*1 ONION, P.J., CAMPBELL, J., con-
cur. DAVIS, JJ.,
McCORMICKand W.C. dis-
sent.
Monty PICHON, Appellant, Charles Texas, Appellee. STATE
No. 64137. Texas,
Court of Appeals Criminal
En Banc.
Nov. 1984.
Rehearing Denied Feb. Low, Jr., Houston,
Albert S. lant. Holmes, Jr., Atty.,
Jоhn B. Dist. Michael Larry Knapp, K. Aduddell and Asst. Dist. Houston, Huttash, Attys., State’s Robert Austin, Atty., for the State.
Before the court en banc.
OPINION CAMPBELL, Judge. was convicted the trial
court, trials, separate jury of commit- ting possession the offenses of of metham- 291,321, phetamine, trial court Cause No. punishment was assessed (3½) years three and one-half court at *2 gave keys Department weapon. of She the her in the Texas confinement car, robbery, Corrections, aggravated trial into her and and testified that climbed 291,302, punish- space No. for which parking court Cause out her and left backed of ment assessed the trial court at complex. was apartment the (18) eighteen years peni- in confinement the she im- The victim further testified that tentiary. mediately police, gave them a contacted the Although there an order entered was assailant, and description of her detailed causes, above-styled the consolidate ap- charges.” testified that “pressed She through error, administrative proximately days two after ten weeks 291,321 was retained Cause No. lineup robbery, to view a the she Court, the was instead transferred to police station. conducted at the downtown of Corpus Appeals. Court Christi immediately able that she She stated 30, 1982, her, Corpus identify the person On June Christi who had robbed 291,321 in Court reversed the conviction she also to iden- and she testified able it and remanded for a new trial. Neither tify picture a of as appellant petitioned this the State nor the took her car. who review, discretionary de- Court for victim, neighbor a Robert A of Mr. final. The cision in that cause became Perris, getting testified that he saw a man Court, Corpus how- opinion of the Christi morning car into the victim’s on ever, ap- implicate nor affect the does robbery, although identify he could not and rob- pellant’s conviction assailant, gave description that he bery. given description matched the appeal brings Thus the support by the victim. aggra- is from his this Court conviction guilt finding clearly of sufficient. jury’s 291,- in robbery vated trial court No. Cause of error number three Appellant’s ground challenges sufficiency Appellant is therefore overruled. conviction, support evidence to grounds error number one Appellant’s error, grounds alleges in and two together, and the may grouped and two admitting the trial court erred into evi- form, issue, is set to its elemental reduced dence certain and in-court identifica- thusly: a face be taint- Can defendant’s tion the victim and two case, in in criminal suppressed ed and a officers, appellant’s rights violation evidence, say the way inanimate same under the state and federal constitutions. search, such as product of unreasonable disagree We and affirm. contraband, be tainted and weapon or light in a most Viewed favorable suppressed? verdict, record reflects that presented The facts United States Kramen, morning victim Barbara on the Crews, 100 S.Ct. walking January across (1980) virtually indistin- are L.Ed.2d 537 apartment complex parking lot of her when instant guishable facts sitting on some she noticed case. ap steps. Ms. Kramen testified that the Crews, had been accosted after she drunk or pellant appeared to have been by young mаn in gunpoint and robbed right past him. hungover and she walked grounds on the rest room the women's that, putting as The victim stated she was Monument, re- the victim Washington automobile, her things Corvette police. Several ported the incident to the up appellant suddenly came her side later, incidents of other days after Babe, everything, “Drop told her to rest room had assault keys.” She testified that me the Police, occurred, Park States his United pocket left hand in his the rest room incidents aware of right his a black revolv were hand contained descriptions of the er, robber appeared a .38 caliber the similar which to tо be all three viction, victims the rest room holding incidents that the in-court identifica- given police, questioned young tion should have been excluded man whom observed the area of the product a violation of the defend- rest Washington Monument, rooms at the ant’s Fourth Amendment rights. The Su- and, learning name, young man’s preme then granted certiorari on the age, and that he was not school government’s petition. *3 just because he away,” had “walked the Brennan, writing Justice a majority leave, officers him shortly allowed to Court, Supreme of the applica- found the thereafter guide, detained him when a tour of poisonоus tion the “fruit of the tree” in response a request by to of one the Appeals doctrine the of Court be to officers, identified the man as one he had misplaced. Brennan Justice observed: hanging seen around the area of the Monu- robbery. ment on the date of the first “A victim’s in-court of identification officers then summoned detective who the accused has three distinct elements. investigating the rest room robberies. First, present the victim is at trial to testify transpired as to what between her Upon arriving at the scene the detective offender, and the and identify to the attempted photograph to take а of the man culprit. defendant as Second, could displayed be to the victims of robberies, possesses victim knowledge but weather of conditions Thereafter, thwarted his efforts. ability man to reconstruct criminal was taken custody, ostensibly because identify occurrence and to the defendant truant, suspected was a transported and from her of observations him at the time police headquarters, to police where the third, of the crime. And the defendant is him, briefly questioned photo- obtained physically present courtroom, also in the graph him, telephoned school, of his so that the victim can оbserve him and him, then charging released without ever compare appearance to that of the him during with an offense his detention of case, present offender. it our is approximately one hour. The conclusion that none of these three ele- day, the victim of robbery the first identi- exploitation’ ments ‘has been come at photograph fied the being of man as of the violation of the defendant’s Fourth her, the one whom had robbed and there- rights, Amendment [citation omitted.] after, lineup, at a again posi- woman case, “In robbery this victim’s tively identified Crews as robber. presence respon- in the courtroom at robbery, Prior armed Crews surely product dent’s trial was not the of suppress moved to all identification testi- any police misconduct. She notified mony, contending that on his detention immediately the authorities at- after the truancy charges pretext merely given descrip- tack and had them a full police allow obtain evidence for very day, of tion her assailant. The next robbery investigation. The trial court went she to the station view ruled that the detention constituted ar- photographs suspects, and possible cause, and, probable rest without held that voluntarily she assisted the in their products namely of such investigation at all times. Thus is identifications, photographic identity not a in which the case witness’ trial, could not be introduced at but with her cooperation se- discovered respect ability identify victim’s as only cured a result court, unlawful defendant the trial court ruled search or Here arrest accused. (emphasis that an in-court identification identity long known the victim’s added) of victim defendant any there was miscon- trial would be admissible. Crews was then official duct, presence is thus in court convicted of armed on this victim’s testimony. appeal, On traceable to Fourth Amend- the District Co- violation, Appeals added.) (emphasis lumbia reversed the con- ment the circumstances in which did the infect the because “Nor identity learned ability identifi- his existence accurate victim’s testimony. upon her Based obser- cation robbery,
vations the time no confessions or utterances “Here image them; of her against a mental victim constructed appellants were used trial, retrieved this At she tangible assailant. compared watch, it to representation, lants,
mnemonic
as the victim’s
defendant,
positive-
figure
along
confessions.
suppressed
with the
part
No
ly
object
him the
identified
robber.
not an inanimate
But a
witness
narcotiсs,
process
by respon-
which,
pistol
of this
was affected
like contraband
language
In the
‘speak
arrest.
for themselves.’
goods,
dent’s
or stolen
poison-
metaphor’
living
is not
proffer
'time-worn
of a
tree,
States, 392
mechanically
proffer
Harrison v. United
equated
ous
*4
[2010],
illegally
20
evidentiary objects
S.Ct.
U.S.
inanimate
(1968),
toxin in this case
of a
L.Ed.
the name
seized.
fact
injected only
evidentiary
after the
to
is
potential witness is disclosed
blossomed;
se,
at
significance
bud
fruit served
evidentiary
per
no
poisoned.”
trial was not
living
is an individual
since
personality whose attributes
human
bar,
In the case at
the victim was robbed
memory
in-
will,
and volition
perception,
eight days
to the
be-
some
testimony he
what
teract
to determine
ing
(emphasis add-
illegally1
detained and
give.”
and Bowden v. Unit-
will
Smith
ed)
charges. The
arrested on unrelated
(D.C.Cir.
States,
It is of
recognized
premise
Justice
This
is
Court of
Crews,
same District of Columbia
when he observes:
Brennan in
composi-
Appeals, albeit with a different
intervening
say
“This
is
conviction,
tion,
made
that reversed Crews’
lineuр identifications—
photographic
ago
twenty years
observation
sup-
are conceded
of which
both
regard
suppres-
in
case with
to the
another
Amend-
of the Fourth
pressible fruits
testimony:
eyewitness
sion of
cir-
not under some
ment violation—could
reliability way
sup-
gone
long
affect
“Courts have
cumstances
inad-
render it
yet
pressing
no case as
has
in-court identification
evidence but
472, 100
at
U.S.
jury
denied the
missible as well.”
that a
should be
held
1250.
any eyewitness to a crime
S.Ct. at
tion,
dissenting opinion.
Judge Teague’s
see
of the facts
1.
a more detailed discussion
For
interroga-
surrounding appellant’s arrest and
Significant
disposition
consistent
the underlying
with
rationale
case, however,
stant
Justice Brennan con-
of Frisbie from which we have
re-
expound
tinues
very
within the
same
treated.”
445 U.S. at
[citations omitted]
Crews as enumerated
paragraph
ante:
429
question
State,
(Tex.Cr.
dence. The
in that
instance is
659
Schmidt v.
S.W.2d 420
whether, in the normal course of the
App.1983);
State,
inves-
Hudson v.
tigation,
would
existence
the witness
(Tex.Cr.App.1984).
957
inevitably
have been
discovered absent the
making
holding,
empha-
In
I
this
wish to
illegal interrogation of the accused? See
following:
This
size
is not a case where
State,
709,
Vanderbilt v.
629
722
complaining
witness’
court identifica-
(Tex.Cr.App.1981);
State,
McMahon v.
582
and in
way
tion
court
in no
were
(Tex.Cr.App.1979);
S.W.2d 786
Nicholas v.
related to or connected
appellant’s
State, 502
(Tex.Cr.App.1973);
S.W.2d 169
illegal
by
Instead,
interrogation
police.
Parker,
(Tex.Cr.
parte
Ex
For all of the above two Gowen, had come to his to Ms. Vicki Sue ly dissent to the failure of this Court regarding the Ted- office with information judgment of conviction. reverse Mr. and Ms. Gowen esco murder. Gordon Dorrity related that a woman named Carol APPENDIX told them that she had witnessed (NUMBER 2277cr) “Monty,” named beat boyfriend, a man death; Dorrity had Tedesco to that Carol 13-81-266-CR NUMBER “Monty”; and that taken a out to see cab COURT OF APPEALS Gowen) (Gordon afraid for they Ms. Gowen hаd her life. Mr. Gordon and THIRTEENTH JUDICIAL SUPREME crime, personal knowledge of the no OF TEXAS DISTRICT regarding feelings of concern Carol their CORPUS CHRISTI pure specu- Dorrity’s potential danger were parts. lation on their PICHON, Appellant, MONTY CHARLES this, Detective Donovan was Based on Cab get an address from the Yellow able V. Company. dispatched Detectives He then TEXAS, Appellee. STATE OF if to that address to see Kent and Yanchak [*] $ [*] [*] [*] [*] they could find Ms. Dorrity and to see if On Before Gerald appeal [******] [*] Utter; of Harris [*] from the 182nd and Noah OPINION T. [*] County, Texas. Bissett; Kennedy, J.J. [*] District Court Norman [*] [*] L. tion derived Trailer its driver cers trailer she arriving at the address However, was, discovered it to be park, they stopped it and No. 130. Detective when fact, ocсupant. thereby, saw cab they proceeded to given, the Based a trailer danger. Upon Kent knocked on informa- leaving questioned park. offi- appellant answer- at the front door. When Appeal perfected conviction for ed, himself and Kent identified Detective possession methamphetamine for which his name. When appellant for at three and one punishment was assessed immediately placed responded, was single ground of lant Appellant’s years. half murder and suspicion under arrest complains of the admission evi- error Kent, frisked, then first Detective from him at of the substance sеized dence The second search Yanchak. Detective testimony as and of the time of here in issue. material, the substance produced analysis chemical of that to th'e tainted being that such was his contention unlawful, so too If the arrest itself. We illegality it, fruits search incident was the agree. Wong Sun v. excluded. thereof must be States, [471], reci- contained United The facts (1963); Irvin 416 L.Ed.2d hearing developed 441] on S.Ct. [9 tation were (Tex.Crim. suppress the evi- v. appellant’s motion to concerned with are here App.1978). We January Detectives dence. On subject to one is in which Police the instances of the Houston Kent and Yanchak as set Division, a warrant arrest without Homicide became Department, through 14.04 of our Code 14.01 recent Articles investigation volved situation If Tedesco, Procedure. Criminal David murder of one John without an arrest to authorize Detectives claimed bludgeoned to death. had been one squarely within not come ap- warrant does approached at Kent and Yanchak were *9 therein, authority the classifications day that p.m. to 5:45 on proximately 5:30 Tex. 141 Boyd, not exist. Heath v. that does told them by Detective Donovan who 431 (Tex.Crim.App.1978), SW-2d 525 relied 214, (1943). re 216 See Unit- 569, ed, by appellee. That case upon 175 S.W.2d herе 123, Hall, 131 n. F.Supp. a belief upon v. plete States with evidence escape (E.D.Tex.1979). preparing to were the arrestees that at 530. Id. be based. could 14.04, We limit our discussion to Article not dem- evidence does hold that the supra, We since is no there evidence whatever of circumstances the existence that the onstrate facts existed the time of appel- arrest of the warrantless category pro- justifying arrest fell into a inci- lant, fruits of the search 14.01,114.02,2 vided for and that the Articles or 14.- excluded 03.3 have been thereto should dent is The conviction appellant’s motion. upon Article 14.04 reads: the cаuse REMANDED. REVERSED by satisfactory proof “Where it is shown KENNEDY NOAH peace officer, upon representa- to a Associate Justice person, tion of a felony credible that a committed, has been offend- published. Tex.Cr. Opinion er to escape, is about there so that is no App.R. 207 procure warrant,
time to peace such 30th Opinion and filed this the delivered warrant, may, pursue officer without June, day of 1982. (Emphasis the accused.” sup- plied.)
We totally find the record to be devoid of
evidence that was about to es
cape. Texas, 547, 552-53, Ward v. 1139, (1942); L.Ed. [86 1663] State, 72, (Tex.
Green v. 594 S.W.2d Crim.App.1980). representations No COE, Appellant, Peter Hunt effect made were either Mr. Gor v. don or Ms. Gowen Detective Donovаn. Texas, Appellee. The STATE of Indeed, effect that Mr. initially Gordon had called the No. 64125. purpose passing on the Appeals Texas, Court of Criminal statements to him by Dorrity made Ms. on En Banc. January 19, day came in make a statement. Similarly, there is no Nov. 1984. support a reasonable conclusion Rehearing Denied Feb. 1985. on part officer, the arresting Detec Kent, flee, tive about suspicion part no such on his
claimed. In readily this the case is at bar
distinguishable State, from Tarpley u permits Here, suspicious Article 14.01 warrantless arrest under circumstances. an living Second, officer when offense is committed lant was in his room. when the presence or within his view. probable officer has cause to that the believe upon per- arrestee has committed an assault 2. Article 14.02 authorizes a warrantless arrest danger son and there is immediate upon magistrate order of a verbal when a Here, repeated. offense will be the informants’ felony peace breach has been commit- well-being Dorrity fears for the Ms. presence ted in the of or within the view of the admittedly upon pure speculation founded magistrate. which, course, cannot form the basis for probable Leighton cause. See 3. Article licenses a 14.03 warrantless arrest (Tex.Crim.App.1976); First, Talbert an officer under two circumstances: (Tex.Crim.App.1973). suspicious place when the arrestee found in a