Leighton v. State

tо the facts and circumstances of Due LEIGHTON, cannot with reason- say Court Robert Appellant, certainty arguments that these did not able jury’s verdict of murder instead affect Texas, Appellee. The STATE manslaughter. voluntary No. 51782. the cause judgment The is reversed and Appeаls Criminal Court of of Texas.

remanded. 20, 1976.

Oct. Rehearing Dec. approved by the

Opinion Court. DOUGLAS, (dissenting). Judge majority

The reverses this be- conviction prosecutor’s remarks concern- cause years the difference in the number of ing receive op- could for murder as manslaughter. voluntary posed instructed jury shows that the record argument concerning сonsider error, if years. any, number of as the remarks is harmless prosecutor’s required is not its common jury leave person is average at home. The sense penal- greater murder carries a aware voluntary manslaughter. The less- ty than voluntary man- included offense er slaughter jury dur- was discussed with the degree felony voir dire as second

ing murder referred to as a first while felony. Would not reasonable minds degree greater penalty know one carried a the other? than prosecutor continued should not have argument ‍‌‌‌​‌​‌‌‌‌​‌‌​​‌​​​​​‌‌‌​‌​​‌‌​‌‌​‌​‌‌‌‌‌‌​‌​‌‌‌‍line of after сourt had jury not to it. How- consider instructed ever, repetition still amounts nothing nothing, equals zero. plus or zero zero reversible shown. The

No error has been judgment should be affirmed.

395 appellant search form and a to permission asked what Bruce would if appellant do did sign. not replied Bruce did he not need it proceeded and to search the vehicle. expertise Bruce’s in recognizing marihua- established, na was and he stated he what in the driver’s seat a found was about .05 of Jr., Nelson, Maloney Philip and A. Prank up gram ground of marihuana. See Jordan Austin, appellant. for Statе, Tex.Cr.App., 486 v. This Saba, Atty., Dist. Crump, Louis M. San was not substance introduced into evidence. Vollers, and S. Atty., D. State’s David Jim of the vehicle also search one revealed Austin, for McAngus, Asst. Atty., State’s baggies two con- brown and two vials the State. taining plant substance which were discov- a cаrrying ered in case found on the back part Bruce searched this the floorboard. of noticed passenger car because he the reach GUPTON, Judge. stopped the back seat when he the into possession of a The offense is unlawful sufficiency vehiclе. The the of evidence marihuana; drug, punishment, narcotic the challenged. under the Controlled Substances assessed report concerning from Kinkaid Act, fine. $100.00 possible burglary proba not constitute the interven- The case tried without However, for appellant’s blе cause arrest. a jury. ground tion In his sole of of error circumstances which do prob not constitute appellant contends his arrest and the search cause for able arrest may justify a lesser illegal the of of his vehicle were fruits personal intrusion the security an of were under Art. the search inadmissible individual, temporary such as for detention 38.23, V.A.C.C.P. investigation. of purposes Mann v. Tex.Cr.App., 525 S.W.2d 174. An officer witness, only Deputy State’s Sheriff have may and articulable facts Bruce, July testified call on he received a which, light experiencе the his 1973, 12, concerning from Mr. Kinkaid knowledge, general reasonably warrant burglary of a home in possible Sunrise stop. Thompson such investigated report, Beach. Bruce but the App., signs entry could find no the forced into in question. residence and Kinkaid Bruce stopped Brucе testified at he the time unable to establish anything were he appellant deputy had been a sheriff house, from he missing the but Bruce stated for County approximately Llano two been in had never before the house. been He had a law months. enforcement September officer since with serving and Kinkaid to the patrol Bruce returned the Brownwood Police Department for 50 yards car from the house approximately as deputy and then months sheriff in the they by. saw a white Fiat drive Kin- County Department Brown Sheriff’s for 15 car kaid told Bruce he believed the was one months. the of the vehicles that at house car, pursued Bruce the which Bruce stated he question. stopped appellant part over to the side the As suspected road. the bur- pulled car, reported Kinkaid. approached glаry he smelled what Bruce Kinkaid told thought go Bruce had seen people he believed to be odor marihuana watching house he was into while the coming from the vehicle. He asked away. by, owners were As appellant drove driver, appellant, get produce to his out and Kinkaid told Bruce he believed he seen had appellant stepped As driver’s license. from car house. Bruce testi- vehicle, saw what he Bruce believed m., this occurred at p. fied 7:00 7:30 seat of the car marihuana on the be during daylight Although hours. there is sign side. Bruce asked driver’s officer may, warrant, without pursue nothing to indicate when Kin- in the record arrest the accused.” house, activity observed at the it would kaid report Kinkaid’s observations and appear It does appear that Article police immediately prior occurred has supra, any application to the facts in at the Appellant’s arrival scene. Bruce’s case. It is clear statement of by a time car was identified Kinkaid short opinion the facts in the majority the that ap Bruce’s brief detention of thereafter. officer was not acting on the any basis of identity his in order to determine or pellant suspicious regarding character place ap- the quo while momentarily maintain status to him, pellant by was found nor was he act- obtaining information was reasonable more any on the basis of ing felony committed or here presented. the ‍‌‌‌​‌​‌‌‌‌​‌‌​​‌​​​​​‌‌‌​‌​​‌‌​‌‌​‌​‌‌‌‌‌‌​‌​‌‌‌‍circumstances under peace, anticipated of the or commis- breach open in view during What Bruce saw of reasonably some offense by sion shown the of detention was not fruit a sеarch circumstances the under which appellant testimony concerning Bruce’s the marihua apprehended. To contrary, was the the of- State, Long was admissible. na acting entirely upon was ficer the basis of 591; Hunnicutt v. App., Kinkaid, communications from citizen rath- .Aрp., 531 S.W.2d 618. Tex.Cr than the or place er circumstances at the stopped. was statutory time The error, Finding no reversible we affirm actions, therefore, for the officer’s basis judgment. the sought 14.04, be in Article supra. must measuring ODOM, (dissenting). the In actions of Judge peace offi- against thе cer standards of Art. it dissent of this I to the affirmance convic- be asked whether the officer (1) must was tion. proof (measured satisfactory with presented Court, urged issue both The before the objective subject judicial standards to by brief, brief appellant’s and the State’s review, simply subjectively not satisfactory statutory application. of to one reduces (2) officer), upon representation the to the the of ruling trial court’s admission The (3) person, a credible that a felony of of seizure of marihuana evidence committеd, (4) the offender was about challenged on appellant’s possession is escape. to police grounds of of initial unlawfulness inquiry may begin The here with and end Appellant suggests, car. stop question. the first The consideration agrees, its brief State presented was not with satisfactory officer is the officer was whether authorized issue felony had been proof that a committed. stop appellant under Article or 14.03 report officer received had from Kin- The 14.04, V.A.C.C.P. burglary might that a have kaid been com 14.03, supra, provides: Article neighbor’s, at his mitted Hoffman resi arrest, may officer “Any peace without scene, An at the how dence. warrant, persons found in suspicious ever, anything not reveal missing any and under circumstances which places The entry. officer testified that forced persons havе reasonably show such he stopped appellant did not have when guilty felony some or breach of been affirmative facts that an offense had any threaten, or peace, or are about committed at the Hoffman residence. been against sоme offense the laws.” commit 14.04 requirements Article were 8 met. 14.04, supra, provides: Article satisfactory “Where it is shown Brown v. Tex.Cr.App., In officer, repre- peace to a proof officer knew an had offense committed, that a felo- person, of a credible sentation but “had no been committed, and that the of- connecting has been ny knowledge appellants Brown, robbery.” so that escape, supra, is about to there the armed fender warrant, peace In the instant case the officer did not time to such рrocure no that a burglary or an even know whether an had been offense offense committed. During committed.1 voir dire examination Bruce, the following occurred: stop authorized; the evi- “THE COURT: Just tell why me Mr. been suppressed; dence should have Kinkaid thinks there was a burglary? judgmеnt should be reversed. Well, know, I

A. Judge. don’t He ROBERTS, J., just—he joins in seen up this dissent. said had the cars house,

there at the and he thought they gone had one that was supposed to permission go have in there. He was ‍‌‌‌​‌​‌‌‌‌​‌‌​​‌​​​​​‌‌‌​‌​​‌‌​‌‌​‌​‌‌‌‌‌‌​‌​‌‌‌‍ON APPELLANT’S MOTION watching the house for these people.” FOR REHEARING does not record contain any other PHILLIPS, Judge. support evidence to Kinkaid’s belief that a attempted possession burglary burglary is unlawful or offense of a occurred. marihuana; drug, appears Bruce appellant’s narcotic It detained punishment, auto- thought under the Controlled mоbile because Kinkaid assessed Substances someone Act, had entered house fine. while the owners were $100.00 away appellant’s and be believed car was surrounding The facts the instant offense one of vehicles that had been at the forth opinion original are set in the on Although house. Bruce stopped testified he submission need be restated here. appellant about m., at 7:00 or p. 7:30 rehearing appellant asks us to record does not indicate when Kinkaid ob- whether the facts reconsider and informa served the vеhicles at the house. The at tion to Bruce the time he known de record also does not reveal how many cars appellant justified stop appel tained people Kinkaid saw the house, at if he As stated opinion lant’s automobile. in the was able tо give description any of the submission, original on circumstances which persons vehicles, or other or if he described probable do not constitute cause for arrest any which activity would lead a reasonably may justify per a lesser intrusion prudent toman burglary beliеve a security individual, of an sonal such as tem See Casarez v. compare committed. purposes investiga detention for porary State, Tex.Cr.App., 504 S.W.2d 847. State, Mann v. Tex.Cr.App., tion. See The information received from Kin- lawfully stopped If Bruce ap kaid and Bruсe’s subsequent automobile, testimony concerning pellant’s of the house are not circumstances which the contraband was admissible because reasonably show a felony had been commit open was in view of the marihuana officer ted so as justify apрellant’s detention emerged appellant from the vehicle. when under either Art. 14.03 or V.A.C.C.P. 591; Long v. Tex.Cr.App., 532 S.W.2d hunch, suspicion inarticulate good State, Tex.Cr.App., v. Hunnicutt faith of arresting an officer is insufficient probable to constitute arrest, cause for an appellаnt stated he did not Bruce observe temporary search or v. detention. Talbert committing any traffic violations or any State, Tex.Cr.App., 489 S.W.2d 309. Hampton v. Cf. offense. Bruce S.W.2d 1. testified he App., 511 The record does not reveal part investiga as stopped articulable facts and circumstances suspected burglary. justify He admit such as to tion of Officer stop Bruce’s initial stopped appellant’s at ‍‌‌‌​‌​‌‌‌‌​‌‌​​‌​​​​​‌‌‌​‌​​‌‌​‌‌​‌​‌‌‌‌‌‌​‌​‌‌‌‍the time vehicle. ted The trial court erred not have affirmative facts in permitting Officer Bruce to car testify trial, twenty-one arrеst, showing after months there no of an at 1. Even offense residence. Hoffman appel- what he observed after he detained

lant.

Appellant’s rehearing motion for is granted. judgment is reversed and the

cause remanded. J.,

DOUGLAS, dissents for the reasons opinion affirming set forth the con- original viction submission. Andrews, Houston, R. C. appellant. for Vance,

Carol S. Dist. Atty. and Clyde F. DeWitt, III, Atty., Houston, Asst. Dist. Jim Vollers, Atty. D. ‍‌‌‌​‌​‌‌‌‌​‌‌​​‌​​​​​‌‌‌​‌​​‌‌​‌‌​‌​‌‌‌‌‌‌​‌​‌‌‌‍State’s and David S. McAngus, Austin, Asst. Atty., State’s for the State. MORENO, Appellant,

Domitilo DOUGLAS, Judge. 52,097 No. Cause conviction for bur- of a glary 52,098 habitation. Cause Texas, No. is a Appellee. The STATE of possession conviсtion for tetrahydrocan- 52097, Nos. nabinols. In each appellant waived Court of Appeals by Criminal of Texas. and jury trial entered pleas guilty before court. Punishment was assessed

Dec. years in at five each case. May 26,1976, appeals were abated beсause there was nothing before this Court to reflect had been advised right file pro of his se brief advised given would be an opportunity to appellate review records in order to aid filing him such brief. See McMahon v. State, 529 771 (Tex.Cr.App.1975), cases there cited. comрliance In with the order of this Court, 8, 1976, July the trial court con- hearing found, ducted a part, follows: “. . It . has also been made known to this Court that this defendant mistakenly released the Texas Department Corrections, apparently knowing of convictions in Harris County, but defendant then and there and voluntarily knew absented him- well detention, self at this time custody and not under defendant present and his are bond whereabouts unknown to the defense counsel Court; . . .”

Case Details

Case Name: Leighton v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Dec 8, 1976

Citation: 544 S.W.2d 394

Docket Number: 51782

Court Abbreviation: Tex. Crim. App.