Demetria JACKSON, Appellant, v. The STATE of Texas, Appellee.
No. 0620-85
Court of Criminal Appeals of Texas, En Banc.
Sept. 24, 1986.
727 S.W.2d 724
We conclude that it was not necessary for Officer Cade to have secured a search warrant before searching. The warrantless search was valid. The court did not err in admitting the evidence seized from the trunk of the car. See United States v. Ross, supra; Craddock v. State, supra; Scott v. State, 531 S.W.2d 825 (Tex.Cr.App. 1976). See and cf. Montez v. State, 608 S.W.2d 211, 217 (Tex.Cr.App.1980) (Opinion on rehearing).
The judgment of the Court of Appeals is affirmed.
CLINTON, Judge, dissenting.
The majority concludes that a warrantless arrest authorized by
“That language clearly implies that all the elements necessary to be proved to sustain a conviction of the accused must exist to give a police officer the authority to arrest him without a warrant.” Heath v. Boyd, 141 Tex. 569, 175 S.W.2d 214, 216 (1943). “[A] peace officer has no authority to make an arrest without a warrant except when the offense is committed in his presence or within his view....,” King v. State, 132 Tex.Cr.R. 200, 103 S.W.2d 754 (1937). Compare Steverson v. State, 109 Tex.Cr.R. 11, 2 S.W.2d 453, 454-455 (1928), with January v. State, 117 Tex.Cr.R. 223, 34 S.W.2d 1097 (1930).*
Therefore, to make a valid warrantless arrest under
On another matter, the majority treats an argument by the State that the search in question was a proper inventory search. However, the State lost that argument in the court of appeals. The State did not petition this Court to review that part of the decision of the court of appeals. According to the rules of this Court, propriety of the alleged inventory search is not before us, and the majority errs in addressing it.
On both bases I respectfully dissent.
John B. Holmes, Jr., Dist. Atty. and Roe Morris, Asst. Dist. Atty., Houston, Robert Huttash, State‘s Atty., Austin, for the State.
OPINION ON STATE‘S PETITION FOR DISCRETIONARY REVIEW
TEAGUE, Judge.
Demetria Jackson, hereinafter referred to as the appellant, after a bench trial, was convicted of committing the offense of evading arrest. See
The appellant challenged the validity of the information on file in this cause through a motion to quash,1 asserting therein that the information was fundamentally defective because it “fails to allege an offense against the laws of the state of Texas“; it “fails to state the manner of the lawful arrest of the defendant“; “It does not state what the lawful arrest was for“; and it “does not state that the defendant was aware and knew that an arrest was being attempted.”
The Houston First Court of Appeals agreed with the appellant, that the information was subject to her motion to quash, and ordered her conviction reversed and the information dismissed. See Jackson v. State, 690 S.W.2d 686 (Tex.App.-Houston [1st] 1985). Finding that the court of appeals correctly decided the issue, we will affirm its judgment.
We granted the State‘s petition for discretionary review in order to determine whether the offense of evading arrest requires that the charging instrument must allege, inter alia, that the defendant knew that the police officer was attempting to arrest him. See
The information in this cause alleges in pertinent part that the appellant “did then and there unlawfully intentionally flee from J. Lane, hereafter styled the Complainant, a peace officer lawfully attempting to arrest the Defendant, knowing that the Complainant was a peace officer.”
The court of appeals agreed with the appellant that her “knowledge that a police officer [was] trying to arrest [her] is an essential element of the offense of evading arrest under the statute“, and ordered her conviction reversed and the information in this cause dismissed.
Johnson v. State, 634 S.W.2d 695 (Tex.Cr.App.1982), another panel majority opinion that was authored by Judge Dally, in which no motion for rehearing was filed, held that the evidence adduced in that cause was sufficient to sustain the defendant‘s conviction for evading arrest. Judge Dally, implicitly, if not expressly, also held that it is not necessary to allege that the defendant knew that the peace officer was attempting to arrest him. However, the other two members of the panel, Judge W.C. Davis, who filed a concurring opinion, and Judge Teague, who filed a dissenting opinion, would have held that knowledge that the peace officer was attempting to arrest the accused is an element of the offense of evading arrest.
Although we find that all of the opinions filed in Hazkell and Johnson are extremely helpful to us in resolving the issue that is before us, whether the State must plead in an evading arrest case that the accused had knowledge that the peace officer was attempting to arrest him, given what was actually before the panels to resolve in those cases, they are not exactly on point.
However, we find that what Judge Odom stated in the dissenting opinion that he filed in Hazkell, what Judge W.C. Davis stated in the concurring opinion that he filed in Johnson, what Judge Teague stated in the dissenting opinion that he filed in Johnson, and what Justice Bass, who authored the opinion by the court of appeals in this cause, stated therein, are exactly on point with the issue that we must decide.
Justice Bass correctly pointed out in the opinion that he authored for the court of appeals in this cause that “The gravamen of the offense is the evasion of an arrest, not the evasion of a police officer.” 690 S.W.2d at 688. We also find that Justice Bass was correct when he stated the following: “The language in section 38.04 is clear and unambiguous, and there is only one reading consistent with grammatical structure of the statute: a defendant can be convicted of evading arrest only if he is ‘aware that the person from whom he is fleeing is a peace officer’ who is ‘attempting to arrest him.’ We conclude that the defendant‘s knowledge that a police officer is trying to arrest him is an essential element of the offense of evading arrest under the statute.” (688). We also find that in essence Justice Bass was repeating in a different way what Judges Odom, W.C. Davis, and Teague had previously stated.
We also conclude and hold as the court of appeals did that from the plain language of the statute it is essential that a defendant know the peace officer is attempting to arrest him. This element is missing from the information in this cause. Because it is missing from the information, the information is rendered fundamentally defective for failing to allege all of the elements of the offense of evading arrest.
The judgment of the court of appeals is affirmed.
CLINTON, Judge, concurring.
The reason we granted the petition for discretionary review is that the Houston (1st) Court of Appeals has decided a question of law which has not been, but should be, settled by this Court.
Though its allegations follow the formulation suggested in 3 Branch‘s Annotated Penal Statutes (3rd Ed.) 117, § 38.04, that the instant information is vulnerable to the exception or motion to quash may be easily discerned from merely reading and understanding the meaning of the statute defining the offense,
“(a) A person commits an offense if he intentionally flees from a person he knows is a peace officer attempting to arrest him.”1
That definition makes clear that accused must know a peace officer is attempting to arrest him.2 The information in the instant cause does not.3 Compare, however, McCormick & Blackwell, Texas Criminal Forms and Trial Manual § 16.03, 7 Texas Practice 118.
The State‘s reliance on Hazkell v. State, 616 S.W.2d 204 (Tex.Cr.App.1981), is misplaced. While the information there is, as the State says, “identical with the indictment [sic] in the instant cause,” the contention there was the charging instrument was fundamentally defective for failure to allege that accused knew the peace officer “was in the process of making a lawful arrest,” id., at 205. Such is not the claimed deficiency here, for appellant asserted in his motion that the information did not allege that he “was aware and knew that an arrest was being attempted” —lawful or not.4
Finally, an observation about a matter not raised but pertinent to this discussion. Though the information alleges that appellant did “‘intentionally’ flee from a peace officer lawfully attempting to arrest him ...,” as to this offense that alleged culpable mental state does not embrace “with knowledge” that the peace officer was attempting to arrest him. Here the latter fact is one of the “circumstances surrounding his conduct“—existence of which an accused must be aware.
Accordingly, I join the judgment of the Court.
The majority today puts on its legislative caps and overrules precedent and in contravention of specific legislative intent requires the State to plead an additional element under
In a line of cases beginning with Alejos v. State, 555 S.W.2d 444 (Tex.Cr.App.1977) (rehearing en banc), this Court listed the elements of evading arrest as:
- a person
- intentionally flees
- from a peace officer
- with knowledge he is a peace officer
- peace officer is attempting to arrest defendant
- the attempted arrest is lawful.
See also, Johnson v. State, 634 S.W.2d 695 (Tex.Cr.App.1982); Hazkell v. State, 616 S.W.2d 204 (Tex.Cr.App.1981); Rodriguez v. State, 578 S.W.2d 419 (Tex.Cr.App.1979).
The appellant in Hazkell asserted error for failure to allege in the charging instrument that the defendant knew that the pursuing officer was attempting to make a lawful arrest. Hazkell v. State, supra. By not overruling Hazkell, I read the majority here to be in agreement with the decision there not requiring the State to affirmatively plead that a defendant knows a police officer is attempting to make a lawful arrest. Given the required level of proof such a decision would lay upon the State, satisfaction of such a burden would be highly speculative at best.
With the advent of the majority opinion today, however, the State will be required to plead that the defendant knows his pursuer is a police officer and that the officer is attempting to arrest him. The majority has in effect destroyed the logical inference surrounding the officer‘s conduct and implicitly demonstrated by the accused‘s decision to flee in the first place. Up to this time, it has been necessary for the State to prove that the pursuing officer was in fact attempting a lawful arrest based upon probable cause. Today, the majority adopts the position of the Court of Appeals that “[t]he gravamen of the offense is the evasion of an arrest, not the evasion of a police officer.” Jackson v. State, 690 S.W.2d 686 (Tex.App.-Houston [1st] 1985). While well intended, such phrasing ignores the legislative intent of the “flight” statutes.
In affirming the lower court decision here, the majority finds that the writer was correct in stating:
“The language in Section 38.04 is clear and unambiguous, and there is only one reading consistent with grammatical structure of the statute: a defendant can be convicted of evading arrest only if he is ‘aware that the person from whom he is fleeing is a peace officer’ who is ‘attempting to arrest him.’ We conclude that the defendant‘s knowledge that a police officer is trying to arrest him is an essential element of the offense of evading arrest.” (Emphasis added). Jackson, supra.
A brief analysis of the history behind the adoption of
After five years of effort, the State Bar Committee on Revision of the Penal Code in 1970 published its final draft of the new penal code. See, A Proposed Revision (West Publ.Co., October 1970). As drafted, the proposed
“Section 38.04. Evading Arrest
(a) An individual commits an offense if he intentionally flees from a person he knows is a peace officer who he knows is attempting to arrest him.” (Emphasis added).
However, as finally passed by the Legislature in 1973, the second mens reas requirement was deleted:
(a) A person commits an offense if he intentionally flees from a person he knows is a peace officer attempting to arrest him.
The 1973 enactment therefore clearly deleted the language “who he knows is ...” which prescribed an additional awareness requirement to be pled by the State. Yet it is that very requirement—that a person must know that there is an attempt to arrest him—that this Court now adopts as an element under
I submit that in deciding “... there is only one reading consistent with the grammatical structure of the statute ...” the Court of Appeals judicially construed the language of
The cardinal rule of statutory interpretation is to ascertain the legislative intent in enacting a statute. Faulk v. State, 608 S.W.2d 625 (Tex.Cr.App.1980); Minton v. Frank, 545 S.W.2d 442 (Tex.1976). The Court of Criminal Appeals cannot substitute its own judgment for the judgment and discretion of the Legislature in statutory matters. Ex parte Davis, 412 S.W.2d 46 (Tex.Cr.App.1967). Where the statute is clear and unambiguous, the Legislature must be understood to mean what it has expressed; it is not for the reviewing courts to add or subtract from such a statute. Id.; Ex parte Levinson, 160 Tex.Cr.R. 606, 274 S.W.2d 76 (1955). The legislative intent and meaning of a statute is to be based upon the language found in the statute itself. Faulk, supra.
Here, there is no indication that the Court of Appeals looked to or relied upon the intent behind the passage of
The Court of Appeals’ declaration as to the gravamen of the instant offense also ignores the realistic, common sense intertwining of the underlying rationale for the pursuit and the person who is in pursuit. It is in the natural order of things, after all, that it is a peace officer who will be evaded, since that officer is attempting to make the arrest.
Given the clear and precise wording of the statute in proper context, the fact that appellant here “did intentionally flee from ... a peace officer lawfully attempting to arrest the defendant, knowing that the complainant was a peace officer,” is sufficient to give appellant proper notice of the charges against him and to show knowledge that appellant was aware of her impending arrest. Indeed, if appellant was not aware that the pursuing officer was attempting to arrest her, one wonders why she fled in the first place.
Because I do not believe that it is the proper function of the courts to invade the province of the legislative field, and disagree that the information here is fundamentally defective, I respectfully dissent. See Brazos River Authority v. City of Graham, 163 Tex. 167, 354 S.W.2d 99 (1962).