants had commenced the
three of the four abductors were
or
asleep
to
a war-
was
sufficient
authorize
Such
held
and,
therefore,
passed out
the officers
officer
to
rantless arrest.
If an
were forced
should have
was no exigency
known there
danger
wait until the
armed and
However,
making
arrest.
record
commenced,
the lives of
persons
ous
was
shows
victim testified as follows:
offenders,
bystanders
and innocent
police,
“Q. Did you tell the officers that
three
endangered.
could be
statute does
of them
out
passed
on the
result, and,
today,
before
require such
brought
floor and one of them
State,
Court.
neither had this
See Rose
back?
(Tex.
125
supra; Maloy v.
so,
I believe
yes,
“A.
I don’t know.”
Cr.App.1979).
that
It seems
such answer is different
than
104 Tex.Cr.R.
Rutherford v.
reported by
that
majority
as
reason
was a
in which
(1926),
reversal
S.W.
finding
for not
any exigency.
Court,
interpreting the predecessor
this
The majority points out that when the
14.04,
that
must
to Article
said
the officer
raid,
officers made their
three of the de
or is
unless he knows
obtain
warrant
fendants were asleep
passed
out. How
escape.
is
to
advised that the offender
about
ever, it is settled that questions concerning
by That is
confronted here
the situation
legality
of an arrest must be examined
had been
advised
police. The officer
as
situation appeared to the
officer
were about
to
victim
the offenders
that
and not
it appears by
as
hindsight,
escape.
(Tex.Cr.
Talbert v.
the same area. There is no
indication
were,
where the defendants
waited for
the suspects attempted to
During
flee.
backup support
making
before
the arrests.
search incident
to
inculpatory evi
The defendants
not yet
any
had
commenced
Court,
dence was
citing
found. This
Article
escape at
time of
arrest.
14.04, upheld the arrest because it occurred
only
Virtually indistinguishable
a few hours after
the crime.
from the case
opinion
was silent concerning
Flanagan
at bar is
v.
availabili
have no with such These quarrel proposition. as- Punishment was However, robbery. majority aggravated does not bother to in each case. exairiining years cite one case in whether sessed at seven concurring opinion requirement Fifth case. 1. The notes that for a warrant O’Neal 411, However, Watson, granted 96 423 U.S. Circuit O’Neal relief. See United States v. (1976). surely only 820, granted Just as relief 598 Fifth Circuit because S.Ct. 46 L.Ed.2d argument probable made here found that the officer lacked sufficient there can be no serious entirely probable cause. The issue is lacked cause to arrest O’Neal. That probable today separate cause for arrest from the issue before us and distinction between flee, person quoted excerpt both of is about to from the from O’Neal v. and belief that Surely my required supra. for a warrantless brother does not which are Clinton confused. that there was a federal constitutional should not be contend “was single ground Honeycutt A of error In the defendant was raised in case. brief filed on of both appellants. behalf with her shoes removed. The home in bed argued it evidence admitted reflects that record officer] [the product trial was the of an unlawful year. lived there for more than a knew she seizure, arrest and incident search rely- and or an There no evidence of an 14.04, ing V.A.C.C.P., on Art. and the Texas Likewise, Rippy escape.” and origi- United States Constitutions. On 619, 122 Tex.Cr.R. S.W.2d nal panel submission a divided held the under arrest was not authorized defendant’s 14.04, requirements of Art. supra, were not 14.04, where the of Art. predecessor satisfied and reversed the convictions. On partially record showed the defendant rehearing panel we conclude the miscon- arrested, in bed when undressed and requirements strued the of Art. he was about no evidence unlawfully we find the evidence was not obtained. the evidence in Ho- contrast sharp 14.04, supra, provides: Art. presented are the facts neycutt Rippy by satisfactory “Where it is shown (Tex.Cr. Maloy officer, proof to a upon repre- *13 instant case. App.), and in the person, sentation of a credible a felo- person report- a credible Maloy, supra, committed, ny has been and of- arresting officers the defendant’s ed to the escape, fender is about to so that there is that he and told them “name and address warrant, no time to procure peace such city or flee ‘bug was about out’ may, pursue and to autho- soon.” held sufficient This was arrest the accused.” 14.04, supra. rize under Art. an arrest panel construed this statute majority to contain four requirements: in this the facts stronger are Even “(1) person gives who the informa- the rob case, undisputed that where it is credible, tion to the officer must be investigating offi reported to bery victim (2) (3) felony, offense must be a “Just told him cers that of the robbers one (4) offender must be about to escape, his stuff packed he back and got soon as there must be no time to a war- procure several of leaving,” and that up, was rant.” leaving for Califor robbers said applying this construction facts was sufficient day. clearly This nia that panel majority looked for evi- is report “that the offender constitute dence the offender in fact was about time to that there is no escape, about to so that there was in escape and fact no time to It is also sufficient a warrant.” procure procure Finding a warrant. insufficient ev- authorizing a exigent show circumstances idence of these two requirements, panel federal under Texas and warrantless arrest held the arrest majority was unlawful. constitutional law. 14.04, supra, Art. does not We hold grants rehearing is motion for State’s require showing that the offender in fact affirmed. judgments are ed and the escape, was about to nor does it require showing that there in fact was ROBERTS, ONION, J., CLINTON P. procure merely a warrant. The statute re TEAGUE, JJ., dissent. quires acting that the officer was upon satisfactory proof representa felony person
tions a credible
offender “is about to so that there
no time to a warrant.” (Tex.
Honeycutt v. relied on
Cr.App.), panel majority, in this
clearly from the facts distinguishable