*1 findings in its in the record. The trial court awarding discretion and did not abuse its in re- each the benefits of these the division of the anticipated of fact even measured had been with her the spective plans. wife using higher value property at the years for 9 and 11 months employer division and found the wife’s retirement trial; to vest required time of ten years the 65% wife far léss than would award the 1,1972, rights. July her retirement Prior re- she had property total division of the annu- employer’s she had contributed to the $8,000 or figure Using either the quested. receive ity plan from which she would $44,510 $2,580.55 as the the sum of upon age month retirement at per $15.21 retirement, hold that we value of the wife’s date, 65. she has contributed Since its discretion did not abuse the trial court pay a new which would her retirement fund its division. retire- per upon an additional month $344 has the case The trial court in a divorce age employer’s ment at 65. The insurance on the parties to observe opportunity $2,500.55on a value of company placed stand, credibility, their witness determine $44,410on the retirement. annuity and both potentials, needs and evaluate their hand, husband, on other could fact, of As the trier social and economic. per age retire at 55 and draw $651.30 legal use its empowered the court month, that if or more than substantially understanding its human knowledge and $9,420in con- until 65. He had age waited divorce many Although experience. fund which he could with- tributions to the similarities, them are no two of have cases An employment draw if his terminated. precision alike. Mathematical exactly testified that based actuarial consultant usually not divorce is dividing in a property 60, his retirement had a age retirement at rests and discretion Wide latitude possible. $68,667,using Group present value of discretion and that trial courts in these $62,933, Table, using Annuity Mortality case of clear in the only be disturbed should (Census) Assuming Life Table. the U.S. abuse. $61,- values were age retirement at court of of the judgment Accordingly, $58,729. 872 and judgment is reversed appeals civil fact, trial court In of findings its trial court is affirmed. $58,700 on the value of placed present $8,000 on the husband’s retirement method of Although the
wife’s retirement. the trial court de-
interpolation by used wife’s retire-
termining the value shown, the value is not it is clear that
ment far exceeded
of the husband’s retirement could of the wife’s. The husband GREEN, Appellant, greater a much amount age retire at 55 at 65. The trial age wife could at than the valuation court was not bound Texas, Appellee. The STATE insurance by the placed on her retirement No. 59380. pension but could evaluate company Texas, circumstances based plans Appeals under the of Criminal plans, the differences in benefits 3. Panel No. in and paid amounts of contributions Nov. whom, receiving the ben- expectancy 27, 1981. May Dissenting Opinion
efits, relevant information. and other appeals that of the court of civil conclusion 3, 1981. Denied June Rehearing at the valued wife’s retirement was the hus- the benefits but current value of poten- at the was valued
band’s retirement support is without value of the benefits
tial *2 Jr., Purdom, Bass, Byrn R. J.
Thomas Lubbock, for appellant. Griffin, Atty., Cindy Dist. L. R.
Alton Browning, Asst. Dist. At- Hollis Miller and Lubbock, Huttash, Robert tys., State’s Austin, for the Atty., State. ODOM, TOM
Before G. DAVIS CLINTON, JJ.
OPINION
street. We then took them out of
I asked
where
we.
Raymond
house.
[sic]
CLINTON, Judge.
going
peo-
to do with these damned
This is an
from a conviction for
appeal
and he
me to
them in
ple,
put
told
capital
jury
murder in which the
returned
him that
it
I told
pickup.
back
*3
negative
issues
findings upon
special
there,
Raymond
so
told me
was cold back
pursuant
37.071(b),
submitted
to Article
said to the
up
Raymond
not to back
now.
Appellant’s punishment
V.A.C.C.P.
was as-
I
get in the back of
truck.
McKays,
sessed at life confinement.
Both of
already
was
back there.
connecting appellant
evidence
pickup
McKays got into the back
McKay
the murder of Warren
is a
back
got
I
into the
where was at. Robert
written statement
which he confessed his
got
into the
of the pickup. Raymond
participation
aggravated robbery
of
then he
pickup
up
and backed it
and
wife,
the deceased
during
and his
the course
a road real
drove off. We drove down
of which
McKay
Mr. and Mrs.
were shot
laying
long
fast for a
time. We were
Sanders,
and
by Raymond
killed
and Robert
Ray-
down in the back. After awhile
Lee White.
and I
stopped
mond
the truck
finally
statement, he,
According
appellant’s
to
got out
They
Mr.
out.
helped
McKay
and
Sanders
White armed with two shot-
Mrs.
then Mr. and
tailgate,
over the
guns,
McKay
drove to the
home on the
Raymond
started to walk off.
McKay
1975,
evening
12,
January
parked
do, go
you going
told me what are
the driveway. Warren
came out of
McKay
that I
I told him
ahead and shoot them.
pickup.
the house and over to Sanders’
Ray-
did not have
shells.
I asked
truck,
got
Robert Lee White
out of the
shells,
mond,
Ray-
where are the
then
point-
walked around to
other front and
I
away from me.
shotgun
mond took the
shotgun
Appellant
ed a
exited
McKay.
a shot
and then I heard
turned around
pickup
shotgun
with the other
which
It was
and then another and another.
was not loaded.
written state-
Appellant’s
I
I heard.
altogether
three shots
ment continues:
Mrs.
lady,
saw the
turned around and
“Robert
Mr. McKay
took the wallet from
in the road.1 She
McKay, laying
gave
it to me. I
it and looked
opened
know if
on her stomach.
I do not
laying
into it. There was a one hundred dollar
I did not see the
she was dead or not.
bill and
I
not know how
some more.
do
man,
Robert and
being
McKay.
this
Mr.
much, then I
back to
gave
McKay.
it
walking
toward me.
Raymond were
back
Raymond
minute.
Raymond said wait a
off.”
drove
gotWe
into the truck and
brought
McKay
and Robert
Mr. and Mrs.
how much mon-
asked
Sanders
house,
into
asked what
McKay
Mrs.
counted
and the latter
ey they
gotten
going
Raymond
are
to do with us.
you
concluding state-
out about $174.00.
going
you.
told her we are not
to hurt
of the murders
account
ment in
to hurt
going
also said that we were not
was,
Robert
say
“I ... want to
get
Mrs.
asked is she could
you.
McKay
Mr. and Mrs.
shoot and kill
Raymond did
pointed
to her and Mr.
coat. She
McKay.”
McKay’s
okay, they put
coat. We said
grounds
in six
complains
now
Appellant
asked if
McKay
their coats on and Mrs.
statement should
that his written
Raymond
she
on some shoes.
of error
put
could
evidence2 because
excluded from
just going
said that
are
down the
have been
you
Mckay
Specifically, appellant
court’s
assails the trial
Mrs.
were
1. The bodies of Mr. and
(1) failing
grant
motion to
yards
from some
tracks on
actions in:
suppress
found about 100
tire
statement; (2) admitting
iden-
his written
the shoulder of the road which were later
evidence; (3) finding that
having
truck.
the statement into
tified as
been made
Sanders’
lawful; (4) failing
there
to find
his arrest
unnecessary delay
taking
him before
was an
this com-
presentation
McKay;
of his deten-
ren
exploitation
it was obtained
Bolen,
warrant for
arrest, citing
Judge
illegal
plaint
to an
pursuant
tion
issued.
York,
99 lant’s arrest
Dunaway v. New
(1979); and
2248,
As of law enforcement officers’ a result Coffees, for talking Ray- a search times, other loudly a few knocking After officers went to mond Sanders ensued. The doors began open to their residents the house where lived Raymond Sanders across asked a woman hall. Wilbanks They worked. and found out where he Leroy the residence hall “if this is belonged employ- found a to his pickup thought so. she Green,” replied she and pickup, er and observed the tires on that as but again, door knocked on the Walker So they well as the tracks that made. The officers shotgun. with the butt of tracks and believed compared officers those and force on ahead “go to then decided twice, both at them to be the same as those found then the door Walker kicked entry.” So, Like- McKay and residences. both it, Coffee no avail. kicked to Wilbanks wise, favorably with compared through the tracks the door and ran up officers backed those found on the shoulder of the road off facing hinges its and knocking it off yards about 100 from where the bodies had the frame.
been found. Inside, confronted the officers first Green, who had been mother, upon
Based all of facts Adell lant’s time, get to a the officers bedroom disposal at their at the back to her way on her Green, she could According home of to Mrs. obtained a search warrant for the robe. because house, who was there exactly At the the officers not tell Sanders. Sanders at her: being pointed flashlights were shotguns. Raymond seized two Sanders arrested at his house and to immediately back the curtains pull “... I went to Of- County got taken to the Lubbock Sheriff’s I time by were and see who it said, testing weapons Subsequent fice. them back ... one of curtains ‘Well, said, I don’t any fingerprints seized failed to reveal and I ‘Don’t move’ somebody ... will right them. to run have no- on?’ and going what’s please tell me Jus- Office Upon arriving at the Sheriff’s me.” anything to body ever said was sum- tice of the Peace F. H. Bolen Leroy asking moned, started complaint and a was sworn Sher- The officers a into bedroom way made their alleg- Green and against appellant, iff C. H. Blanchard brother, Sammy, and his appellant of War- where the murder ing he had committed magistrate. Six taking (5) a magistrate; failing him before find ar- before a to cause; and, grounds various rul- (6) attack error fail- additional rest was without concerning presentation ings ing “voluntary court of the trial to find that the statement of jury illegal for consideration of the confession was obtained as a result of the accused” delay during unnecessary period at trial on the merits. arrest and a might pull would sleeping. Shining flashlights stop, were and we over to see ” might up.... what turn pointing appellant and his shotguns brother, the officers asked if one of them Walker, According Ranger to Green, appellant jumped and Leroy lost, “Well, I was I had no completely up, up on his bed his hands standing with where Lubbock that I was. idea in said, “Yes, I’m Green.” questioned Leroy know that we as to White whereabouts of Lee] [Robert Appellant was then led toward the front information, gave several we—he us some door and behind handcuffed his hands air, out on the put addresses and we them him. a under- Dressed in T-shirt and I remem- one address at a time. maybe shorts, appellant was led the front door out dep- while some stopping place ber at one Ranger recited him his Mi- Walker if White uties checked the address see warnings. randa3 old eighteen year ” was there.... appellant was then taken outside however, is, undisputed The evidence placed patrol car. It was 29° outside. sometime between arrested appellant Though slightly, testimony conflicted m., 2:40 booked in at 2:30 and a. appears it officers asked the at 3:30 a. m. County Lubbock Jail and, if someone himget could some clothes testimony, including positive weight block, after circling the returned Attor- Assistant District that of former apartment go and asked someone to brought wear- appellant was is that ney, *5 for some went Appellant’s clothes. brother T- nothing undershorts and ing but his no pair pants, in and returned with a of but shirt.5 or shoes shirt. was Bolen still at Though Judge ap- clearly The evidence established in fact remained Office—and Sheriff’s pellant was taken to the Of- appel- not Sheriff’s 5:00 a. approximately until there m.— fice for hour.4 Wilbanks Deputy almost an him at time any was not taken before lant explained thus: delay through night.6 looking process “We of were still in the put was first jail, appellant at the Once Leroy
for Green another individual and Ranger room with officers.” “several how was us some information as to giving to him him and talked Horger warned and might person we contact this third Then for a appellant placed was briefly.7 cell, brought we were to oth- in a then relaying this information short time holdover Thereafter, to according occasionally er via the radio and out and booked. officers therewith, Arizona, any of him and of affidavit filed 3. Miranda v. counsel, right right to of his L.Ed.2d 694 his retain silent, attorney right to have an remain of his merits, Deputy At trial testi- 4. on the Wilbanks time, any present during any at of interview warned, appellant fied that he asked first soon after right appointment request coun- his of his latter whether waived he indigent coun- sel if he is and cannot afford rights, simply nothing. appellant and said sel, examining right and of to have an his person trial. He inform the arrest- shall also findings any of 5. trial court failed to make required ed he is to make a state- not regarding eve- fact the factual details by him made ment and that statement ning’s events. magistrate may against used him. The be specifi- appellant’s person had shall allow arrested reasonable 6. The warrant for arrest that, arrest, cally upon opportunity be and time and to consult counsel commanded brought Judge person Bolen if before “instanter.” bail shall admit the arrested to 15.17(a), provides: allowed law.” Article V.A.C.C.P. Code, “(a) In each case enumerated in this 7.Horger appellant that he told testified that person making without the arrest shall custody,” that Sanders “had Sanders delay unnecessary person take arrested “explained,” was “no accident” and it magistrate of or have the before him taken some custody” “[appellant] and county arrested. where the accused was “looking language magistrate for Robert White.” shall inform in clear person against arrested accusation Hobbs, contention Appellant’s Dunaway Alton he first saw Deputy Sheriff York, govern New and Brown v. Illinois approximately at 4:00 a. m. appellant sit- conviction, predicated of his ting disposition where the latter had been moved to his arrest was un- upon the assertion that “Investigative Deputy one of the Offices.” Rector, lawful. Ranger Horger Earnest Frank Captain Montgomery present. were also affidavit complaint in the form of an Hobbs and satis- Deputy appellant warned Blanchard, on which the warrant by Sheriff appellant
fied himself that understood. Ac- issued, alleged: officers, cording to the did not appellant Turner, me, Assistant Tommy “Before he wanted request lawyer and indicated of Lubbock Attorney District Criminal to talk.8 Texas, ap- day personally County, this who, Blanchard, being after peared C. H. Hobbs,
According to he and Rector9 good sworn, that he has says oath started taking appellant’s statement believe and reason to believe and does listening about 4:30 a. m. After on or ... charge that one Green murders, lant’s verbal account of Rector January, A.D. day about the 12th began long- to write the events down in making complaint of this and before the longhand hand. Then Hobbs wrote in until Texas, County, in Lubbock State narrative was recorded. Rector there- intentionally then and there did typed longhand after the content of the death of an individu- knowingly cause the notes on a statement form. After it was al, by shooting McKay, Warren Andrew completed, beginning statement — THE PEACE gun him with a AGAINST warnings read to as he read appellant —was THE AND DIGNITY OF STATE. along copy. from a Corrections were made fsignedl H. Blanchard C. initialed them. me, this and subscribed before Sworn m., At 7:45 a. appellant signed the com- January, A.D. day 15th statement, pleted page three which was Tommy fsignedl Turner Captain witnessed Montgomery *6 District Assistant Criminal Deputy Delwin Keesee. It was established County, Lubbock Attorney of during that sometime it took 3½ hours Texas.”10 statement, to obtain completed appel- complaint, lant’s mother and above jail father came to the the sole basis of the On him, appel- to see attempted Judge but were Bolen issued the warrant told he would be night. instantly apparent unavailable that lant’s It is that arrest.11 8. 9. There was 10. All testimony absent. writer not being cated. suppress, Sheriff Blanchard testified: Appellant, Q: investigation A: That’s correct. Q: ies ... Q: Odessa A: investigation During present during And Yes, And taken and we ... emphasis [a]nd McKay? this that you you sir. Sheriff, testimony of hearing course, opinion itself, had taken an active Captain Montgomery had been saw the kind of wounds? is the time the statement was supplied throughout by on may murders of Warren that disputed unless otherwise indi- up you appellant’s you Ranger Horger infer from certain and seen not? this. charge part motion to was also the bod- of the wounds were determined to be made Q: arrest warrants A: A: That’s A: Q: fore this is A: the bodies were found and where and the whole White]? A: Q: active Q: McKays lived and where the Coffees lived shotgun. len ...? Okay. And And these were Yes, Yes, Yes, sir, Yes, Did Tommy [*] [******] part through you you I did. sir. sir. correct, yes, at several You had been [*] Turner, I did. observe did swear out a * * * [for general [*] process then did locations Judge Bolen issue the sir. area, you [*] wounds— taken Green and around of not? up had complaint checking, [*] near where Judge naturally, taking you [*] Robert by a not? Bo- be- an 706 complaint’s
this affidavit basis for the con- nothing consists of more than actual Sheriff Blanchard’s conclusion complaint. from the clusion is omitted lant perpetrated the murder described in allegations no complaint contains the complaint. personal complainant spoke that the Warden, v. State
In
Whiteley
Wyoming
knowledge
the matters
contained
560,
1031,
Penitentiary, 401 U.S.
91 S.Ct.
not
indicate
[there]
[does]
1035,
(1971),
707 We arrest of the exclu- appellant’s Observing application therefore hold that unlawful, was and the trial court erred the Fourth effectuating rule in sionary concluding otherwise.12 and interests policies Amendment serves Amendment, the different from the Fifth
Having appellant’s determined that ar- rest was in held: violation the Constitution Court
the law of this well as the Fourth State as requires merely not “Wong Sun13 Fourteenth Amendments to Consti- Fifth Amend- the statement meet the States, tution of the question United but that ment standard of voluntariness remains: whether the connection between of free will to ‘sufficiently it be an act appellant’s unauthorized and his in- at purge primary taint.’ 371 U.S. criminating during statements obtained Wong thus 83 at 416. Sun S.Ct. illegal detention was attenuat- sufficiently of the state- consideration mandates trial, permit, ed to at the use of that state- of the dis- admissibility light ment’s York, supra; ment? v. New Dunaway Fourth interests of the policies tinct Illinois, Brown v. supra. Amendment.” For part appeal, in this its State 99 at 2261. S.Ct. argues findings that the and conclu- sions of the trial appellant’s court—that a identified Brown v. Illinois Court in confession was under traditional voluntary merely as finding of “voluntariness” Fifth Amendment notions—are supported Fourth requirement” “threshold record, and the admission of later, v. Dunaway analysis; Amendment inculpatory lant’s statement into evidence elaborated, York, “[ijndeed, New the Court proper. was therefore violated, if has been the Fifth Amendment here is position urged by the State would not Fourth Amendment issue similar adopted by to that the New York have to be reached.” S.Ct. Appeals prompted Court of which the Su- preme Court’s decision in New Dunaway v. case, the trial court In the instant York; Supreme Court commented at 99 of his was warned found that at 2260: ap rights, and concluded constitutional betrays “This confusion be- lingering incriminating gave his pellant thereafter tween purposes ‘voluntariness’ for Because the trial voluntarily. statement Fifth Amendment and the connec- ‘causal hearing at a court is the sole trier of fact tion’ test established in Brown Illi- [v. is not this Court suppress, a motion to nois].” finding which to disturb liberty Illinois, Supreme In Brown v. the Illinois record, McKittrick supported by the warnings Court had held that Miranda in State, (Tex.Cr.App.1976); S.W.2d and of themselves broke the causal chain so to those determina accordingly we defer long so any statement was admissible tions. as it “voluntary” in the traditional confession Having determined sense and not coerced in violation of the require- voluntary as a “threshold Fifth and Fourteenth Amendments. In re- ment,” Fourth Amend- we turn now to the notion, jecting such a Dunaway prescribed by analysis ment resolving ques- reasoned that it avoided *8 Illinois, in order to Brown v. New York and by tion of whether statements obtained ex- met its the has determine whether State arrest, a Fourth ploitation illegal of an con- violation, establishing appellant’s that should be excluded. burden of Amendment court, “causal judge refused to submit the likewise 12. Because the trial concluded as a mat- jury appellant’s legal, over he connection” issue ter of law that arrest was objection. necessarily findings failed to make and conclu- regarding any be- sions “causal connection” States, appellant’s written Wong tween the invalid arrest and Sun v. United night. statement obtained later that The trial L.Ed.2d 441 fession product was not the The between illegal primary of his factual differences arrest and are detention. Brown v. Illinois and the instant case in appellant that of was effected the arrest Illinois, As in identified Brown v. rous- night, middle of the with officers supra, Dunaway and reiterated in v. New pointing shotguns him from in his ing sleep, York, supra the factors to be considered in direction, freezing into leading then him out determining whether the confession has coat, clothing with no or weather outer been obtained by exploitation illegal shoes. arrest, are In failed determining that the State (1) warnings giv- whether Miranda Brown’s proving meet burden of its en; suffi- by confession was obtained means (2) temporal of proximity the arrest purged to be ciently distinguishable confession; taint, exploitation of of by initial instead (3) presence intervening of circum- Supreme Court primary illegality, the stances; and, separat- was noted that the first statement (4) the of offi- two purpose flagraney by ed less than illegal from the hours, intervening
cial misconduct. event and there was no significance of whatsoever. The salient of the instant case are facts equally to be remarkably constituting similar to those In a statement we believe case, arrest, applicable detention and of Brown. to the instant confession observed, As Brown of approached apart- the door ment in early evening, pistol here, moreover, he saw a a illegality “The pointed through impro- at him a window near the quality purposefulness. of obvious; door. aware- stranger holding the revolver of the arrest was priety said, move, virtually conceded you “Don’t are under arrest.” ness of that fact was re- they two detectives when up gun by Another came him with a behind in their testimo- acknowledged, peatedly again told him he was under arrest. was of action ny, purpose their against Brown was told to stand a wall and investigation’ question- ‘for or ‘for nothing. was searched. The officers found arrest, design in ing’. ... The both was identity, On Brown’s denial of his he execution, The detec- investigatory. was shown and told he photograph himself for expedition tives embarked this was under arrest for murder. Brown was something hope evidence squad then handcuffed and escorted to a in which might manner up. turn station, police car. arrival Brown On at the gives Brown’s arrest was effected room and placed interrogation was in an having calculated appearance of been by questioned warned two officers. He was confusion.” 95 surprise, fright cause known have and then told that a bullet S.Ct. at 2262. being compared been him was by fired us, was conceded In the case before it one found in of the deceased. body had been involved that all the officers statement, was gave After Brown he expedi- Lubbock on an evidence foraging Af- taken out to look for his co-defendant. they found tion for some time before confederate, Brown’s Brown finding ter Blanchard likewise confirmed lant. Sheriff interrogation room alone in an placed object of a manhunt was the gave for several more hours and a second arrest is- the warrant for his even before sign. which refused to Four- statement went Though Blanchard sued. Sheriff arrest, Brown was tak- teen hours after his obtaining a war- formality of through the magistrate. before a en the entire course appellant,14 rant had ar- the law enforcement engaged The officers testified conduct investigatory questioning community patently purposes rested Brown for investigation. nature. him of a murder part as *9 manifestly in the form iff’s insufficient affidavit by fact that a warrant We are troubled
14. complaint, indistinguishable from which is Sher- in 1975 on the basis of the was obtained
709 Dunaway exclusionary presented and rule as Dunaway in both v. New York As 2248, Illinois, herein was 60 200, v. the accused York, Brown 99 S.Ct. New 442 U.S. v. but that event given warnings, Illinois, his Miranda Brown (1979), 824 L.Ed.2d fac- outweigh alone serve to other cannot 2254, 590, 45 L.Ed.2d S.Ct. Appellant began giving tors extant.15 of the officers (1975), good and the faith two hours after approximately confession facts under the of the arrest the execution intervening event of his arrest. The must be the facts before us. Because the record mili- significance by reflected law en- how eye viewed with an toward after against tates that State: reacted, of the a brief recital forcement arrest, at the lant’s but before his arrival necessary.1 arrest is preceding facts city county jail, he was driven around their as continued with the officers their investigation of the murders and I. Lee White. search for Robert 1975, 12, January night On the began almost Interrogation dis- Department County Lubbock Sheriff’s at the
immediately on his arrival Sheriff’s com- the rural two bodies outside covered were denied ac- Appellant’s parents Office. of an Deal. The bodies of New munity him, not taken before cess to face down lying were found elderly couple magistrate Judge though Bolen even The vic- with snow. covered partially building. Clearly, was in the no interven- had tims, McKay, Mrs. identified as Mr. and ing events broke the connection between the backs. shotgun blasts in been killed appellant’s arrest and confession. “To ad- Hobb, Rector, proceeded and Hill Deputies [appellant’s] mit confession in such a case arrival, they McKay’s Upon house. would allow ‘law enforcement officers unoccupied. unlocked and found the house impu- violate the Fourth Amendment with surrounding area An examination of the nity, knowledge safe in the could tracks wash their hands in the safe- of automobile “procedural presence disclosed the guards” of the Fifth’.” v. New Dunaway McKay’s vehi- matched neither of the York, supra, 99 at 2260. com- to be those appeared cles. The tracks three-quarter ton with a monly associated We hold that the has failed to State indicated vehicle’stracks pickup truck. The meet its burden of showing driveway, then pulled up it had admissible, statement was trial out and left. backed court erred introduction by permitting its before the jury. the offi- day, January The next cause judgment is reversed and the set of tracks at cers also located a similar remanded to the trial court. Further, dur- residence. nearby Coffee investigation of the ing subsequent TO DENIAL OF DISSENTING OPINION scene, an again located murder the officers MOTION FOR LEAVE TO STATE’S matching previ- those identical set of tracks FILE REHEARING MOTION FOR ap- latter tracks were found. These ously WITHOUT WRITTEN OPINION from where proximately yards one hundred McCORMICK,Judge, dissenting. had been found McKays the bodies stopped showed that the vehicle fails ade- majority opinion believe the behind the the shoulder of the road. quately reasoning to address the fact, was, complaint holding County condemned This the direct 15. the Lubbock Texas, Supreme in Barnes in 1965 in Brown v. Illinois. Court into takes supra. form modern For holding Prac- 7 Texas see State, Barnes account tice Morrison Annotated, companion case to White v. This is a Blackwell, Forms Criminal & (Tex.Cr.App.1979). S.W.2d 851 accompanying and 1.05 1.04 §§ notes. *10 residence, P. R. Wilbanks. In Deputy the the officers Walker and At Coffee hours on for the officers during evening appellant, learned that their search murders, “joint” local Mr. and Mrs. Cof- residences and a the date of the checked frequent- time, patronize known to appellant fee had been at home. At that three was offi- that the during period It was this attempt- ly. black men had come to their house formal arrest The iden- cers received word that a ing to sell corn for feed. Coffees appellant. had been issued for Raymond tified a as one the warrant Sanders number arrest warrant men, know other two. officers received the they but did not (appellant), (8021),the name of the arrestee subsequent photographic lineup, From a (murder).3 appellant. charge Mrs. Coffee identified officers, knowledge of obtained As a result of the information to the offense and Coffees, Raymond possible for connection from the a search lant’s of the formal issuance ascertaining where with notice Upon Sanders ensued. warrant, housing to a com- proceeded employed, proceed- was the officers Sanders The officers 2610 Weber Drive. pickup plex ed to local farm. found a at They a they in which apartment belonged employer approached and ex- Sanders’ knocking to be. After pickup. appellant amined the on that The offi- believed tires minutes, woman across loudly made for several cers also observed that the tracks in- door. The officers opened at hall her the truck were identical to those found Leroy residence residences. Addi- “if this is the McKay quired the Coffee and thought so. Green”, that she replied and she the tracks matched those found on tionally, knocking for repeated where the officers their the shoulder of the road near twenty minutes. fifteen to approximately bodies were found. entry. forced The officers then 14, 1975, to a pursuant and January On Inside, warrant, they home encountered Raymond search Sanders’ family. members of the shotguns were two mother and other was searched. Seized officers con- garage. In one of the bedrooms hidden in the attic above The of- his brother. appellant arrested and tak- fronted immediately was Sanders was if of them office. ficers asked one County en to the Lubbock Sheriff’s kneeling on office, jumped up, Appellant At the confessed Green. Sheriff’s Sanders bed, himself. and identified implicating appellant and made statements individual, White.2 and another Robert into immediately taken was Appellant description gave also the officers Sanders in placed rights, of his custody, warned of an that the other two sus- automobile originally was Appellant deputy’s car. using. been An immediate pects may have and shorts. a T-shirt apprehended began appellant search White. car, placed appellant After request appellant search for officers allowed county-wide Involved in the clothing.4 Ranger Tommy receive appellant were Texas Although confession of Sanders would ade- Sanders’ confession 2. The defendant confirmed hearing sup- quately support probable pre-trial cause element of on the motion to warrant, press: failed to show the affidavit the arrest support There- warrant. sufficient facts to fore, sitting right Raymond “A. Sanders to arrest cause desk, the officers had desig- room that’s front of this A, warrant. but a defective arrest sitting in on this corner nated a chair man, me, said, ‘Say, Leroy, facing he majority accepts appellant’s version that 4. The man’, said, you, ‘I don’t know what to tell getting the the block before the officers circled everything happened’, done told them however, testimony, clothing. The officers’ ‘Man, said, just like He I didn’t have no that. ” acquire allowed stated other choice.’ housing complex. clothing before left the majority opinion. Also see footnote 7 of the com- 3. The arrest warrant was issued after plaint Blanchard was sworn to Sheriff presented F. Bolen. to Justice of the Peace H.
711 433, 447, 94 2357, 2365, 41L.Ed.2d S.Ct. minutes to U.S. Although thirty it took from DeFillippo, Accord, v. appellant (1974). Michigan hour to deliver to the sheriff’s an 182 office, ongoing 2627, the delay the was due to L.Ed.2d 343 31, 61 443 99 S.Ct. U.S. Finishing the suspect. search for a third (1979). started, Ranger Walker quote majority the stated, the factors majority As the has stated: the determining whether considered in be questioned “... I know that we by exploita- has been obtained confession and we— as to the whereabouts White the (1) whether arrest are illegal tion of the information, ad- gave he us some several giv- were Miranda under rights guaranteed air, we them out on the put dresses and arrest of the en, (2) temporal proximity the at I remem- maybe one address a time. confession, of in- (3) presence the dep- some stopping place ber at one while circumstances; and, (4) pur- the tervening see if White uties checked the address to miscon- of the official flagrancy pose there, roam general but in we didn’t deterrence established that it is duct. Since town, straight we come generally around of the touchstone misconduct is the police added) jail.” (Emphasis on down to the factor, the rule, fourth the exclusionary police the defendant arrived at the Once miscon- police of the flagrancy purpose station, which the gave the statement the consid- duct, necessarily prime be must recognizes voluntary. to have been majority 465, Powell, 96 v. 428 U.S. eration. Stone 3037, (1976). More- L.Ed.2d 1067 49 S.Ct.
II.
Miranda
over,
rights
under
warning
Regardless
probable
of the
cause to
two
importance.5 It is these
great
also of
is
warrant,
majority
without a
appellant
be
scru-
closely
that must
factors
prominent
arrest warrant viti-
holds that
invalid
tinized.
However, I
subsequent
ates the
confession.
exclusionary rule
application
feel the
of the
was a
that there
disagreement
I have no
to the confession obtained under the cir-
confession
proximity
close
in this
This
inappropriate.
cumstances
case
there
the fact that
dispute
do I
arrest. Nor
exclusionary
is so
rule is de-
because
between
circumstances
intervening
no
signed
police
“to deter future unlawful
con-
subsequent
arrest and the
the time of the
consti-
repair
personal
duct” and not to
“the
in
arises
problem
valid confession.
right
aggrieved.”
tutional
party
official mis-
flagrancy of the
“purpose
Calandra,
338,
v.
414
United
States
of the Miranda
“giving
conduct” and the
347-348,
613, 620,
561,
94
38 L.Ed.2d
S.Ct.
warnings.”
571
This deterrent function “neces-
out that
points
majority correctly
engaged
assumes that
have
sarily
police
of his constitutional
was warned
willful,
very
negligent,
or at the
least
volun-
that his confession
rights and
which
the defendant
deprived
conduct
has
”
* * *
been
Thus,
factor has
the “Miranda
tary.
official
right.
of some
Where the
the threshold
Having overcome
faith,
satisfied.
pursued
complete good
action was
volun-
the confession
however,
requirement that
the deterrence rationale loses
Tucker,
however,
majority then concludes
417
Michigan
tary,
much of its force.”
Further,
603,
although
Illinois,
dismissed a
supra,
the Court
at
95
In Brown v.
422 U.S.
2261,
warnings
Supreme
per
at
break
S.Ct.
Court stated:
se rule that Miranda
illegality and
between the
causal connection
course,
entirely possible,
“It is
as the
confession,
soundly
the
rejected
argues,
persons
ille-
State here
arrested
warnings
Miranda
confess,
the notion that
may
gally frequently
as an
decide to
purge the taint:
can never
ille-
act of free will unaffected
the initial
reject
per se rule
gality.
warnings,
“While we therefore
But
alone and
the Miranda
appear
ac-
se,
to have
per
always
which
Illinois Courts
suffi-
cannot
make the act
break,
adopt
ciently
product
cepted,
alterna-
decline to
of free will to
we also
Supra
purposes,
per
Fourth
causal con-
rule.”
Amendment
tive
se or ‘but for’
illegality
nection between the
and the confes-
circumstances in the ad-
consequence presently rule as unimpeachable is that
ministered from the trier
probative kept evidence is truth-finding function of
of fact and the substantially impaired or a
proceedings aborted.” totally
trial has United States
rejected warnings the rule that Miranda
will, se, per cure the taint of a confession Likewise, illegal
which followed an arrest. extreme; i. rejected
the Court has the other
e., following illegal that a confession an *13 suppressed. Wong
arrest must be Sun States, 371
United 83 S.Ct. application
L.Ed.2d
exclusionary voluntary rule to the confes- nothing
sion of in this case does accomplish purpose. its stated The State acted
sufficiently proved that the officers reasonable, good-faith belief that
arrest warrant valid. If the circum- no doubt that repeated,
stances were there’s pursue
the officers would the same course
of conduct.
Until the Court is United States
presented reject or opportunity
accept good-faith exception the reasonable rule, respectfully dis- exclusionary
sent. DAVIS, J., joins
W. this dissent. C. BAEHR, Appellant,
Salvador Parra Texas, Appellee.
The STATE of 64988.
No. Texas, Appeals Criminal
Panel 2.
March 27, 1981.
Rehearing May Denied