Herbert Lee KNOX, Appellant, v. The STATE of Texas, Appellee.
No. 56363.
Court of Criminal Appeals of Texas, Panel No. 1.
Sept. 19, 1979.
In a separate due process attack, the appellant contends that the phrase “away from the premises where he lives” is unconstitutionally vague. We have said that the entire statute is not vague. Runo v. State, 556 S.W.2d 808 (Tex.Cr.App.1977). In Powell v. State, 538 S.W.2d 617 (Tex.Cr.App.1976), we held that another phrase in the statute (“a felony involving an act of violence or threatened violence to a person or property“) was not unconstitutionally vague. The well-known test is whether the term is so vague that men of common intelligence must guess as to its meaning and differ as to its application. Powell v. State, supra, at 618. Without repeating the authorities and examples cited in Powell, it is sufficient to hold that, by that test, the phrase “away from the premises where he lives” is not unconstitutionally vague.
In his fourth ground of error, the appellant claims that the evidence was insufficient to prove that he was away from the premises where he lived. The appellant produced evidence that he lived in a camper which was mounted on his pickup truck. On the night in question, the truck was parked on the parking lot behind a “beer joint.” A group of young people were engaged in throwing tomatoes at each other when the appellant appeared on the parking lot with a shotgun. He fired several times, slightly wounding one person. If the appellant lived in the camper, he was away from the premises where he lived when he left the camper and went onto the parking lot. An adjacent parking lot is not part of the premises where one lives. Bryant v. State, 508 S.W.2d 103 (Tex.Cr.App.1974). See Wilson v. State, 418 S.W.2d 687 (Tex.Cr.App.1967). The evidence was sufficient to prove this element of the offense.
The judgment is affirmed.
William B. Mobley, Jr., Dist. Atty., and Eric G. Brown, Asst. Dist. Atty., Corpus Christi, Robert Huttash, State‘s Atty., Austin, for the State.
OPINION
Before ONION, P. J., and ROBERTS and W. C. DAVIS, JJ.
ONION, Presiding Judge.
This is an appeal from a conviction for possession of heroin, where the punishment was assessed by the jury at five (5) years, probated.
Appellant‘s sole contention is that the heroin in question was seized incident to an unlawful arrest and hence was inadmissible in evidence. Appellant argues that the court erred in overruling his supplemental motion to suppress because the affidavit or complaint on which the capias ordering the arrest of the appellant was not based on probable cause.
On May 5, 1976 a complaint and information were filed in County Court at Law No. 5 of Nueces County charging appellant with the offense of theft. Omitting the formal parts, the complaint reads:
“Before me, the undersigned authority, on this day personally appeared David L. Castillo who, after being duly sworn, on oath deposes and says that he has good reasons to believe and does believe that heretofore, to-wit on or about the 2nd day of May, A. D. 1976, and anterior to the filing of this complaint, in the County of Nueces and State of Texas, one Herbert Lee Knox did then and there unlawfully appropriate property, other than real property, to wit: a tire and rim of the value of $20.00 or more but less than $200.00 without the effective consent of Tradewinds Ford, the owner thereof, and with the intent to deprive Tradewinds Ford of said property . . .”
On the same date the complaint and information were filed the clerk issued a capias ordering the arrest of the appellant. On May 6, 1976 Detective David L. Castillo and Officer Flores of the Corpus Christi Police Department executed the capias. They observed the appellant outside a drive-in grocery. They identified themselves and told appellant he was under arrest. He was removed from his car and frisked, which frisk revealed a needle and syringe. Detective Castillo then entered appellant‘s vehicle, and as he did, he observed a cup covered with tinfoil on the console. He examined the cup, removing the tinfoil, and found it to contain a white powdery substance which was later shown to contain heroin.
In Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971), the United States Supreme Court wrote:
“The decisions of this Court concerning Fourth Amendment probable-cause requirements before a warrant for either arrest or search can issue require that the judicial officer issuing such a warrant be supplied with sufficient information to support an independent judgment that probable cause exists for the warrant. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825, 11 L.Ed.2d 887 (1964); Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958).” (Emphasis supplied.) See also Barnes v. Texas, 380 U.S. 253, 85 S.Ct. 942, 13 L.Ed.2d 818 (1965); Barnes v. State, 390 S.W.2d 266 (Tex.Cr.App.1965) (on remand).
Further, the Supreme Court has held that the exclusionary rule was applicable to state prosecutions, Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), and that the same probable cause standards were applicable to federal and state warrants under the Fourth and Fourteenth Amendments. Still further, see
In Evans v. State, 530 S.W.2d 932 (Tex.Cr.App.1975), and Lowery v. State, 499 S.W.2d 160 (Tex.Cr.App.1973), this court applied the rule of Whiteley to felony arrest warrants issued by justices of the peace pursuant to sworn complaints. In those cases it was held that the complaints upon which the arrest warrants were issued did not contain sufficient information to show probable cause. The rule, however, is not limited to felony arrest warrants but applies to misdemeanor arrest warrants as well.
Shadwick v. City of Tampa, 407 U.S. 345, 92 S.Ct. 2119, 32 L.Ed.2d 783 (1972), held that municipal court clerks who were authorized by city charter to issue warrants for arrest of persons charged with breach of municipal ordinances qualified as “neutral and detached magistrates” for purposes of the Fourth Amendment, where they were removed in their work and were subject to supervision of municipal court judges. Thus, it is clear that the Supreme Court has drawn no distinction between felony and misdemeanor cases with regard to the rule discussed in Whiteley.
An examination of the complaint in the instant case reveals that it consists of nothing more than a conclusion that the appellant perpetrated the theft offense described in the complaint. The actual basis for the complainant‘s conclusion is omitted from the complaint. The complaint contains no allegations that the complainant spoke with personal knowledge of the matters contained herein and did not indicate1 any source for the complainant‘s belief, nor set up sufficient information to support an independent judgment that probable cause existed.
There being no probable cause set forth in the complaint, the arrest of appellant by capias was illegal and the search of appellant and his car was also illegal and tainted thereby. The admission into evidence of the fruits of the search was reversible error.1
The judgment is reversed and the cause remanded.
ROBERTS, Judge, concurring.
By reversing the judgment on the issue of probable cause, the majority opinion reaches the right result for the wrong reason. The majority opinion addresses the question of probable cause as though the capias had been issued after an erroneous determination of probable cause by a magistrate. This treatment ignores the crucial feature of the case: The parties seem to agree that the issuance of the capias was an automatic, ministerial act of the deputy district clerk, which involved no exercise of discretion. The question is not whether there was an erroneous determination of probable cause, for there was no determination at all.
The question is whether the constitutional prohibitions against the issuance of warrants without probable cause (
Several opinions of the Supreme Court of the United States indicate that it would be unconstitutional to make an arrest on the authority of a warrant issued without a magistrate‘s determination of probable cause. The Court recently has delivered a dictum expressly to that effect. See Gerstein v. Pugh, 420 U.S. 103, 118, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), discussed below.
In Albrecht v. United States, 273 U.S. 1, 47 S.Ct. 250, 71 L.Ed. 505 (1927), a bench warrant issued when the United States attorney filed an information. The affidavits supporting the information were defective. The Court held that the arrest on the warrant violated the Fourth Amendment. In part I of Coolidge v. New Hampshire, 403 U.S. 443, 449-453, the Court held that a search warrant may be issued only by a neutral and detached magistrate, and that a prosecutor is not such a magistrate. Compare Mancusi v. DeForte, 392 U.S. 364, 371, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968). (I note that, if the county clerk automatically issues a capias when the prosecutor files an information and complaint, then the Texas prosecutor effectively determines when this writ shall issue.) In Shadwick v. City of Tampa, 407 U.S. 345, 92 S.Ct. 2119, 32 L.Ed.2d 783 (1972), the Court held that a municipal court clerk who was an employee of the judicial branch subject to the judge‘s supervision, and who was not connected with police or prosecution, and who was competent to make the determination, could function as a magistrate and determine whether complaints showed probable cause for the issuance of an arrest warrant. From these holdings, and from the constitutional provisions cited above, we can state the constitutional requirements for the issuance of an arrest warrant when a misdemeanor1 prosecution is instituted: A neutral and detached magistrate who is competent to make the determination must determine from the complaint that there is probable cause to issue the warrant.
A system which allowed a court to issue an arrest warrant solely on the filing of the prosecutor‘s information once existed in the Philippine Islands, and it was upheld in Ocampo v. United States, 234 U.S. 91, 34 S.Ct. 712, 58 L.Ed. 1231 (1914). But “the result reached in Ocampo is incompatible with the later holdings of Albrecht, Cool-
The issuance of the capias in this case was essentially identical to the issuance of the arrest warrant in Ocampo, supra. As the holdings discussed above imply, and as the dictum in Gerstein, supra, expressly states, the Fourth Amendment will not countenance an arrest based upon a warrant which issues automatically without a determination of probable cause by a neutral and detached magistrate. A result which upholds the procedure by which the capias issued in this case is equally incompatible with the constitutional doctrines that I have discussed above.
I pause at this point to address a problem of terminology. A capias is not a “warrant of arrest,” as defined in
“A ‘capias’ is a writ issued by the court or clerk, and directed ‘To any peace officer of the State of Texas‘, commanding him to arrest a person accused of an offense and bring him before that court immediately, or on a day or at a term stated in the writ.”
We must keep in mind the rule of statutory construction that when two interpretations are possible, one constitutional and the other not, the constitutional interpretation must prevail. Townsend v. State, 427 S.W.2d 55 (Tex.Cr.App.1968). There is no indication that the Legislature intended to authorize any of the unconstitutional procedures which we have discussed. We should avoid such unconstitutional procedures by our construction of the capias statutes.
If there is any indication of legislative intent, it is this: A capias may be issued by the court or clerk.
Therefore, we should hold that the capias statutes (
We also should hold that it is a violation of the
The question of whether a county clerk (or his deputy) can act as a neutral and detached magistrate in determining probable cause2 is not before us, for no such action was attempted in this case. Also not before us is the question of whether a capias may issue in a misdemeanor case, without a determination of probable cause, to continue the confinement of a defendant who already has been arrested properly under
Neither the majority opinion nor my opinion would affect the requisites of affidavits, complaints, and informations to support a prosecution. A misdemeanor conviction will not be reversed because no magistrate determined probable cause before the complaint and information were filed. Tarlton v. State, 578 S.W.2d 417 (Tex.Cr.App.1979). The standards of probable cause to issue a warrant are different from the standards of notice in a charging instrument. Chapa v. State, 420 S.W.2d 943 (Tex.Cr.App.1967).
I concur in the result.