*1 etc., “exceptional not an circum- If the issue was not
stance.” exclusion unnecessary
raised and to the determina- Appeals, why, just why
tion of the Court reach
does this Court that issue? that, having accepted
well be the erroneous Ap-
computation of time the Court granted
peals, petition we for discre-
tionary review to determine whether
“exceptional circumstance” was a valid That, however, absolutely no rea-
one. of an unnecessary
son for an discussion now raised say
issue which we was never I dissent to Appeals.
even the Court portion opinion. WHITE, JJ., join
McCORMICK opinion. Gilfeather, Worth,
Pete Fort lant. Curry, Atty., Dist. Mar-
Tim and C. Chris Hase, Attys., Dist. shall and Don Asst. Huttash, Atty., Robert State’s LAGRONE, Appellant, Austin, for the State. Texas, Appellee. STATE No. 063-83. PETITION OPINION ON APPELLANT’S REVIEW FOR DISCRETIONARY Appeals Court of Criminal En Banc. McCORMICK,Judge. Appellant the offense of was convicted of
Oct. robbery aggravated sentenced years’ thirty-five confinement. court affirmed the convic The Court Lagrone v. tion. S.W.2d 1982). granted (Tex.App. Worth We — Ft. discretionary petition for review appellant’s appeals court to determine whether the proper holding that the erred in trial suppress a ly denied motion maintains was confession Find of his arrest. tainted lawful, af arrest to we ing appellant’s be firm. warrant is- was arrested on a
Appellant of an sworn the basis sued on *2 660 9/19/81, Detective J.J. Lee of the your Fort Worth “11. That on affiant was Department. assigned followup
Police The affiant to do a investi- averred gation concerning robbery. his belief and reason to believe that your charged. committed the crime “12. That affiant was advised Sgt. separate Malone that a Michael La- Fifteen statements were listed to possible suspect Grone was a factually support affiant’s conclusion. Af- several west side. upon fiant’s belief was based hours, “13. That on 9/24/81 at 1300 facts and information: your affiant contacted Michael hours, “1. That on 9/17/81 at 2045 Lloyd at Camp Mr. Beef Restaurant at 5800 photo spread, showed him a con- Bowie Blvd. Fort Tarrant taining photo. Michael LaGrone’s County, was robbed Lloyd picked photo “14. That Michael lone black male. being 35315 as the black male employees “2. That there were two that robbed the restaurant present the restaurant when it was 9/17/81. robbed. hours, “15. That on 9/24/81 at 1330 employees reported “3. That the affiant showed same the black male came into the res- spread Salyers to Valerie and that coney taurant and asked for a is- picked photo she also # 35315 as land. the male that them on 9/17/81.” rung up “4. That $.95 was and the Following appellant’s Sep- arrest black male then climbed over the 17, 1981, offense, tember he confessed to got alongside counter and the em- robbery signing at here. After issue ployee. statement, appellant placed written (sic) employee’s reported “5. That the lineup three other men. Both vic- with clutching chat the black male was positive tims of instant offense made a . right hip ‘open area and stated identification. drawer, got gun, I’ll blow suppress appeal, In his motion to and on your damn head off’. relating appellant claims his confession employee “6. That one told the black suppressed be- the instant case should be it, opening male that he was not cause it was the result of an arrest. and the black male then hit the Appellant argues that the arrest was il- employee in his hand. the face with legal supporting because affidavit arrest warrant failed to state sufficient “7. That the black male then escorted ap- probable facts to cause that establish employee the male to the back of pellant committed the offense him the restaurant and forced emphasizes Specifically, appellant safe, open the and the male black suspicion guilt noted in the while vinyl bag money took a black by allegations supported it. two witnesses identified number “8. That the black male then took the person 35315 as who committed employee’s male billfold and re- robbery, directly the affiant does not moved from it. $8.00 by including connect'appellant to the crime put “9. That black male then saying photo picked a statement employees in a bathroom and appellant. was that of left. appeals Agreeing appellant, with employees eventually “10. That in- court concluded there was insufficient came of the bathroom and affidavit to connect formation and, therefore, department question called the lant to the crime in probable report made. a lack of cause for issuance had an offense State, supra. (Tex.Cr. warrant. Lagrone v. How Oubre S.W.2d 875 ever, that court then went on to conclude App.1976); Lopez v. that, under Wheeler But, by limiting the de (Tex.App. Dallas, the confes termination of cause to the “four — *3 appellant sion was admissible since was affidavit, pre corners” of the we do not given warnings his Miranda on several place legalistic sume to blinders on the occasions, the officers had acted in process wherein a neutral and detached warrant, executing faith and the magistrate must decide whether there are purpose exclusionary of the rule would not sufficient facts stated to validate issuance by employing be served the rule in this end, proper of a warrant. To this we have State, supra.1 Lagrone case. v. concludedthat warrant should be affidavits agreeing commonly
While
what is now
interpreted in a common sense and realistic
“good
exception
termed the
faith”
State,
supra;
manner.
Lopez
Jones v.
v.
exclusionary
might
appropriate
rule
be
to State, supra.
requiring
Rather than
a de
appeals
resolution of this case if the
termination to be made within the frame
sufficiency
was correct as to the
of the
vacuum,
work of a factual
reviewing
affidavit,
our determination that magistrate
permitted
is
to draw reasonable
the affidavit at issue does contain suffi-
supporting
inferences from the facts
provide
cient information to
an inferential
State, supra; Lopez
averments.
v.
Jones
appellant
nexus between
and the crime
State, supra.
v.
charged
proba-
therein so as to constitute
sense,
presence
In the most basic
it is the
ble cause for issuance of the arrest war-
supporting
or absence of
facts which dic
analysis
rant forecloses our
application
and
tates
sufficiency
resolution of the
“good
of the
faith” doctrine to this case.
supported by
An averment must be
suffi
For the same reason we do not reach the
cient facts before the affidavit
rise
question
appellant’s
whether
confession
showing probable
the level of
cause.
was
illegal
of an
arrest and
State,
(Tex.Cr.
Rumsey v.
ing depicted man in #35315 Therefore, this issue is not before po- personally conveyed to the robber Court. magis- by then him the lice officer and appellant’s petition because granted We issuance of trate was sufficient ar- Court found although the Fort Worth name. an arrest make a appellant illegal it did not rest of is read a common When this affidavit its analysis to whether proper determine it is manner reasonable sense and realistic by subsequent events. was removed taint photograph by that the selected to conclude However, majority opinion at 660-61. See photograph victims was the two reasoning not examine the majority will Any person. other and not another lant which we Worth Court—that weight contrary rea- conclusion is be reviewed. determined should by record. as shown son and evidence Instead, of this again, majority once sug- in the record There is no evidence out to decide gratuitously reaches victim identified another gest that either simply of the State. robber, nonissue favor either even that person as the or Court, require the State—or appel- will not difficulty picking any had victim by grone suspect’ our own ‘possible for that matter —to abide rules. was a in several See, e.g., my dissenting opinion in Meshell west side.” robberies on the why fully I now understand Hol- Justice I dissent. only appellate a fine man was not outstanding justice but an official
TEAGUE, dissenting. Judge, games football Southwest Conference —he is there Where in the for the he did not then nor does now suffer from us arrest warrant that is before facts that or farsightedness nearsightedness. either might support the reasonable inference respectfully majority dissent to the bearing photograph upholding this Court affidavit for the was identified the witnesses as which given. arrest warrant for the reasons picture, photograph is a the robber’s only facts that appellant? are con- which the mag- tained the affidavit from “A” APPENDIX istrate could have concluded that ME, undersigned authority, BEFORE following: (1) are the robber appeared day personally on this the under- officer, affiant, police was advised affiant, duly signed who after me officer that was a another *5 says: My and name deposes sworn on oath suspect “in several west Lee, # Investigator Worth J.J. Fort (2) side of and that a side what?] [west Department, Robbery, Police and I have placed of in photograph appellant was and do reason to believe believe “photo spreads”, from which witnesses day September, of on or about the 17th photograph identified the numbered 35315 1981, Texas, County, in Tarrant being the “as black male robbed LaGrone, and Black/Male/9/22/56 did then Judge McCormick, them.” who authors Aggravated offense of then commit the majority opinion, these states that facts (a Robbery felony) in that he did then and more than are sufficient intentionally knowingly while in there: and magistrate’s issuing arrest warrant. I committing property theft the course of of disagree. totally with obtain and maintain con- and intent to me, appears say, Judge sad to place property, threaten and trol of said McCormick, conclusion, in reaching his bodi- Lloyd Michael W. in fear of imminent is reasonable to conclude that “[I]t death, the defendant did ly injury and and photograph selected the two victims was deadly and exhibit a then and there use photograph of and not of anoth- weapon, pistol. to-wit: a (Page Maj. opinion), person,” er of ob- upon the My belief is based hype- from viously suffers in this instance facts and information: apparent his ropia as it is to me that vision hours, Mr. at 2045 1. That on 9/17/81 objects than for is far better distant Camp Blvd. at 5800 Bowie Beef Restaurant objects, up such as the affidavit for close Texas, County, was Tarrant Fort attacks, the arrest warrant male. black a lone A”. “Appendix I attach as which employees of That there were two 2. Holman, opin- who authored Justice it robbed. when was present Appeals, for the Worth Court ion following: “We con- correctly stated the reported that the employees That the information that there is insufficient clude and into the restaurant black male came to connect arrest warrant’s affidavit coney island. asked for a The appellant with the crime rung up the black and 4. That was $.95 tending to only portion got the counter and then over male climbed para- is in the crime connect with employee. alongside the stated he was 12. There the affiant graph reported that employee’s That the La- 5. Sgt. a Michael Malone that advised hip area clutching right male black BENNETT, Baby Ray Appellant, drawer, gun, “open got and stated your damn I’ll blow head off”. employee 6. That one told black male Texas, Appellee. STATE it, opening was not the black that he employee hit the face with male then No. 69645. his hand. Criminal 7. That the black male then escorted En Banc. employee restau- male back safe, open rant and forced him 21, 1987. Oct. vinyl money took a the black male black bag it. from the male the black male then took
8. That removed
employee $8.00 billfold and
it. put the male then
9. That the black and left.
employees a bathroom eventually came employees
10. That bathroom and called the
out of the report
department and had an offense
made. 9/19/81,
11. That on affiant as- followup investigation con-
signed to do a *6 robbery.
cerning this by Sgt.
12. That affiant was advised pos-
Malone that Michael LaGrone on suspect
sible several
west side. hours, your at 1300
13. That 9/24/91 Lloyd at res-
affiant contacted spread, and showed him
taurant photo.
containing Michael LaGrone’s picked photo Lloyd
14. That Michael
# black male that 35315 as on 9/17/81.
robbed hours, your
15. That on 9/24/81 at photo spread to Valer-
affiant showed same picked photo she also Salyers ie the male that 9/17/81.
them on
WHEREFORE, request that an arrest suspect hereinbefore issue for of this according the laws
designated
State. signature this the 29th my
WITNESS
day September, 1981.