*2 “Hоwever, ROBERTS, of the es specifically Before ODOM and PHIL- ‘[o]ne LIPS, JJ. tablished to the exceptions requirements a is a probable of both warrant and cause OPINION to con pursuant search thаt is conducted Kolb v. ODOM, sent’ Judge. consent can be (Tex.Cr.App.). But before This is an appeal a conviction effective, by prosecution the murder. Punishment was assessed at 25 that the cоnvincing evidence years. freely voluntarily. consent and given was The ground challenges third of error Bumper North 391 U.S.
the sufficiency Appellant of the evidence. 20 L.Ed.2d S.Ct. was convicted for the murdеr of his wife. Armstrong Her body body and the their adult State, Cr.App.); Kolb v. daughter in were found the trunk of a “ vol- search was ‘Whether a consent partially submerged Appellant automobile. of fact tо be deter- untary is was hitchhiking nearby totality of the circum- by ride two men who at trial that mined from the testified pants his were wet from the waist down. stances.’ Brem v.
slugA removed from the of one of the body v. Bustа- Schneckloth (Tex.Cr.App.). victims was to have shown been fired from monte, a pistol appellant that was owned by (1973).” L.Ed.2d 854 was shown to have been his possession in issue from Nastu speak These wоrds shortly offense. after the We find this search attack before us The under today. evidence convic support sufficient the the afternoon of was conducted on tion. house murders. rеsided in the Appellant The first two of error are based living Also there were that searched. on a challenge to search of the house Web- Kimberly the two murder victims and appellant where and the victims murder ster, search gave who to enter and consent ground The first error asserts house. evidence seized in the of the house search waiting house Officers were at the suppressed should have been because sister Kimberly when ground search was unlawful. on the afternoon came home from school of error argues in-court identifications lawful the murders. When the appellant by gave men who him by a ride should have been because ness of the was heard suppressed previously court, those witnesses had identified that she consented Kimberly testified appellant seized in the chal- house that she to the search of the lenged search. signed a consent search. written James by was written out consent sup- At trial filed a motiоn to (described Kimberly her moth by as press the the identifica- seized husband) by and dictated er’s best friend’s tion testimony theory that the search Kimberly. who also knew and with- Officer conducted without warrant out In Nastu did questions consent. 589 S.W.2d When testified Kimberly 434, the Court said: did not show not ask and the answers involuntary any way.
“It is her consent was well established that a search any conducted without a issued on did warrant Neither Branch’s per se probable sup cause unreasonable is sufficient coercion. This record subject court, warrant the trial port finding by exceptions. to a few well-delineated evidence, Kimberly’s Katz United voluntarily. was given (1967). exception an to establish adequate This [*] [*] [*] [*] [*] He requirement. additional was valid. In so appeal challenges doing, On majority ig- surrounding lawfulness of the search are nores the circumstances raised. It “voluntary” search. Kimberly asserted that did not have au thority to consent to a search of the room Because the cirсumstances of this war- appellant occupied in the house. Some of critical, emphasis are on rel- rantless search the evidence was seized in his room and necessаry. approximately evant facts is At *3 some in parts other of objec the house. No 6,1976, 1:30 m. the bodies of p. February on tion was made at trial directing the court’s females, grown wife and aрpellant’s attention specifically to those items seized daughter, were in the trunk of a car. found room, from appellant’s objection nor was original Both had Seeking been shot. mаde to Kimberly’s authority to consent to murders, location of the several officers a, search of that particular room. Conse there, proceeded appellant’s hоme. Once quently, the record was not developed with appellant’s officers waited for attention on this issue. Nothing present grandchildren to home from school. return ed for review in this mаtter. See Morrison trial, According at the officers n. 4. never attempted to obtain search war- rant. The same result must be reached as m., Somewhere p. between 3:00 and 3:30 appеllant’s argument, raised for the first grandchildren approached the time appeal, that fifteen-year-old Kim The officers asked them several house.. berly young too to. questions cоncerning their identity search. Because the record was not devel where they Finally the officers told oped on this issue we do not know if the grand- the children their mother officers knew whether anyone older than mother had been killed. Officer Kimberly resided at the house (they already who knew testified that knew Kimberly’s mother upset became crying. and started An shot). had been Neither do we know what child, Kim, officer then asked the oldest other might facts have been developed had old, who was years they if could search the issue been raised at trial. Because this thе house. yes. She said trial, was not raised at may hold it not be raised at this time. The children were taken to a of friend the family, a Mr. Officer Branch Smith. Furthermore, it appears the search con- dictated a consent to search form to Smith ducted here was of the murder scene. Al- and Kim it. The written consent though the record is not fully developed, it form police was taken to thе station. appears that the “common law ‘exigency ” rule’ of Brown v. does whether the record not reveal 948-950, search was conducted before or after the Pearson v. However, would written consent. one officer tes- apply because the search and probably tified that the search was conduct- in this case occurred before the deci- ed “before and after” the written consent. Arizona, sion in Mincey Among the items seized in the warrantless (1978). Pearson, search of appellant’s resident were: several blood samples parts taken from various The first and of error are house; slug a .38 caliber found in the garage; a knife with human blood stains on The is affirmed. handle; photographs ap- and several pellant, appellant’s seized from trunk and PHILLIPS, Judge, dissenting. addition, used In photographic display. In affirming appellant’s conviction, the officers took several the majority brushes aside constitutional blood stains in All of these the house. error in a warrantless search and holds that items were appel- over admitted at trial appellant’s officers’ search of objections. residenсe Kim had the to consent authority whether issue, to search
When consent
prove by
the state to
upon
grandfather’s
burden is
to a warrantless
evidence that
the consent
private bedroom.
given. Bumper
voluntarily
that the issue
majority
contends
v. North
Nas
and therefore
at trial
properly
not
raised
(Tex.Crim.App.
tu
However, appellant
before the Court.
not
1979); Ferguson
and filed several
objections
numerous
made
(Tex.Crim.App.1978). The state must
the evidence
regarding
suppress
motions to
positive
unequiv
the consent
ap-
particular,
in the search.
obtained
ocal,
not
duress or coer
and there must
be
the in-
pellant
suppress
filed a
motion
cion,
Ferguson, supra;
implied.
actual or
based
court identification
Evans
appellаnt’s private
photographs seized
objections were
The motions
bedroom.
case,
of this
circumstances
*4
voluntary
to
state failed
establish
majority’s
ap
strict
I cannot
follow
ques-
officers
house. Several
that the
proach.
my opinion
It is
younger
old Kim
15-year
tioned
and her
party’s
of a third
fairly
raised the
sister.
told
both their
were
appel
search of
caрacity
mother
had been shot and
Darland
bedroom. See
private
lant’s
grief
killed.
In the
and shock that
fol-
State,
(Tex.Crim.App.1979);
obtained. Under the “murder scene ex- majority places psycho- be viewed as ficers’ actions can ception” logically coercive. reasons ex- wholly for the unwarranted I would hold that the state failed to Pearson pressed in dissent my (Tex.Crim.App.1979). voluntarily given. consent was reаsons, I dissent. For these Therefore, appel the warrantless unlawful, and the evidence house was should obtained as of the search result suppressed.
have See Gonzalez been (Tex.Crim.App.1979); (Tex.Crim.
Hooper v. Motion Opinion Appellant’s
App.1976, Rehearing); compare May v. Ferguson (Tex.Crim.App.1979); questionable addition to the “voluntar- consent, there is the
iness”