Port v. State

lant’s conviction improper based on an

hypothetical prosecutor equated where the PORT, Appellant, David Isidor pull trigger intent to of a v. with the intent to cause the death of an individual. The defense in that case ex- Texas, Appellee. STATE peremptory hausted its challenges and re- No. 1187-87. quested challenges. additional The defen- granted dant single additional chal- Texas, Appeals Court of Criminal lenge “to make for the fact that a En Banc. accepted venireman who had been was la- disqualified ter for reasons of health.” Id. 25, April 1990. exercising After challenge, final requested defense specifying Rehearing 27, more the fail- Denied June 1990. ure of the trial court to exclude certain

venireman who were tainted the State’s

improper example, along with the fact that juror

the twelfth objectiona- selected was Again, Lane, supra,

ble. as in the defen-

dant preserved showed harm and the error. cases,

In capital both the defendant and

the State are entitled to peremptory fifteen

challenges. 35.15(a), Article V.A.C.C.P. case,

In the jury instant strike list

indicates that neither the State nor the

defendant exhausted peremptory their chal-

lenges. At the conclusion of voir dire the

appellant peremptory had two challenges

remaining which he failed to exercise. To

show harm the defendant must exhaust his

peremptory challenges. Felder v. 760, (Tex.Cr.App.1988) 766-767

(defendant must show that he has been

forced to peremptory challenge exercise prospective juror

excuse to whom defen- challenge

dant’s should have been sus-

tained); Cantrell (Tex.Cr.App.1987) (nothing presented appellant allege review where did not

and record did not show that he asked for peremptory

additional challenges). Under circumstances, Gardner,

these supra, as in having harm rendered peremptory challenge

exercise a to exclude objectionable juror is rendered invalid.

Accordingly, appellant’s sixteenth and sev- points

enteenth of error are overruled. judgment of conviction is affirmed. TEAGUE, JJ.,

CLINTON and concur

in result.

104

OPINION ON PETITION FOR STATE’S REVIEW DISCRETIONARY WHITE, Judge. by a of

Appellant jury convicted a Houston of Debra Sue Schatz pun- jury postal carrier. The assessed years’ imprisonment and a ishment at 75 $10,000.00 appeal appellant fine. direct On argued that oral statements admitted two excluded in his trial should have been trial court. agreed, Appeals holding The Court of the statements were inadmissible be discovery they “did not lead to of cause conducing found to be true evidence State, guilt.” Port v. 865, (Tex.App. Dist. S.W.2d at 874 736 — 3rd 1987). interpretation This was the 38.22, Art. Sec. Appeals gave Court 865, 3(c), Port, 736 S.W.2d su V.A.C.C.P. pra. rehearing, for filed a motion State

urging Appeals reconsider the Court light interpre of this Court’s holding its 38.22, 3(c), V.A.C.C.P., of Art. Sec. tation S.W.2d set down Briddle v. 379, cert. (Tex.Cr.App.1987), 386-388 de 986, 543, nied, 109 S.Ct. 488 U.S. (1988). Appeals L.Ed.2d 573 The Court motion, gave brief men granted the State’s clung to holding tion our 38.22, original of Art. Sec. interpretation its (Tex. 3(c). Port v. Dist.1987) (Justice Gammage App. — 3rd 791-792.) dissenting, at petition granted State's This ground discretionary review on for holding Appeals erred the Court inad- were the oral statements 38.22, 3(c), Sec. V.A.C. under Art. missible reverse agree We with C.P. Zimmermann, M. Dwor- B. Albert Jack panel of decision kin, Houston, appellant. appellant’s oral Appeals that Court of Art. inadmissible under Holmes, Jr., Tim- statements Atty. Dist. John B. incrimi- 3(c), Henderson, supra, because Sec. Asst. othy Taft and Keno G. were ei- Huttash, nating facts those Houston, Robert Attys., Dist. police or failed Austin, already known ther Atty., State. State’s conduce to show the appellant. dumped body pouch. and the mail On Port, 787, supra, at 788-791. way bayou, appellant, ques- after tioning, stated that he killed the deceased A brief review of the necessary facts is by shooting her in the head a .22 begin before we our analysis. On June pistol calibre after she had escape tried to Houston officers and United upstairs from his bedroom. After search- postal inspectors States investigating ing bayou for about fifteen minutes disappearance of a postal female work- success, without appellant er in Lynbrook a cul-de-sac on was taken Hollow by Houston at Sergeant about 9:30 a.m. downtown Sauceda. All of the Col- above lier arrived at the by appellant scene and sum- was were excluded appellant’s moned to nearby by home from evidence the trial court. father, Port, son, Bernard who said that his way police station, On the to the after diabetic, missing and that there were about ten minutes of silence and in re- bullet holes in the house. Mr. Port showed sponse Sauceda, questions by to no appel- Collier some bullet holes the wall of the lant following volunteered the information: and pistol stairwell handed over know, You I fired, every- smelled don’t like it had been remember which Mr. Port had appellant’s thing happened, recovered from I room. but do remember Mr. Port give was asked to walking up his written her my gun. stairs with house, consent to search the which he did. I know she got was afraid. But I During the search a bloody tennis shoe top, see, she fell. You she was footprint was found on garage floor trying get away; so, to grabbed I her shoe, and a tennis which Mrs. Port identi- kept blouse. struggling; She so I belonging fied as appellant, to matched the went up back the stairs I and looked print. Bloodstains were also found in the down and I shooting started at her. I hallway between the front door and the times, know I many missed her but I garage. fingerprint A taken from the times, know I hit maybe her at least two doorjamb appellant’s upstairs bedroom head, on the I just don’t know. I looked was later identified as belonging to the long at her for a time. Then I went deceased. At point Mr. Port tele- downstairs and I knew she was dead. phoned an attorney who advised Mr. Port The above statement was admitted into to have the officers leave the house be- evidence at trial. appeared cause it that his son was a sus- pect. pistol Collier took the which Mr. Port made, After the above statement was given him gave it to Officer Sauce- appellant Sauceda asked how he knew da. Collier then left prepare a search responded Schatz was dead. He that he warrant. pulse. had checked her He further ex- Sauceda locked the in the trunk of plained: patrol her car and a bulletin was issued get I went to some bags, trash and I seeking appellant possible as a homicide put up. her them and tied her I then suspect. p.m. About 2:00 Sauceda was up started to clean because I was afraid standing in front of the Port’s home when my parents my would find out. I washed postal she heard a yell worker “there he up tennis shoes. I cleaned all the walls. is.” After a car chase appellant ap- car, I put my her in the trunk of I prehended in apartment complex park- just got hungry. drove around. I I ate. Appellant lot. was arrested and read got dark, When it I went there rights, his Miranda which he said he under- I you, showed and I threw her in. Appellant stood. was asked whether he Appellant postal had killed the female then stated that he carrier did not know replied, “Yeah, why he he I her.” had killed her. These statements shot He further stated that he did were not offered why not know he into evidence at had shot her and that he though would show them lant’s trial even court trial place bayou at where the had ruled them admissible. places at The statute

When Sauceda and Port arrived accused.” station, the trunk of no limitation opened upon Sauceda the manner in which placed gun she had patrol car and true the facts asserted are found top the Port on of her obtained from house Briddle, 742 S.W.2d at 388. After Brid- clipboard. appellant getting As out of dle, that oral state- is well established asked, my gun?” “Is car he lead ments made an accused need not appellant recog- asked if he Sauceda then discovery incriminating or result said, “Yes, nized it that is the one requirements long as the evidence used to kill her.” These statements were are met. statutes ques- also into evidence. Further admitted an oral the defendant made tioning of occurred at he police to officer which confession a station; however, any made statements the a murder. In the described events of from there were excluded evidence. re- course of the confession the defendant body later found at The deceased’s was lated how a co-defendant had obtained midnight January on 8th after a wrecker cut the machete which had been used to driver led to an area which rope tie the two vic- that was used to appellant’s day. car earlier that towed machete and tims. He stated the body nearby found in the victim’s taken them shotgun with when field, along bloody bags. trash An found to Dallas and that both could be fled autopsy the deceased died revealed they subsequently the aban- car that to gunshot from two wounds the head. day the doned in Dallas. Earlier that car tests later revealed that one Ballistics found, through statements made had been the fired from the .22 calibre shots was to the by co-defendant as car the pistol appellant’s recovered from residence was, inventory search a shot- and after an placed in Sauceda’s car. The officer who inven- gun was recovered. supra, 38.22, 3(c), provides Sec. Article looking the the car denied under toried properly statement re- that a warned oral seats of the car. interrogation is ad- sulting from custodial later, days the victim’s Twenty-five if it: missible mother, to her son’s she claim went or cir- contains assertions facts ... car, under the front seat found the machete true and that are found be cumstances springs and the seat. Un- between which conduce to establish defendant’s oral confession aware of the accused, as finding of se- such having the machete no idea as to whom or the instru- property creted or stolen belonged, called the assistant district she with which he the offense ment states him of her attorney in Houston and told added). (Emphasis was committed. discovery. v. Briddle This stated Court complained that defendant appeal On supra, the ex 742 S.W.2d was inadmissible be- his oral confession are for amples given in the above statute discovery of lead to the it did not cause only do not act as purposes illustrative the machete was machete because stolen con statements which a limitation on oral independently of his oral confession. found guilt and appellant’s duce to establish if items or information argued that He also, v. true. See Valtiero are shown to be an oral before are known to 260, 219 State, 153 Tex.Crim. 73 S.W.2d given the state- or statement confession some case law (Tex.Cr.App.1949). While Briddle, ment is not admissible. or state the oral confession indicates that 387; McBride at S.W.2d recovery items or ment must lead (Tex.Cr.App.1975). He further confession or information the oral before argued if machete had been discov- admissible, plainly the statute statement is as a but not an oral statement ered after requires the statement assert only that of the oral result are found or circumstances that “facts either. conduce be true and which rejected This relying by both of on the fact that the time saying contentions lant made the statements that were admit- mother, trial, appellant already machete ted at his days victim’s told shooting supported after the defendant’s about the victim with a .22 and thus the the facts asserted calibre defendant and murder, Thus, concerning already since conduced to establish his police, could not subsequent corroboration, known be “found and not majority opinion true.” The went on to incriminating nature, of the machete say police, his oral statements to the being found in the car led facts, many asserted some of being defendant’s statements admissible. which were true and some of which were Onion, Presiding Judge writing Former notably, appellant false. Most made false Court, explained for this Art. Sec. body assertions as to where the was and 3(c) in clear terms: place directed officers to where he de- placed upon The statute no limitation disposition body in detail the scribed manner which the facts asserted therewith, and his actions connection all are found to be true. If a defendant of which were determined to untrue. orally confesses to the to a murder Therefore, majority analysis the erred in its and states he had thrown the murder police already knew the truth re- well, weapon, pistol, in a certain garding only the victim’s death. It was police search the well and find the body when the of Debra Schatz later pistol, previously whose location was un- autopsy found and an revealed that she had them, problem known there is no with head, gunshot died from two wounds to the admissibility of the oral confession. and a test ballistics established that however, Suppose, police search the gun by appellant identified as the murder pistol, well and do not find the but on the weapon her, was indeed used to kill day next passing neighbor, who knows statements, corroboration, through nothing confession, of the oral dips the were found to contain true assertions of bucket in the well and it comes with or conducing facts circumstances to estab- pistol, which he turns over to the Moreover, appellant’s guilt. lish if but one police. pistol The is identified as the of the assertions within a confession is weapon. Can it be said the oral found to be true and conduces to show confession is not admissible accused, guilt of the then the confession is did not lead to the recovery of the entirety. admissible in its Marini v. police agents? or its The (Tex.Cr.App.1980). 593 S.W.2d 709 pistol by passing neighbor of the (Tex. In Santana supports the truth of the facts asserted Cr.App.1986), police a codefendant told by the defendant and conduces to estab- weapon, where that had been used dur guilt, lish his and establishes the reliabili- crime, ing the commission of the was locat ty of the confession is the concern which questioned The ed. defendant was then of the statute involved. and he also revealed the location of the Briddle, supra, at 388. weapon. defendant, appeal, on Judge Gammage As pointed complained out that his statement was inadmis Modifying police already dissent because the his to the “Order sible knew weapon Opinion Upon Discretionary Petition for was located as a result Review,” they of the information that at the time made the obtained from the co-defendant. This Court stated eventually statements that were admitted that: appellant’s into evidence at trial the where

abouts of the victim to the fallacy appellant’s argument was unknown with police appellant gave and the facts and circumstances sur is that at the time his oral rounding disappearance the victim’s were had not ascertained However, (the co-defendant’s) only suspected. that Meanes’ state- Appeals of the Court of erred ment as to location of the was true ... The information We hold that contained admissible. under (defendant’s within the and co-defen- places upon the which “no limitation” dant’s) statements was new to the manner in which the facts asserted are directly recovery and led true, found to be these weapons during used the commission of also admissible. the offense.1 Lastly, Appeals we find the Court of case, had not In instant concluding erred verified facts appellant’s part ascertained that appellant’s and circumstances con- statements were true. fessions did not conduce to establish agrees Judge This Court Gam- Port, guilt. supra, lant’s mage’s conclusion which states: holding, Ap- at 790. its the Court or Only when fact circumstance distinguished appellant’s peals erroneously corroborated the accused’s disclosure of guilt assertions asser- guilty knowledge did the fact circum- showing his tions which were conducive stance conduce to establish the accused’s guilt: guilt. David Port made assertions of claims to have Whether the defendant

facts and circumstances which were not shot the victim once or several times is knowledge within guilt. only the killer of Debra Schatz no more conducive could have known the time. at When The statement does not conduce to estab- these facts and circumstances were guilt merely lish but is an oral assertion found to be true conduced to estab- lish Port's and his assertions be- Port, erred supra. Appeals The Court of 3(c). came admissible under Sec. case when held that the instant Port, supra, at 792. 738 S.W.2d appellant’s elements within confes- verified (that ap oral Because the statement guilt were not conducive estab- sion in the pellant had shot the victim twice lishing by autopsy head later corroborated was 38.22, prong second of Art. Sec. victim) performed was that was on Y.A.C.C.P., 3(c) to estab “which conduce of facts or found to contain true assertions accused,” guilt lish the establishes conduced to circumstances which establish facts relevancy requirement for the guilt, this Court holds this appellant’s of an ac assertions the oral statements 38.22, Art. under statement was admissible relevancy requirement This was cused. 3(c), Sec. V.A.C.C.P. appellant’s inmet the instant case where appellant’s admissibility that he shot the victim oral statements “Yes, statements, gun” and my “Is that his .22 twice the head and that used her,” kill is a is the I used to pistol to shoot the victim were veri calibre Although pistol question. different discoveries, respectively, by the later fied already the officer’s control two the victim’s cause of death was statements, appellant’s appellant made the to her and that gunshot wounds head true until were not found prov ballistically his .22 calibre gun. run on the ballistics test weapon. These facts en to be the murder Therefore, is whether Briddle question within state and assertions between completely eliminates connection and were ments were found be true the manner statement made and establishing appel directly conducive to so, If then true. it was found which manner guilt by of the verification lant’s through testing of subsequent proof by appellant caused the and means gun was the gun which confirmed statement death the victim. weapon would make the portion 388. of the above is 1. The underlined longer at required 742 S.W.2d under judgments committing,

We reverse the oral statement is not Appeals appeal on direct and on admissible evidence at his trial. Shelton both 432], Tex.Crim. rehearing, Ap- v. State and remand Court of [168 (Tex.Cr.App.1959). peals points of error unan- to resolve original swered on submission. For one hundred the above almost deciding has been the law of this CLINTON, J., to substituting dissents whether an oral statement of the accused for settled mere “corroboration” construc- person Today, was admissible evidence. requirements statutory serving tion of White, explained by Judge for reasons not reliability of assertions by establish made majority opinion, author in these an accused circumstances. statutory provision, above which comes to Legislature, us from the and the above TEAGUE, Judge, dissenting. statute, interpreting the are no case-law Ordinarily, an oral statement one in longer the law of this State. Both the custody the crime about for which he is statutory provision and the case law on being held is not admissible evidence point implicitly repealed have been or over- against him at his trial. Smith v. majority opinion ruled in this cause. (Tex.Cr.App.1974); 514 S.W.2d 749 Mc I predict today that after in Texas we (Tex.Cr. Gilvery v. S.W.2d 24 “good should soon see a return to those old App.1976). days” century when the norm was An oral accused is ad- taking involuntary confessions from ac- trial, provided, evidence at his missible persons by person- cused law enforcement alia, it inter “contains assertions of facts nel, except just depend upon now it will or circumstances that are found to be badly particular how member of the law true and which conduce to enforcement sector that the end believes accused, such as the justifies the means. If he so believes of secreted property or stolen or the in- means, justifies the end strument which he states the of- statement he obtains from the accused will fense was committed.” Art. against become evidence the ac- 3(c), (My emphasis.) V.A.C.C.P. cused at the accused’s trial. An oral statement of the accused is not By majority opinion, and notwith- evidence unless in connection admissible standing Legislature what of this State with such statement the accused makes enacted, appears virtually has it that now of facts that are statements found to be any oral statement of the accused will be- true, which conduce to establish his evidence, come admissible even when 388], Pierson v. Tex.Crim. State [145 police already know of the fact or circum- (Tex.Cr.App.1943). S.W.2nd 256 stance contained within the statement and Items of evidence not found as a result the statement thus does not cause them to in-custody statements or admis find, example, for the murder or sions of the accused are not admissible crime, they already fruits of the accused, as oral confessions of the not located, or know where either is withstanding that the accused made in Therefore, possession. have same their damaging and incrimi his oral statement prosecuting attor- unless the or nating guilt of about guilty ignorance, negli- ney are both custody. being for he is held in crime which laziness, downright gence, incompetence, rner to either woodshed or be woodshed- failure Ga (Tex.Cr.App.1971). ed, etc., accused’s oral statement should, the accused’s oral statement today, always Unless after be course, just attorney embodies a fact or circum- like an evidence. Of suit, true this stance that is found be which can lose an uncontested divorce prosecuting attorney in might happen incriminates the accused in the commis- to a crime, i.e., get failing to estab- an oral statement sion of the conduces However, suspected admitted into evidence. of the crime he is accused lish filed, I happens concurring opinion regarding find he will the ad- that before missibility of the defendant’s oral really accomplish have had to hard to state- work place in opinion ment. At no is there that feat. slightest years hint that almost In the article that I wrote for the Voice or statutory subject this State’s law on the March, edition, Defense, regarding one Court’s case law kind Dissenting There Must Be a “Sometimes going to a defendant was Opinion Opinion Majority Court single overruled. Not one case of this be Texas,” pointed I Appeals of Criminal expressly implicitly either or Court was thought I was the out what obvious: in the result overruled. concurred usually appealing “There sides to are two reached, opinion. did not file a but written every every issue in case that reach- almost Judge concurring opinion, in Clinton filed a Appeals], and a es the Court Criminal [of he discussed an issue that is not up the group judges presently who make does implicated in this cause. What a sev- Appeals, different Court of Criminal judge majority opinion, judges en with two backgrounds, professional educational ex- result, concurring in the and with no dis- periences, heredity, political different and sents, Especially there not is mean? beliefs, social, eco- religious with different significantly anything opinion in the philos- backgrounds and and political nomic existing changes the then case law of this phies, expected to cannot ever be think (which years age)? is almost 100 right thinking per- any alike. Nor would maximum, me At the it seems to that this son that to occur....” I believe that want opinion non-contro- means that as just today this is as true it was 1987. versial, pretend did to make and Therefore, seen this Court’s easily as earth-shaking changes juris- our criminal unpublished published opinions in re- had, given past If it this Court’s prudence. years, is the when this cent rare occasion history, it stand to reason that doesn’t hand a unanimous Court will down at least one or more there would been judges nine voted which all filed, dissenting opinions or at least one or opinion. slightest If there chance dissenting votes cast to the more whole, opinion, part either or so, opinion? I but that did believe interpreted or misin- might erroneously So, big what’s the deal occur Briddle. or bar of this terpreted either the bench present and what causes about State, usually dissenting at one or least day majority of this Court want misin- filed, at concurring opinion or least will egregiously, to at least terpret so only in the dissenting concurring implicitly almost 100 overrule result vote will be cast. as subject, law on the well Court’s case given that when this Court It is also repeal almost 100 legislatively to act years is law that almost overrules case subject? years legislation of on this in expressly state this age usually it will point though that at least one out even opinion, and leave the reader not this very opinion of Court controversial happening. guess that is what is in most mentioned recent edition was happen, then is safe When that does not Lawyer after was hand- The Texas Briddle opinion not over- to. has assume down, opinion was handed down ed years of on the almost 100 case law ruled Briddle, same Briddle did week particular subject, is does not which what get mention in edition honorable even in happen this cause. Also, for rehear- no motion paper. Briddle, though opinion of Briddle This Court’s was filed even was, a (Tex.Cr.App.1987), my perspec- Briddle defendant Briddle, outstanding tive, represented In good example of the above. one dissenting single attorneys vote appellate was not criminal there certainly dissenting have most cast, single opin- I believe would nor was there a who rehearing for had he con- opinion, nor filed a motion ion filed to the opinion or inferred from concurring cast or a cluded single vote a there

m lay predicate that case was about to opportunity by this Court to write on the perhaps subject some of the worst law ever to of oral statements of the accused. emanate from this Court’s mouth. rejecting the defendant Briddle’s con- tention that an oral statement that he had argued Given what the State in the court made to the should not have been appeals cause, in this and now before trial, admitted into evidence at Presid- one would think ing Judge Onion stressed in his that Briddle was one of the most divided pertaining Court the facts of the case opinions controversial ever handed to the issue. history down in the yet of this Court. And get it did single dissenting opinion appears It that the deceased’s motor ve- Onion, vote. I Presiding Judge (the believe that hicle found abandoned Dallas the author of Houston). if asked murder occurred in Although back then inventory as to he whether believed that search of the vehicle Briddle was was con- going year ducted to become veteran of the one of this Dallas Court’s most Department, Police shotgun opinions down, controversial ever handed found in the motor vehicle where the defen- or at least one of the most misinterpreted it, put dant said he the veteran officer opinions or misunderstood that this Court nevertheless failed to look under the front down, has ever handed implicitly and that it so, seat of the vehicle. Had he done he years overruled almost 100 of this Court’s would have also found a machete. The case law on the subject, implicit- as well as vehicle was later turned over to the de- ly repealing almost statutory mother, ceased’s after which she found the law of this would have uttered that machete under the front seat. She turned occurs, famous comment of his: “If that police. the machete over to the In his oral amazed, color me one more time.” Had defendant told the Presiding Judge Onion foreseen how to- the machete was rope used to cut day’s majority opinion so misunderstands order to tie the deceased and another Briddle, I believe that he would have writ- individual was left in the By vehicle. ten subject further on the of the admissibil- opinion, presented no evidence was ity of an oral confession of the accused might have indicated that from the time the that led to the fruits of the crime or the placed machete was under the front seat of weapon which the accused used to commit vehicle, presumably defendant, by the crime, explaining in detail fashion what it, until the deceased’s mother found really meant when he wrote Briddle for machete had been removed from the ve- Perhaps the Court. at this later date it hicle, i.e., once the placed machete was proper would be for this Court to invite seat, under always the front remained Presiding Judge Onion to file an amicus under the front seat of the vehicle until the curiae brief in this cause so that he can Presiding deceased’s mother found it. give us personal interpretation his own Onion, Judge Court, upholding for the what he stated and held in Briddle? That the admissibility oral state- would certainly beat the heck out of what located, ment as to where the machete was get majority opinion we now from the gave hypothetical two scenarios of how this cause. might such an oral statement be admissible Therefore, let us first take a look at this evidence. The first scenario involved the Court’s just of Briddle to see what orally confessing police accused to the misinterpreted, causes it to be so or at least he murdered the deceased and thereafter misunderstood, and what causes a weapon, pistol, threw the murder in a legislatively this Court to act it information, Acting upon certain well. effectively reinterprets 38.23, 3(c), Art. police the searched the found the § well and V.A.C.C.P., overrules, implicit- at least pistol, previously whose location was un- statute, ly, only not the but almost 100 “[Tjhere police. prob- known to the is no years of this Court’s case law on the sub- admissibility lem with the of the oral con- ject, though 3(c), as [pursuant Briddle had been the first fession to Art. V.A. (390). in still lies the fact that the accused C.C.P. under those before circumstances.]” statement, Agreed! gives The scenario gives police second involved the his oral extremely factual which was sim- situation them in information the statement in Everything ilar to that found Briddle. to information that the leads new connects except is the same as in the first scenario suspected crime is accused to the he well, police go the and search the but do in the committing, tells them oral state- by the This pistol. not find failure the weapon proper- ment where the murder or find police to the murder was due ty belonging might to the deceased be lo- stupidi- incompetence, negligence, either to cated, that connects him to the murdered laziness, just With noth- ty, downright etc. victim, any the not then police did know ing changed to have from the time shown Again, only po- the the the above. reason well, put pistol the in the the the accused pistol lice find did not the the second neighbor, day passing obviously next scenario, hypothetical supra, see well lies thirsty water, dips for a drink of a bucket simply the did not do so fact that well, in the the is found after which incompetence, negligence, of either because neighbor nothing The knew in the bucket. laziness, etc., downright and not stupidity, statement, or the defendant’s oral about always because was not in the well. well, he pistol in the before saw it. the Thus, all held was that an that Briddle Presiding Judge Onion asked Briddle: directly statement need not accused’s oral said the oral confession “Can [in police to statement was lead the whom the second scenario] of, example, recovery made [directly] recovery to it did not lead might such weapon, and that agents? pistol by police or its directly, by indirectly, rather than found neigh- passing finding pistol by police. of the fact asserted supports the truth bor however, Briddle, did otherwise and conduces to establish by defendant an accused’s change the rule as when reliability guilt, and his establishes leading the fruits of the oral statement confession which is the concern of the instrumentality with which the crime We conclude that statute involved. crime committed became admissible. was [by finding of machete the deceased’s Briddle, oral In the defendant’s described under the circumstances mother] of the machete was whereabouts by the facts asserted supported reliable; only always it was truthful lant and conduced to establish incompetence, negligence, because of met. requirements of the statute were laziness, etc., downright stupidity, admitting err in the oral The court did not confession_” at the by not found (388). machete was told them the defendant location where that, given the facts and I do not believe always put it. It at the that he had finding of that related to the circumstances told the where the defendant location Briddle, seri- anyone can the machete Briddle, any if put it. that he had holding ously argue with the gone back to competent police officer a third of the machete hours, minutes, five five five the location mother, and not the deceased’s party, weeks, months, etc., 17 year after the five gave his police to defendant whom the officer, should have who veteran there was no show- oral thoroughly the interior of the ve searched where the any change the location didn’t, scene, assuming hicle, left the but found, directly re- need not property intervening circumstances confession, from the defendant’s sult exist, the machete would shown discovered and re- accidentally may be but defendant stated still been where shown who is not party, a third covered holding put it. This originally knowledge of either the have had State, Tex. in actually Richardson made statement, the instrumen- defendant’s oral 299, (1962). “We are Crim. to key whether tality, or its location. the rifle was agree that because to unable is admissible oral statement the accused’s

H3 anywhere following appel in day not found until the do not find Briddle where as to this or intended to hold lant’s statement to witness Court ever held appellant it and after had ac the defendant was located that an oral statement of officers to the scene that companied the evidence when the was admissible found as the not shown to been made knew the oral statement was before located, of oral statement.” result such weapon was where the murder pos- in murder their had the opinion by Contrary to the session, item or items of knew where an in of Judge White the court belonged property to deceased appeals in Port v. S.W.2d located, already posses- in their Dist.1987), (Tex.App.-3rd did not on rehear- the ac- sion information contained within ing original interpretation of “cl[i]ng to its cused’s statement. Y.A.C.C.P., 3(c)”, out as set Art. Sec. 379, 386- Briddle v. S.W.2d pointed out follow- Justice Aboussie (Tex.Cr.App.1987). opinion: her “It is second Port [still] submission, original merely On Justice Aboussie that the accused con- sufficient rea- appeals, of the court of her well identify prop- and claim guilt fess or even court, opinion correctly for that stat- soned erty guilt, if which would establish his following, ed the see 736 S.W.2d at 874: requirements must true.... Two [still] “There was no evidence found as a result satisfied before an otherwise inadmissible con- of oral statements which admitted in evidence may oral statement reliability firmed of the facts and cir- 3(c): First, pursuant to art. 38.22 § to permit cumstances his statement such contain a fact or cir- oral statement must to be At the oral statement admissible. not then known cumstance arrested, [appellant] time Second, found to be true. is later suspected that he had shot Schatz [the in the fact or circumstance contained state- in his the .22 home with victim] guilt must ment conduce establish possession. [Appellant’s] in their here, Under the facts established accused. only confession confirmed their belief [appellant’s] were ad- oral statements [that led to new evidence or information objection] the test mitted over did not meet found to be true tended to establish his reliability and neither of oral state- guilt. does not [appellant’s] The State cause satisfied ments admitted both [appellant’s] ges- claim statements were res (789). prerequisites admission.” these do tae of the offense and not address we [My emphasis.] [appellant’s] that matter. Since statements opinion, Justice Thereafter Abous- interrogation stemmed from custodial police knew sie set out in detail what the discovery did not evi- lead prior and did not know to when conducing to dence found to be true estab- police; made oral statements appellant’s guilt required, the state- lish why many were unrelia- ments were Justice Abous- inadmissible.” false; why some of because ble opinion appeals sie the court of in the incriminating, etc. the statements were original opinion, see 738 modifying its concluded from correctly Justice Aboussie 788-789, the follow- also stated statute, that under the the record facts misunderstanding, ing: “In order to avoid decisions, prior merely because this Court’s modify our to eliminate hereby we body and the recover the victim’s language disapproved in Briddle that he previously orally defendant stated statement, in [namely, an oral order the oral victim does not make shot the 3(c), directly under must be admissible admissible, if is estab- even discovery incrimi- to or result in lead gunshot died from a However, lished that the victim nating because Brid- evidence]. wound, does not “The statement principles relied alter the basic dle does not merely but Court, original judg- conduce by this the [court’s .on Otherwise, virtu- oral assertion unchanged.” remains ment] ally pendent all oral confessions would be admissi- means the establish that the ble, may because some stated detail be by shooting defendant murdered X X with confirmation_” (790). capable (My gun they possession the had in their emphasis.) Throughout, Justice Aboussie prior to when the defendant made his oral opinions stressed in her reasoned well statement. in order for the oral defendant’s holding by majority opinion in admissible, necessary it is be every- virtually this cause is at odds with prosecution to show that the statement thing that this Court has written almost contained, police, unknown to the incrimi- admissibility on the of a defen- facts, which, natory by if found to be true statement, dant’s oral where same con- police, would conduce to establish the making subject cerns the of a defendant guilt suspect- defendant’s of the crime he is true, assertions of fact that are found to be committing. ed of “The statute and the guilt, and which conduce to his clearly require cases thereunder decided finding property, such as secreted or stolen that the facts asserted be unknown to the the instrument with which states incriminating police and that the facts be committed, using offense was informa- quarrel premise ... We have no with the new, in the statement tion that leads to but perceive a set forth but we then unknown information. respect distinction with oral confes- sions however subtle and elongate opinion by tracing I will not (791). [Emphasis difficult to articulate.” V.A.C.C.P., 38.22, 3(c), history of Art. § original.] Onion, Presiding Judge who au- Justice made it clear in her Aboussie Court, has, up thored Briddle opinions appeals for the court of that to already done that Butler v. hold other than what she had held for (Tex.Cr.App.1973). Also S.W.2d 190 appeals effectively repeal court of would “B”, “Appendix “Appendix see A” and statute, if all takes is show opinion, are attached to this which guilt made an oral assertion of the accused are coun- borrowed police, by “I murdered X to the such as sel’s in this cause. brief shooting pistol,” X with a and this is some- Thus, only necessary it is to stress the later either in whole or how corroborated (1) following: The admission in evidence of part by police. Obviously, corrobora- of one accused or sus- always that circumstance will an oral statement tion under i.e., establish, body committing wrong find easy just pected a criminal it, by with at least bullet wound controlled statute in this and the fired from the is, show that the bullet was legislative policy of this wisdom pistol. The statement need not lead to course, Court; (2) not a matter for this anything by police. new general that oral confessions are rule is they in- inadmissible evidence because are Today, unfortunately, majority unreliable, herently so to be misun- liable legislatively do- Court votes to act fabricated, derstood, easily so hard to be so 3(c) effectively repeals of Art. so contradicted, only as an and are admissible longer It will now Y.A.C.C.P. exception general rule of exclusion. prosecution to establish necessary for the However, opinion, by today’s majority oral defendant’s oral statement con- accused are now admissi- statements of the information, incriminating which was tains reasons, opposite namely: ble for which, police, if found then unknown to reliable, inherently easily misunder- are true, conduce to establish to be would fabricated, stood, not difficult to easily suspected crime he is of com- contradict, generally ev- and are necessary under mitting. All that is now establish, idence unless the defendant can however, opinion, is that today’s majority preponderance of the evi- at least incriminating defendant make dence, should not why the oral statement “I X such as murdered shoot- through evidence. gun,” inde- be admissible ing X and that

H5 statute, related to My independent interpretation this as research of Court’s 3(c) exception, impeaching defendant with his oral state- interpretation of the how- § ment, voting ever, overruled. Those to for should be leads me conclude that almost Presiding Judge reject plea were consistently to his years Court has inter- 100 this Douglas. Onion, Judges Morrison and exception in the preted statutory the same using I the issue of defen- emphasize that manner, i.e., in-custody that oral state- pur- impeachment oral statement dant’s are admissi- guilt ments of the accused in this poses is not this Court before evidence conditioned on the statement ble as it was in Butler. leading finding the or the of fruit fruits to crime, instrumentality weapon the or historically pause point out that this I crime, was used to commit the that 3(c) has never held that a oral Court § police, or previously unknown admissible statement of accused was new, leading police to then un- but statutory merely it fit the defini known, that connects the de- information always This held that the tion. Court has suspect- the crime of which he is fendant to incriminatory assertions of facts or circum committing. of ed the oral statement stances contained within (2) (1) police, unknown to the be must be probably major- this What causes Court’s true, (3) conduce to estab found any ity opinion in this cause not to have guilt Also see lish the of accused. Self fact it real roots lies that reads as State, (Tex.Cr.App. v. opportunity though Briddle was the first 1974). regard, necessary In it is not this 3(c) interpret since that oral is before the defendant’s confession original precursor section’s was enacted. entirety in its that the ignore years If one can almost 100 of case corroborate each individual assertion Court, legislative law of this and the histo- contained within the oral confession. fact law, ry suppose I our oral confession any If the assertions fact is found way is one that one can such an that write true, the fruit of the to be such opinion. used, weapon pursuant to crime or the Briddle, however, did not overrule this statement, provided that oral such conduc statute, viewing of nor Court’s strict guilt, es to establish defendant’s expressly implicitly overrule did either or is Marini same admissible evidence. See case law almost 100 of this Court’s (Tex.Cr.App.1980). v. 593 S.W.2d 709 subject. All that held was on Briddle v. 502 S.W.2d 158 Hayes Also see statutory exception require did Baldree (Tex.Cr.App.1973); crime, weapon or that fruits (Tex.Cr.App.1989). It is the S.W.2d 676 instrumentality to commit that was used (new of the fact or circumstance character crime, or information that new police) information to the as and unknown directly must be discovered or found just and not serted the oral to whom the defendant made knowledge, must that defendant’s confession, may that same be indi- but statute, incriminating. Under the there party, rectly by a third who was found types on the of oral state no limitation perhaps statement or unaware of the oral may conduce to establish the ments had of what he found. significance even the or accused’s the manner which Roberts, dissenting opinion Judge in the to be con may be found true that would Butler, pointed out that the guilt. he filed in the accused’s duce to establish had notice that for Legislature regard, examples State the statute time, period purposes, at that time at least some for illustrative can be considered strictly always years, this Court not as limitation on oral statements However, statute, had declined to establish interpreted the but that conduce changes way single in the to find a case in which this significant yet make state Not- with the oral interpreted the statute. Court was confronted than this, leading the to find other Judge made an ment withstanding Roberts crime or items used past plea that this Court’s unsuccessful belonging anyone property to the deceased or the It should be obvious to almost victim, if the contam- this Court “swallows” property or items of- that constitut is inated merchandise that the State at- filing charges. ed reason for the tempting to sell in this it will cause Furthermore, incrimina under years of this Court to vomit almost 100 ting nature of the oral statement need not case law from the stomach of Court. be direct. It will be sufficient if it consti However, such will enable this Court to incriminating part of the State’s tutes appellant’s affirm conviction rather than theory concerning the defendant’s light it as should occur in reverse Thus, if appellant’s oral statement did past Court’s case law. discovery not lead to the of new evidence— any- It should also obvious to almost be is, example, finding physical items that for rule one that the reason for this Court’s evidence, such as the he used to regarding lies in the fact that corroboration the murder or fruit or fruits commit with person, we do not want an innocent crime, or new information derived reason, falsely confess to the whatever to statement, from the the statement is not Rogge, commission of a crime. See 0. admissible evidence. At least that was (1959). It is Why Men now com- Confess today’s majority opinion was law before War, knowledge since the mon Korean handed down. which the United States lost which correctly I find that counsel I can tell is the first as far as war argues import that “The clear of the cases lost, United States ever not because of the summed in one is word: corroboration.” part lack of desire on the of those who 3(c) import I The clear is that an add: war, their to sacrificed bodies win but oral confession is not admissible unless it is leadership of the lack of that then true, police it to shown that the found be States, existed these United we have corroboration, and an incrimina- through made more aware of the fact been alone, standing is insuffi- tory physical through psychological, as well as cient to cause oral statement become easily falsely pressures, individuals will Thus, before an oral admissible evidence. they are confess to crimes when fact admissible, guilt is the incrim- statement of of those crimes. This occurs not- innocent by, inating statement must be corroborated withstanding they the fact that had been 1) example: continuously they of the fruits of that if did brainwashed confess, and, time, crime, 2) weapon, gave enemy finding of the murder at that name, rank, more than their and serial 3) from what obtaining or new information number, prisoner a upon their release as In in- in the statement. each is contained court martialed and war would be stance, oral statement to what causes the by firing squad executed no matter the only lies in the fact that become admissible falsely confessed. why they reason know of perpetrator of the crime would facts, corroborating and these facts these facts of this cause re- stress that the reli- simply the statement to become causes appellant, who was then flect that before appellant’s coun- trustworthy. As able and arrested, missing, had issued “Thus, crystal clear the law is puts sel it: points to arrest him as a an all bulletin phys- that, dealing Schatz, corroborative suspect in the murder of one Debra Section, the items under this missing. ical evidence At body was also then whose question, time, must relate to the crime smelled pistol, a .22 which calibre fired, undiscovered recently must unknown or had been as if it had been making the police prior appellant’s par- to the defendant seized residence, of un- appellant The same is true lived. Bul- oral statement.” ents’ holes, stains, bloody tennis shoe the statement information within let blood known shoe matched the print, to find new and a tennis causes the belonged appellant print that connects the and which incriminating information from the residence. and seized he also found offense with which accused to the police, arrested After committing. suspected of \YJ police] only he confirmed their by the whether confession he was asked [the Debra, said, “Yeah, I infor- shot new killed belief and led evidence her,” he had and also stated that thrown tended true which mation found nearby bayou. body into a The latter (Court Ap- guilt.” [appellant’s lie. APPEL- was shown to be summary, the oral peals’ emphasis.) TO LANTS VERBAL RESPONSES PO- evi- admitted into that were QUESTIONING AT THE TIME OF LICE objection] been dence should have [over HIS ARREST EXCLUDED FROM WERE (1) they did not contain a excluded because Thereafter, being EVIDENCE. while driv- fact or circumstance not then known bayou by police, appel- the en to the true, police that was later found to located, falsely body lant said Debra’s was circumstance, that the fact or was he killed De- appellant was asked how had police, contained unknown the that was he shot her replied and he that had bra statements, did not conduce in the oral pistol .22 calibre when she was with a mur- appellant’s guilt the the establish parent’s pistol The inside residence. der of the deceased. pistol to be the same was later established reasonably police did the know or What ap- police that the had earlier seized oral appellant made his suspect before parents’ APPEL- pellant’s residence. police the police? statements to the When EX- LANT’S ORAL STATEMENTS WERE residence, police were appellant’s left the EVIDENCE. Enroute to CLUDED FROM they convinced, understandably by what bayou, appellant the from the stationhouse seized, appellant that had seen and was repeated the statements that he had made prime of the de- suspect the murder bay- after enroute to and he arrived at ceased, though they at that time even regard, appellant ou. In this went into body, which is no not found the deceased’s struggled detail how with and then deceased, necessary a murder con- longer to sustain shot and later cleaned Except going appellant police told the “the mess.” details viction. When mess,” deceased, THESE STATE- “cleaning up the all that this that he had killed the ADMITTED INTO EVI- MENTS WERE did was to confirm what statement DENCE. After the vehicle which police already reasonably suspicioned. riding stopped appellant was at the station- statements, po- appellant’s From lot, seeing pistol parking house after its assuredly anything did not learn lice most had, appellant custodian then officer already they not know or reason- that did my gun?” asked: “Is that The custodian Thus, suspect. prong first ably above it?, recognize you appel- asked: “Do how satisfied. As to of the test was not “Yes, that is the one that responding: lant de- appellant had hidden the and where THESE STATE- kill I used to her [with].” appellant lied to the body, ceased’s INTO WERE ADMITTED EVI- MENTS body put he had when he told them that DENCE. obviously does satis- bayou. Such not informa- Through no assistance or new (reliabil- test prong first fy the above body later appellant, Debra’s was tion from defen- governing admissibility ity) police. autopsy An re- by the recovered appellant’s As to dant’s oral confession. gun- she had died from two vealed that identifying pistol the head. shots to used the de- weapon that he had to shoot correctly with, Justice Aboussie ceased correctly ruled that appeals court notwithstanding pointed the fact out that statements that were admit- the above oral police did not the deceased’s have not been ad- evidence should ted into time, by appel- body at this statement that “There was mitted into evidence prong satisfy second did not lant as a result no evidence found it did not conduce test because confirmed lant’s oral statements which de- guilt of the murder reliability of the facts and circumstances ceased; merely an oral assertion oral state- was permit his statement such Furthermore, already be- [Appellant’s] ... ments to be admissible pistol Appellant’s correctly points lieved that the then had counsel out possession weapon, was the their significantly change did not Briddle which occurred before made the of this State regarding well-settled law oral statement to them. Ballistics tests why the kinds of oral statements found police’ good suspi- confirmed the later faith that were admitted into evi- weap- cions that the the murder objection, dence over were on. hold, certainly evidence. did Briddle holding prior or even that it me, hint else,

It is obvious to if no subject cases of opinion Court, this Court on majority if noth- else, wrongly decided, simply dissenting has tracked the nor did Briddle even hint Gammage opinion by Justice of the court of case in conflict with Briddle was appeals, arguments and the State’s in this expressly overruled. However, such, in approving cause. cause, however, in this reads like Briddle realize, majority of this Court should or at first case this Court to on write recognize, acting legislative- least that it is the statute. ly, judicially. majority opinion The only requires Federal Government actually Legislative flies in the face of in- periodically us to turn our clocks back one subject, implicitly tent on the as well as hour; however, majority opinion, today’s years overruling almost 100 this Court’s obviously wrong nothing requir- with sees subject. case law on the I believe that ing us our clocks to turn back almost 100 Gammage under Justice and the State’s years, close eyes and also orders us to our arguments, long as the somehow during to what this Court has done part or corroborate either all of a defen- past years regarding almost interpret- 100 statement, no dant’s oral matter that the during statute oral statement already knew of the information that Winkle, period Rip gave through you the defendant them his state- of time. Van are ment, this will nevertheless render the en- yet? majority awake wants speak tire statement admissible. also believe you you enjoyed your with to learn how prosecutors trial that once and the long sleep. fully comprehended they can how far conclusion, might argue one opinion, dealing majority run with the majority Judge opinion by White is advo- persons, only accused be a will cating of “stare the overthrow decisis.” matter of time before a defendant’s oral pointed many That is I have not so. out always statement will be admissible evi- past, times in as this as far and other dence, though cor- even do not appellate go, includes courts the Su- the statement. anything within roborate States, preme Court of United “stare Finding reading a careful of such necessarily decisis” does not mean what State, 153 cases as Valtiero v. many of the Bench and members Bar of 260, (1949); 219 S.W.2d 73 Ash Tex.Crim. means. History this State teach- believe State, (Tex.Cr.App.1962); v. 362 S.W.2d 847 ley many es us other that this Court State, 887 c Bride v. 506 S.W.2d M courts, including Supreme late State, 508 (Tex.Cr.App.1975); Chase v. States, ago replaced long the United “stare (Tex.Cr.App.1974); Marini v. S.W.2d 605 Gang decisis” “Rule with the State, (Tex.Cr.App.1980), 709 593 S.W.2d Five,” members, i.e., when at least five (Tex. State, 714 1 v. S.W.2d Santana appellate majority least court at relies, Cr.App.1986), upon which the State way, decide certain that is the to vote a and some of which course, might real Of “stare decisis.” authority, easily distin upon for are

relies merely setting argue policy, guishable not elon from this I will acting legislatively, and acting thus those gate opinion by distinguishing law, writing which is the reader, judiciously, or cases, leave that but will appellate court. necessary. usual role of an if feels same is he or she

H9 (recov aggressive (Tex.Crim.App.1980) 593 To and assertive S.W.2d 709 this Court’s implic- ery majority opinion, money it at and narcotics stolen from least State, deceased); v. S.W.2d 615 Curtis itly overrules almost 100 640 pis interpreting (recovery of the (Tex.Crim.App.1982) sound case law Art. Court’s State, v. Y.A.C.C.P., tol); Alexander 3(c), 677 S.W.2d 557 and that statute’s 1983, ref’d) (re apparently solely (Tex.App. pet. precursors, in order to — Beaumont State, Black v. law, weapon); 677 covery area “policy” enact new conviction, (Tex.App. I re- 150 or to affirm S.W.2d Dist.] [1st — Houston grounds, rev’d on other 1984), 739 S.W.2d spectfully dissent. (recovery (Tex.Crim.App.1987)

240 of a bul A APPENDIX weapon); let fired the murder State, v. Aguirre (Tex.App. 502 683 S.W.2d THE AR- TRACING DEVELOPMENT OF 1984, ref’d) pet. (recovery of —San Antonio 38.22(3)(c) TICLE OF THE TEXAS v. shotgun); Anderson 701 CODE OF CRIMINAL PROCEDURE cert. de (Tex.Crim.App.1985), 868 AS RELATES STATEMENTS IT TO nied, 479 870, 239, 93 U.S. S.Ct. BY THE DIS- CORROBORATED (1986) (recovery of the victim’s L.Ed.2d COVERY OF PHYSICAL EVIDENCE parte Stansbery, body); Ex S.W.2d 643 IN CASES FROM 1912 TO MURDER rifle); (Tex.Crim.App.1986) (recovery of the (Tex.Crim. v. Santana Ortiz 68 Tex.Crim. 151 S.W. (recovery weap the murder App.1986) (1912) (recovery of the deceased’s 1056 State, v. ons); 379 Briddle 742 S.W.2d State, McClure v. watch); body and 100 denied, 488 U.S. (Tex.Crim.App.1987), cert. 545, (1925) (recov Tex.Crim. 272 S.W. 157 543, 573, (1988) 986, 109 102 L.Ed.2d S.Ct. vehicle); ery of murder and de (recovery of machete stolen from the State, 28, v. Williams 115 Tex.Crim. 27 crime); Cor ceased and used commit the (1930) (recovery 233 of deceased’s S.W.2d State, v. (Tex.App.— dova 754 S.W.2d 502 State, v. Stelman body spots); and blood 1988, pet.) (recovery no of San Antonio 330, (1933) 123 Tex.Crim. 58 831 S.W.2d spatters, discovery of automobile and blood (recovery body of the deceased’s and dis casing and one of de of a .22 caliber death); Brooks v. covery of of cause State, Covington v. shoes); 754 ceased’s State, 561, 130 95 136 Tex.Crim. S.W.2d 1988, (Tex.App. S.W.2d 726 — Beaumont (1936) (recovery of instruments with (recovery pet. requested) of the murder committed); Halbert v. the crime State, v. weapons); and Perillo 758 S.W.2d State, 592, 1010 138 Tex.Crim. 137 S.W.2d (Tex.Crim.App.1988) (recovery of 567 auto State, Torres v. (1939) (recovery pistol); shotgun and stolen from the vic mobile 365, (1943) 168 265 145 Tex.Crim. S.W.2d tims). State, v. pistol); Alexander (recovery of B APPENDIX (1948) 235, 207 881 151 Tex.Crim. S.W.2d to beat (recovery the shoes used OF AR- TRACING THE DEVELOPMENT State, Valtiero v. deceased); 153 Tex.Crim. 38.22(3)(c) OF THE TEXAS TICLE 260, (recovery of the (1949) 219 S.W.2d 73 PROCEDURE CRIMINAL CODE OF State, v. hat); 453 Buchanan victim’s IT TO AS RELATES STATEMENTS (recovery (Tex.Crim.App.1970) S.W.2d 479 BY THE RECOV- CORROBORATED weapon); body of deceased’s and IN STOLEN PROPERTY ERY OF State, (Tex.Crim. v. 917 Dow 491 S.W.2d 1898 FROM NON-MURDER CASES Sim (recovery shotgun); App.1973) TO 1988 State, 504 (Tex.Crim.App.), mons v. 465 S.W.2d State, 5, 44 v. Tex.Crim. S.W. denied, Daggett 829, 39 95 S.Ct. rt. 419 U.S. ce State, Goosby v. (chickens); 106 (1898) 148 51, (1974) (recovery of 42 L.Ed.2d 54 (1927) (meat); State, 152, 291 S.W. 237 body); Brantley v. 522 Tex.Crim. deceased’s State, 301, 4 v. 109 Tex.Crim. (recovery Turner (Tex.Crim.App.1975) S.W.2d 519 State, v. (shoes); State, (1928) Sweat 58 v. Marini body); S.W.2d the deceased’s 120 Burns, Worth,

Danny D. Fort lant. 130, (1930) 115 Tex.Crim. 29 S.W.2d 756 State, fixtures); Lingo v. (plumbing 117 Vance, Atty., John Dist. and Pamela Sul- 582, (1931) (car);

Tex.Crim. 35 153 S.W.2d Berdanier, Dallas, Atty., livan Asst. Dist. State, 118, Wright v. 137 Tex.Crim. 128 Huttash, Austin, Atty., State’s Robert State, (1939) (cattle); Wade v. 61 S.W.2d the State. 69, (1939) 138 Tex.Crim. 134 S.W.2d 245 (stolen $50.00); property with a value over State,

Lovell v. 134, 138 Tex.Crim. 134 State, (hat); v. (1939) Smith

S.W.2d 266 637, (1952)

157 Tex.Crim. 253 S.W.2d 665 State, Tawater v.

(currency jewelry); (Tex.Crim.App.1966)

408 S.W.2d State, Rayford v. (truck); 423 S.W.2d 300 PETITION FOR OPINION ON STATE’S v. (Tex.Crim.App.1968) (purse); Wilson DISCRETIONARY REVIEW State, (Tex.Crim.App.1971) 473 S.W.2d 532 State, v. (vehicle); Cavett 505 S.W.2d 289 PER CURIAM. machine, (Tex.Crim.App.1974) (keys, stamp appellant plead guilty to the offense machine, watch); v. Waller adding possession phenylacetone1 State, (Tex.Crim.App.1983) 648 S.W.2d 308 judge punishment at 15 assessed radio, items); (typewriter, and other stolen Department the Texas of Corrections.2 On Salazar v. (Tex.App. 648 S.W.2d appellant argued direct he was “be appeal, 1983, (television set); pet.) —Austin (Tex. Gauldin ing illegally liberty by restrained Crim.App.1984) (currency); Miller v. post legislation ex facto under which he (Tex.App. Corpus 687 S.W.2d 33 Christi Appeals — ob was convicted.” grounds, 1985), on other aff'd alleged to served the (ashes (Tex.Crim.App.1987) of items August possessed phenylacetone on Ochoa v. robbery); 688 S.W.2d 1985, against the and such conduct was not 1985, (Tex.App. Corpus Christi — 1, September until 1985. laws State v. (lawn mower); White pet.) Milam v. (Tex.App. 742 S.W.2d 1987, (Tex.App. — Beaumont basis, pet. granted). —Dallas On this ref’d) pet. (cigarettes). the court reversed conviction Id. at 815.

and dismissed the indictment. granted petition the State’s This Court the issue of the discretionary for review on under Tex.R. Appeals’ jurisdiction Court 40(b). MILAM, App.P., After careful review of the Appellant, Richard Charles us, and petition, the record before State’s responses par- filed the briefs and Texas, Appellee. The STATE ties, improvidently we have determined we No. 200-88. granted petition for discretion- the State’s Texas, Appeals of of Criminal ary review. En Banc. Therefore, dis- petition State’s is ordered 9,May 1990. this Court as in cases where missed. Just 27, 1990. Rehearing Denied June discretionary grant petition refuses to review, decision this cause this Court’s petition discretionary to order State’s Code, Department of Criminal Jus- Texas Safety Subtitle C 2. Now the 1. See Texas Health (West Act), tice, (Controlled Substances 481.116 Institutional Division. 1989).

Case Details

Case Name: Port v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Apr 25, 1990

Citation: 791 S.W.2d 103

Docket Number: 1187-87

Court Abbreviation: Tex. Crim. App.