Russell v. State
717 S.W.2d 7
Tex. Crim. App.
1986
Check Treatment

*1 argues request The State that the

made in instant as it untimely case 20,1982, July indigen- on made when the

cy hearing did August not conclude until argument 1982. This At without merit. appellant request

the time made his hearing indigency

initial on had concluded appellate was denied a free

record trial court. The evidence

appellant’s indigency reopened at the request.

State’s Under these circumstanc require appellant

es not make a we will request hearing again

second after the If concluded. addi desired included, testimony

tional to be could specified. 40.09, have Art. so See V.A. §

C.C.P. grounds also advances of error evidence,

dealing jury with inadmissible

misconduct, newly discovered evidence and

sufficiency of the evidence. We cannot

consider these contentions because a transcription

record does contain reporter’s during ap-

the court notes taken Hicks, supra; criminal trial. See

Barrow, supra.

Accordingly, judgment of the Court

of Appeals is reversed. For the reasons

stated, appeal is abated order that a

transcription of reporter’s *2 initially We

confessed. denied the State’s petition discretionary for review. How- ever, upon rehearing, granted review to 1) determine whether the Court of the Brown test under applied should have facts, 2) the instant and the test whether was correctly. We need not ad- question find dress the second because we arrest, not, legal that no or oc- prior appellant’s curred Nancy Huggins, Hemphill. E. Gail Jan will and search her home.2 We reverse Dallas, appellant. for remand. Wade, Henry Atty., Jeffrey Dist. & B. January extinguishing while On Keck, Ludwick, Andy Mary Anderson & Dallas, fire in firemen house discovered Dallas, Huttash, Attys., Asst. Dist. Robert body elderly the of an female. That same Austin, Atty., State’s for the State. day, King spoke appel- with Police Officer lant, who lived across street from house, concerning burned OPINION MOTION FOR ON STATE’S telephone wires at a different house in the ON PETITION

REHEARING FOR neighborhood. Appellant same trans- REVIEW DISCRETIONARY police by ported to the station Officers Graves, King Miranda given and warn- CAMPBELL, Judge. ings, questioned and as to fire and Appellant, juvenile certified trial as voluntarily telephone Appellant cut wires. adult, jury of the an was convicted accompanied police the officers to the sta- V.T.C.A., Code, Penal offense of murder. tion. 19.02. Punishment was assessed § committing denied the murder jury years for 99 in the confinement However, and her home. was returned to Department Texas of Corrections. police to the station agreed she to return The Fifth reversed the 19, following morning. January On conviction, finding appel- that evidence picked up appellant at Officer Graves guilt suppressed lant’s should have police her to transported home product illegal of an because it was again she advised of her where station arrest, violating the Fourth Amend- thus Miranda rights. Appellant taken Russell ment.1 672 S.W.2d 583 polygraph police department’s examina- 1984). Ap- (Tex.App. The Court of —Dallas and remained there with the tion room upon the enunciated in peals relied test polygraph examiners. Illinois, Brown v. U.S. S.Ct. examination, appellant ran (1975) determining During the 45 L.Ed.2d 416 room, polygraph which was on out illegal of an arrest had not taint station, floor of the second been attenuated when consented in downtown Dallas. subsequently onto Main Street of her home and to a search Review, Discretionary place. people its Petition for right secure “The to be in their effects, houses, against argued any applica- persons, papers, specifically un- the State seizures, depends upon shall not be our reasonable searches and first of the Brown test tion issue, violated, Warrants shall but place. and no finding In its arrest cause, supported by probable tion, Oath affirma- petition Rehearing, its after initial Motion place describing particularly to be denied, specifically notes: had been searched, things persons be and the does concede “The State not Const.Amend IV. seized." U.S. [ajppellant in the instant to the station illegal arrest." case was an necessarily grant ex- of review 2. This Court’s question an arrest took tended of whether examiners Officer informed arrest was tainted the initial ar- incident, Graves of the and he them told it had rest and concluded that been tainted. go appellant. Appellant after re- soon Id. turned to the station. The record argues Ap- Court of surrounding silent as to the circumstances peals unnecessarily applied the Brown return, her return.3 Upon proven any *3 because that provided cigarettes drink a soft arrest, not, legal whether had taken and allowed to down. then Appellant calm place giving prior to her consent to search signed form, allowing a consent to officers record, examining her home.4 After the search her home. Officers searched her agree. home bloody clothing. Upon and found being search, told of the results of that When suppress a defendant seeks to appellant orally confessed to of the murder on the a evidence basis of Fourth Amend elderly the woman found in the burned violation, placed ment has house. At point, appellant for- proof of initially burden the defend mally placed under arrest. then State, ant. Mattel v. 761, 455 S.W.2d 765- provided incriminating additional state- (Tex.Cr.App.1970).5 66 As the a movant in ments concerning surrounding facts evidence, suppress to motion a defendant murder. Both oral statements were re- produce must evidence defeats the writing signed duced to by appellant. presumption proper police of conduct and police The appellant’s then searched home proof shifts the of therefore burden to the again and found the hammer used kill Id., relying upon United States v. State. the deceased. 373, (5th Cir.1970) Thompson, 421 F.2d 377 The Appeals pur- Court of held that “the States, Rogers v. United 330 F.2d 535 appellant suit and to the [of (5th Cir.1964), denied, 916, cert. 379 U.S. 85 amounted to a show of official station] 265, 13 186. Cf. United 5.Ct. L.Ed.2d authority such person that ‘a reasonable v. Bachner 706 F.2d 1121, States 1125-26 have would believed that he was free to (11 Cir.1983). A defendant meets his initial ” State, v. Russell 583, leave.’ 672 S.W.2d proof establishing of a burden 1984), quoting Unit- (Tex.App. 587 —Dallas or seizure search occurred without a war- Mendenhall, ed States v. 544, 554, 446 U.S. Mattei, 766, Rog- supra, quoting rant. at 1877, 1870, (1980). 100 S.Ct. 64 L.Ed.2d 497 States, 330 F.2d, ers v. United at 542. The Court of also found that this 1) cause, “arrest” Once a defendant has established probable occured without 2) illegal creating thus an that a search or seizure occurred and Id. arrest. The obtained, of then that no warrant was the burden considered whether the evidence State.6 Id. subsequent proof obtained to that shifts If of only testimony concerning distributing 3. of the return followed federal courts proof. station came from Offi- burdens of by ap- cer Graves while he cross-examined pellant's attorney during hearing outside respect slightly standing, a 6. With different jury’s presence sup- on applies. allegation rule A mere a defendant post, press. Appendix, pp. See at 11-13. that he was a victim of seizure, search or State, disputed by if not is sufficient dispute standing challenge The State does not the claim that no a to establish search or 4. Instead, State, probable 92, cause existed. ar- the State Clemons v. 501 S.W.2d seizure. (Tex.Cr.App. 93 that, States, gues 1973), citing without sufficient to establish Jones v. United custody, 257, 725, (1960) was under 4 L.Ed.2d 362 U.S. 80 S.Ct. 697 States, 165, place. have arrest could taken and Alderman v. United 394 U.S. 89 However, 961, (1969). 22 L.Ed.2d 176 S.Ct. challenges allega statutory State defendant’s 5. Texas is silent once the law as to how tion, proof hearing proof. the burden of burden of is distributed in a on a the defendant carries 28.01, 1(6), suppress. appeals applies motion to See V.A. least one Art. Id. At federal court § Court, therefore, seemingly C.C.P. This has to all raised under this standard issues Bachner, adopted, respects, States at least in some the rules Fourth Amendment. United v. 10 warrant, Supreme developed an a Court has produces evidence of a proof objective determining to the de- shifted back

burden invalidity person of the war- has fendant show been seized: State, 675 517, Rumsey v. S.W.2d rant. person We conclude that a has been (Tex.Cr.App.1984), quoting United 520 meaning of “seized” within the F.2d, Thompson, 421 v. See States if, only Amendment in view of all Fourth 443, Hampshire, 403 Coolidge v. New U.S. surrounding the inci- the circumstances 564, 29 91 L.Ed.2d S.Ct. dent, person would have reasonable States, v. (1961); leave, United Williams he was not free to believed that (5th Cir.1967). If F.2d Examples of circum- [footnote omitted] warrant, produce evidence unable to seizure, even might stances that indicate prove the then it must reasonableness attempt did not where LaLande or seizure. the search leave, presence threatening would be the (Tex.Cr.App.1984); 676 S.W.2d officers, weap- display several *4 State, 762, (Tex. Hooper v. S.W.2d 767 533 officer, touching physical on an some (Opinion Rehearing); on Cr.App.1976) citizen, of of of the or the use State, 240, 242 Washington v. S.W.2d 518 indicating of that language or tone voice (Tex.Cr.App.1975). compliance request the officer’s with compelled, might be omitted] [citations case, appellant had In the instant evidence, In the absence some such of 1) proving sei burden of that a the initial a inoffensive contact between otherwise 2) a warrant.7 zure occurred and without police can- public and the member testimony it obvi From Officer Graves’ law, not, a of amount to as a matter How no warrant was obtained. ous that person, [emphasis seizure of that added] ever, support to there is evidence Mendenhall, U.S;, v. 446 at United States appellant was “seized” conclusion that v. also Florida 555,100 S.Ct., at 1877. See running from the after sometime 491, 1319, 75 Royer, 460 103 S.Ct. her U.S. returning giving station and before (1983). 229 a of her home. L.Ed.2d consent to search Mattei, prove appears the defendant consented supra. supra, it that failed to that Prior to majority's suppres Contrary rule all mischar- Court also followed this his seizure. this P.J., id., (Onion, argument, 766 dissent sion issues. See the exist- of the State’s acterization ing). depend upon not whether ence of a seizure did of given been or not. The existence consent had 125, (Tex. Gregg 667 S.W.2d 128 Cf. v. upon es- depended whether the facts a seizure argued Gregg, that a Cr.App.1984). In upon the restraint defend- tablished a sufficient held to a seizure. We defendant "consented” de- existence of consent ant’s freedom. The place because the State seizure had taken that a upon pended whether the facts established Id., citing consent did establish defendant’s not voluntary choice. made a free defendant 543, 548, Carolina, U.S. 88 Bumper v. North facts, upon question rely similar While the two 1792, (1968). L.Ed.2d 797 That S.Ct. holding, questions. separate are result, arguably did correct its while tangling a By question of whether seizure accurately state the law. question of whether consent with the occurred Carolina, Bumper supra, a defend- v. North given, shortcircuited this Court to establish that presented ant sufficient facts proof is of distrib- in which the burden manner a warrant. been searched without his home had suppress that, a evidence. uted in motion to responded a search then while The State proof warrantless until a has no burden of place, necessary be- State no warrant had taken initially proven de- grandmother had consent- search seizure the defendant’s cause ed Supreme distinguish failing the facts es- By Court held that search. The fendant. prove the defendant’s estab- tablishing the State failed seizure from the an initial freely voluntarily grandmother consent, Gregg, consented. lishing the Court in lack however, Notably, determined the Court first must mistakenly implied supra, that the place. had taken that a search extent place. To the prove that a seizure Likewise, Gregg, supra, defendant upon the Gregg, burden places the initial war- presented establish that a sufficient facts to sei- prove search a warrantless State to place. The State taken seizure had rantless place, overruled. it is zure took making the use consent as basis for chose to legal. majority held that the State seizure

H confession, case, appellant In the presented Appeals instant should not concerning appellant’s no evidence the circumstances have found that consent was of her “seizure.”8 Neither nor exploitation of obtained an arrest. operators Appel- Therefore, testified. Ap- we find that the Court of attorney lant’s did Officer on ask Graves peals should not have the Brown placed cross-examination whether she was test in case. the instant being brought under back arrest remains, however, ap The issue testified, station. Officer Graves was, fact, freely investiga- “At that she was time still under voluntarily given. See Bus Schneckloth v. wire, tion for the but tamonte, U.S. S.Ct. go get I main reason had them (1973); Bumper 36 L.Ed.2d 854 period mind because her at that time Carolina, supra. Necessarily, North hysterical and I was worried about her admissibility issue con During safety.” subsequent questioning, fession also If remains. the consent stated, point Officer Graves “At the in time involuntary, search was then the confes I immediately when arrested Donna was might product sion be the voluntary after first statement.” Illinois, supra. See Be search. Brown v. might While infer from Officer cause did the Court of not decide testimony Graves' that he intended issues, we must these remand cause to polygraph operators to restrain the Court of for further considera and force her return to the sta tion. *5 tion, except such evidence “is irrelevant judgment We reverse the may conveyed insofar as that have to Appeals and remand this cause to that [appellant].” United States v. Men court ad- for further consideration denhall, U.S., S.Ct., at n. at missibility resulting evidence from n. 6. has offered evi to search. she dence that was aware of Officer Graves’ intentions. has She also offered CLINTON, MILLER, JJ., TEAGUE and no evidence she physically threat dissent. restrained, intimidated, ened or verbally compelled otherwise by others to to APPENDIX and remain at the station. being questioned This is Officer Graves This Court could only ap- conclude that by appellant’s attorney: pellant specu- was “seized” in indulging Q. did to you When first talk Donna as lation to what convinced to Monday Was Russell? 18th? return to the station and remain. Yes, ma’am; it A. was while we were might such While a conclusion be an attrac- investigating still at the scene the fire to question, tive solution a difficult it death. require ignore would to its re- sponsibility questions to decide based on her, believe, Q. you I at And talked to presented as the record. Evans v. briefly? her residence (Tex.Cr.App.1981). 622 S.W.2d 866 is A. That correct. Having found that failed meet Q. you When did next talk to her? proof, her burden of we must conclude that 7:30, day approximately A. The next

no Fourth seizure has been Amendment morning. o’clock in the established. Q. you to her at her resi- prior appel-

In the absence of a After talked seizure 18th, did giving subsequent Monday, her she come lant consent and dence on Bachner, supra. nothing 8. We find Cf. United States v. the record indicate that evidence. prevented presenting appellant was from such A. We her polygraph sec- tion, turned her investigator over to the again you downtown talk to her down- handling the polygraph. day? town on that Q. right. A. On the 18th? All is next When contact you thing had with her or what’s the next Q. Yes, sir. you heard about her? Yes, ma’am; she did. A. A. I heard that she had run out of the right. Q. you All And what did talk to polygraph investigators room and the had 18th, Monday, her about on downtown? go brought got up her her back offense A. We talked her about the bringing up to our office or were her back telephone wire that occurred our office. neighbor’s I residence and at her next door Q. notify you Did that she left had briefly to her about the murder. talked out of polygraph run room? Q. you Monday, did talk to her And 18th, taking polygraph you? about They A. did. Yes, ma’am; day did. later

A. Q. sug- Okay. you any did And have concerning gestions to them that? Q. Against And was she the Crimes you time talked to Persons office at the go get A. I told them her. taking polygraph? about gone? Q. you she Do And where had Yes; A. she was. know? poly- Q. you And did tell her what the A. had run out on the street She concern, type what of of- graph would down, believe, running Main I Street. fense? Q. run to Main Street from And Yes, A. ma’am. polygraph room?

Q. And what that? A. That correct. A. of murder. The offense Q. And what floor *6 room on? Q. you did tell that she would And she it? it or wouldn’t take take floor. A. I it’s on the second believe she it. A. stated would take Q. go She did officers out And then some get the street? and her from to; Q. is that She knew she didn’t have right? A. examiners went got her for me. is

A. That correct. bring up back Q. they her And did somebody Q. you your else in Did floor? the second residence department return Donna her evening Monday, They A. did. the afternoon 18th? time? Q. she under arrest Was I did.

A. I believe in- she was still under A. At that time wire, but vestigation else Q. you did or someone for the And then get was Tuesday, go so I had them her up about 7 a.m. or the main reason pick her period of time she 19th, mind at from her residence? because her her I worried about and was hysterical was myself Sergeant went A. Sherman safety. got her. got hysterical she Q. she when Was get her Q. you went out to And floor? the second up back taking polygraph? her purpose hysterical. A. still She was That correct. A. Q. hysterical? Still you got Q. you do And what did when crying. way, she put it this A. Let’s with her? downtown police station, lant to the she effec- tively for purposes seized of the fourth Q. crying? She was amendment. We ap- also conclude that That’s A. correct. illegal. detention was reach We Q. Obviously upset? this according conclusion because Right. A. King they probable and Graves had no cause to arrest until her after Q. you What did do with after her first oral suspi- statement. Reasonable brought up? back cion of crime is justify insufficient to IA. my her back to and I office interrogation though custodial even got cigarettes her a cold drink and some interrogation investigative, [citations and I let her calm down. follows, hold, It and we so omitted]. Q. And why discuss with her she ran that appellant was in arrested violation out and et cetera? rights her under the fourth amend- Yes. A. ment and that her given statements were Q. brought Was it period after she was during illegal back detention.” King that Officer obtained the con- written Id., at 587. search sent from her? findings Those and conclusions uti- were

A. That is correct. lized by Dallas of Appeals Court in Q. And did you he then leave call deciding “appellant’s challenge to the valid- morning back later that or around noon? ity consent to search ItA. was between the hours of 11 and light residence” of same factors identi- 12, sometime around there. by Supreme determining fied Q. And that’s when he told he you had whether been a confession has obtained residence, recovered some clothes from her exploitation See, e.g., of an arrest. taken them to the lab and told Green (Tex. S.W.2d personnel lab contained human Cr.App.1981)Applying to the facts blood? cause, the Dallas held A. That is correct. exploi- her consent to “was search Id., tation of an arrest.” at 588. Q. you Is that when arrested Donna? A. point At the I time when arrested rehearing filed a State Donna was immediately after the first vol- which was soon overruled written order untary statement. peti- June 1984. The then filed its *7 discretionary tion for review June 1984.

CLINTON, Judge, dissenting. Sans grounds questions for review State, in Russell v. May presented by Tex.Cr.App. mandated Rule (Tex.App. 1984), S.W.2d 583 a —Dallas 304(d)(4), petition give the does “reason for of Appeals unanimous Court concluded review,” contemplation but none within of “appellant that in custody being was 302(c), required by 304(d)(5). Rule as Rule against detained her will at time the In the is shape that PDR infirm. See gave statements,” because: Pumphrey v. (Tex. 689 S.W.2d 466 “Appellant attempted the leave Cr.App.1985). Rather, is a the “reason” station, pursued but and returned of Appeals statement that the Court erred the to the station. holdWe in holding the trial court should have pursuit the amounted to a suppressed ap the fruits of the search of of authority show official such that ‘a residence, followed two “sub- reasonable would have believed points:” first to the effect that he was not free to leave.’ omit- [citation Therefore, Appeals applying Court of in test conclude that when erred ted]. pursued Brown appel- of v. Illinois returned so, search;1 that, ing having done after an refusal of PDR the second initial amounts of the test to the Appeals “grant particular the Court to a of review” of a petition improper in an manner. The ground depends for review refused November grounds rehearing. stated in motion for ground no in There is this motion for re- rehearing instant motion for raising hearing question “the of whether for filed December 1984. Its “Ground place.” an arrest took Thus to the extent in labeled Review” the same statement presented petition it was in the State’s PDR; in the its “Reasons for “reason” review, passed discretionary that matter Rehearing” “subpoints.” the same are two However, out of the cause when we refused the PDR. are omitted and there is subtitles phrase To a we are wont to use argument Ap- Court of iterate all about how the action,” peals “police if our had characterized the the will enforce own rules relegated subject being enough, failing raise strong footnote quoted rehearing in the note in the ground sentence of in its motion for opinion. Though See, majority motion question. again, State waived the presented previ- less what had been than Pumphrey, supra. Court,

ously by this on Febru- considered I dissent. 27, 1985 five ary judges at least voted grant it. TEAGUE, J., joins. judge In due course the who drew proposed opinion drafted for the cause stated, inter alia: in

Court which was motion, argues

“In its applying

the Court of erred

the test enunciated Brown v. Illinois _to evaluating validity appel- Al-

lant’s consent to search her home. ternatively, if argues that even GAMBLE, Thomas Lee aka Thomas the Brown appropriate, Gamble, Appellant, Edward Appeals applied improp- the test er manner.” Texas, Appellee. The STATE framing rehearing, quite In the issues on opinion did al- properly proposed 1070-84. No. to how Dallas Court lude Texas, Appeals of of Criminal “po- matter of addressed and resolved the En Banc. returning appel- pursuing, lice action” in there detain- to the station house and lant 4, 1986. June grant saying, “This ing her. Court’s question review necessarily extended to the the ma- place,” an arrest took misapprehends purpose and function jority rehearing. 309(b) dictates that

Tex.Cr.App. Rule *8 briefly its rehearing “must state

grounds_" granting rehear- Whether accused; parts argument not associated with Subpoint under are A improperly subtitles, characterized development of the Brown v. viz: test; detention arrest or totality police action as an of the circumstances Illinois suggested Appellant. In the latter the of a consent to voluntariness test search; the case re- least order require "should at the Court Royer v. Florida does hearings for further to the trial court Brown-Dunaway manded application of premises critical issue." on this to search items custodial consent the court notes hearing indigency on fur- may be may nished order that he have appellate review deny- of the court’s order ing relief requested pauper’s in his Hicks, supra. oath. See RUSSELL, Appellant, Renae Donna Texas, Appellee. The STATE of No. 705-84. Texas, Criminal En Banc. May